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https://www.courtlistener.com/api/rest/v3/opinions/7217936/ | PREGERSON, Circuit Judge,
dissenting in part.
I respectfully dissent in so far as the panel denies Mr. Muncal-Clemente’s petition for review of the BIA’s denial of his application for a waiver of deportability. I believe the BIA abused its discretion by failing to consider a plainly relevant positive factor—hardship to an ailing parent— in assessing the merits of Mr. Muncal-Clemente’s application. See In re Tijam, Interim Decision 3372, 1998 BIA LEXIS 43, 11-12, 1998 WL 883735 (BIA 1998). Though the BIA, in its analysis, mentioned Mr. Muncal-Clemente’s various family members, the BIA did not consider the particular hardships his elderly dependant mother would suffer were he to be deported.1 Accordingly, I would reverse and remand.
. When weighing factors in favor of an application for a waiver of deportability, the BIA takes into account the various hardships that would he endured by family members who are United States citizens, including non-financial assistance and care provided by the applicant. In re Tijam, Interim Decision 3372, 1998 BIA LEXIS at 11-12. In the case *82before us, Mr. Muncal-Clemente, a tax auditor for the State of California, presented evidence that his 77 year-old mother, who suffers from arthritis, dizzy spells, and cataracts, would experience hardship above and beyond that of a normal adult were he to be deported. Most notably, Mr. Muncal-Clemente, who has lived with his mother since his arrival in the United States, cares for her by driving her to her medical appointments, taking off work to accompany her to the hospital in medical emergencies, picking up her medications, driving her to church, performing various household chores, and providing financial support. The record reveals that Mrs. Clemente's husband is not always able to drive her because he suffers from back problems. The record also reveals that of Mrs. Clemente's three children in the United States, Mr. Mun-cal-Clemente is the only child who assists her financially and drives her to her appointments. When asked if she would experience hardship if her son were deported, Mrs. Clemente replied "nobody is going to ... assist me in whatever I have to do.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217937/ | MEMORANDUM*
1. John Wesley Jingles (“Jingles”) contends that the evidence at trial varied from the conduct charged in the indictment since the government proved several multiple conspiracies, but not the overall, single conspiracy alleged. “The issue of whether a single conspiracy has been proved is a question of the sufficiency of the evidence.” United States v. Antonakeas, 255 F.3d 714, 723 (9th Cir.2001) (citation omitted). Sufficient evidence was adduced at trial proving a single, broad conspiracy, since Jingles “was involved in a broad project to distribute cocaine and [ ] his benefit depended on the success of the operation.” See United States v. Shabani, 48 F.3d 401, 403 (9th Cir.1995) (citation omitted).
2. Jingles’ argument that there was a material variance between the jury’s verdict and counts twenty-one and twenty-two of the indictment also fails. “[Wlhere the variance is not of a character which could have misled the defendant at trial, and there is no danger of double jeopardy ..., the variance between indictment and proof is immaterial.” United States v. Tsinhnahijinnie, 112 F.3d 988, 991 (9th Cir.1997) (citations and internal quotation marks omitted). The indictment provided sufficient notice that Jingles faced a cocaine base charge and the proof at trial did not vary from this charge. Additionally, the fact that the government was not required to prove possession of a specific substance further undermines Jingles’ argument. See United States v. Sua, 307 F.3d 1150, 1155 (9th Cir.2002).
3. Jingles contends that the district court erred when it rejected his proffered buyer/seller jury instruction. “[A] defendant is only entitled to a jury instruction on his theory of defense if his theory is supported by the law and has some foundation in the evidence.” United States v. Patterson, 292 F.3d 615, 630 (9th Cir.2002) (citation omitted). Jingles is correct that a conviction for conspiracy requires more than proof of the sale of narcotics. “[P]roof that a defendant sold drugs to other individuals does not prove the existence of a conspiracy ... Rather, conspiracy requires proof of an agreement to commit a crime other than the crime that consists of the sale itself ... Were the rule otherwise, every narcotics sale would constitute a conspiracy.” United States v. Lennick, 18 F.3d 814, 819 (9th Cir.1994) (citations and internal quotation marks omitted). However, Jingles’ theory lacked evidentiary support. The evidence reflected that Jingles operated a cocaine distribution network and was therefore not a mere buyer or seller of narcotics. The district court therefore did not err when it declined to give Jingles’ proffered buyer/seller jury instruction.
4. Sufficient evidence supported Jingles’ continuing criminal enterprise conviction, since he had “some sort of managerial responsibility” over his coconspirators. United States v. Otis, 127 F.3d 829, 834 (9th Cir.1997) (citation omitted).
5. The district court did not commit plain error by failing to instruct the jury that conspiracy is a lesser included offense of conducting a continuing criminal enterprise (CCE). Since there was sufficient evidence to support the CCE conviction, Jingles’ claim fails due to the lack of preju*84dice, or effect on the trial’s fairness or integrity. See United States v. Anderson, 201 F.3d 1145, 1149-50 (9th Cir.2000).
6. The district court did not abuse its discretion by allowing the testimonies of the DEA and IRS agents. The DEA agent’s testimony concerning the nature of drug organizations was relevant in this drug conspiracy case. Cf. United States v. Valencia-Amezcua, 278 F.3d 901, 909 & n. 5 (9th Cir.2002). The IRS agent properly summarized Jingles’ money-laundering evidence and the district court provided an appropriate limiting instruction. See United States v. Gomez-Osorio, 957 F.2d 636, 641-42 (9th Cir.1992).
7. The district court did not err in its sentencing of Jingles based on the drug quantities contained in the presentence report (“PSR”). After carefully and thoroughly considering the PSR, the district court properly adopted the PSR’s drug quantity estimations. See United States v. Whitecotton, 142 F.3d 1194, 1198-99 (9th Cir.1998).
8. The district court did not err by enhancing Jingles’ sentence pursuant to U.S.S.G. § 2D1.1(b)(1) based on constructive possession of a firearm. “To demonstrate constructive possession the government must prove a sufficient connection between the defendant and the [firearm] to support the inference that the defendant exercised dominion and control over the [firearm].” United States v. Cazares, 121 F.3d 1241, 1245 (9th Cir.1997) (citation omitted). The evidence found at Jingles’ residence sufficiently connected Jingles to the firearm to support a finding of constructive possession.
9. Jingles’ contention that the district court’s guideline calculations and sentencing enhancements violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is without merit. ‘Apprendi does not alter the authority of the judge to sentence vnthin the statutory range provided by Congress.” United States v. Shwayder, 312 F.3d 1109, 1122 (9th Cir.2002) (citations omitted) (emphasis in the original).
10. The district court did not sentence Jingles on counts one, sixteen, seventeen, and eighteen, recognizing these counts as multiplicitous in light of Jingles’ conviction on the CCE counts. However, the judgment incorrectly reflects conviction on these counts, and they were included in the calculation of the assessment in the amount of $2,900. We remand so that the district court can delete these counts from the judgment of conviction and re-calculate the assessment accordingly.
Jingles’ conviction is AFFIRMED. The sentence is VACATED and REMANDED for the sole purpose of deleting counts one, sixteen, seventeen and eighteen from the judgment and from the assessment calculation.
CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217939/ | PAEZ, Circuit Judge,
dissenting.
The majority concludes that Kaptsov is ineligible for asylum and withholding of deportation because “the record lacks evi*87dence that persecution on account of political opinion, or imputed political opinion, is a reasonable possibility.” I cannot agree with this characterization of the evidence in the administrative record, nor do I agree that Kaptsov was required to verbalize his political opinion to those he believed would persecute him in order to establish that his well-founded fear of persecution is “on account of’ his political opinion. Instead, I would grant the petition and, like the dissenting Board member, I would conclude that Kaptsov is eligible for a grant of asylum because his desertion established his political neutrality. As expressed by the dissenting Board member, Kaptsov’s desertion “was a clear manifestation of his desire to avoid participating in the atrocities which were being committed by the Russian troops” and, in my view, there is a reasonable possibility that Kaptsov would suffer persecution on account of his neutrality if he is forced to return to Russia.
In order to establish eligibility for asylum, Kaptsov must establish that he would suffer persecution in Russia on account of his political opinion. Focusing on cases where the basis for imputation of political opinion was the persecution of family members, the majority concludes that the uncertain fate of Kaptsov’s family members could not constitute a reasonable basis upon which the Russian military would impute a political opinion to Kaptsov. In so doing, the majority fails to analyze an alternative basis upon which to establish Kaptsov’s political neutrality.
We have held that political neutrality can be a “political opinion” for the purposes of evaluating a request for asylum. See Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir.1989); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1286 (9th Cir.1984). We also have recognized that military desertion as a conscientious objector, in order to avoid participating in acts condemned by the international community as contrary to the basic rules of human conduct, establishes an applicant’s political neutrality. See Barraza Rivera v. INS, 913 F.2d 1443, 1451-52 (9th Cir.1990) (“punishment based on objection to participation in inhuman acts as part of forced military service is ‘persecution’ within the meaning of 8 U.S.C. § 1101(a)(42)(A).”);1 Ramos-Vasquez, 57 F.3d at 864. Indeed, the BIA has recognized that conscientious objectors include a class of persons who are not opposed to military service generally, but have been placed in a position that requires them to betray their conscience by engaging in inhuman conduct and refuse to engage in such conduct:
[I]t is not persecution for a country to require military service of its citizens. Exceptions to this rule may be recognized in those rare cases where a disproportionately severe punishment would result on account of of the five grounds enumerated in section 101(a)(42)(A) of the Act, or where the alien would necessarily be required to engage in inhuman conduct as a result of military service required by the government.
Matter of A-G, 19 I. & N. Dec. 502, *506, 1987 WL 108955 (BIA 1987)(internal citations omitted). See also Barraza, 913 F.2d at 1451 (noting that the Office of the United Nations Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status ¶¶ 170, 171 (1979), which we consult for “assistance in understanding many concepts related to our immigration laws,” Hernandez-Ortiz v. INS, 777 F.2d 509, 514 n. 3 (9th Cir. *881995), advises that an alien may qualify for refugee status “after either desertion or draft evasion if he or she can show that military service would have required the alien to engage in acts ‘contrary to the basic rules of human conduct.’ ”)
Like the petitioner in Ramos-Vasquez, Kaptsov was “clearly not a ‘draft evader.’ ” 57 F.3d at 864. He served in the military for approximately two years before he was informed that his unit would be sent to Chechnya, and only then did he refuse to fulfill his contractual obligation to the military. The administrative record reveals that the Russian military conducted a campaign in Chechnya from 1994 to 1996 and that it demonstrated little respect for basic human rights throughout that campaign. Kaptsov clearly indicated that he was against the “unfair war” in Chechnya in his asylum application because “a lot of innocent people were being killed by Russian soldiers.” On the basis of the evidentiary record, I would conclude that the timing of his action and his change of heart, from a dutiful citizen in the process of completing his contractual military service to an individual who abandoned his obligations, were clear expressions of his refusal to participate in the Chechnyan conflict. His refusal to serve in Chechnya was a manifestation of his neutrality. See Maldonado-Cruz v. INS, 883 F.2d 788, 789, 791 (9th Cir.1989) (stating that a political asylum applicant manifested his neutrality by escaping from guerilla camp three days after the guerillas forcibly recruited him into service); Barraza, 913 F.2d at 1446, 1449 (holding that although petitioner did not verbally communicate his opposition to the military’s order, petitioner still established eligibility for asylum because he abandoned military service and fled the country to avoid participating in an inhuman act); Ramos-Vasquez, 57 F.3d at 863 (holding that after being punished for repeated refusals to execute military deserters, the petitioner expressed a political opinion by deserting his military unit). The majority’s conclusion regarding the lack of evidence upon which to impute a political opinion to Kaptsov fails to address these facts, and therefore conflicts with our case law.
Further, the evidence in the record compels the conclusion that Russian military officials will likely persecute Kaptsov if he is forced to return to Russia. Although the majority states that there is “substantial evidence that only some criminal proceedings have been initiated against deserters,” the administrative record contains evidence showing that military officials frequently commit extra-judicial killings and that their judgments are elevated above the law. See U.S. Dept. of State, Country Report on Human Rights Practices 1-2 (Feb. 2001) (“Country Report”). The Country Report also reveals that prison conditions are extremely harsh and frequently life threatening. Id. Further, the record indicates that desertion rates rose following the 1994-96 campaign in Chechnya and that criminal proceedings have been initiated against deserters. U.S. Dept, of State, Russia—Profile of Asylum Claims and Country Conditions 20-21 (Nov. 1997). On the basis of the record evidence, and in view of the renewed warfare and human rights abuses in Chechnya since August 1999, see U.S. Dept. of State, Country Report on Human Rights Practices 13 (Feb. 2001), I would conclude that Kaptsov has a well-founded fear of being persecuted in Russia for his political neutrality.
The fact that Kaptsov did not leave Russia for five years following his desertion does not change my conclusion, as I disagree with the majority’s determination that Kaptsov was able to live and work in the area for five years “without difficulty,” thereby negating an objective basis for his *89well-founded fear of persecution. As the record reflects, however, Kaptsov had to move out of his home and have friends hide him in apartments for the entire five-year period, that up to 1999, the military authorities visited his parents’ home “so many times I can’t even count” and that they continue to come looking for him “as of today,” that Russian authorities have tapped his parents’ telephone and interfered with his parents’ ability to receive mail from or send mail to Kaptsov, and that he had to bribe an official in order to leave the country.
The fact that Kaptsov was able to work in the area after he deserted the military does not undermine Kaptsov’s fear of future persecution. As he explained, “you tell people that you want to work and that’s it. They just pay you cash, nobody asks you questions about whether you are in the army, whether (indiscernible) is looking for you, or any other questions. They just, you work and they pay.” He also testified that he did not have to be registered to work and that he had four or five different jobs during those five years. Although this evidence is informative, it does not, in my view, denigrate Kaptsov’s fear of persecution should he be forced to return to Russia.
Kaptsov’s situation is therefore strikingly similar to the asylum claim we faced in Ramirez Rivas v. INS, 899 F.2d, 864, 870-71 (9th Cir.1990). There, we held that Ramirez’s ability to remain relatively unharmed while she prepared to leave the country was of only “marginal probative value.” We noted that Ramirez attempted to avoid government officials and there was no evidence that those officials had been removed from their positions of power or that they had decided that Ramirez was in fact not a guerilla supporter. See also Damaize-Job v. INS, 787 F.2d 1332, 1336 (9th Cir.1986) (holding that asylum applicant’s ability to remain in Nicaragua unharmed for two years and to obtain a passport prior to departure did not constitute substantial evidence that the applicant lacked a well-founded fear of persecution, as he remained in the country because he thought his family members had been arrested and might need his help and he feared for his life during that time). The fact that Kaptsov successfully avoided detection by Russian military officials and that he managed to five and work in Russia for five years after his desertion from the military is of only “marginal probative value” in determining whether he has a well-founded fear of persecution. Thus, in my view, Kaptsov’s credible testimony, in light of all the other evidence in the record, compels the conclusion that he has a well-founded fear of persecution. Therefore, I would conclude that Kaptsov is eligible for asylum and would grant his petition for review.
I also believe the evidentiary record demonstrates that there is a clear probability that Kaptsov, as a military deserter, would be persecuted upon his return to Russia. Thus, I would also conclude that Kaptsov is entitled to withholding of removal. Withholding of removal is mandatory if an “alien’s life or freedom would be threatened [in the country of origin] on account of race, religion, ... or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Although the standard is more rigorous than the well-founded fear standard for granting asylum, compare INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) with INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), I believe the record establishes a clear probability that Kaptsov will suffer persecution is he is forced *90to return to Russia.2
For all the above reasons, I respectfully dissent.
. Although Barraza's conclusion was based in part on “a theory of religious objection which has since been discredited, '[i]mputed political belief is still a valid basis for relief.’ " Ramos-Vasquez v. INS, 57 F.3d 857, 864 (9th Cir.1995).
. Because I would grant Kaptsov's petition with respect to asylum and withholding of removal, it is not necessary to address Kaptsov’s claim for withholding of removal and/or deferral of removal under Article 3 of the United Nations’ Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, opened for signature February 4, 1985, S. Treaty Doc No. 100-20, at 20 (1988), 23 I.L.M. 1027, 1028 (1984). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217940/ | MEMORANDUM **
Robert Nigos appeals his conviction and sentence following a guilty plea to conspiracy to import methamphetamine in violation of 21 U.S.C. §§ 952(a), 960 and 963. The government concedes plain error on account of the district court’s failure to advise Nigos that he could not withdraw from his plea even if the court declined to accept the recommendation set out in the plea agreement. Fed.R.Crim.P. 11(e)(2); United States v. Dominguez Benitez, 310 F.3d 1221, 1227 (9th Cir.2002). Accordingly, we must reverse and remand. For this reason it is unnecessary to reach Nigos’s other assignments of error.
REVERSED AND REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217941/ | ORDER *
This appeal is dismissed as moot. Appellant did not seek a stay of the underlying adversary proceedings in which appellant sought to intervene. The parties have settled the adversary proceedings and the case has been dismissed.
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217942/ | MEMORANDUM ***
Defendant-Appellant Eliezer OsegueraMedina appeals his sentence, imposed following his guilty plea for illegal reentry after deportation in violation of 8 U.S.C. § 1326(a). He argues that the prosecutor’s refusal to offer him a “fast-track” plea agreement similar to that offered to defendants prosecuted in other districts of the Ninth Circuit violated his due process and equal protection rights.
Oseguera-Medina has submitted no proof that the United States Attorney’s Office for the District of Montana engaged in intentional discrimination by declining to institute a fast-track policy akin to that in existence elsewhere, or that the prosecutor’s decision to decline to offer him a particular plea was motivated by a discriminatory purpose or intent. Therefore, he has not established a prima facie case of invidious discrimination. Wayte v. United States, 470 U.S. 598, 607-08, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); United States v. Estrada-Plata, 57 F.3d 757, 760-61 (9th Cir.1995). The decision not to offer Oseguera-Medina a “fast-track” plea and thirty-month sentence was within the prosecutor’s discretion. See United States v. Armstrong, 517 U.S. 456, 464-65, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996); United States v. Palmer, 3 F.3d 300, 305-306 (9th Cir.1993). The District Court correctly rejected Oseguera-Medina’s argument, and imposed a proper sentence. United States v. Banuelos-Rodriguez, 215 F.3d 969, 976-77 (9th Cir.2000).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217943/ | MEMORANDUM *
Derek Kaleolani AM appeals his conviction and sentence following a conditional guilty plea. We affirm.
AM was arrested when the Honolulu police, while responding to a 911 call, saw what appeared to be controlled substances, in plain view, through the open passenger door of a car that AM left running on the shoulder of Highway 1. This led to an arrest, a search warrant, and the discovery of the remainder of the evidence that resulted in this prosecution.
AM executed a written plea agreement, by the terms of which he reserved the right to appeal the denial of his motion to dismiss and his right to appeal on the ground of ineffective assistance of counsel.
Although a court has limited power to dismiss an information, dismissal is a disfavored remedy. United States v. Rogers, 751 F.2d 1074, 1076 (9th Cir.1985). The trial court did not err when it rejected AM’s motion to dismiss because the motion was based on alleged misconduct by the police that was only remotely incidental to AM’s arrest and prosecution. Accordingly, none of the grounds for exercise of supervisory powers is present in this case.
With respect to AM’s Sixth Amendment claim, this court generally will not review challenges to the effectiveness of defense counsel on direct appeal. United States v. Laughlin, 933 F.2d 786, 788-89 (9th Cir.1991). If, however, the record on appeal is sufficiently developed to permit review and determination of the issue, the court will consider the claim. United States v. Ross, 206 F.3d 896, 900 (9th Cir.2000). The record here makes it obvious that AM was not prejudiced by any deficiency in representation by his various counsel. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). “[I]f, while lawfully engaged in an activity in a particular place, police officers perceive a suspicious object, they may seize it immediately.” Texas v. Brown, 460 U.S. 730, 739, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). There is no merit to AM’s contention that his Fourth Amendment rights were violated when the police officer looked into his car through the open passenger door.
All other issues have been waived by AM pursuant to his plea agreement.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224413/ | ORDER
JAMES E. GRITZNER, Chief Judge.
This matter comes before the Court on motions to dismiss by Defendants Steven H. Davis (Davis), Stephen DiCarmine (Di-Carmine), and Joel Sanders (Sanders).1 Plaintiffs Aviva Life and Annuity Company and Aviva Life and Annuity Company of New York (collectively, Aviva) resist. A hearing on the motions was conducted on March 13, 2014. Attorneys Helen Michael, Stephen Hudson, and John Clendenin appeared on behalf of Aviva. Attorney Mary Beth Buchanan appeared on behalf of Di-Carmine; attorney Kathryn Coleman appeared on behalf of Sanders; and attorney Diana Watral appeared on behalf of Davis. Attorney Matthew Whitaker was present on behalf of DiCarmine, Sanders, and Davis (collectively, Defendants). The motions are fully submitted and ready for disposition.
I. BACKGROUND
A. Factual Background2
Davis, DiCarmine, and Sanders are former managers of Dewey and LeBoeuf *697LLP (Dewey), which was created3 in 2007 and was, until recently, one of the country’s largest law firms. Davis was the Chairman and head of the executive committee and managed Dewey’s day-to-day operations, with the ability to act with the full authority of Dewey’s Executive Committee and the authority to borrow funds on Dewey’s behalf. DiCarmine was the Executive Director of Dewey, with broad authority over Dewey’s operations. Sanders was the Chief Financial Officer of Dewey, with broad authority over Dewey’s financial affairs. Davis was a partner in the law firm, whereas DiCarmine and Sanders were salaried employees.
Shortly after Dewey’s inception in 2007, Dewey, through Davis as the firm’s chairman, offered large compensation guarantees to many of the partners without disclosing the guarantees to the public, investors, or the rest of the partners. Dewey failed to meet profit projections in 2008, so Dewey used 2009 revenues to make payments on 2008 compensation guarantees. Profits fell again in 2009, and by 2010, Dewey owed the partners approximately $100 million. Despite these problems, Dewey continued to provide additional compensation guarantees to their partners.
In 2009 and 2010, Dewey and Defendants sought out institutional investors to purchase notes issued by Dewey. Dewey and Defendants used materials to convince investors to purchase the notes which materials allegedly did not mention compensation guarantees and materially misrepresented Dewey’s true financial situation. On April 16, 2010, Aviva claims it relied on these misrepresentations in purchasing $35 million in Dewey notes (the Note Purchase Agreement).
In October 2011, DiCarmine disclosed to Dewey’s partners that approximately one hundred of Dewey’s three hundred partners had compensation guarantees. In January 2012, Davis disclosed to the partnership that the 2011 profits would not be distributed due to lower than expected profits and the deferred compensation due under the compensation guarantees. The news caused numerous partners to leave Dewey, and was quickly followed by additional revelations that Dewey had misstated its 2010 and 2011 financial statements and that Defendants had used Dewey’s profits for questioned payments to themselves and other partners.
Aviva sold the notes in May 2012, for $19,270,000, to Sea Port Group Securities, LLC (Sea Port Group).4 Sea Port Group in turn sold the notes to LJF Holdings.
On May 28, 2012, Dewey filed for Chapter 11 bankruptcy in the United States Bankruptcy Court for the Southern District of New York, No. l:12-bk-12321-MG (the Dewey Bankruptcy). The bankruptcy court confirmed Dewey’s Chapter 11 liquidation plan on February 27, 2013, No. l:12-bk-12321-ECF No. 144, and the plan became effective on March 22, 2013. LJF Holdings signed a settlement release wherein they ■ released Dewey from any *698and all liability on any securities claims L JF Holdings had the right to bring.
B. Procedural Background
Plaintiffs filed the instant action in this Court on December 14, 2012, claiming Defendants violated various federal and Iowa state securities laws connected with the sale of the Dewey notes. Defendants waived service. Plaintiffs’ claims against Defendants arise under §§ 10(b) and 20(a) of the Securities and Exchange Act of 1934, 15 U.S.C. §§ 783(b) and 78t(a), and Rule 10b-5 promulgated by the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5. Federal jurisdiction over these claims is established pursuant to 28 U.S.C. § 1331 and 15 U.S.C. § 78aa(a). Supplemental jurisdiction over Plaintiffs’ state law claims for violation of Iowa Code §§ 502.509(2) and (7) is established pursuant to 28 U.S.C. § 1367(a).
Pursuant to a Joint Stipulation, the Court entered an Order on March 7, 2013, allowing Defendants to file motions to transfer venue that did not constitute an appearance and providing that following the Court’s resolution of those motions, Defendants would have thirty days to either answer or move to dismiss Aviva’s Complaint. This Court denied Defendants’ motions to transfer venue on September 9, 2013.
Defendant Davis filed his Motion to Dismiss on October 9, 2013, as did Defendants DiCarmine and Sanders in a joint motion. Plaintiffs jointly responded to Defendants’ motions on November 20, 2013. Defendants filed their reply briefs on December 11, 2013, and Defendant Sanders filed a notice of additional authority on that date. Plaintiffs responded to the notice of additional authority on December 23, 2013. On March 11, 2014, Plaintiffs filed a request that the Court take judicial notice of a copy of a New York State Court indictment against Defendants and Zachary Warren (the Indictment), as well as a copy of the Securities and Exchange Commission’s (SEC) Complaint against Defendants, Francis Canellas, and Thomas Mul-likin in the Southern District of New York (SEC Complaint). A hearing was held in this matter on March 13, 2014, at which time the propriety of taking judicial notice of these public documents was considered, for purposes of Fed.R.Evid. 201(e), and Defendants agreed that this Court can take judicial notice of the Indictment and SEC Complaint for purposes of the present motions.
II. DISCUSSION
A. Article III Standing5
Defendants argue that Plaintiffs’ Complaint should be dismissed because Plain*699tiffs lack Article III standing to bring their claims. Defendants contend that Plaintiffs are not the proper party to bring the claims at issue because Plaintiffs sold the notes and some of their rights to a third party in May 2012. The extent of this assignment is in dispute. Plaintiffs respond that when they sold the notes to Sea Port Group, they retained the right to bring the securities claims at issue. Plaintiffs direct the Court to Section A of the Transfer Agreement, to the definition of “Transferred Rights,” which Plaintiffs assert only transferred those claims that are “permitted to be assigned under applicable law.” Davis Mem. in Support of Mot. to Dismiss, Ex. C p. 2, ECF No. 55-4. Plaintiffs assert that because the federal securities claims at issue were not assignable under applicable law, the claims must remain with Plaintiffs under settled legal principles.
First, it is widely accepted that “federal law governs the assignability of claims under the federal securities laws.” Bluebird Partners, L.P. v. First Fidelity Bank, N.A., 85 F.3d 970, 974 (2d Cir.1996) (citing In re Nucorp Energy Sec. Litig., 772 F.2d 1486, 1489 (9th Cir.1985); Lowry v. Baltimore & Ohio R.R. Co., 707 F.2d 721, 727 (3rd Cir.) (en banc) (Garth, J., concurring); In re Saxon Sec. Litig., 644 F.Supp. 465, 473-74 (S.D.N.Y.1985); Gulfstream III Assoc., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 425, 437 (3rd Cir.1993)). Second, it is widely accepted that claims under § 10(b) are not automatically assigned with the sale of securities. Id.6 However, as has been noted by other district courts, “[o]nly two courts have held that Rule 10b-5 claims may be expressly assigned.” Dobyns v. Trauter, 552 F.Supp.2d 1150, 1154 (W.D.Wash.2008) *700(citing Farey-Jones v. Buckingham, 132 F.Supp.2d 92, 100-02 (E.D.N.Y.2001); AmeriFirst Bank v. Bomar, 757 F.Supp. 1365, 1371 (S.D.Fla.1991)); see also In re Nat’l Century Fin. Enters., Inc., Inv. Litig., 755 F.Supp.2d 857, 867 (S.D.Ohio 2010) (citing Dobyns, 552 F.Supp.2d at 1154). The court in Dobyns further noted that only the Fifth Circuit had at that time held that an express assignment did not confer standing, reserving for another day whether Rule 10b-5 claims could be expressly reserved. Id. (citing Smith v. Ayres, 977 F.2d 946, 950-51 (5th Cir.1992)).
The Supreme Court case shaping the discussion as to this issue is Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 742-43, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975). In Blue Chip, the Court accepted the Bimbaum rule, which “limits the class of plaintiffs [in securities cases] to those who have at least dealt in the security to which the prospectus, representation, or omission relates .... by way of purchase or sale.” Id. at 747, 95 S.Ct. 1917 (referring to Birnbaum v. Newport Steel Corp., 193 F.2d 461 (2d Cir.1952)). There were two concerns noted by the Supreme Court in its acceptance of the Bimbaum limitation on individuals with standing to assert securities claims: (1) “the danger of vexatious litigation which could result from a widely expanded class of plaintiffs under Rule 10b-5,” and (2) evidentiary concerns with plaintiffs not directly connected to the alleged fraudulent conduct or transaction. Id. at 740-42, 95 S.Ct. 1917.
In Farey-Jones, a limited partnership had assigned its 10b-5 claim to its general partner. 132 F.Supp.2d at 101. The limited partnership only ever had one general and one limited partner, so it was a factually unique situation in which the court found that “due to the unusual circumstances of the instant express assignment, there is no likelihood that the assignment would deprive the true seller of the securities, who allegedly suffered the fraud, of its cause of action and unduly benefit someone who had not been harmed.” Id. (citation and quotation omitted). Additionally, the court reasoned that allowing the assignee to assert the securities claim would not implicate either of the concerns set forth in Blue Chip, as the general partner was involved in the securities transaction between the limited partner and the defendant, and there was no risk of strike or nuisance suits. Id. at 101-02.
In AmeriFirst, the court dealt with a court-approved settlement agreement related to five class action lawsuits between AmeriFirst’s shareholders and AmeriFirst, wherein the agreement required Ameri-First to sue its officers, directors, and outside accountants. 757 F.Supp. at 1369. The class promised to assign an undivided 20 percent interest to AmeriFirst in the securities claims alleged in the class action, and AmeriFirst promised in exchange to assign to the class an undivided 25 percent interest in AmeriFirst’s claims. Id. The court found that the Blue Chip concerns were not implicated, as “[permitting Am-eriFirst a cause of action under Rule 10b-5 based on the express assignment from the settlement class will not encourage ‘strike’ suits,” and “[allowing AmeriFirst to litigate a portion of these claims on the Class’s behalf does not make the suit a ‘nuisance.’ ” Id. at 1372. Additionally, the court found that “an express assignment by one who has standing to sue [does not] introduce the evidentiary problems present in Blue Chip.” Id.
In Smith, the plaintiff was a shareholder of a company that allegedly assigned to him the company’s Rule 10b-5 claims. 977 F.2d at 947-48. The court dismissed the plaintiffs case, as it found the action would be used by the plaintiff as a “weapon” for *701his “personal antagonisms.” Id. at 950. The court thus held that the lawsuit was akin to the strike or nuisance suits the Supreme Court discussed in Blue Chip, and additionally found that the plaintiff faced “potentially insuperable evidentiary obstacles in proving • the merits of his case.” Id. The court thus held that the plaintiff, as the assignee, was the type of remote purchaser contemplated and discouraged in Blue Chip. . Id.
Although an express assignment may be allowed in certain circumstances, those circumstances are limited by the concerns set forth in Blue Chip and have not been utilized with any frequency in other courts. Thus, there are two issues for this Court to address: (1) whether there was an express assignment of Plaintiffs’ securities claims, and (2) if there was such an express assignment, whether the Court can allow such an assignment to stand in light of the concerns in Blue Chip.
1. Express Assignment
The relevant section of the Transfer Agreement is the “Transferred Rights” definition under Section A, which states as follows:
“Transferred Rights” means with respect to each Seller’s Ownership Interest all of such Seller’s right, title and interest in, to and under the all of Securities and, to the extent related thereto: ... (iii) all claims, ... suits, causes of action, and any other right of Seller, whether known or unknown, against the Issuer, MNP, or any of their respective Affiliates, agents, representatives, contractors, advisors, or any other Person that in any way is based upon, arises out of or is related to any of the foregoing, including, to the extent permitted to be assigned under applicable law, all claims (including ... claims under any law governing the purchase and sale of, or indentures for, securities), suits, causes of action, and any other right of Seller against any attorney, accountant, financial advisor, or other Person arising under or in connection with the Financing Documents.... ”
“Transferred Rights,” Section A, Transfer Agreement, Ex. C, ECF No. 55-4 (emphasis added). Plaintiffs bring attention to the clause “to the extent permitted to be assigned under applicable law” and contend that this means Plaintiffs did not assign their right to bring the present claims against Defendants. However, the placement of this clause is problematic for Plaintiffs, as it modifies the assignee’s rights to bring claims against “any attorney, accountant, financial advisor, or other Person arising under or in connection with the Financing Documents,” but it does not appear to modify the assignment of Plaintiffs’ right to sue “the Issuer, MNP, or any of their respective Affiliates, agents, representatives, contractors, advisors, or any other Person....” Id.
Given the placement and nature of the pertinent language in the Transfer Agreement, the Court cannot discern on this record whether the contested language is “boilerplate” or if it was intentionally drafted because Plaintiffs did not intend to assign their right to bring the claims at issue. However, the plain language of the Transfer Agreement appears to provide an express assignment of those rights. Thus, the inquiry continues.
2. Application of Blue Chip Dual Concerns
The Blue Chip dual concerns must be addressed for an express assignment to provide an assignee rather than the as-, signor with the right to bring a securities claim against the alleged securities law violator. Notably, the cases cited by the parties involved an assignee attempting to bring a securities cause of action based on the transfer of the original purchaser’s *702rights to such a lawsuit. However, the Supreme Court did not limit its analysis in Blue Chip to cases where an assignee is seeking to bring a § 10b claim — rather, the concerns dealt with any party bringing such a claim. Blue Chip, 421 U.S. at 731-32, 95 S.Ct. 1917. The Blue Chip concerns are valid regardless of the party bringing suit — the Supreme Court seeks to ensure a “purchaser or seller” of the securities who experienced the alleged securities violation is the party bringing suit, as the more distant a plaintiff is from the alleged violation, the more likely it is that the Blue Chip concerns are realized. Id.
The record does not indicate whether Sea Port Group has a desire to bring any type of litigation, vexatious or not, and in fact, Sea Port Group sold the securities at issue to another entity with no attempt disclosed in this record to bring any type of suit against Defendants. Thus, the vexatious litigation concern cannot be demonstrated. However, the evi-dentiary issues created by Sea Port Group or a further assignee attempting to bring a § 10(b) claim are apparent. Sea Port Group was not involved in the Note Offering at issue, so even if Sea Port Group was somehow able to establish Article III standing to sue Defendants, it would then require the involvement of Plaintiffs to prove its case. This is in no way similar to the facts in Farey-Jones and AmeriFirst, the two cases that allowed an express assignment of a § 10(b) claim to stand. See Farey-Jones, 132 F.Supp.2d at 100; AmeriFirst, 757 F.Supp. at 1370. Due to the extremely rare nature of allowable express assignments after Blue Chip, and based on the great evidentiary concerns with Sea Port Group or its assignee bringing a § 10(b) claim against Defendants in this case, this Court will not recognize the express assignment as having assigned Plaintiffs’ right' to bring securities claims against Defendants, as Blue Chip renders such an assignment inoperable as a matter of law, and thus not “permitted to be assigned under applicable law.” “Transferred Rights,” Section A, Transfer Agreement, Ex. C, ECF No. 55-4.
Defendants argued at the hearing in this matter that even if the express assignment did not validly transfer Plaintiffs’ right to bring their securities claims, Plaintiffs did not retain the right to bring such claims due to their attempt to transfer those rights to Sea Port Group. This Court does not accept Defendants’ argument that cases precluding an assignee from bringing the claim simply allow the claim to vanish and thus preclude the pursuit of the fraud by the initially wronged party. See Bartemeier v. Central Nat. Fire Ins. Co., 180 Iowa 354, 160 N.W. 24, 28 (Iowa 1916) (stating that if an assignment is incomplete, “the assignor’s title and right of possession is indisputable”). Defendants cite Rockhill v. Jeude, No. 11-1308(BJR), 2012 WL 4882308 (W.D.Wash. Oct. 15, 2012), to support their argument that Plaintiffs lack standing due to their attempt to assign certain rights to Sea Port Group; however, without reference to Blue Chip or the central factual concerns at issue here, Rockhill only answers the generic question of whether an assignor has standing after its rights have been successfully assigned to another entity. See Rockhill, 2012 WL 4882308, at *2 (stating the rule that “[i]f Plaintiffs’ claims have been assigned, then Plaintiffs have relinquished their right to sue and this Court no longer has jurisdiction over those claims,” and finding that Plaintiffs in fact assigned certain rights such that they lacked standing to bring several of their claims against Defendants) (citing Hsu v. Allianz Life Ins. Co., 168 F.3d 499 (9th Cir. Feb. 18, 1999) (unpublished opinion)).
*703This Court finds that Plaintiffs’ claims herein were not successfully assigned in this case, as such assignment is not allowed after Blue Chip, as discussed above; thus, Rockhill is inapplicable. Rather, after finding that the express assignment is disallowed due to the application of Blue Chip and the Supreme Court’s dual concerns regarding persons bringing securities claims, this Court finds that Plaintiffs’ rights to bring its securities claims against Defendants remained with Plaintiffs. Plaintiffs therefore have standing to bring this suit.
B. Personal Jurisdiction
Defendants contend that dismissal of Plaintiffs’ Complaint is appropriate because this Court lacks personal jurisdiction over all three individual Defendants. Defendants argue that the Complaint fails to allege that Defendants manifested an intention to be subject to suit in Iowa, as any and all communication regarding the note offering was between Plaintiffs and Dewey — not the Defendants.
Plaintiffs filed suit under 15 U.S.C. §§ 78j(b) and 78t(a) of the Securities and Exchange Act of 1934. The Securities and Exchange Act provides for nationwide service of process. See 15 U.S.C. § 78aa (“... process in such cases may be served in any other district of which the defendant is an inhabitant or wherever the defendant may be found.”); see also In re Fed. Fountain, Inc., 165 F.3d 600, 602 (8th Cir.1999) (“Congress has in fact quite frequently exercised its authority to furnish federal district courts with the power to exert personal jurisdiction nationwide” (citing 15 U.S.C. § 78aa)).
As set forth by the Fifth Circuit, “when a federal court is attempting to exercise personal jurisdiction over a defendant in a suit based upon a federal statute providing for nationwide service of process, the relevant inquiry is whether the defendant has had minimum contacts with the United States.” Busch v. Buchman, Buchman & O’Brien, Law Firm, 11 F.3d 1255, 1258 (5th Cir.1994) (citations omitted). “Thus, while the Due Process Clause must be satisfied if a forum is to acquire personal jurisdiction over a defendant, sovereignty defines the scope of the due process test.” Id.
The parties do not contest that Defendants have sufficient minimum contacts with the United States. Thus, this Court has personal jurisdiction over Defendants for purposes of their federal securities claims.
With regard to Plaintiffs’ state law claims, it is well-settled outside of the Eighth Circuit that if a federal district court has personal jurisdiction over a defendant due to a federal statute that authorizes nationwide service of process, that court also has discretion to exercise “pendent personal jurisdiction” over the defendant for any state claims that “derive from a common nucleus of operative fact” as the federal claim. IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1056 (2d Cir.1993).7 The issue has been analyzed *704recently in Iowa’s Northern District in the RICO context in Armstrong v. American Pallet Leasing, Inc., 678 F.Supp.2d 827, 845-848 (N.D.Iowa 2009). Although the Eighth Circuit has not yet decided the specific issue, this Court has previously agreed with the majority of circuits to allow for pendent personal jurisdiction in situations like the one at bar. See Getter v. R.G. Dickinson & Co., 366 F.Supp. 559, 567 (S.D.Iowa 1973) (holding that given the absence of Eighth Circuit law on the issue, and based on reasoning set forth by other courts, “the better rule of law is that pendent personal jurisdiction should be allowed in a case where pendent subject matter jurisdiction is justified”).8 This Court is convinced on the basis of authority from other jurisdictions that it will remain consistent with Judge Hanson’s view in Getter and will exercise pendent personal jurisdiction over Plaintiffs’ state law claims against Defendants.
C. Settlement Release
Defendants argue that Plaintiffs’ rights to bring a securities claim were released in the Dewey bankruptcy case, as the final purchaser of the Notes — LJF Holdings— signed a settlement release wherein LJF Holdings released Dewey from any and all liability on any securities claims. Additionally, the bankruptcy court entered an order enjoining anyone from asserting released claims against Dewey and its insureds. Defendants argue that they are considered “insureds” (an issue not contested on this motion) under Dewey’s settlement release, and therefore any and all claims pertaining to the sale of the notes at issue have been released and cannot now be litigated in this Court. Plaintiffs argue that LJF Holdings could not release the securities claims, as those claims belonged to Plaintiffs and were never transferred or assigned to Sea Port Group or later LJF Holdings.
As the Court has found that there was never a valid assignment of Plaintiffs’ securities claims in the transfer of the Notes to 'Sea Port Group, it necessarily follows that LJF Holdings could not have released claims it did not have. The Settlement Release is therefore inapplicable to the matters before this Court and does not prevent Plaintiffs from bringing their securities claims against Defendants.
*705D. Failure to State a Claim Under Section 10(b)
Section 10(b) of the Securities Exchange Act, 15 U.S.C. § 78j(b), states as follows:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange ... to use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, or any securities-based swap agreement any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.
Securities and Exchange Commission Rule 10b-5, 17 C.F.R. § 240.10b-5 states as follows:
It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange,
(a) To employ any device, scheme, or artifice to defraud,
(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person,
in connection with the purchase or sale of any security.
Plaintiffs must, in their Complaint, allege “(1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation.” Minneapolis Firefighters’ Relief Assoc. v. MEMC Elec. Materials, Inc., 641 F.3d 1023, 1028 (8th Cir.2011) (quoting Stoneridge Inv. Partners, LLC v. Sci-Atl., Inc., 552 U.S. 148, 157, 128 S.Ct. 761, 169 L.Ed.2d 627 (2008)).
“The [Private Securities Litigation Reform Act] PSLRA imposes a heightened pleading standard in cases alleging securities fraud.” Lustgraaf v. Behrens, 619 F.3d 867, 873 (8th Cir.2010). “The heightened standard requires a plaintiff to ‘specify each statement alleged to have been misleading [and] the reason or reasons why the statement is misleading[.]’ ” Pub. Pension Fund Grp. v. KV Pharm. Co., 679 F.3d 972, 980 (8th Cir.2012) (quoting 15 U.S.C. § 78u-4(b)(1)) (alterations in original). “The circumstances of the fraud must be stated with particularity, including such matters as the time, place and contents of false representations, ... [t]his means the who, what, when, where, and how.” Id. (citation and quotation marks omitted) (alterations in original). “The PSLRA also reqúires a plaintiff to plead sufficient particular facts establishing scienter.” Id. (citing 15 U.S.C. § 78u-4(b)(2)(A)).
Federal Rule of Civil Procedure 9(b) requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” Fed.R.Civ.P. 9(b). “The particularity requirement [of Rule 9(b) ] entails the pleading of ‘the who, what, when, where and how: the first paragraph of any newspaper story.’ ” Martino-Catt v. E.I. duPont de Nemours & Co., 213 F.R.D. 308, 314 (S.D.Iowa 2003) (quoting Parnes v. Gateway 2000, Inc., 122 F.3d 539, 549 *706(8th Cir.1997)) (alteration in original). “However, for claims brought under Rule 10b-5 and Section 10(b), the PSLRA ‘supersedes reliance on FRCP 9(b) ... and embodies [its] standards.’ ” Id. (quoting In re Navarre Corp., 299 F.3d 735, 742 (8th Cir.2002)) (alterations in original).
“To satisfy the requirements of the PSLRA, the complaint must first specify each misleading false statement or misleading omission and explain why it is misleading.” Id. (citing 15 U.S.C. § 78u-4(b)(1) (Supp. IV 1998)). Plaintiffs must plead facts that “provide adequate basis for believing the statements were false.” Id. (citation and quotation marks omitted). “The Complaint must also state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind. Knowledge of recklessness, but not negligence, is sufficient to satisfy the 10b-5 scienter requirement.” Id. (internal citations omitted).
The group pleading doctrine (GPD) is an “exception [to the pleading requirement] premised on the assumption that in cases of corporate fraud where the false or misleading information is conveyed in prospectuses, registration statements, annual reports, press releases, or other group-published information, it is reasonable to presume that these are the collective actions of the officers.” In re Hutchinson Tech., Inc. Sec. Litig., 536 F.3d 952, 961 n. 6 (8th Cir.2008) (quoting City of Monroe Emps. Ret. Sys. v. Bridgestone Corp., 399 F.3d 651, 689 (6th Cir.2005)) (internal quotation marks omitted); see also In re Meta Fin. Grp., Inc., No. C 10-4108-MWB, 2011 WL 2893625, at *8 (N.D.Iowa July 18, 2011); In re McLeodUSA Inc. Sec. Litig., No. C02-001-MWB, 2004 WL 1070570, at *4 (N.D.Iowa Mar. 31, 2004).
Defendants argue that Plaintiffs have failed to sufficiently allege that any of the named Defendants made any specific misstatements, misrepresentations, or material omissions for purposes of their claim under § 10(b), and that the GPD did not survive passage of the PSLRA or the decision in Janus Capital Group, Inc. v. First Derivative Traders, — U.S. -, 131 S.Ct. 2296, 2302, 180 L.Ed.2d 166 (2011).
This Court, following the passage of the PSLRA, held that the GPD survived the PSLRA in cases where “the identification of individual sources of statements is unnecessary when the fraud allegations arise from misstatements or omissions in group published documents.” Martino-Catt, 213 F.R.D. at 315 (noting that “[c]ourts confronting the question have held that the PSLRA has not abolished the group pleading doctrine”) (citation and quotation marks omitted). The Court in Martino-Catt therefore found the allegation that defendants had jointly made communications set forth in “group published documents” sufficient to put the defendants on notice that they were accused of having made the allegedly fraudulent statements. Id. (“Under the group pleading doctrine, the identification of individual sources of statements is unnecessary when the fraud allegations arise from misstatements or omissions in group published documents.” (citation and quotation marks omitted)).
The Northern District of Iowa has also found that the GPD survived the PSLRA. See In re Meta Fin. Grp., 2011 WL 2893625, at *8 (finding that the GPD “does adequately tie the alleged misrepresentations and non-disclosures to the various defendants”); In re McLeodUSA, 2004 WL 1070570, at *4 (stating that “under the group-published information doctrine, plaintiffs may impute false or misleading statements conveyed in annual reports, quarterly and year-end financial results, or other group-published information to corporate officers,” so long as those officers are “clearly cognizable corporate insiders *707with active daily roles in the relevant companies or transactions” (citation and quotation marks omitted)); see also In re Raytheon Sec. Litig., 157 F.Supp.2d 131, 152-53 (D.Mass.2001) (collecting federal cases and concluding that the GPD survives the PSLRA). This Court concurs that the GPD survived the passage of the PSLRA; however, the doctrine must also survive the Supreme Court’s 2011 decision in Janus to remain viable.
In Janus, the Supreme Court stated that for purposes of § 10(b),
[T]he maker of a statement is the person or entity with ultimate authority over the statement, including its content and whether and how to communicate it. Without control, a person or entity can merely suggest what to say, not ‘make’ a statement in its own right. One who prepares or publishes a statement on behalf of another is not its maker. And in the ordinary case, attribution within a statement or implicit from surrounding circumstances is strong evidence that a statement was made by — and only by— the party to whom it is attributed. This rule might best be exemplified by the relationship between a speechwriter and a speaker. Even when a speechwriter drafts a speech, the content is entirely within the control of the person who delivers it. And it is the speaker who takes credit — or blame — for what is ultimately said.
Janus, 131 S.Ct. at 2302. The Supreme Court reiterated that “the maker of a statement is the entity with authority over the content of the statement and whether and how to communicate it. Without such authority, it is not ‘necessary or inevitable’ that any falsehood will be contained in the statement.” Id. at 2303. Further, the Supreme Court stated that its “holding also accords with the narrow scope that we must give the implied private right of action,” thus refusing to “expand liability beyond the person or entity that ultimately has authority over a false statement.” Id.
The parties agree that the Court can take judicial notice of the Indictment and SEC Complaint, which set forth statements regarding the Defendants’ authority to’ make decisions on behalf of and in the name of the law firm. The Court will therefore not require Plaintiffs to amend their pleading with this additional information for purposes of the current motion. These documents contain allegations about each of the individual Defendants in this case and provide specific statements made by each individual that tie them to a conspiracy to commit a fraudulent act. There are also allegations regarding each individual Defendant’s involvement in attempts to obtain capital from outside entities — including Plaintiffs. Based on the record before this Court, Plaintiffs’ claims survive even the heightened pleading standards set forth in Rule 9 and the PSLRA.9
E. Failure to State a Claim Under Section 20(a)
Section 20(a) of the Securities Exchange Act, 15 U.S.C. § 78t(a), states as follows:
Every person who, directly or indirectly, controls any person liable under any provision of this chapter or of any rule or regulation thereunder shall also be liable jointly and severally with and to the same extent as such controlled person to any person to whom such controlled person is liable ... unless the controlling person acted in good faith and did not directly or indirectly induce the act or acts constituting the violation or cause of action.
*708To state a claim under § 78t(a), Plaintiffs must show “(1) that a primary violator violated the federal securities laws; (2) that the alleged control person actually exercised control over the general operations of the primary violator; and (3) that the alleged control person possessed — but did not necessarily exercise — the power to determine the specific acts or omissions upon which the underlying violation is predicated.” Lustgraaf, 619 F.3d at 873 (citation and quotation omitted). The first element of the test is analyzed under the heightened pleading standards of Rule 9(b) and the PSLRA; the other two elements are analyzed under normal 12(b)(6) standards. Id. at 875, 877 (“Because federal control-person liability is dependent on control, not fraud, the heightened pleading standards instituted by the PSLRA” are not applicable to the “culpable participation” concern in other fraud cases.). Plaintiffs must therefore “allege facts demonstrating that the alleged control person actually exercised control over the primary violator’s general operations in order to state a claim for control-person liability.” Id. at 878 (citation and quotation marks omitted). The Complaint sufficiently alleges that Defendants each exercised control over Dewey’s general operations in their capacities as officers of the firm. However, the wrinkle in this case is whether Dewey must be sued by Plaintiffs as a primary violator for Plaintiffs’ control-person suit under § 20(a) for Plaintiffs’ claim to survive.
Defendants argue that Plaintiffs’ control-person claim fails because Plaintiffs are unable to establish that Dewey — the allegedly controlled person/entity — is liable to Plaintiffs. Dewey is not a party to this litigation, and in fact it is now a bankrupt and dissolved law firm; thus, Defendants contend it is impossible for Plaintiffs to establish Dewey’s liability. Plaintiffs counter with prior authority from this Court — that the primary violator’s liability is merely an element they must prove in their control-person claim.
Years ago this Court confronted this issue in Briggs v. Sterner, 529 F.Supp. 1155, 1171 (S.D.Iowa 1981), and held that “[i]n keeping with the broad remedial purpose of the securities laws, whether state or federal, the Court will not permit officers and directors of a bankrupt corporation whose actions are alleged to have contributed to that condition to avoid the possible imposition of liability under such laws by asserting the lack of a prior adjudication against the controlled person as a basis for dismissal.” The Court further held that “[t]he primary o liability of the controlled person is merely a required element of proof before a controlling person can be held vicariously liable.” Id. Briggs is still sound law, and the policy behind Judge Stuart’s reasoning in that case is likewise sound in preventing corporate control persons from eluding liability simply because their controlled entity is bankrupt or defunct.
This Court also finds the controlled entity is an element of the claim rather than a required party to the action, and that Plaintiffs have sufficiently plead their § 20(a) claim.
F. State Law Claims
Plaintiffs bring their primary liability state securities claim under Iowa Code § 502.509(2) of the Iowa Securities Act,10 which states as follows:
*709A person is bable to the purchaser if the person sells a security in violation of section 502.301 or, by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statement made, in light of the circumstances under which it is made, not misleading, the purchaser not knowing the untruth or omission and the seller not sustaining the burden of proof that the seller did not know and, in the exercise of reasonable care, could not have known of the untruth or omission.
Plaintiffs bring their secondary liability state claim for “control persons” under Iowa Code § 502.509(7), which provides for joint and several liability for specified types of individuals who control a primarily liable person, including persons who are a “managing partner, executive officer, or director,” “[a]n individual who is an employee of or associated with a [primary violator],” or a “broker-dealer, agent, investment advisor, or investment advisor representative that materially aids the conduct giving rise to the [primary liability].” Iowa Code § 502.509(7). '
Defendants contend that Plaintiffs’ state law claims are subject to the Rule 9(b) pleading standard, and that Plaintiffs’ Complaint fails to meet this standard. Plaintiffs note that Defendants have failed to identify any pleading defect as to Plaintiffs’ state law claims, and Plaintiffs contend this is because there is no such defect.
Defendants make a general assertion that Plaintiffs fab to adequately plead their state securities claims without identifying any actual flaws in Plaintiffs’ Complaint. Additionally, the parties agree that the Court can take judicial notice of the Indictment and SEC Complaint, which contain information that Plaintiffs would assuredly add to their pleading if they had the opportunity to amend their Complaint. The Court therefore views Plaintiffs’ Complaint in conjunction with the statements provided in the Indictment and SEC Complaint in determining whether Plaintiffs’ claims survive scrutiny for purposes of Defendants’ motion under Rule 12(b)(6). Based on the entire record, this Court finds that Plaintiffs have satisfied the requisite pleading standard for their state securities claims.
III. CONCLUSION
For the reasons stated, Defendants’ Motions to Dismiss, ECF Nos. 55 and 56, must be denied.
IT IS SO ORDERED.
. DiCarmine and Sanders filed a joint Motion to Dismiss and Davis filed a separate individual Motion to Dismiss. The Court will address both motions in this Order.
. In addressing a motion to dismiss for failure to state a claim under Rule 12(b)(6), the Court must "accept the factual allegations of the complaint as true" and “may consider the pleadings themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record.” Illig v. Union Elec. Co., 652 F.3d 971, 976 (8th Cir.2011) (citations and internal quotation marks omitted). All facts are taken from the Complaint and any documents for which the Court has taken judicial notice, pursuant to Fed. R.Evid. 201(b)(2), including the Securities *697and Exchange Commission Complaint filed in the United States District Court for the Southern District of New York and the Indictment returned in the Supreme Court of the State of New York, County of New York, both of which were filed on March 6, 2014, against the Defendants and other named individuals.
. The final composition of this law firm resulted from the 2007 merger of the prominent Dewey Ballantine LLP and LeBoeuf, Lamb, Green & McRae LLP.
. The agreement between Aviva and Sea Port Group (Transfer Agreement) included a section describing the rights transferred from Aviva to Sea Port Group with the notes. See infra Section II.A.l.
. The moving party must bring jurisdictional challenges based on the “face or on the factual truthfulness of [the claim’s] averments.” Titus v. Sullivan, 4 F.3d 590, 593 (8th Cir.1993). Facial challenges focus on the face of the complaint, and the Court must treat the motion under Rule 12(b)(1) similar to how it treats motions under Rule 12(b)(6) for failure to state a claim. Id. This means the Court must find the moving party “successful if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Id. (citation omitted).
Conversely, a factual challenge allows the Court to go beyond the Complaint with regard to what facts it can consider when deciding whether it has jurisdiction. See Osborn v. United States, 918 F.2d 724, 729 (8th Cir.1990). If the moving party brings a factual challenge, “there is substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the existence of its power to hear the case,” which means that "no presumptive truthfulness attaches to the plaintiff’s allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the merits of jurisdictional claims.” Id. at 730 (internal quotation marks and quotation omitted).
*699In this case, Defendants have filed a factual challenge to this Court's subject matter jurisdiction, as Defendants attached multiple exhibits to their motions to dismiss which contain factual information not included in Plaintiffs’ Complaint. "[I]f subject-matter jurisdiction turns on contested facts, the trial judge may be authorized to review the evidence and resolve the dispute on [his or her] own,” but only if the court is not determining “an essential element of a claim for relief.” Arbaugh v. Y & H Corp., 546 U.S. 500, 514, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (noting that if an essential element for plaintiff’s claim is at issue, the jury should determine whether the element is satisfied). This Court will therefore view all evidence provided by the parties to determine whether it has jurisdiction over Plaintiffs' claims unless it appears an essential element of a claim should be decided by a jury. Additionally, Plaintiffs "will have the burden of proof that jurisdiction does in fact exist.” Titus, 4 F.3d at 593, n. 1 (quoting Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.1977)). Plaintiffs must prove subject matter jurisdiction exists under the “preponderance of the evidence” standard. Thompson v. Deloitte & Touche LLP, 503 F.Supp.2d 1118, 1121 (S.D.Iowa 2007).
As this is a factual challenge to this Court’s subject matter jurisdiction under Rule 12(b)(1), the Court has utilized the exhibits attached to Defendants’ motions to dismiss and other facts alleged by the parties to determine whether it has jurisdiction. See Arbaugh, 546 U.S. at 514, 126 S.Ct. 1235; Osborn, 918 F.2d at 730.
. See also In re Nucorp Energy Sec. Litig., 772 F.2d 1486, 1490 (9th Cir.1985); In re Nat’l Century Fin. Enters., Inc., Inv. Litig., 755 F.Supp.2d 857, 867 (S.D.Ohio 2010); Dobyns v. Trauter, 552 F.Supp.2d 1150, 1154 (W.D.Wash.2008); Farey-Jones v. Buckingham, 132 F.Supp.2d 92, 100 (E.D.N.Y.2001); Sanderson v. HIG P-XI Holding, Inc., 2000 WL 1042813, at *9 (E.D.La. July 27, 2000); McEwen v. Digitran Sys., Inc., 49 F.Supp.2d 1293, 1300 (D.Utah 1999); Small v. Sussman, No. 94 C 5200, 1995 WL 153327, at *9-10 (N.D.Ill. Apr. 5, 1995); AmeriFirst Bank v. Bomar, 757 F.Supp. 1365, 1370-71 (S.D.Fla.1991); Soderberg v. Gens, 652 F.Supp. 560, 564 (N.D.Ill.1987); In re Saxon Sec. Litig., 644 F.Supp. 465, 470-71 (S.D.N.Y.1985); Rose v. Ark. Valley Env. & Util. Auth., 562 F.Supp. 1180, 1189 (W.D.Mo.1983); Indep. Investor Protective League v. Saunders, 64 F.R.D. 564, 572 (E.D.Pa.1974).
. See also Avocent Huntsville Corp. v. Aten. Int’l Co., Ltd., 552 F.3d 1324, 1339 (Fed.Cir.2008) (holding that a federal district court may exercise pendent personal jurisdiction over a party's non-patent claims so long as "they form part of the "same case or controversy” as the patent claims” (citation and quotation marks omitted)); Action Embroidery Corp. v. Atl. Embroidery, Inc., 368 F.3d 1174, 1181 (9th Cir.2004) (holding “that the actual exercise of personal pendent jurisdiction in a particular case is within the discretion of the district court,” so long as the state and federal claims arise out of the same nucleus of operative fact and the district court finds that "considerations of judicial economy, convenience and fairness to litigants’ so dictate” (citation and quotation marks omit*704ted)); United States v. Botefuhr, 309 F.3d 1263, 1273 (10th Cir.2002) (holding that “the majority of federal district courts and every circuit court of appeals to address the question have upheld the application of pendent personal jurisdiction, and we see no reason why, in certain situations, the assertion of pendent personal jurisdiction would be inappropriate”); Robinson Eng'g Co. Pension Plan & Trust v. George, 223 F.3d 445, 449 (7th Cir.2000) (holding that it was proper for the federal district court to find that it had personal jurisdiction over the RICO claims in the case when those state claims arose out of the same nucleus of operative fact as the federal securities claims under a theory of pendent personal jurisdiction); Oetiker v. Jurid Werke, 556 F.2d 1, 4 (D.C.Cir.1977) (holding that the plaintiff was able to exercise personal jurisdiction over the defendant for the plaintiff's claims that arose out of a common core of operative facts as the claims that fell within the plaintiff's claims that allowed for national service of process); Robinson v. Penn Cent. Co., 484 F.2d 553, 556 (3d Cir.1973) ("In this case, recognizing that Cabot was properly before it by virtue of extraterritorial service authorized by two federal statutes, the district court properly weighed considerations of judicial economy, convenience and fairness, and concluded that it would entertain the pendent claims. That course was within its power and the district court will also have power to dismiss the pendent claims in the future as noted above.”).
. See also WhatRU Holding, LLC v. Bouncing Angels, Inc., Civil No. 13-2745 (JNE/TNL), 2014 WL 641517, *4 (D.Minn. Feb. 19, 2014) (slip op.); Gatz v. Ponsoldt, 271 F.Supp.2d 1143, 1154 (D.Neb.2003); Rose, 562 F.Supp. at 1213.
. The Court intentionally does not reference specific allegations from the Indictment nor the SEC Complaint, leaving those judgments to counsel as the case proceeds.
. The parties conceded at the hearing that the Court need not be concerned with the choice of law provision in the Note Purchase Agreement, as the claims at issue operate apart from construction or enforcement of the underlying agreement. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224414/ | ORDER
DAVID S. DOTY, District Judge.
This matter is before the court upon the motion to transfer venue by defendant National Outdoor Leadership School (NOLS). Based on a review of the file, record and proceedings herein, and for the following reasons, the court grants the motion to transfer to the District of Wyoming.
BACKGROUND
This wrongful death dispute arises out of the September 2011 death of Thomas Plotkin during a NOLS course. NOLS is a Wyoming corporation that organizes remote wilderness expeditions for students. Compl. ¶¶ 4, 6. Brenner, as trustee for the heirs and next-of-kin of Plotkin, is Plot-kin’s mother and is domiciled in Minnesota. Id. ¶¶ 1-2.
In 2011, Plotkin enrolled in a NOLS course to be held in India. Id. ¶ 12. On April 30, 2011, Plotkin signed a document (Agreement) entitled “[NOLS] Student Agreement (Including Assumption of Risks and Agreements of Release and Indemnity).” Barton Aff. Ex. G, at 1. The Agreement refers to several other documents and states that Plotkin “ha[s] read and understood] the general information about NOLS and its courses ... including] NOLS’ Admission Policies, the statement titled Risk Management at NOLS, the NOLS Enrollment Packet and other material provided by NOLS describing or related to [his] program.” Id. at 2. The Agreement also contained a clause providing that “[a]ny dispute between [Plotkin] ... and NOLS will be governed by the substantive laws ... of the State of Wyoming, and any mediation or suit shall *714occur or be filed only in the State of Wyoming.” Id. ■ at 4. Plotkin further agreed that the terms of the Agreement would “be binding upon [him], [his] heirs, estate, executors and administrators.” Id.
On September 3, 2011, Plotkin began a thirty-day hike near the Gori Ganga River in India, accompanied by other students and NOLS staff. Compl. ¶ 22. On September 22, rainfall caused the deterioration of trail conditions. Id. ¶ 38. During the hike, Plotkin fell down a steep incline and is presumed dead. Id. ¶1¶ 42, 57.
On September 18, 2013, Brenner filed this action in Minnesota state court, alleging a wrongful death claim based on negligence, gross negligence, and willful and wanton negligence. NOLS timely removed, and moves to transfer venue to the United States District Court for the District of Wyoming or, alternatively, for dismissal on the basis of forum non conve-niens.
DISCUSSION
I. Introduction
NOLS moves to transfer under 28 U.S.C. § 1404(a), which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought....” Deciding whether to transfer under § 1404(a) in the absence of a valid forum selection clause generally “require[s] a case-by-case evaluation of the particular circumstances at hand and a consideration of all relevant factors,” including private interests. Terra Int’l, Inc. v. Miss. Chem. Corp., 119 F.3d 688, 691 (8th Cir.1997) (citations omitted). However, “[w]hen the parties have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case to the forum specified in that clause.” Atl. Marine Constr. Co. v. U.S. Dist. Court for the W. Dist. of Tex., — U.S. -, 134 S.Ct. 568, 581, 187 L.Ed.2d 487 (2013). Here, the parties contest the validity and applicability of both the Agreement and the forum selection clause it contains.
II. Choice of Law
As a threshold matter, Brenner relies on Minnesota law, while NOLS argues that Wyoming law governs the dispute as a result of the composite choice-of-law and forum selection clause in the Agreement.1 However, “[e]ven in the face of a general, contractual choice-of-law provision ... [i]f the parties wish for the application of another state’s law concerning ... procedural and remedial matters, they must expressly state it in their agreement.” Schwan’s Sales Enters., Inc. v. SIG Pack, Inc., 476 F.3d 594, 596 (8th Cir.2007) (citations omitted). In other words, because the clause does not expressly provide for the application of Wyoming law to choice-of-law, Wyoming law does not automatically control the inquiry.
In diversity cases, the court applies “the choice of law principles of the state in which the district court is located.” Highwoods Props., Inc. v. Exec. Risk Indem., Inc., 407 F.3d 917, 920 (8th Cir.2005) (citation omitted). “[A] choice-of-law determination is made on an issue-by-issue, and not ease-by-ease, basis.” Zaretsky v. Molecular Biosys., Inc., 464 N.W.2d 546, 548 (Minn.Ct.App.1990) (citation omitted). “Before applying the forum state’s choice-of-law rules, however, a trial court must first determine whether a conflict exists.” *715Prudential Ins. Co. of Am. v. Kamrath, 475 F.3d 920, 924 (8th Cir.2007) (citation omitted). A conflict of law exists if choosing the law of one state over the law of another state will determine the outcome of the case. Nodak Mut. Ins. Co. v. Am. Family Mut. Ins. Co., 590 N.W.2d 670, 672 (Minn.Ct.App.1999), aff'd, 604 N.W.2d 91 (Minn.2000).
Brenner opposes the instant motion and argues that (1) the Agreement is invalid because it lacks independent consideration; (2) the Agreement and its forum selection clause are unenforceable against her as a non-party to the contract and as trustee to Plotkin’s heirs and next-of-kin; (3) the forum selection clause is invalid because it is a contract of adhesion and (4) the forum selection clause is inapplicable to tort claims. Because the court finds no conflict between Minnesota and Wyoming law on any determinative issue relating to contract validity or interpretation, a choice of law need not be made with regard to the first two arguments and the court applies Minnesota law. As explained below, the court applies, federal law to the third argument, which concerns enforceability of the forum selection clause, and refers to Minnesota law in a limited contract interpretation inquiry. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Finally, as explained below, the court applies Wyoming law to resolve the fourth argument, which relates to interpretation of the forum selection clause.
III. Enforceability of the Contract
A. Validity
Brenner first argues that the Agreement is invalid for lack of independent consideration. NOLS responds that the Agreement is one of several documents that together constitute the contract between Plotkin and NOLS and that consideration exists for the contract as a whole. The court agrees.
As already explained, the court applies Minnesota law. Formation of a contract requires “a specific and definite offer, acceptance, and consideration.” Thomas B. Olson & Assocs., P.A. v. Leffert, Jay & Polglaze, P.A., 756 N.W.2d 907, 918 (Minn.Ct.App.2008) (citations and internal quotation marks omitted). “Consideration may consist of either a benefit accruing to a party or a detriment suffered by another party.” Id. at 919 (citations and internal quotation marks omitted). It is well-established that a contract may consist of more than one document. See S O Designs USA Inc. v. Rollerblade, Inc., 620 N.W.2d 48, 54 (Minn.Ct.App.2000); see also In re Le Borius’ Estate, 224 Minn. 203, 28 N.W.2d 157, 160 (1947) (“[W]here it is sought to make out a contract by resorting to two or more separate writings, the connection must appear from the writings themselves .... ” (citation and internal quotation marks omitted)).
Here, the Agreement included Plotkin’s representation that he “read and understood] ... NOLS’ Admission Policies, the statement titled Risk Management at NOLS, the NOLS Enrollment Packet and other material provided by NOLS,” Barton Aff. Ex. G, at 2, rendering those documents part of the Agreement. Plotkin received several benefits from the Agreement in the form of college credit and participation in the program. See Compl. ¶ 14. In return, Plotkin’s father paid tuition and other expenses charged by NOLS. See Barton Aff. Ex. H. Such benefits and detriments constitute valid consideration for the Agreement. As a result, Brenner’s argument is without merit.
B. Applicability to Non-Party Wrongful Death Trustee
Brenner next argues that, as trustee to Plotkin’s heirs and next-of-kin, she *716was not a party to the Agreement and therefore is not bound by its terms, including the forum selection clause. NOLS responds that the Agreement binds Plotkin’s heirs and, by extension, Brenner as their representative.
In a diversity action, a federal court “is obligated to apply state law as declared by statute or by opinion of the state’s highest court.” Wilson v. Colonial Penn Life Ins. Co., 454 F.Supp. 1208, 1211 n. 4 (D.Minn.1978) (citing Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938)). In the absence of a statute or a decision of such a court, the court must predict the ruling that the state’s highest court would adopt. Id.
As already explained, the court applies Minnesota law. Minnesota law is silent, however, as to whether a trustee such as Brenner is bound by a forum selection clause consented to by a decedent. Minnesota courts have, however, enforced an exculpatory agreement entered into by a decedent against the trustee for the heirs and next-of-kin of the decedent. See Dailey ex rel. Tabriz v. Sports World S., Inc., No. A03-127, 2003 WL 22234699, at *1-5 (Minn.Ct.App. Sept. 30, 2003), aff'd, 683 N.W.2d 302 (Minn.2004). Further, it is well-established that a decedent may bind his heirs by contract in certain circumstances. See, e.g., Tingue v. Patch, 93 Minn. 437, 101 N.W. 792, 794 (1904). Indeed, the plain language of the Agreement indicates that it was intended to bind Plotkin’s heirs. See Barton Aff. Ex. G, at 4. As a result, the argument that the Agreement is not binding on Brenner is unavailing.
IV. Enforceability of the Forum Selection Clause
A. Validity
Brenner next argues that the forum selection clause itself is unenforceable. Specifically, Brenner argues that the clause is unenforceable because it is a contract of adhesion and because it is unconscionable.
The Eighth Circuit “has expressed its inclination to find that federal law governs resolution of [the enforceability of a forum selection clause] in diversity cases.” U.S. Bank Nat’l Ass’n v. San Bernardino Pub. Emps.’ Ass’n, No. 13-2476, 2013 WL 6243946, at *2 (D.Minn. Dec. 3, 2013) (citations omitted); see also Atl. Marine, 134 S.Ct. at 579-80. Further, “[t]he parties do not argue that the outcome differs depending on the law applied, and so the [c]ourt evaluates the clause under federal law.” U.S. Bank Nat’l Ass’n, 2013 WL 6243946, at *2 (citation omitted).
“Forum selection clauses are prima facie valid and are enforced unless they are unjust or unreasonable or invalid for reasons such as fraud or overreaching.” M.B. Rests., Inc. v. CKE Rests., Inc., 183 F.3d 750, 752 (8th Cir.1999) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)). When “the forum selection clause is the fruit of an arm’s-length negotiation, the party challenging the clause bears an especially heavy burden of proof to avoid its bargain.” Servewell Plumbing, LLC v. Fed. Ins. Co., 439 F.3d 786, 789 (8th Cir.2006) (citation and internal quotation marks omitted). “A forum selection clause is unjust or unreasonable if: (1) the clause is the product of fraud or overreaching; (2) the party would effectively be deprived of his day in court if the clause is enforced; and (3) enforcing the clause would contravene the public policy of the forum in which suit is brought.” St. Jude Med., S.C., Inc. v. Biosense Webster, Inc., No. 12-621, 2012 WL 1576141, at *3 (D.Minn. May, 4, 2012) (citations omitted). “[T]he forum clause should control, absent a strong showing that it should be set aside *717by the party resisting enforcement.” U.S. Bank Nat’l Ass’n, 2013 WL 6243946, at *2 (citation and internal quotation marks omitted).
Brenner first argues that the forum selection clause is invalid because it is a contract of adhesion. Specifically, Brenner argues that NOLS presented the Agreement on a take-it-or-leave-it basis and that Plotkin’s signature was the result of unequal bargaining power. Adhesion contracts are “imposed on the public for [a] necessary service on a ‘take it or leave it’ basis.”2 Schlobohm v. Spa Petite, Inc., 326 N.W.2d 920, 924 (Minn.1982) (emphasis in original). “Even though a contract is on a printed form and offered on a ‘take it or leave it’ basis, those facts alone do not cause it to be an adhesion contract.” Id. “There must be a showing that the parties were greatly disparate in bargaining power, that there was no opportunity for negotiation and that the services could not be obtained elsewhere.” Id. at 924-25 (emphasis in original) (citations omitted).
Here, Brenner argues that Plotkin was a college student and that NOLS is a corporation with substantial resources and comparatively greater sophistication. Brenner does not, however, allege that there was fraud or coercion, that Plotkin unsuccessfully sought to negotiate the clause or that NOLS insisted upon its inclusion. Indeed, NOLS states that in response to previous requests by participants, “NOLS has negotiated and in many instances has agreed to change terms of an agreement, including the indemnification and forum-selection provisions.” Second Robertson Decl. ¶3. Further, Plotkin was in no way obligated to enroll in the NOLS course or agree to the terms of the Agreement, and Brenner has not argued that he could not have obtained the services offered by NOLS elsewhere. Nor does Brenner argue that NOLS provided a necessary service. As a result, the forum selection clause is not a contract of adhesion.
Brenner next argues that the contract is ambiguous because it refers to “any dispute.” Brenner does not explain, however, any way in which such language is ambiguous, and such an argument is also without merit. See Anderson v. McOskar Enters., Inc., 712 N.W.2d 796, 800-01 (Minn.Ct.App.2006). Finally, Brenner argues that enforcement of the forum selection clause would violate the public policy of Minnesota. Such an argument, however, is unavailing. See Hauenstein & Bermeister, Inc. v. Met-Fab Indus., Inc., 320 N.W.2d 886, 889 (Minn.1982) (“In support of the modern rule, persuasive public policy reasons exist for enforcing a forum selection clause in a contract freely entered into by parties who have negotiated at arm’s length.”). As a result, the argument that the forum selection clause is invalid fails.
B. Applicability to Non-Contract Claims
Brenner next argues that the forum selection clause does not apply to the instant dispute. Specifically, Brenner argues that her tort claims relate to duties owed by NOLS that do not arise from the Agreement, and therefore the terms of the Agreement do not govern the action.
*718In a transfer analysis, “a district court ... must decide whether the [forum selection] clause applies to the type of claims asserted in the lawsuit.” Terra Int’l, 119 F.3d at 692. Thus, the court interprets the forum selection clause to determine its applicability to the instant dispute. Although enforceability of a forum selection clause is analyzed under federal law, where there exist both valid forum selection and choice-of-law clauses, the substantive law identified in the choice-of-law clause governs interpretation of the forum selection clause. See Atl. Marine, 134 S.Ct. at 581 (observing that lower court “erred in failing to make the adjustments required ... when the transfer motion is premised on a forum-selection clause”); Martinez v. Bloomberg LP, 740 F.3d 211, 220 (2d Cir.2014) (“[C]ourts must apply the law contractually chosen by the parties to interpret the [forum selection] clause.”). But see Schwan’s Sales Enters., Inc. v. SIG Pack, Inc., 476 F.3d 594, 596-97 (8th Cir.2007). As already explained, the composite forum selection and choice-of-law clause in the Agreement is valid. As a result, in interpreting the forum selection clause the court applies Wyoming law — the law provided for by the clause.
‘Whether tort claims are to be governed by forum selection provisions depends upon the intention of the parties reflected in the wording of particular clauses and the facts of each case.” Terra Int’l, 119 F.3d at 693 (citation and internal quotation marks omitted). The court “interprets] contracts to effectuate the parties’ intention, as expressed in the language of the agreement.” Hunter v. Reece, 253 P.3d 497, 503 (Wyo.2011) (citation and internal quotation marks omitted). Contract language must be given its “plain and ordinary meaning.” Comet Energy Servs., LLC v. Powder River Oil & Gas Ventures, LLC, 185 P.3d 1259, 1261 (Wyo.2008) (citations omitted).
Here, the Agreement provides that “any mediation or suit” between Plot-kin and NOLS “shall occur or be filed only in the State of Wyoming” and contains no exception for wrongful death or negligence actions. Barton Aff. Ex. G, at 4 (emphasis added). Such language indicates that the parties intended the contract, including its forum selection clause, to apply to actions such as the instant dispute. Cf. Jackson State Bank v. Homar, 837 P.2d 1081, 1089 (Wyo.1992) (enforcing broadly-worded clause compelling arbitration for “any dispute arising from [the parties’] relationship as landlord and tenant”). Indeed, the Wyoming Supreme Court has stated that “artful pleading of noncontract claims to avoid a forum selection clause will not be tolerated.” Durdahl v. Nat’l Safety Assocs., Inc., 988 P.2d 525, 529 (Wyo.1999) (citation omitted). As a result, the forum selection clause is both enforceable and applicable to the instant dispute.
V. Effect of Forum Selection Clause
Having determined the validity and scope of the Agreement and the forum selection clause, the court now considers the effect of such a -clause on the instant dispute. “The presence of a valid forum-selection clause requires district courts to adjust their usual § 1404(a) analysis in three ways.” Atl. Marine, 134 S.Ct. at 581. “First, the plaintiffs choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted.” Id. Second, the court “should not consider arguments about the parties’ private interests.” Id. at 582. Thus, though Brenner makes numerous arguments related to her convenience and relative ability to pay for *719distant litigation, the court may not consider such factors. Instead, the court “may consider arguments about public-interest factors only ... [and] those factors will rarely defeat a transfer motion.” Id. Relevant public interest factors include “the administrative difficulties flowing from court congestion; the local interest in having localized controversies decided at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Id. at 581 n. 6 (citation and internal quotation marks omitted).
Here, Brenner has not argued that transfer would produce any administrative hardship in Wyoming or that the instant case presents a controversy localized in Minnesota. Nor does she argue •against the benefit of having a trial governed by Wyoming law decided in a forum more familiar with its application.3 Thus, these factors are either neutral or favor transfer to Wyoming. Third, there are no unusual or exceptional circumstances that warrant setting aside the clause. See id. at 575 (2013) (finding that, where there is a valid forum selection clause, “a district court should transfer the case unless extraordinary circumstances ... clearly disfavor a transfer”). Brenner thus cannot meet her burden of establishing that transfer to Wyoming is improper. Finally, the court notes that the forum selection clause does not specify that actions must be brought in federal court in the District of Wyoming, but rather that suits “shall occur or be filed only in the State in Wyoming.” Barton Aff. Ex. G, at 4. “The fact that the provision does not specify federal or state court does not make it invalid, but rather allows suit to be brought in either court.” Mooney-Kelly v. Islands Publ’g Co., No. 01-4448, 2002 WL 109533, at *3 (S.D.N.Y. Jan. 28, 2002) (citation omitted). Thus, the District of Wyoming is a “district or division where [the action] might have been brought.” See 28 U.S.C. § 1404(a). As a result, transfer to the District of Wyoming is warranted.
CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that defendant’s motion to transfer venue [ECF No. 12] is granted and this action is transferred to the United States District Court for the District of Wyoming.
. The Agreement provides that, "any dispute between [Plotkin] ... and NOLS will be governed by the substantive law (not including the laws which might apply the laws of another jurisdiction) of the State of Wyoming.” Barton Aff. Ex. G, at 4.
. Although enforceability of a forum selection clause is governed by federal law, issues involving contract interpretation — which are part of the enforceability inquiry — are governed by state substantive law. See Haines v. St. Charles Speedway, Inc., 874 F.2d 572, 574 (8th Cir.1989). As already explained, because the court finds no conflict on any determinative issue between Minnesota and Wyoming law, the court applies Minnesota law to questions of contract interpretation.
. Because the court determines that transfer to the District of Wyoming is proper as a result of the forum selection clause, the transfer “will not carry with it the original venue’s choice-of-law rules.” Atl. Marine, 134 S.Ct. at 582 (citation omitted). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217945/ | MEMORANDUM**
Willette D. Jacobs appeals pro se orders of the district court vacating the clerk’s entry of default and dismissing the complaint. Although the district court did not enter final judgment, we have jurisdiction pursuant to 28 U.S.C. § 1291 because the district court made clear its intent to terminate the action. See Spurlock v. F.B.I., 69 F.3d 1010, 1015 (9th Cir.1995). We affirm in part, reverse in part, vacate in part, and remand.
We review the district court’s decision to set aside the entry of default for an abuse of discretion. O’Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir.1994). Because defendants Flanagan and Manuel timely moved to vacate and had meritorious defenses, the district court’s decision to set aside the default was not “clearly wrong.” See id. Because the Department of Developmental Services and Lanterman Developmental Center timely executed a waiver of service on January 30, 2002, the district court properly vacated the default entered by the clerk on February 12, 2002. See Fed.R.Civ.P. 4(d)(3) and 55(c).
We review de novo dismissals pursuant to Fed.R.Civ.P. 12(b)(1) and (b)(6). Arlington v. Wong, 237 F.3d 1066, 1069 (9th Cir.2001). The district court properly dismissed the Title VII claims against Flanagan and Manuel with prejudice. See Ortez v. Washington County, 88 F.3d 804, 808 (9th Cir.1996) (holding that employees cannot be sued in their individual capacities under Title VII).
The district court erred by dismissing Jacobs’ Title VII claim against the employer as untimely. The date on which a complaint is tendered to the clerk is the operative date for purposes of statutes of limitation. See Loya v. Desert Sands Unified Sch. Dist., 721 F.2d 279, 281 (9th Cir.1983) (holding “that for purposes of the statute of limitations the district court should regard as ‘filed’ complaint which arrives in the custody of the clerk within the statutory period but fails to conform with formal requirements in local *100rules.... [A] clerk’s refusal to ‘file’ a complaint should not be controlling for purposes of the statute of limitations.”); accord United States v. Dae Rim Fishery Co., 794 F.2d 1392, 1395 (9th Cir.1986) (complaint constructively filed when delivered to clerk of court). Jacobs’ evidence shows that her complaint was initially received by the district court on Monday, September 17, 2001 but returned for failure to comply with a local rule.1 We conclude that the Title VII claim was timely because Jacobs submitted her complaint to the district court 94 days after the EEOC mailed her right to sue letter. See Fed. R.Civ.P. 6(a) (when the end of a time period for filing a paper in court is a Sunday, the period runs to the next business day); Baldwin County Welcome Ctr. v. Brown, 466 U.S. 147, 148 n. 1, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam) (relying on Fed.R.Civ.P. 6(e) to conclude that party received right to sue letter 3 days after mailing); Ortez, 88 F.3d at 807 (holding complaint timely where filed 94 days after date of right to sue letter). We therefore reverse the portion of the district court’s order filed May 21, 2002 which dismissed the Title VII claims against the Department of Developmental Services and Lanterman Developmental Center.
Individual supervisors may be hable for retaliation under California’s Fair Employment and Housing Act. See Winarto v. Toshiba Am. Elecs. Components, Inc., 274 F.3d 1276, 1288 (9th Cir.2001). Nonetheless, these claims were properly dismissed because they are barred by the Eleventh Amendment. See Freeman v. Oakland Unified School Dist, 179 F.3d 846, 847 (9th Cir.1999) (order); Doe v. Lawrence Livermore Nat’l Lab., 131 F.3d 836, 839 (9th Cir.1997) (“a suit against a state official in his official capacity is no different from a suit against the State itself’). Because the district court dismissed these claims with prejudice, we vacate this portion of the district court’s July 5, 2002 order so that it may enter a dismissal without prejudice to refiling in a court of competent jurisdiction. See Freeman, 179 F.2d at 847.
We reject Jacobs’ contention that the district court was required to hold a hearing or oral argument before ruling on defendants’ motions. See Fed.R.Civ.P. 78; Morrow v. Topping, 437 F.2d 1155, 1156 (9th Cir.1971) (per curiam).
We are unpersuaded by Jacobs’ remaining contentions.
We direct the clerk to send a copy of the “Amended Notice of Appeal” received by this court on July 31, 2002 to the district court. The district court shall file the document with the date of July 31, 2002.
Each side shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
. We take judicial notice of the document Jacobs submitted to this court which shows that the district court clerk returned the complaint received on September 17, 2001 for failure to comply with Central District of California Local Rule 83-1.5. See Fed.R.Evid. 201(f) (allowing judicial notice to be taken "at any stage of the proceeding”); Papai v. Harbor Tug & Barge Co., 67 F.3d 203, 207 n. 5 (9th Cir.1995), rev'd on other grounds, 520 U.S. 548, 117 S.Ct. 1535, 137 L.Ed.2d 800 (1997). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217946/ | GRABER, Circuit Judge,
concurring in part and dissenting in part.
I dissent from the majority’s decision to take judicial notice of the evidence that Jacobs submitted concerning the date on which her complaint was received by the district court. First, this evidence was submitted only with the reply brief and *101was neither in the record nor in a request for judicial notice as to which Defendants had an opportunity to respond. Second, it is not certain from the face of the document that it is the instant complaint that was filed on September 17, 2001. Instead, I would vacate the dismissal of the Title VII claim against Plaintiffs employer and return the question of timeliness to the district court for further factfinding.
In other respects I concur. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217947/ | MEMORANDUM **
Wallace Roberson appeals the 51-month sentence imposed after a jury convicted *102him of conspiracy and false claims against the government in violation of 18 U.S.C. §§ 2 and 286-287. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s interpretation of the sentencing guidelines and give due deference to its application of the guidelines to the facts. United States v. Van Krieken, 39 F.3d 227, 230 (9th Cir.1994). We affirm.
Roberson contends that the district court erred by using the sentencing guideline for fraud and deceit, U.S.S.G. § 2F1.1 (1992), rather than the guideline for tax-related offenses, U.S.S.G. § 2T1.4 (1992). We disagree. ‘When a particular statute proscribes a variety of conduct that might constitute the subject of different offense guidelines, the court will determine which guideline section applies based upon the nature of the offense conduct charged in the count of which the defendant was convicted.” U.S.S.G. § 1B1.2, cmt n. 1 (1992). Here, the court properly applied U.S.S.G. § 2F1.1 (1992) because Roberson was charged with conspiracy and false claims against the government. See U.S.S.G. Appx. A (1992) (§ 2F1.1 applies to 18 U.S.C. §§ 286-287); e.g., Van Krieken, 39 F.3d at 231 (approving use of obstruction of justice guideline for defendant convicted of corrupt interference with the administration of tax laws).
Roberson also challenges a four-level upward adjustment pursuant to U.S.S.G. § 3B1.1 for being a leader or organizer. The district court did not clearly err in concluding that Roberson was an organizer or leader for sentencing purposes based on witness testimony that Roberson knew how to carry out the scheme, was the source of the fraudulent W-2 forms, received the largest cut of the money received, and instructed others on how to carry out the scheme. See United States v. Avila, 95 F.3d 887, 889 (9th Cir.1996).
We do not consider Roberson’s contention that the court incorrectly calculated the loss for sentencing purposes because defense counsel stated at the sentencing hearing that she did not object to inclusion of losses established by witness testimony at trial. See United States v. HernandezRamirez, 254 F.3d 841, 845 (9th Cir.2001) (challenge to sentencing calculation not raised with the district court waived).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217949/ | MEMORANDUM*
GES’s claims (and would-be claims) are barred by res judicata. The entire point of the prior action was to determine fault for Corbitt’s injury. The jury specifically allocated blame based on its determination (a factual matter) of fault. Therefore, the issue was identical to the issue here; the *105ruling was on the merits and final; and the parties were exactly the same. GES can’t now undermine that factual finding with a new action claiming the jury got the division wrong. See Executive Mgmt., Ltd. v. Ticor Title Ins. Co., 114 Nev. 828, 885, 838, 963 P.2d 465 (1998); cf. Nev.Rev.Stat. 17.225(2) (“The right of contribution exists only in favor of a tortfeasor who has paid more than his equitable share of the common liability, and his total recovery is limited to the amount paid by him in excess of his equitable share.”). GES paid only its fair share, as determined by the jury, and its claims are thus precluded.
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217962/ | ORDER
The court received the appellant’s initial partial payment of the docketing fee on March 25, 2003. Upon consideration thereof,
IT IS ORDERED THAT:
The appeal having been dismissed in error on April 14, 2003, for failure to make an initial partial payment, the mandate is hereby RECALLED and the appeal is REINSTATED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217963/ | ORDER
The petitioner having failed to pay the docketing fee required by Federal Circuit Rule 52(a)(1), and to file the required Statement Concerning Discrimination, and to file the brief required by Federal Circuit Rule 31(a) within the time permitted, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224415/ | MEMORANDUM AND ORDER
JOHN M. GERRARD, District Judge.
This matter is before the Court on the parties’ objections (filings 74 and 76) to the Magistrate Judge’s Findings and Recommendation (filing 70), recommending that the Court grant in- part and deny in part the defendants’ motion to dismiss (filing 26), and recommending that the Court deny the plaintiffs motion to file her proposed third amended complaint (filing 63), but with leave to submit a new third amended complaint reasserting her state law claims in a manner consistent with the Findings and Recommendation. For the reasons discussed below, the Court will accept in part, and reject in part, the Magistrate Judge’s recommendations. The specific implications of this decision for the parties’ underlying motions (filings 26 and 63) will be discussed in greater detail below.
I. FACTUAL BACKGROUND
Plaintiff Julie A. Bussing has worked in the securities industry since 1989.1 She is licensed as a Certified Public Accountant, holds a Masters of Business Administration, and she has been qualified to hold several Financial Industry Regulatory Authority (FINRA) licenses.2 Filing 63-1 at *723¶¶ 12-13. Bussing alleges that from her long career in the area, she has obtained a comprehensive familiarity with trading, clearing operations, finance, accounting, and compliance with the rules and regulation of FINRA and the Securities and Exchange Commission (SEC). Filing 63-1 at ¶ 14.
In September 2011, Bussing began working as an independent contractor for defendant COR Securities Holdings, Inc. (“COR”), a private investment management company. During this period, Buss-ing was retained by and reported to defendant Steven Sugarman, who was a director of COR as well as its CEO. Filing 63-1 at ¶¶ 5, 15. Part of her duties involved assisting with the due diligence for COR’s acquisition of Legent Clearing, LLC (“Le-gent”). Legent, which was headquartered in Omaha, provides clearing services to brokerage clients, and is now COR’s wholly owned subsidiary. Filing 63 — 1 at ¶¶ 2, 4.
Before its acquisition by COR, Legent had been involved in several regulatory investigations and examinations. From 2009 to 2011, FINRA investigated and sanctioned Legent for various violations of FINRA rules and federal securities laws, including anti-money laundering provisions and the Bank Secrecy Act of 1970, 31 U.S.C. § 5311 et seq. Filing 63-1 at ¶¶ 18-19. Bussing learned of these issues through her investigation for COR. Filing 63-1 at ¶ 25.
As part of her duties related to COR’s acquisition of Legent, Bussing also worked to develop a “Change of Control Plan.” Filing 63-1 at ¶ 15. The plan was designed to ameliorate Legent’s “ ‘troubling’ regulatory history” and was approved by COR for implementation immediately after it completed its acquisition of Legent, during the first half of 2012. Filing 63-1 at ¶¶ 16-17.
Beginning in November 2011, Sugarman recruited Bussing to work for and lead Legent as its Executive Vice President. Filing 63-1 at ¶ 24. Bussing initially declined to work for Legent based on the results of her investigation. Filing 63-1 at ¶ 25. She alleges that “Sugarman, Legent, and COR (and their respective officers and directors) made certain assurances to ... induce her to accept employment with Le-gent.” Filing 63-1 at ¶ 26. Bussing claims she was assured she would be authorized to implement the Change of Control Plan and that Legent would enter into a long-term employment agreement with her. Filing 63-1 at ¶ 26.
Bussing and Legent entered into an oral employment agreement, which provided for, among other things, a 3-year term of employment, and allowed Bussing to report directly to Sugarman and the COR Board of Directors instead of defendant Christopher Frankel, Legent’s CEO. Filing 63-1 at ¶¶ 7, 27. On January 1, 2012, Bussing began working for Legent as its executive vice president. Filing 63-1 at ¶28. Bussing and Legent later entered into a written employment agreement, which was backdated to January 1, 2012. Filing 63-1 at ¶ 44.
» Bussing began implementing the Change of Control Plan in January 2012. Filing 63-1 at ¶ 30. Around that same time, FINRA began another investigation of Legent, for the same types of violations that had been found in previous years. Filing 63-1 at ¶20. From January to April, FINRA sent several large document and information requests, and conducted onsite examinations of Legent, all of which resulted in “significant pressure” on Le-gent’s compliance efforts and disrupted *724Legent’s ongoing business operations. Filing 63-1 at ¶¶ 36-41.
On April 23, 2012, FINRA instituted formal proceedings against Legent, alleging that from 2009 and 2010, Legent had failed to comply with the requirements of the Bank Secrecy Act, as well as anti-money laundering and financial reporting responsibilities imposed by various FIN-RA and SEC rules. Filing 63-1 at ¶¶ 21-22. On April 25, Bussing received a request from FINRA, pursuant to FINRA Rule 8210, to provide “extensive” documents and information, which were to be compiled and made available to FINRA staff when they arrived at Le-gent’s office on April 30. Filing 63-1 at ¶48. Bussing alleges that in the course of preparing responses to the request, she identified several potential or existing violations of FINRA rules and federal securities regulations, which FINRA was likely to discover, including violations of the Bank Secrecy Act and anti-money laundering provisions. Filing 63-1 at ¶ 50. During this time, Frankel was the Legent officer ultimately responsible for compliance with various anti-money laundering provisions. Filing 63-1 at ¶ 51.
On April 26, 2012, Bussing met with defendant Carlos Salas, a director of COR, who told Bussing that she had the support of COR management. Filing 63-1 at ¶¶ 6, 52. Sugarman similarly expressed his support of Bussing’s investigations and disclosures. Filing 63-1 at ¶ 53. On April 27, based upon violations identified in response to the Rule 8210 document request, Bussing directed Legent staff to cease processing penny stock certificates. Filing 63-1 at ¶ 54. Bussing also directed Le-gent staff to perform several transactional audits and account reviews, including an audit of all third-party foreign wires from 2011 and 2012. Filing 63-1 at ¶ 55. Later that day, Salas met with Bussing and expressed his dissatisfaction with Bussing’s response to the document request and the decision to cease processing penny stock certificates. Filing 63-1 at ¶ 56. Bussing alleges that Salas advocated ignoring or responding incompletely to FINRA’s document request. Filing 63-1 at ¶ 56.
Two days later, on April 29, 2012, defendant Jeffrey Sime, an officer of Legent, instructed Bussing to cease preparing a response to the Rule 8210 document request and to cease her audit of Legent’s anti-money laundering compliance. Filing 63-1 at ¶¶ 8, 58. Bussing alleges that Sime was so agitated during their meeting that it prompted her to threaten to call security. Filing 63-1 at ¶¶ 58-59. Later that day, Bussing issued a report to COR and Legent which detailed several violations of anti-money laundering provisions and deficits in Legent’s internal record-keeping. The report stated that Legent had processed transactions that violated the Bank Secrecy Act and anti-money laundering provisions on a daily basis throughout 2011 and 2012, and that Legent had likely been used to facilitate money-laundering activities. Filing 63-1 at ¶¶ 60-63. Bussing discussed these findings with Legent and COR management, including Sugarman, Salas, and Frankel. Filing 63-1 at ¶ 64. She alleges that she “was directed by Legent and COR management, including but not limited to Sug-arman, Salas, Frankel, and Legent’s new CCO to stall, delay, stop digging, and stop responding to the Rule 8210 Document Request or FINRA.” Filing 63-1 at ¶ 65. Bussing refused, and participated in FIN-RA’s onsite examination of Legent’s offices, which took place from April 30 to May 3. Filing 63-1 at ¶ 66.
On May 4, 2012, Salas allegedly notified Bussing that he, Sugarman, and COR had decided Bussing “needed a vacation,” and ordered Bussing to begin taking leave im*725mediately. Salas also told Bussing that when she returned, her position would be changed and he would become Legent’s CEO. Filing 63-1 at ¶ 68. Finally, on or around May 20, Bussing was notified that her employment with Legent had been terminated for cause. Filing 63-1 at ¶¶ 72-73.
II. STANDARD OF REVIEW
This matter is before the Court on the parties’ objections to the Magistrate Judge’s Findings and Recommendation. There are technically several layers to the standard of review in this case, but as it turns out, the same standard governs most of the Court’s substantive analysis. Under 28 U.S.C. § 636(b)(1), a district court may refer matters to a magistrate judge, who will in turn provide proposed findings of fact and recommendations for disposition. Thereafter, the district court “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id. Following that review, the district court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.
Failure to object to a finding of fact in a Magistrate Judge’s recommendation may be construed as a waiver of the right to object from the district court’s order adopting the recommendation of the finding of fact. NECivR 72.2(f). And the failure to file an objection eliminates not only the need for de novo review, but any review by the Court. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Leonard v. Dorsey & Whitney LLP, 553 F.3d 609 (8th Cir.2009); see also United States v. Meyer, 439 F.3d 855, 858-59 (8th Cir.2006). So, with one exception (which relates to Bussing’s claim for tor-tious interference), this Memorandum and Order touches only upon those aspects of the Findings and Recommendation to which the parties have objected. The Court has reviewed the remaining portions of the Findings and Recommendation, and will accept the Magistrate Judge’s recommendations without modification.
Because the Court’s analysis of the portions subject to objections is de novo,' it is the same as the standard governing the underlying motions to dismiss and for leave to amend, to which the Court now turns. Following the defendants’ motion to dismiss for failure to state a claim (filing 26), Bussing filed a motion for leave to file a third amended complaint, along with a proposed amended complaint. Filings 63 and 63-1. For all practical purposes, the Court’s review of these motions has collapsed into a single inquiry: whether Bussing’s third proposed amended complaint states a claim for relief.3
A complaint must set forth a short and plain statement of the claim showing that the pleader is entitled to relief. Fed. R.Civ.P. 8(a)(2). This standard does not require detailed factual allegations, but it demands more than an unadorned accusation. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The complaint need not contain detailed factual allegations, but must provide more than labels and conclusions; and a formu*726laic recitation of the elements of a cause of action will not suffice. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). For the purposes of a motion to dismiss a court must take all of the factual allegations in the complaint as true, but is not bound to accept as true a legal conclusion couched as a factual allegation. Id.
And to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must also contain sufficient factual matter, accepted as true, to state a claim for relief that .is plausible on its face. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is hable for the misconduct alleged. Id. Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged — but it has not shown — that the pleader is entitled to relief. Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.
Determining whether a complaint states a plausible claim for relief will require the reviewing court to draw on its judicial experience and common sense. Id. The facts alleged must raise a reasonable expectation that discovery will reveal evidence to substantiate the necessary elements of the plaintiffs claim. See Twombly, 550 U.S. at 545, 127 S.Ct. 1955. The court must assume the truth of the plaintiffs factual allegations, and a well-pleaded complaint may proceed, even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely. Id. at 556, 127 S.Ct. 1955.
III. ANALYSIS
The Court first takes a moment to sort through the claims in Bussing’s operative complaint, which asserts twelve theories of recovery, with each brought against all of the defendants (unless otherwise noted). Those theories are: retaliation in violation of 15 U.S.C. § 78u-6(h), the whistleblower-protection provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”);4 retaliation in violation of Neb.Rev.Stat. § 48-1114(3) of the Nebraska Fair Employment Practices Act (FEPA), Neb.Rev. Stat. § 48-1101 et seq.; wrongful termination in violation of public policy; breach of contract; breach of the covenant of good faith and fair dealing (against Legent only); defamation; fraudulent inducement, misrepresentation, and concealment; negligent misrepresentation; tortious interference with a business relationship or expectancy; and negligence.
The Magistrate Judge first found that Bussing failed to state a claim under Dodd-Frank. Filing 70 at 6-16. Bussing has objected to this finding, and as explained below, this Court finds that Buss-ing has, in fact, stated a claim for relief under Dodd-Frank. Filing 76.
The Magistrate Judge also found that Bussing had failed to state claims for defamation and for fraudulent inducement, fraudulent misrepresentation, fraudulent concealment, and negligent misrepresentation, and that her proposed amendment, as to those claims, was thus futile. Filing 70 at 21-25. Bussing has not objected to this aspect of the Magistrate Judge’s findings. The Court therefore adopts those findings: those claims are dismissed and leave to amend is denied.
*727The defendants have not challenged Bussing’s claims for breach of contract and breach of the covenant of good faith and fair dealing. Accordingly, those claims may proceed. The defendants have objected to the Magistrate Judge’s finding that Bussing had successfully pleaded claims for wrongful termination in violation of public policy and under FEPA. Filing 74. The resolution of those claims is detailed below; for now it suffices to say that they will be allowed to proceed.
Next, the Magistrate Judge found that Bussing had stated claims for tortious interference against the individual defendants, but not the corporate defendants. Bussing has objected to the latter finding. Filing 76. The Court finds that Bussing’s tortious interference claims require a close examination of potentially complex legal questions that the parties have not yet briefed. The claims will be allowed to proceed, subject to reevaluation at a later time.
Finally, the Magistrate Judge found that Bussing had failed to state a claim for negligence against the individual defendants, but that she had stated a claim for negligence against COR and Legent, based upon their alleged failure to properly report certain information to the IRS. Filing 70 at 26-27. Neither party has objected to either aspect of this finding, and so the Court adopts the Magistrate Judge’s recommendation without modification.
Before turning to the merits of Buss-ing’s claim under Dodd-Frank, one additional procedural matter bears noting: Bussing’s Motion to Offer Additional Evidence (filing 78) will be denied as moot. The Court has considered the proffered evidence, and it has not factored meaningfully into the Court’s analysis.
A. DoDD-FRANK WHISTLEBLOWER CLAIM
Bussing’s first claim arises under 15 U.S.C. § 78u-6(h), a provision of Dodd-Frank that protects employees from retaliation for certain whistleblowing activities and disclosures. The parties dispute both whether Bussing qualifies as a whistle-blower under Dodd-Frank and whether Dodd-Frank protects Bussing’s disclosures related to the Rule 8210 document request. Each side claims that its position is supported by the language of the statute. Bussing also argues that the Court should defer to the SEC’s construction of the statute, as set forth in regulations recently adopted by the SEC.5 After carefully reviewing the statute and the relevant caselaw, the Magistrate Judge found that Bussing did not qualify as a Dodd-Frank whistleblower. Filing 70 at 7-16. Bussing has objected to this finding, and the Court has conducted its own de novo review of the matter. For the reasons discussed below, this Court reads the statute differently than the Magistrate Judge, and finds that on the facts alleged, Bussing qualifies as a Dodd-Frank whistleblower, and further finds that she has made disclosures protected by Dodd-Frank’s anti-retaliation provision.6
1. Bussing Qualifies as a “Whistleblower” Under Dodd-Frank
Dodd-Frank amended the Securities and Exchange Act of 1934, 48 Stat. *728881, as amended, 15 U.S.C. § 78a et seq., to provide incentives for whistleblowers to report to the SEC in the form of a “bounty” program, through which whistleblow-ers may receive financial awards from the SEC for providing the SEC with original information relating to violation of the securities laws. 15 U.S.C. § 78u-6(b)-(g). Dodd-Frank also created a private cause of action for certain individuals whose employers retaliate against them for taking certain protected actions. 15 U.S.C. § 78u-6(h). This case centers around the anti-retaliation provision, which provides:
No employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower—
(i) in providing information to the Commission in accordance with this section;
(ii) in initiating, testifying in, or assisting in any investigation or judicial or administrative action of the Commission based upon or related to such information; or
(iii) in making disclosures that are required or protected under the Sar-banes-Oxley Act of 2002 (15 U.S.C. 7201 et seq.), this chapter, including section 78j-l(m) of this title, section 1513(e) of Title 18, and any other law, rule, or regulation subject to the jurisdiction of the Commission.
15 U.S.C. § 78u-6(h)(l)(A).
The first two subsections, (i) and (ii), protect whistleblowers who report to the SEC or work directly with the SEC in some manner. See Nollner v. S. Baptist Convention, Inc., 852 F.Supp.2d 986, 993 (M.D.Tenn.2012). “By contrast, the third category does not require that the whistle-blower have interacted directly with the SEC — only that the disclosure, to whomever made, was ‘required or protected’ by certain laws within the SEC’s jurisdiction.” Id. In fact, as the Court explains below, the language of subsection (iii) covers a broad array of disclosures to entities other than the SEC.
Bussing has not alleged that she provided any information to the SEC; thus, she seeks relief under subsection (iii). She argues that by complying with the Rule 8210 document request, cooperating with FINRA’s examination and investigation, and preparing a report regarding Bank Secrecy Act and anti-money laundering violations, she made disclosures that were required by a rule subject to the jurisdiction of the SEC — FINRA Rule 8210 — and thus made disclosures protected by subsection (iii). As the Court explains below, and despite defendants’ arguments to the contrary, FINRA Rule 8210 does qualify as a rule subject to the jurisdiction of the SEC, and Bussing has properly pleaded that she made a disclosure required by that rule. If that were the end of the matter, Bussing’s claim would fall easily within subsection (iii). But there is a more basic, definitional issue the Court must first address.
By its terms, the anti-retaliation provision of Dodd-Frank only extends protection to “whistleblowers.” The introductory paragraph provides that no employer shall take retaliatory acts against “a whistle-blower in the terms and conditions of employment because of any lawful [enumerated] act done by the whistleblower.” 15 U.S.C. § 78u-6(h)(l)(A) (emphasis supplied). And the term “whistleblower” is defined, in a separate subsection of Dodd-Frank, as “any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the Commission, in a manner established, by riile or regula*729tion, by the Commission.” 15 U.S.C. § 78u-6(a)(6) (emphasis supplied). The statute’s definition of “whistleblower,” which requires a disclosure to the SEC, therefore exists in tension with subsection (iii) of the anti-retaliation provision, which protects a broad range of disclosures to entities other than the SEC.
If, on the other hand, the anti-retaliation provision is read using the word “whistle-blower” in its everyday sense, there is no such tension. In that sense, a whistle-blower is “a person who tells police, reporters, etc., about something (such as a crime) that has been kept secret,”7 or an “employee who reports employer wrongdoing to a governmental or law-enforcement agency.”8 If this reading of the term “whistleblower” is applied to the anti-retaliation provision — while maintaining the statutory definition for the other subsections, which deal solely with the bounty program — all parts of the statute fit together into a harmonious and coherent whole. Cf. FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000). This interpretation gives effect to the full range of disclosures protected by the anti-retaliation provision, while reserving rewards under the bounty program for whistleblowers who report to the SEC.
“ ‘Statutory definitions control the meaning of statutory words, of course, in the usual case. But this is an unusual case.’ ” Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 206-07, 129 S.Ct. 2504, 174 L.Ed.2d 140 (2009) (quoting Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201, 69 S.Ct. 503, 93 L.Ed. 611 (1949)). When it is apparent that Congress intended a word to be given its ordinary meaning, notwithstanding the presence of a statutory definition to the contrary, and when applying the definition to the provision at issue would defeat that provision’s purpose, the Court will not mechanically read the statutory definition into that provision. See Philko Aviation, Inc. v. Shacket, 462 U.S. 406, 411-12, 103 S.Ct. 2476, 76 L.Ed.2d 678 (1983).
The Court is convinced that § 78u-6(h) presents just such an unusual case. Unless the term “whistleblower” is given its ordinary meaning for purposes of this anti-retaliation provision, subsection (iii) will be rendered insignificant, and its purpose — to shield a broad range of employee disclosures — will be thwarted. To understand why, it is helpful to carefully examine the full extent of subsection (iii)’s reach.
Subsection (iii) operates by incorporation; it protects disclosures required or protected by other laws. Unlike the preceding subsections, it applies to disclosures that are completely unrelated to any tip to the SEC. And, most importantly, subsection (iii) applies to a vast array of situations where the applicable laws or regulations call for disclosure to entities other than the SEC — disclosures that would not qualify for protection if the statutory definition of “whistleblower” is applied. The full panoply of protected disclosures is too extensive to recite in detail; an examination of two portions will suffice.
First, subsection (iii) protects disclosures required or protected by the Sar-banes-Oxley Act of 2002, Pub.L. No. 107-204, 116 Stat. 745 (codified in scattered sections of titles 15 and 18) (“Sarbanes-Oxley”). This statute, in turn, protects a broad range of employee disclosures to *730persons or entities other than the SEC, including internal reports to company officials.9
Second, subsection (iii) contains a catchall provision which protects any disclosures required or protected by any law, rule, or regulation subject to the jurisdiction of the SEC. Again, it would not be feasible (or particularly helpful) to attempt to list every regulation covered by this language— but even a brief sample will illustrate both its breadth and the extent to which it protects disclosures to entities other than the SEC. As the Court explains below, FINRA Rule 8210 is a rule “subject to the jurisdiction of the Commission.” That rule, in turn, requires the disclosure of information related to any investigation authorized by FINRA’s by-laws or rules.10 And it mandates disclosure not to the SEC, but to FINRA.
In short, Congress drafted subsection (iii) with the aim of protecting a very broad range of disclosures, including many to persons or entities other than the SEC. This understanding of the subsection’s function is confirmed by comparing it to subsections (i) and (ii). Those subsections explicitly require not only that there be information provided to the SEC, but subsection (i) only applies to information provided “in accordance with this section,” that is, tips under the bounty program. 15 U.S.C. § 78u-6(h)(l)(A)(i). And subsection (ii), while more broadly aimed at covering testimony or assistance, is still limited to investigations or proceedings “based upon or related to” the tip. 15 U.S.C. § 78u-6(h)(l)(A)(ii).
By contrast, subsection (iii) protects a broader category of actions — “disclosures” — and does not require any connection between the disclosure and a tip to the SEC or even the bounty program. The lack of such a connection makes sense, because the anti-retaliation provision was drafted to have effect independent of the bounty program. Otherwise, it simply doesn’t make sense that subsection (iii) would explicitly apply to an extensive range of disclosures to entities other than the SEC — disclosures that would never fall under the bounty program.11
When the term “whistleblower” is given its ordinary meaning — for purposes of the retaliation section only — everything falls into place. The broad protections of subsection (iii) are given effect, while rewards under the bounty program are properly limited to whistleblowers who provide tips to the SEC. But the same is not true under the contrary interpretation. When “whistleblower” is used in its narrower sense, subsection (iii) serves no significant purpose, and its aim of broadly protecting whistleblowers is stifled. This is best il*731lustrated by examining a case that embraced that approach, Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 625 (5th Cir.2013). However, before moving on, it will be helpful to take a brief detoui* into the history of the drafting of subsection (iii). The Court observes that nothing in the legislative history suggests that Congress anticipated any conflict between subsection (iii) and the definition of “whistle-blower.”
(a) The Drafting of Dodd-Frank
Dodd-Frank was “a direct and comprehensive response to the financial crisis that nearly crippled the U.S. economy beginning in 2008.” S. REP. 111-176, at 2 (2010). The primary purpose of Dodd-Frank was “to promote the financial stability of the United States .... through multiple measures designed to improve accountability, resiliency, and transparency in the financial system.” Id. The whistle-blower provisions were just one of those measures, and were a small part of a very large piece of legislation. See Dodd-Frank Act, Pub.L. 111-203, Title IX, § 922(a), 124 Stat. 1841 (2010). So, it is not surprising that the legislative history contains scant references to what would become § 78u-6. What discussion there was tended to focus on the bounty program; and the official record contains only fleeting references to the anti-retaliation provision.
The evolution of the bill’s language likewise sheds little light on the matter. The bill introduced and eventually passed by the House contained a bounty program and an anti-retaliation provision that roughly resemble the enacted law. See, Wall Street Reform and Consumer Protection Act of 2009, H.R. 4173, 111th Cong. '§ 7203 (as introduced in House, Dec. 2, 2009) and (as passed by House, Dec. 11, 2009). Like the enacted law, that bill defined the term “whistleblower” to include only individuals who submit information to the SEC. Id. at § 7203(j)(4). But the anti-retaliation provision did not use the term “whistleblower” to describe the individuals protected from retaliation; instead, it used the phrase “employee, contractor, or agent.” Id. at § 7203(g)(1)(A). And the anti-retaliation provision only protected conduct that would later become subsections (i) and (ii) — providing tips to the SEC or assisting in a resulting investigation or proceeding. Id. In other words, there was no equivalent to subsection (iii).
When the bill passed the Senate, the phrase “employee, contractor, or agent” in the anti-retaliation provision was replaced with “whistleblower.” Restoring American Financial Stability Act of 2010, H.R. 4173, 111th Cong. § 922(h)(1)(A) (May 20, 2010). However, while the Senate version was essentially identical to the enacted version, it still lacked an equivalent to subsection (iii). In other words, there was no reason to anticipate that any conflict would arise from the replacement of the phrase “employee, contractor, or agent” with the term “whistleblower.”
What would become subsection (iii) was added late in the legislative process. It first appeared in a draft of the conference committee base text that was used to finalize the legislation. There is nothing to suggest when or why the language was first added to that draft. Ultimately, the legislative history suggests that Congress was not aware of any potential conflict. So, with little guidance from the legislative history, the Court returns to the text of the statute. The Court is thus left to choose between one of two interpretations. There is the reading discussed above, which harmonizes all parts of the statute and gives subsection (iii) a meaningful purpose. But that is not the only way to read the statute; an alternative interpretation was suggested in Asadi v. G.E. Energy *732(USA), L.L.C., 720 F.3d 620, 625 (5th Cir.2013), to which the Court now turns.
(b) The Asadi Approach
The Fifth Circuit found that subsection (iii) could be salvaged, even if it is read to apply only to individuals who qualify as whistleblowers under the statutory definition. Asadi, 720 F.3d at 625-29; accord, Banko v. Apple Inc., 20 F.Supp.3d 749, 2013 WL 7394596 (N.D.Cal. Sept. 27, 2013); Wagner v. Bank of Am. Corp., 2013 WL 3786643 (D.Colo. July 19, 2013). Specifically, the Asadi court decided that subsection (iii) serves to protect individuals who have already made a covered disclosure to the SEC, but who were retaliated against on the basis of another required or protected disclosure. Id. at 627. The Fifth Circuit provided a hypothetical to illustrate how this interpretation might work in practice:
Assume a mid-level manager discovers a securities law violation. On the day he makes this discovery, he immediately reports this securities law violation (1) to his company’s chief executive officer (“CEO”) and (2) to the SEC. Unfortunately for the mid-level manager, the CEO, who is not yet aware of the disclosure to the SEC, immediately fires the mid-level manager. The mid-level manager, clearly a “whistleblower” as defined in Dodd-Frank because he provided information to the SEC relating to a securities law violation, would be unable to prove that he was retaliated against because of the report to the SEC. Accordingly, the first and second category of protected activity would not shield this whistleblower from retaliation. The third category of protected activity, however, protects the mid-level manager. In this scenario, the internal disclosure to the CEO, a person with supervisory authority over the mid-level manager, is protected under [§ 806 of Sarbanes-Ox-ley]. Accordingly, even though the CEO was not aware of the report to the SEC at the time he terminated the mid-level manager, the mid-level manager can state a claim under the Dodd-Frank whistleblower-protection provision because he was a “whistleblower” and suffered retaliation based on his disclosure to the CEO, which was protected under [Sarbanes-Oxley].
Id. at 627-28. The Magistrate Judge concurred with the analysis in Asadi. However, this Court respectfully disagrees, and is not persuaded by the reasoning of the Asadi court. Rather than demonstrating the reasonableness of its interpretation, this hypothetical exposes the Asadi court’s interpretation as unwieldy.
In the whistleblower context, there are three major players: employee-whistle-blowers, employers, and the SEC. And from the perspective of each, the Asadi interpretation poses problems. From the employer’s perspective, this interpretation creates a peculiar standard of liability, in which liability for retaliation only attaches if certain preconditions — of which they are unaware — are satisfied. More importantly, the Asadi interpretation is simultaneously under-inclusive from the employee’s perspective and over-inclusive from the SEC’s point of view. That is because it fails to account for the fact that employees tend to report matters internally before complaining to the SEC.
Even after the passage of Dodd-Frank, there are many reasons an employee might not report first to the SEC. Many whistleblowers are not motivated by financial gain, and so the bounty program simply may not factor into their decision. Some employees may be driven by loyalty (misplaced or not) to give their companies a chance to remedy violations before calling in the SEC. And there are no doubt others who are simply not savvy enough to *733know that they should take the counter-intuitive step of first reporting to the SEC if they want any protection for internal reporting.
Thus, under Asadi, not only does the law fail to protect the majority of whistle-blowers, it fails to protect those who are most vulnerable to retaliation. Nor can the Asadi court’s narrow construction be squared with the broad sweep of disclosures protected by subsection (iii). This Court will not attribute to Congress an intent to offer a broad array of protections with one hand, only to snatch it back with the other, leaving behind protection for only a narrow subset of whistleblowers.
Nor is it logical to conclude that Congress intended to encourage an across-the-board departure from the general practice of first making an internal report. Internal reporting serves a number of important interests — shared by employers and the SEC. It allows companies to remedy improper conduct at an early stage, perhaps before it rises to the level of a violation. SEC, Securities Whistleblower Incentives and Protections, 76 Fed.Reg. 34300-01, 2011 WL 2293084, at *34324 (August 12, 2011). Requiring employees to report first to the SEC would also risk frustrating companies’ internal compliance programs, and could deter whistleblowers from participating in internal investigations. Id.
Internal reporting may also prevent simple misunderstandings — where an employee is mistaken, and there has been no legal violation — from transforming into investigations that waste corporate and government resources. Id. In other words, it will help vet the tips to the SEC, so that the SEC receives fewer and higher quality reports from whistleblowers. Id. Thus, from the SEC’s perspective, the Asadi interpretation is over-inclusive, as it encourages reports to the SEC that could be more efficiently handled internally, thus wasting government resources generally and diverting resources from cases that need the SEC’s full attention. There will of course be situations where an employee knows that an internal report would be futile, or where there has been a clear and ongoing violation of the securities laws that calls for the SEC’s intervention. And some whistleblowers might simply want some of that bounty money. Accordingly, nothing in the law requires an internal disclosure before reporting to the SEC. After all, Congress aimed to encourage whistleblowers to report to the SEC. But it does not follow that Congress intended to discourage internal reporting.
This Court’s reading of the statute is not only faithful to the text of the statute, but it also gives meaningful effect to all of its parts, and furthers the purposes underlying Dodd-Frank. As a practical matter, this interpretation reaches the same result as the SEC’s regulation.12 But the result flows from the statute itself, and it is not necessary to determine if deference to the SEC’s construction of the statute is warranted.13
*734
2. Disclosures Required by a Rule Subject to SEC’s Jurisdiction
The Court further finds that Bussing has properly alleged that she made a disclosure required by a rule or regulation subject to the jurisdiction of the SEC: FINRA Rule 8210. That rule provides that, for purposes of a FINRA investigation or proceeding, FINRA staff may require a member company (i.e., Legent), or any person associated with a member or otherwise subject to FINRA’s jurisdiction “to provide information orally, in writing, or electronically ... with respect to any matter involved in the investigation, complaint, examination, or proceeding.” FIN-RA Rule 8210(a)(1) (2010). The rule also gives FINRA staff the right to inspect and copy the books, records, and accounts of any such member or person with respect to any matter involved in the investigation or proceeding. FINRA Rule 8210(a)(2). In case there was any doubt that disclosure is mandatory, the rule further states that “[n]o member or person shall fail to provide information or testimony or to permit an inspection and copying of books, records, or accounts pursuant to this Rule.” FINRA Rule 8210(c). The terms of Rule 8210 are clear and mandatory; thus, Bussing has alleged that her disclosures were required by rule or regulation.
The defendants argue that while Buss-ing may have complied with the Rule 8210 document request, she has not actually alleged that she made any “disclosure.” Filing 66 at 11-12. Instead, they claim, Bussing has merely alleged that she “ ‘participated’ ” in FINRA’s onsite examination of Legent and that FINRA “ ‘examined Legent’s response to the Rule 8210 Document Request.’ ” Filing 66 at 11 (quoting filing 63-1 at ¶ 66). But it was Bussing who prepared Legent’s response, which was then provided (i.e., disclosed) to FIN-RA. Filing 63-1 at ¶ 60. And Bussing claims that she did so despite directions from Salas and Sime, who allegedly told her to ignore or respond incompletely to the Rule 8210 document request. Filing 63-1 at ¶¶ 56-59. This shows not only that Bussing was.personally responsible for the disclosure to FINRA, but that she did so in a classic whistleblowing context.
The defendants also argue that Dodd-Frank should not be interpreted “so broadly as to protect individuals who simply gather documentation for FINRA to inspect without that individual affirmatively disclosing information specific to a particular violation.” Filing 66 at 12. But § 78u-6(h)(l)(A)(iii) broadly protects disclosures required by law; it does not require the disclosure to relate to a particular violation. And even if it did, Bussing has alleged that in the response she prepared, she identified several potential or existing violations of FINRA rules and federal securities laws, including violations of the Bank Secrecy Act and anti-money laundering provisions. Filing 63-1 at ¶ 50.
Finally, the Court finds that FINRA Rule 8210 is a rule subject to the jurisdiction of the SEC. To speak of the SEC’s “jurisdiction” is simply to refer to the scope of its regulatory authority, which is, in turn, a question of the agency’s authority under the relevant statute. City of Arlington, Tex. v. F.C.C., — U.S. -, 133 S.Ct. 1863, 1866, 1868, — L.Ed.2d - (2013). As a national securities association, FINRA is undoubtedly subject to the SEC’s jurisdiction. FINRA “creates and enforces rules that govern the industry alongside the SEC and is subject to significant SEC oversight.” Aslin, 704 F.3d at 476. The SEC must approve all of FINRA’s rules, and may abrogate, add to, and delete from all FINRA rules as it *735deems necessary. Id. (citing 15 U.S.C. § 78s(b)(1) and (c)). And Rule 8210 is no exception.14 See, e.g., FINRA, 13-06 SEC Approves Amendments to Rule 8210 (Feb. 25, 2013).
Thus, the Court finds that Bussing has stated a claim for relief under § 78u-6(h)(l)(A)(iii). The Court will sustain Bussing’s objection, and declines to adopt this portion of the Magistrate Judge’s findings and recommendation. Bussing’s Dodd-Frank claim will be allowed to proceed.
B. Bussing’s Claims UndeR Fepa and Neb.Rev.Stat. § 20-148
Bussing’s next claim for relief arises under Nebraska’s Fair Employment Practices Act (FEPA). Specifically, Bussing relies upon Neb.Rev.Stat. § 48-1114(3), which prohibits employers from discriminating against any employee because he or she has “has opposed any practice or refused to carry out any action unlawful under federal law or the laws of this state.” (Emphasis supplied.) The defendants do not dispute the Magistrate Judge’s finding that Bussing has alleged she engaged in protected activity under § 48-1114(3), i.e., “complying with the Rule 8210 document request, cooperating in the FINRA exam ..., issuing directives to cease processing penny stock certificates, and preparing her internal report regarding the violations of the Bank [Security] Act and anti-money laundering violations.” Filing 70 at 20.
Instead, the defendants attack the procedural route that Bussing has taken. FEPA requires plaintiffs to exhaust certain administrative remedies with the Nebraska Equal Opportunity Commission (NEOC) before filing suit. See Goolsby v. Anderson, 250 Neb. 306, 549 N.W.2d 153, 156-57 (1996). But Bussing has taken an alternative route: Neb.Rev.Stat. § 20-148. That statute “provides a procedural avenue for pursuit of certain employment-related claims without exhausting the available administrative remedies.” Dossett v. First State Bank, Loomis, Nebraska, 261 Neb. 959, 627 N.W.2d 131, 137 (2001). “Section 20-148 was enacted to provide an alternative remedy for plaintiffs who otherwise would be trapped in bureaucratic backlogs.” Goolsby, 549 N.W.2d at 157. The statute allows a plaintiff to bring suit based upon the “deprivation of any rights, privileges, or immunities secured by the United States Constitution or the Constitution and laws of the State of Nebraska.” Neb.Rev.Stat. § 20-148(1).
The defendants argue that § 20-148 is only available to plaintiffs alleging violations of their civil rights, and that Buss-ing’s claim, predicated on violations of federal securities and banking laws, does not suffice. This argument is not persuasive. Section 20-148 expressly applies to any rights secured by the “laws of the State of Nebraska.” Not only is § 48-1114(3) such a law, but Goolsby expressly held that claims based upon FEPA were cognizable under § 20-148. See Goolsby, 549 N.W.2d at 157-58.
The defendants also claim that it is “inconceivable” that the Nebraska Legislature could have intended that § 20-148 would be used to pursue a claim under § 48-1114(3), as § 20-148’s enactment preceded the creation of the protections found in § 48-1114(3). Filing 75 at 5. Essentially, the defendants argue that the rights that may be vindicated under § 20-148 are limited to those existing under Nebraska’s statutes at the time § 20-148 was enacted. *736Again, the Court is not persuaded. It is true that § 20-148 is a “procedural statute which does not create any new substantive rights.” Goolsby, 549 N.W.2d at 157. But that does not mean that the Legislature tied its own hands in enacting § 20-148, and forever barred itself from creating substantive rights that fall within its scope. Thus, as to Bussing’s FEPA claims, brought via § 20-148, the Court overrules the defendants’ objection, accepts the Magistrate Judge’s recommendation, and finds that Bussing has stated a claim for relief.
C. WRONGFUL Termination in Violation of Public Policy
Bussing has asserted a Nebraska tort claim for wrongful termination in violation of public policy. In Nebraska, unless constitutionally, statutorily, or contractually prohibited, an employer, without incurring liability, may terminate an at-will employee at any time with or without reason. Coffey v. Planet Group, Inc., 287 Neb. 834, 844, 845 N.W.2d 255 (Neb.2014). There is, however, a public policy exception to the at-will employment doctrine. Id. Under this exception, an employee can bring a common law tort claim for wrongful discharge when the motivation for the firing contravenes public policy. Id. However, the public policy exception is restricted to cases when a clear mandate of public policy has been violated, and it should be limited to manageable and clear standards. Id. In determining whether a clear mandate of public policy is violated, the Court asks whether the employer’s conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Id.
Bussing argues that such a clear mandate is present in the whistleblower protections of Dodd-Frank.15 The Magistrate Judge found that this was sufficient and allowed the claim to proceed. Filing 70 at 21. The defendants object, raising a number of counter-arguments. But the defendants’ basic contention is that federal securities and banking law do not amount to an expression of Nebraska’s state public policy.
At this point, the Court finds the parties’ dispute to be purely theoretical. The Court will assume, for the time being, that a federal law can provide the source of public policy for a state tort claim. Buss-ing asks the Court to find support for a wrongful discharge claim on the policy expressed by Congress in Dodd-Frank. Very well. Congress has declared that it violates public policy when whistleblowers are fired in retaliation for conduct covered in § 78u-6(h)(l)(A). If Dodd-Frank is the source of Bussing’s common law claim, then for all practical purposes, her wrongful discharge claim is perfectly coextensive with her statutory Dodd-Frank claim. The Court cannot alter Congress’ expression of public policy — the Nebraska Supreme Court has been clear that a court cannot contradict the Legislature on matters of public policy. E.g., Amen v. Astrue, 284 Neb. 691, 822 N.W.2d 419, 423 (2012). Bussing has not suggested that there is any difference between these claims — she does not point the Court to any conduct protected by the broad policy of protecting whistleblowers that is not *737actually covered in her Dodd-Frank claim. Nor does she claim that Dodd-Frank is somehow inadequate in its remedies.
Thus, at this time, the Court need not determine if Bussing has pleaded a separate claim for wrongful discharge in violation of public policy. If such a claim exists, it is — for present purposes — virtually the same as her Dodd-Frank claim. So, the claim may proceed for the time being. The defendants’ objection is therefore denied.
D. T0RTIOUS INTERFERENCE
The Court turns finally to Buss-ing’s claim for tortious interference with a business relationship or expectancy. Filing 63-1 at ¶¶ 135-39. To state a claim for relief, Bussing must allege facts to support the following elements: (1) the existence of a valid business relationship or expectancy, (2) knowledge by the interferer of the relationship or expectancy, (3) an unjustified intentional act of ■ interference on the part of the interferer, (4) proof that the interference caused the harm sustained, and (5) damages. Huff v. Swartz, 258 Neb. 820, 606 N.W.2d 461, 466 (2000).
Bussing alleges generally that she had valid business relationships or expectancies with both Legent and COR. Filing 63-1 at ¶ 136. She .claims that the defendants interfered with those relationships by terminating her in retaliation for her anti-money laundering audits of Legent and her response to the Rule 8210 document request. More specifically, she claims that the individual defendants interfered with her relationships with both Legent and COR, and that Legent and COR interfered with her relationship with each other. See filing 67 at 26.
The Court begins with a basic observation. A tortious interference claim requires a third party; a contracting party cannot be held hable in tort for interfering with its own contract. Huff, 606 N.W.2d at 467 (citing Nordling v. N. States Power Co., 478 N.W.2d 498, 505 (Minn.1991)). Thus, Bussing does not argue that Legent or COR interfered with its own relationship with her. For that, Bussing has sought recourse through other means, such as her retaliation and breach of contract claims. When the party alleged to have interfered is a supervisor or co-employee, matters become more complicated.
Generally speaking, the agent of a principal cannot be held liable for interfering with a contract between the principal and a third party. See, e.g., Martin v. Johnson, 975 P.2d 889, 896 (Okla.1998). A corporation can only act through its directors, officers, and agents. Wiekhorst Bros. Excavating & Equip. Co. v. Ludewig, 247 Neb. 547, 529 N.W.2d 33, 40 (1995). It follows that if a corporation’s agent is acting within the scope of his authority, his acts are acts of the corporation and there is only one actor. Id. Thus the question becomes, at what point does the coemployee become a “third person” subject to liability for tortious interference with the employment relationship of another on the basis of an unjustified intentional act? Huff, 606 N.W.2d at 467. In Huff, the Nebraska Supreme Court sketched the outlines of an answer.
First, whether conduct amounts to interference by a third party is a separate inquiry from whether the conduct was unjustified. Id. In determining whether a defendant was a third party capable of interfering, courts draw a distinction between actions which fall within the general scope of the alleged interferer’s authority as an agent of the employer and those which are in furtherance of some individual or private purpose not related to the interests of the employer. Id.
If a corporation’s officer or agent acting pursuant to his company duties termi*738nates or causes to be terminated an employee, the actions are those of the corporation; the employee’s dispute is with the company employer for breach of contract, not the agent individually for a tort. To allow the officer or agent to be sued and to be personally liable would chill corporate personnel from performing their duties and would be contrary to the limited liability accorded incorporation.
Id. (quoting Nordling, 478 N.W.2d at 505-06). Stated differently, so long as the officer “ ‘acts within the general range of his authority intended to benefit the corporation, the law identifies his actions with the corporation.’ ” Id. (quoting Hickman v. Winston County Hosp. Bd., 508 So.2d 237, 239 (Ala.1987)). In another formulation of the rule, the plaintiff must show that the coemployee “was serving a master other than the employer or was pursuing ‘some benefit to himself, at odds with the interests’ of the employer.” Id. at 467-68 (quoting Wilcox v. Niagara of Wisconsin Paper Corp., 965 F.2d 355, 365 (7th Cir.1992)). Synthesizing these statements, the Huff court held that “in order to constitute actionable interference with an employment relationship, actions of a coemployee must be shown to have been committed in furtherance of some purpose other than the lawful purposes of the employer.” Id. at 468 (emphasis supplied).
The Magistrate Judge found that as to the individual defendants, Bussing had sufficiently pleaded a claim for relief.
The allegations state that Bussing was terminated from her employment for not following the instruction of the individual defendants to “stall, delay, stop digging and stop responding” to the FINRA investigation and for refusing to discontinue her audit work uncovering potential anti-money laundering compliance issues. Taken as true for the purposes of this motion, the court does not believe avoiding regulatory compliance and covering up potential money laundering violations falls within the lawful purposes of the employer, and the individual defendants’ command that Plaintiff commit these acts could be considered an intentional effort to interfere with Bussing’s relationship with COR and Legent.
Filing 70 at 26.
But the Magistrate Judge went on to find that Bussing’s proposed complaint failed to plead facts discussing how the corporate defendants were alleged to have carried out acts of interference specifically directed at Bussing’s relationship or expectancy with the other organization. Id. The Magistrate Judge therefore found that the proposed amendment would be futile, and recommended denial of the motion to amend with respect to adding a claim of tortious interference against the corporate defendants. Bussing has objected to the Magistrate Judge’s finding with respect to the corporate defendants. Filing 76. The defendants have not objected to the Magistrate Judge’s finding with respect to the individual defendants.
In reviewing Bussing’s objections, the Court has noted several potential complications, not yet addressed by the parties. As such, it is easier to start from scratch. To begin with, it is not clear whether Bussing has stated a claim for any interference with her relationship with COR for a simple reason: Bussing’s operative complaint does not explain what, if any, ongoing relationship she had with COR. Buss-ing worked as an independent contractor for COR from September to December 2011. Filing 63-1 at ¶ 15. On January 1, 2012, she accepted employment with Le-gent. Filing 63-1 at ¶ 28. Bussing has not alleged that she was still employed by COR after that point. Nor does her com*739plaint make clear what business relationship or expectancy she might have maintained with COR. Simply alleging that she “had valid business relationships or expectancies” with COR is not enough. Filing 63-1 at ¶ 136. A complaint must do more than recite the elements of a tortious interference claim. See Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Bussing must allege “facts that show some protectable right — a prospective economic or contractual relationship. Although the right need not equate with that found in an enforceable contract, there must be allegations of fact giving rise to some ‘reasonable expectation of economic advantage.’ ” Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 563 A.2d 31, 37 (1989) (quoting Harris v. Perl, 41 N.J. 455, 197 A.2d 359, 363 (1964)). That said, it may very well be that Bussing had an existing or prospective relationship with COR. Therefore, she will be given leave to replead her claim.
For now, the Court will focus on Buss-ing’s relationship with Legent, with whom Bussing has alleged an ongoing business relationship, as expressed in her employment agreement with Legent. With regard to that relationship, there are four categories of potentially interfering defendants: (1) Sime, who was an officer of Legent (but not COR); (2) Sugarman, who was a director of COR (but not Legent); (3) COR itself; and (4) Frankel who was CEO of Legent and a director of COR, and Salas, who was a director of COR and (after May 4, 2012) an officer of Legent. See filing 63-1 at ¶¶ 5-8, 68, 70.
The Court begins with Sime. Because Sime worked for Legent, he was a coem-ployee for purposes of Huff. As noted above, the Magistrate Judge found that, with respect to all of the individual defendants, “avoiding regulatory compliance and covering up potential money laundering violations” did not fall within the lawful purposes of their employers. Filing 70 at 26.
While Bussing has alleged that Sime acted with an unlawful purpose, it was apparently a purpose that Sime shared with Legent. Both were interested in covering up Legent’s alleged misconduct. Bussing does not allege that Sime acted outside the scope of his employment, or in order to benefit himself at Legent’s expense. Huff did not address whether liability for tortious interference may attach when the unlawful purpose is shared by the corporation and the co-employee. Because the parties have not briefed this issue, the Court will not proceed without offering both sides a chance to weigh in. So, at this time, Bussing’s complaint against Sime will be allowed to proceed.
Bussing’s claims against COR potentially raise another complication not yet addressed by the parties. Legent is COR’s wholly-owned subsidiary. Filing 63-1 at ¶ 4. Courts from other jurisdictions have held that a parent corporation has a qualified privilege to interfere with the contractual relations of its subsidiary. See, e.g., Waste Conversion Systems, Inc. v. Greenstone Industries, Inc., 33 S.W.3d 779, 781 (Tenn.2000); T.P. Leasing Corp. v. Baker Leasing Corp., 293 Ark. 166, 732 S.W.2d 480, 483 (1987). The contours of this privilege, as it might exist under Nebraska law, are not yet clear. This, in turn, could affect Bussing’s claims against the remaining individual defendants, depending upon whether they were acting within their capacities as employees of COR and/or Le-gent. Again, because the parties have not addressed this issue, the Court finds it inappropriate to proceed without allowing them an opportunity to brief the matter.
For the time being, Bussing’s tortious interference claims will be allowed to proceed. However, the parties will need to *740address the issues identified above. Because the Court reaches this decision on different grounds than the Magistrate Judge, the Court declines to adopt the corresponding portion of the Findings and Recommendation. Bussing’s objection is therefore denied as moot.
THEREFORE, IT IS ORDERED:
1. The defendants’ objections (filing 74) are overruled.
2. Bussing’s objections (filing 76) are sustained in part and overruled as moot in part, as set forth above.
3. The Magistrate Judge’s Findings and Recommendation (filing 70) are adopted in part and declined in part, as set forth above.
4. The defendants’ motion to dismiss (filing 26) and Bussing’s motion for leave to file a third amended complaint (filing 63) are both granted in part and denied in part, as set forth above. Specifically,
a. Bussing’s claims for retaliation under Dodd-Frank, discrimination under FEPA, wrongful termination in violation of public policy, breach of contract, breach of the covenant of good faith and fair dealing, tor-tious interference, and negligence (against COR and Legent only, for their alleged failure to properly report information to the IRS) may proceed; and
b. Bussing’s remaining claim for defamation is dismissed. As to that claim and the remaining claims sought to be added in her proposed amended complaint (fraudulent and negligent misrepresentation, fraudulent inducement, and fraudulent concealment) her leave to amend is denied as futile.
5. On or before June 11, 2014, Bussing shall file a new amended complaint that conforms to the findings of this Memorandum and Order.
6.Bussing’s Motion to Offer Additional Evidence (filing 78) is denied as moot.
. This recitation of the facts is taken primarily from Bussing's proposed third amended complaint. Filing 63-1. The Court has used that complaint because it is Bussing’s first pleading that was drafted with the benefit of counsel, and because it concisely sets forth the material allegations also contained in her previous, pro se pleadings. See, filings 1, 19, and 34. The Court will refer to this latest proposed pleading as Bussing’s "operative complaint.”
. FINRA is a private, non-profit corporation that is registered with the SEC as a "national securities association.” Aslin v. FINRA, 704 F.3d 475, 476 (7th Cir.2013). This was made possible by the Maloney Act, 15 U.S.C. §§ 78o et seq., which provided for the establishment *723of self-regulatory organizations to oversee the securities markets. Aslin, 704 F.3d at 476.
. On a motion for leave to amend the complaint, the Court "should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). But the Court has discretion to deny leave when amendment would be futile, such as when the allegations of the amended complaint nonetheless fails to state a claim. See, Gandhi v. Sitara Capital Management, LLC, 721 F.3d 865, 868-69 (7th Cir.2013); Hintz v. JPMorgan Chase Bank, N.A., 686 F.3d 505, 511 (8th Cir.2012). Thus, in this case the Court reviews the motion for leave to amend under the same standard as a motion to dismiss for failure to state a claim.
. Pub.L. No. 111-203, 124 Stat 1376 (2010) (codified in various sections of Titles 7, 12, and 15 U.S.C.).
. See 17 C.F.R. § 240.21F-2(b)(l).
. One final procedural matter must be addressed. In addition to the extensive briefs submitted by the parties, Bussing has provided the Court with an amicus brief submitted by the SEC in a case pending before the Court of Appeals for the Second Circuit. See Meng-Lin Liu v. Siemens A.G., 978 F.Supp.2d 325 (S.D.N.Y.2013), appeal docketed, No. 13-4385 (2d Cir. Nov. 14, 2013). Filing 85. The Court has considered this brief, as well as an appellate brief submitted by the defendant in the Liu case, which was provided (along with additional briefing of their own) by the defendants in this case. See, filings 90, 91, and 92.
. Merriam-Webster Online Dictionary, s.v. "Whistleblower”, available at http://www. merriamwebster.com/dictionary/ whistleblower (last accessed May 9, 2014).
. Black’s Law Dictionary 1734 (9th ed.2009).
.Specifically, § 806 of Sarbanes-Oxley protects employees of covered companies from retaliation for providing information or assistance in the investigation of any conduct the employee reasonably believes to constitute a violation of various anti-fraud statutes, or any rule or regulation of the SEC. 18 U.S.C. § 1514A(a)(l). And § 806 protects not only disclosures to the SEC, but also to any federal regulatory or law enforcement agency, or to any member or committee of Congress. Moreover, § 806 protects internal reports, made’ to any person with supervisory authority over the employee. 18 U.S.C. § 1514(a)(l)(A-C).
. FINRA Rule 8210(a)(1) (2010). This is the version of Rule 8210 that was in effect at the relevant time. The rule has since been amended, although those amendments do not affect this case. See FINRA Rule 8210 (2013).
. And even under subsections (i) and (ii), there is no requirement that a tip actually meet the qualifications for an award; nor even that such information, or testimony or assistance, result in a successful enforcement action. See, e.g., 15 U.S.C. § 78u-6(a)(l) and (3), (b), and (c).
. 17 C.F.R. § 240.2lF-2(b)(l); see also SEC, Securities Whistleblower Incentives and Protections, 76 Fed.Reg. 34300-01 at 34304.
. Some courts have held that the tension between the statute’s definition of “whistle-blower” and the scope of conduct protected by subsection (iii) renders the statute ambiguous, such that deference to the SEC’s regulation is appropriate under 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). See, e.g., Murray v. UBS Sec., LLC, 2013 WL 2190084, at *2-7 (S.D.N.Y. May 21, 2013); Kramer v. Trans-Lux Corp., 2012 WL 4444820 at *4-5 (D.Conn. Sept. 25, 2012); see also Rosenblum v. Thomson Reuters (Markets) LLC, 984 F.Supp.2d 141, 145-48, 2013 WL 5780775, at *3-5 (S.D.N.Y.2013). However, *734this Court's reading of the statute, in context, offers a more direct resolution of this tension.
. Given this finding, the Court does not reach Bussing's alternative (and brief) argument that she made a disclosure required by a separate provision, FINRA Rule 3310. Filing 67 at 13.
. Bussing also argues that this policy is expressed in FEPA, through its inclusion of protections for employees who oppose or refuse to participate in violations of federal law. Neb.Rev.Stat. § 48-1114(3). Assuming that this statute could provide a sufficiently clear and definite expression of Legislative intent, it does not add anything to the analysis. The policy expressed in that statute is essentially "look to federal law.” The Court has done so, and Bussing has not persuasively explained how FEPA adds anything of substance to the Court's analysis. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224416/ | ORDER
NEIL V. WAKE, District Judge.
Plaintiffs Arizona Green Party and Claudia Ellquist filed a complaint against Arizona Secretary of State Ken Bennett challenging the constitutionality of an Arizona election statute (Doc. 1). The parties filed cross-motions for summary judgment (Docs. 15 and 17) and orally argued their motions on May 7, 2014. For the following reasons, Plaintiffs’ motion will be denied and Defendant’s motion granted.
I. BACKGROUND
Plaintiffs want the Green Party on the ballot for the 2014 election. As explained below, state election law requires the Green Party to have filed a new party petition by February 27, 2014, 180 days before the primary election. On February 25, 2014, Plaintiffs sued the Secretary, alleging that A.R.S. § 16-803, mandating the February deadline, is unconstitutional. Specifically, they alleged, “The challenged statute represents a direct restraint on Plaintiffs’ political speech and severely burdens the political speech, political association rights, and voting rights of Plaintiffs, in violation of the First and Fourteenth Amendments to the United States Constitution, and 42 U.S.C. § 1983.”
In Arizona, the Green Party last qualified for ballot recognition in 2010. Doc. 16 ¶ 23. At the time, state law required political parties to meet one of two statutory obligations in each successive election cycle to remain on the ballot: Registered party members must (1) cast 5 percent of the total votes cast for governor or presidential electors or (2) compose two-thirds of 1 percent of the total registered electors in the jurisdiction. Á.R.S. § 16-804(A)-(B). In 2011, the Arizona legislature amended its election law to entitle newly qualified parties to representation on the ballot “through the next two regularly scheduled general elections for federal office immediately following recognition ....” Id. § 16-801(B). The Secretary agreed to apply amended A.R.S. § 16-801 to the Green Party and extended ballot representation through the 2012 election cycle based on its 2010 recognition.
In the 2010 gubernatorial election, however, Green Party members failed to cast 5 percent of the total votes. Similarly, they failed to establish enough registered voters as of October 1, 2013, to remain on the ballot for the 2014 election cycle. Doc. 16 ¶¶ 26-27. Thus, on November 20, 2013, the Secretary announced that the Party had lost its recognized status. Id. ¶28. As in 2010, it would have to qualify as a new political party for purposes of the 2014 election cycle.
To qualify, the Green Party needed to file a petition with the Secretary meeting statutory requirements. A.R.S. § 16-801(A) requires the petition to bear the signatures “of qualified electors equal to not less than one and one-third per cent of the total votes cast for governor at the last preceding general election at which a governor was elected.” Section 16-803(A) requires the parties to file the petition with the Secretary “not less than one hundred eighty days before the primary election for which the party seeks recognition.” Thus, the Green Party’s petition needed to include 23,401 signatures and be submitted to the Secretary by February 27, 2014. The Party never filed such a petition.
In 2011 and 2012, the state legislature also amended the procedure for the Secre*743tary and the county recorders with respect to new party recognition. Doc. 16 ¶ 5. Prior to the amendments, new parties filed petitions with each county. The pre-amended statute required each county recorder to verify all the signatures submitted within 30 days. Id. ¶ 8. Once verified, the petitions were submitted to the Secretary at least 140 days prior to the primary for certification. Id. ¶ 6.
The 2011 and 2012 amendments increased the burden on the Secretary and decreased the burden on individual counties. Id. ¶ 5. Section 16-803 now requires the Secretary to do the following within seven business days of receiving new party petitions:
a. Determine the county of the majority of the signers for each sheet, identify the county of majority, eliminate all signatures from counties other than the majority county, and group all of [the] signature sheets by county.
b. Remove all signatures from eligibility for verification where the signature is missing, the residence address or description of residence location is missing, or where the date on which the petitioner signed is missing.
c. Count the number of signatures for verification on the remaining petition sheets and note the number of eligible signatures on each sheet above the majority county designation.
d. Number the remaining petition sheets in consecutive order.
e. Count all remaining petition sheets and signatures not previously removed and issue a receipt to the applicant of this total number eligible for verification. If the number of eligible signatures is below the minimum number required, the process ends here.
f. Select a random twenty percent sample of the eligible signatures.
g.Transmit copies of the selected signatures and petition sheets to the appropriate county recorders for verification within ten business days of receipt.
Id. ¶ 18; see also A.R.S. § 16-803(B)-(G). Once the county recorders certify the signature sheets, within 72 hours the Secretary must total the valid signatures “to determine the percentage of valid signatures in the sample, and then calculate the projected number of valid signatures submitted by the applicant.” Doc. 16 ¶ 20; see also A.R.S. § 16-803(IT). If the total meets the minimum required by § 16-801(A), the party is recognized. A.R.S. § 16-803(1). Thus, the sufficiency of the signatures must be determined within four weeks of filing, which also provides a modest buffer for any litigation arising therefrom.
This new procedure more closely parallels the process used for initiative, referendum, and recall petitions. Doc. 16 ¶ 5. Although the amendments shift the burden from the counties to the Secretary, they did not alter the formula for calculating the number of required signatures; nor did they change the 180-day deadline for filing the petitions. No party has yet to apply for recognition under the new procedures. Id. ¶ 19. In previous years, however, both the Americans Elect Party and the Green Party have satisfied the statutory requirements — including the 180-day deadline — and obtained new party recognition. Id. ¶¶ 23, 44.
The 180-day deadline is tied to the primary election. In 2009, the state legislature moved the primary ten weeks ahead of the general election. Id. ¶ 29. This allowed more time to complete the following tasks between the primary and general elections: processing provisional and early ballots, conducting hand counts, audits, recounts, or contests, canvassing the election *744results, issuing certificates of nomination, creating the general election database, preparing general election ballots, including translations, programming and testing equipment, and. issuing early ballots. Id. ¶ 41.
The Court takes judicial notice that Arizona’s 2014 primary election will occur on August 26, 2014. The state has offered undisputed evidence that the following tasks must be completed before that time, as required by statute:
• By March 1, 2014, calculate candidate signature requirements as required by A.R.S. § 16-322(B). “This is the minimum number of signatures a person must obtain in order to qualify for the primary election or in order to qualify as a candidate for nomination other than by primary.” Id. ¶ 81.
• Between April 28 and May 28, 2014, candidates for the primary ballot and independents seeking nomination apart from a primary must file nominating petitions as required by A.R.S. § 16-311(A) (requiring filing “not less than ninety nor more than one hundred twenty days before the primary election”) and § 16-341(C). Id. ¶ 33.
• By May 28, 2014, county recorders must mail notification to eligible voters on the permanent early voting list and inform voters how to designate a political party ballot if they are not members of a party that is recognized for the primary as required by A.R.S. § 16-544(D) (requiring notifications mailed “[n]ot less than ninety days before any polling place election scheduled in March or August”). Id. ¶ 35.
• By June 11, 2014, electors must file any actions challenging a nomination as required by A.R.S. § 16-351(A). Id. ¶ 37.
• By July 12, 2014, county recorders must mail ballots to uniformed services and overseas voters as required by A.R.S. § 16-543(A) (requiring ballots to “be transmitted no later than the forty-fifth day before the election”). This requires counties to finalize ballots with their printers by June 27, 2014. Id. ¶ 38.
• On July 24, 2014, testing begins on electronic ballot tabulating systems. “Testing must be done within seven days of the beginning of early voting, and ten business days prior to election day,” as required by A.R.S. § 16-449(A). Id. ¶ 39.
• On July 31, 2013, early voting begins as required by A.R.S. § 16-542(C) (requiring early ballots requested thirty days before the election to be “distributed on the twenty-sixth day before the election”) and A.R.S. § 16-544(F) (same deadline for mailing early ballots to eligible voters on the permanent early voting list). Id. ¶ 40.
II. LEGAL STANDARD
A motion for summary judgment tests whether the opposing party has sufficient evidence to merit a trial. Summary judgment should be granted if the evidence shows there is no genuine dispute about any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). On motions for summary judgment, the nonmoving party’s evidence is presumed true, and all inferences from the evidence are drawn in the light most favorable to the nonmoving party. Eisenberg v. Ins. Co. of North America, 815 F.2d 1285, 1289 (9th Cir.1987); Baldwin v. Trailer Inns, Inc., 266 F.3d 1104, 1117 (9th Cir.2001). “The court *745need consider only the cited materials, but it may consider other materials in the record,” Fed.R.Civ.P. 56(c)(3), as long as the evidence is admissible or can be produced in admissible form. See Fed.R.Civ.P. 56(c)(2). Conclusory and speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and to defeat summary judgment. Thornhill Publ’g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir.1979).
Here, Plaintiffs have offered no evidence, and thus none to controvert the material facts presented by Defendant. The evidence then, including the timeline above, is not in dispute. The question is whether on those facts either party is entitled to judgment as a matter of law.
III. ANALYSIS
In regulating its elections, Arizona “has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates.” Anderson v. Celebrezze, 460 U.S. 780, 788 n. 9, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); see also Kannarr v. Hardy, 118 Ariz. 224, 225, 575 P.2d 1250, 1251 (1978) (noting that the U.S. Supreme Court had upheld “[sjtatutes requiring a showing of a minimum amount of support for a political party before allowing the party to have or continue official status on the ballot”). This right trades off, however, with the “tendency of ballot access restrictions to limit the field of candidates from which voters might choose.” Anderson, 460 U.S. at 786, 103 S.Ct. 1564 (quotation marks omitted). Here, Plaintiffs challenge the balance Arizona strikes with its 180-day filing deadline.
“[W]hen an election law is challenged, its validity depends on the severity of the burden it imposes on the exercise of constitutional rights and the strength of the state interests it serves.” Nader v. Brewer, 531 F.3d 1028, 1034 (9th Cir.2008). “If the burden is severe, the challenged procedures will pass muster only if they are narrowly tailored to achieve a compelling state interest. If the burden is slight, the procedures will survive review as long as they have a rational basis.” Libertarian Party of Wash. v. Munro, 31 F.3d 759, 761 (9th Cir.1994) (citation omitted). Importantly, “the mere fact that a State’s system ‘creates barriers ... tending to limit the field of candidates from which voters might choose ... does not of itself compel close scrutiny.’ ” Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (quoting Bullock v. Carter, 405 U.S. 134, 143, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972)). The standard is more “flexible.” Id. at 434, 112 S.Ct. 2059. Indeed, “when a state election law provision imposes only reasonable, nondiscriminatory restrictions ..., the State’s important regulatory interests are generally sufficient to justify the restrictions.” Id. (quotation marks omitted).
The Green Party must demonstrate that the statute imposes a severe burden. Munro, 31 F.3d at 762. The ballot access requirements impose a severe burden if, taken together, they “seriously restrict the availability of political opportunity.” Id. “The question is whether ‘reasonably diligent’ minor party candidates can normally gain a place on the ballot, or if instead they only rarely will succeed.” Id.
Plaintiffs have not made this initial showing. They made the following allegations in their complaint:
• They would not be able to collect sufficient signatures by February 27, 2014.
*746• The petition requirements “are so onerous for third parties such as the Arizona Green Party that they must begin each campaign to regain ballot status immediately following the conclusion of the previous election cycle.”
• The February deadline “can greatly increase the costs 'minor parties incur collecting the required number of signatures for their qualifying petitions.”
• The February deadline is “not designed to allow a reasonably] diligent minor party organization to qualify for ballot access.”
• “Requiring minority political parties to gather signatures on their petitions so early, when the mind of the general public and the attention of the media is not focused on the general elections, i[s] unduly burdensome.”
Doc. 1 at 4. Critically, however, Plaintiffs never offered any evidence to support these assertions. For example, Plaintiffs have offered nothing to prove their allegation that the February deadline can increase the costs to minor political parties. More importantly, they have not offered any evidence that- here the February deadline did increase Plaintiffs’ costs. Further, the 180-day deadline is fifteen years old. Doc. 15 at 12. Although the legislature has amended the statutes recently to. shift some of the burden from the counties to the Secretary, Doc. 16 at 2, as noted above both the pre-amended and post-amended scheme required petitioning parties to file 180 days before the primary. Doc. 15 at 12. But Plaintiffs have not offered any evidence that the early deadline has ever precluded another minor party from qualifying. See Munro, 31 F.3d at 763 (“In fact, the Libertarians cite no instance in which any candidate ever has been denied access to the Washington ballot, or otherwise has been disadvantaged, because of the procedures they assail.”). Plaintiffs cite to the perils of early filing deadlines in general, but they offer no evidence demonstrating that Arizona’s deadline imposes any particular hardship — let alone a severe burden — on Green Party supporters or other minor parties. Cf. Anderson, 460 U.S. at 788 n. 9, 103 S.Ct. 1564 (<cWe have upheld generally-applicable and evenhanded restrictions that protect the integrity and reliability of the electoral process itself.”).
The Secretary’s evidence suggests the opposite. Despite the fifteen-year-old, 180-day deadline, the Green Party qualified in 2008 when the deadline fell in early March and again in 2010 when the deadline fell in late February.1 Moreover, the Americans Elect Party qualified in 2011 also under the February deadline. Doc. 16 ¶¶ 10-13, 44-45; Doc. 21 at 5. Although it is not dispositive that two minor parties have recently qualified, Libertarian Party of Ohio v. Blackwell, 462 F.3d 579, 592 (6th Cir.2006) (“[T]he fact that an election procedure can be met does not mean the burden imposed is not severe.”), historical evidence of ballot access cuts against Plaintiffs’ unsupported and conclusory allegations of severe burden. Cf. Nader, 531 F.3d at 1038 (noting that no independent presidential candidate had appeared on Arizona’s ballot since the state changed its relevant filing deadline fifteen years earlier, “suggesting] that the regulations impose[d] a severe burden that ha[d] imped*747ed ballot access”). Whatever burden the election scheme imposes, the challenged provision has not prevented two third parties from accessing the ballot.
At bottom, Plaintiffs’ argument is this: As a general matter, early deadlines burden supporters of minor parties. Further, other courts have struck down earlier deadlines for party petitions and candidate' filings. See Anderson, 460 U.S. 780, 103 S.Ct. 1564 (invalidating March filing deadline for independent presidential candidate to get on Ohio ballot); Nader, 531 F.3d 1028 (invalidating Arizona’s 90-day filing deadline for nomination petitions for independent candidates); Blackwell, 462 F.3d 579 (invalidating 120-day petition deadline); McLain v. Meier, 637 F.2d 1159 (8th Cir.1980) (invalidating June 1 deadline for newly qualifying parties, 90 days before primary election); MacBride v. Exon, 558 F.2d 443 (8th Cir.1977) (invalidating February 11 deadline); Libertarian Party of Tenn. v. Goins, 793 F.Supp.2d 1064 (M.D.Tenn.2010) (invalidating March deadline for newly qualifying parties, 120 days before primary); Citizens to Establish a Reform Party in Ark. v. Priest, 970 F.Supp. 690 (E.D.Ark.1996) (invalidating January 2 deadline); Libertarian Party of Ky. v. Ehrler, 776 F.Supp. 1200 (E.D.Ky.1991) (invalidating January deadline, 119 days before the primary); Cripps v. Seneca Cnty. Bd. of Elections, 629 F.Supp. 1335 (N.D.Ohio 1985) (invalidating February deadline for independent candidates, 75 days before the primary). Therefore, Plaintiffs argue, Arizona’s deadline must also be unconstitutional.
As an initial matter, cases involving deadlines for presidential nominations implicate only general elections and rationally need not long precede primary elections. More importantly, challenges to election laws are context dependent. Cf. Burdick, 504 U.S. at 434, 112 S.Ct. 2059 (admonishing courts to weigh asserted injuries against the state’s interests, considering “the extent to which those interests make it necessary to burden the plaintiffs rights”) (quoting Anderson, 460 U.S. at 789, 103 S.Ct. 1564). Plaintiffs have not demonstrated that a 180-day deadline alone, considered outside the context of the election cycle requiring it, necessarily imposes a severe burden. And they have not offered evidence — or even alleged— that the other interrelated provisions governing the election cycle impose a severe burden. Indeed, Plaintiffs expressly disclaimed any challenge to the other statutory requirements and time frames at oral argument. Finally, they have pointed to no case holding that an early filing deadline is automatically invalid.
Plaintiffs’ very general argument, completely unsupported by evidence, is insufficient to show that the burden imposed on Arizona voters is severe. Consequently, Plaintiffs must demonstrate that the state’s 180-day deadline has no rational basis. Munro, 31 F.3d at 761, 763. They have not done so. They have not offered evidence, for example, that there is slack within the cycle. Indeed, even setting aside factual deficiencies, Plaintiffs’ response makes no attempt to engage the election timeline warranting the February deadline, which the Secretary elucidated and defended in his motion. Plaintiffs’ assertion that “there are other less restrictive and expensive options that the Defendants seem to ignore,” Doc. 22 at 6, is insufficient:
The Libertarians contend that the state could streamline its system and verify signatures in a shorter period of time. No doubt this is true. But, because the current scheme poses only a minuscule burden for minor party candidacies, the Constitution does not require Washington to adopt a system that is *748the most efficient possible; it need only adopt a system that is rationally related to achieving its goals.
Munro, 31 F.3d at 764. It is also insufficient to assert, as Plaintiffs did at oral argument, that the state could simply allow the Green Party to use a nominating convention rather than a primary (and thus avoid the allegedly burdensome statutory scheme attending the primary). Plaintiffs did not brief this argument. In any event, Arizona’s interest in utilizing a primary outweighs Plaintiffs’ desire for an alternative procedure. The Supreme Court “has numerous times stated that it is ‘too plain for argument’ that ‘a State may require parties to use the primary format for selecting their nominees, in order to assure that intraparty competition is resolved in a democratic fashion.’ ” Alaskan Independence Party v. Alaska, 545 F.3d 1173, 1178 (9th Cir.2008) (quoting Cal. Democratic Party v. Jones, 530 U.S. 567, 572, 120 S.Ct. 2402, 147 L.Ed.2d 502 (2000)); see also id. (“[T]he State’s interest in enhancing the democratic character of the election process overrides whatever interest the Party has in designing its own rules for nominating candidates, such as its desire to nominate through party-run convention.”) (quotation marks omitted).2
The state has provided ample evidence that its deadline serves a self-evidently important regulatory interest: the “orderly administration of the election processes.” Doc. 21 at 8. Cf. Burdick, 504 U.S. at 433, 112 S.Ct. 2059 (“Common sense, as well as constitutional law, compels the conclusion that government must play an active role in structuring elections; as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”) (quotation marks omitted). As detailed above, the Secretary has offered uncontroverted evidence that he and the county recorders face a number of interrelated deadlines imposed by the state legislature, each requiring time to complete and each succeeding other prerequisite deadlines. There is no evidence that the impositions are unnecessary, excessive, or discriminatory. And Plaintiffs conceded they were not challenging this statutory election scheme as a whole or, indeed, challenging anything other than the February deadline for filing petitions. Especially if the other deadlines and requirements are assumed constitutional, and given the state’s uncontroverted evidence concerning the interplay between the February deadline and its election scheme as a whole, A.R.S. § 16-803 rationally accommodates the state’s administrative needs. See Nader, 531 F.3d at 1035 (“[A] state’s important regulatory interests are usually sufficient to justify election regulations that impose lesser burdens.”) (quotation marks omitted). Indeed, the fit is tight between A.R.S. § 16-803 and those unchallenged needs.
IV. POSTSCRIPT
At oral argument, Plaintiffs displayed petition sheets said to contain more than 27,000 signatures. Plaintiffs had not filed those signatures with the Secretary, nor did they explain their failure to file. Because A.R.S. § 16-803(A) does not set an *749outside limit on when parties may submit a petition, there is nothing preventing the Green Party from filing their petition and gaining access to the ballot for 2016 if the signatures prove sufficient, just as it did in 2008 and 2010.
IT IS THEREFORE ORDERED denying Plaintiffs’ Motion for Summary Judgment (Doc. 17).
IT IS FURTHER ORDERED granting Defendant’s Motion for Summary Judgment (Doc. 15). The Clerk shall enter judgment in favor of Defendant and that Plaintiffs take nothing.
. The Green Party received a court-ordered two-week extension for gathering signatures in 2010 because of the mid — election cycle change in the primary date and thus the petition deadline (from early March to late February). Doc. 21 at 5. There has been no such change in the deadline during this election cycle.
. Plaintiffs advanced another potential solution at oral argument: Allow the Green Party more time to collect signatures and less time for Green Party candidates subsequently to seek ballot access for the primary. Whatever other problems attend this proposal, it would facially discriminate by creating one track to the ballot for the Green Party and another for all other parties’ candidates. In any event, the argument was not briefed, and it was too late to bring up for the first time at oral argument. The Secretary could not fairly respond to it. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217950/ | MEMORANDUM **
Raymond Eugene Cotharn appeals the 216-month sentence imposed following his guilty plea conviction for one count of distribution of cocaine base in violation of 21 U.S.C. § 841(a)(1). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court’s determination that a defendant is a career offender pursuant to U.S.S.G. § 4B1.1. United States v. Riley, 183 F.3d 1155, 1157 (9th Cir.1999). We affirm in part, and remand in part.
The district court properly determined that Cotharn is a career offender under U.S.S.G. § 4B1.1 because he has at least two prior felony convictions for controlled substance offenses. See United States v. Sandoval-Venegas, 292 F.3d 1101, 1106 (9th Cir.2002). The district court properly looked to the language of the statute to determine whether Cotharn’s conviction of “criminal endangerment” under Montana Code Annotated § 45-5-207 involved a “serious risk of physical injury” and was, therefore, a crime of violence under U.S.S.G. § 4B1.1. See United States v. Bailey, 139 F.3d 667, 667-68 (9th Cir.1998) (holding that similar Arizona statute constituted a crime of violence).
Because Section 4B1.1 provides that a career offender’s criminal history category in every case shall be Category VI, we do not address Cotharn’s contentions that the district court miscalculated other aspects of Cotharn’s criminal history points.
Cotharn further contends that the district court failed to provide a written *106record of its determinations regarding Cotharn’s objections to the presentence report, as required by Fed.R.Crim.P. 32(i)(3)(C). We conclude that the district court complied with the substantive requirements of Rule 32 in its rulings during the sentencing hearing and by adopting the presentence report and addendum. See United States v. Fernandez-Angulo, 897 F.2d 1514, 1517 n. 4 (9th Cir.1990) (en banc) (noting that district court complies with Rule 32 by fairly indicating its resolution of controverted matters). However, we remand to the district court with instructions to append a copy of the sentencing transcript to the presentence report. See id. at 1517.
AFFIRMED in part, REMANDED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217952/ | MEMORANDUM **
Ronald Kenly Lacy appeals the 24-month sentence imposed upon revocation of his supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review dé novo the district court’s application of the Sentencing Guidelines and review for an abuse of discretion its consideration of the non-binding policy statements. See United States v. George, 184 F.3d 1119, 1120 (9th Cir.1999). We affirm.
Lacy contends that the district court failed adequately to consider the nature and circumstances of Lacy’s violation of the terms of his supervised release, and his history and characteristics, before sentencing him to the statutory maximum. This contention is unpersuasive because the record contains evidence that the district court considered the factors set forth in 18 U.S.C. § 3553(a). See id at 1119.
Lacy also argues that the district court failed to provide him with sufficient notice of its intention to depart upward from the sentencing range in Chapter Seven. However, Chapter Seven of the Sentencing Guidelines contains only non-binding policy statements. See id. (“a district court must consider but is not bound by the Chapter Seven policy statements.”). Therefore, such notice is not required. Furthermore, Lacy’s counsel had a copy of the probation department’s recommendation that Lacy be sentenced to the statutory maximum before the revocation hearing.
The district court did not abuse its discretion in denying Lacy’s request for a continuance of the revocation hearing because Lacy failed to show that the refusal resulted in prejudice to his defense. See United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1051 (9th Cir.1990) (internal quotation omitted).
AFFIRMED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217953/ | MEMORANDUM **
Paula Yvette Arocha appeals the 30-month sentence imposed following her guilty plea conviction for assault with a dangerous weapon in violation of 18 U.S.C. § 113(a)(3). We dismiss.
We lack jurisdiction to review the district court’s decision not to grant a downward departure for mitigating circumstances because there is no indication in the record that the district court believed it lacked discretion to depart downward. See United States v. Romero, 293 F.3d 1120, 1126-27 (9th Cir.2002).
There is no support for Arocha’s contention that her childhood circumstances were “extraordinary,” and that therefore this court should review the district court’s factual findings in determining its decision not to depart downward. Cf. United States v. Roe, 976 F.2d 1216, 1218 (9th Cir.1992) (remanded to reconsider downward departure where district court clearly erred in finding that defendant’s history of “extreme” childhood sexual and physical abuse was not extraordinary); cf. United States v. Walter, 256 F.3d 891, 894 (9th Cir.2001) (same).
DISMISSED.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217954/ | DECISION
PER CURIAM.
Laura V. King petitions for review of the final decision of the Merit Systems Protection Board (“Board”) that ordered the Department of the Navy (“agency”) to give her priority consideration (beginning on June 7, 2000) for the position she had left, or an equivalent position, retroactive to the date on which the agency first had an appropriate vacancy. King v. Dep’t of the Navy, No. SE-0353-01-0054-B-1 (MSPB Oct. 21, 2002). Ms. King had argued before the Board that she was entitled to priority consideration beginning on January 1, 1993, after first arguing that she was entitled to priority consideration beginning on May 31, 2000, or alternatively beginning on May 9, 2000. We affirm.
DISCUSSION
I.
On June 12, 1992, the agency removed Ms. King from her position as a Security Officer, GS-11, at the Puget Sound Naval Shipyard, for excessive absenteeism. Ms. King appealed her removal to the Board, *205but eventually the parties entered into a settlement agreement. Pursuant to the agreement, the agency cancelled Ms. King’s removal and she resigned from the agency effective June 12,1992.
Previously, on January 2,1991, Ms. King had filed a claim for compensation with the Office of Workers’ Compensation Programs (“OWCP”) based on a work-related emotional injury she claimed she suffered on November 1, 1989. She had stopped coming to work on November 5, 1990, as a result of her claimed condition. OWCP rejected Ms. King’s claim in several decisions issued between October 19,1991, and October 21,1996. On May 9, 2000, however, after further consideration, OWCP advised Ms. King that it had accepted her claim for “Acute Anxiety Reaction-Resolved.” Consequently, on January 12, 2001, OWCP determined that Ms. King would be retroactively compensated for the years 1991 and 1992.
Meanwhile, on May 31, 2000, asserting that she had recovered from a compensable injury, Ms. King sent the agency a copy of the May 9, 2000 communication from OWCP, stating in a cover letter that she assumed that the agency would make her “either a written job offer” or “a written offer to retire with buyout.” On November 24, 2000, after the agency had failed to respond to her letter, Ms. King appealed to the Board, alleging that the agency had failed to restore her to employment following her recovery from a compensable injury.
II.
Pursuant to 5 C.F.R. § 353.301(b), an individual who fully recovers from a compensable injury more than one year after compensation began is entitled to priority consideration, agency-wide, for restoration to the position he or she left, or an equivalent one, provided the individual applies for reappointment within 30 days of the cessation of compensation. Before the Board, Ms. King argued that she was entitled to priority consideration on May 31, 2000, the date she wrote to the agency notifying it of OWCP’s decision. Alternatively, Ms. King argued that the date on the letter from OWCP, i.e., May 9, 2000, also could be construed as the date for priority consideration.
In due course, a hearing was held before the administrative judge (“AJ”). The week after the hearing was completed, Ms. King moved “to reopen the record for additional argument.” In support of her motion, Ms. King argued that she had verbally asked to have her job back in September of 1991 and that, consequently, she was entitled to priority consideration on January 1, 1993, the first day after the period (January 1, 1991—December 31, 1992) for which she retroactively received OWCP compensation.
In an initial decision dated October 21, 2002, the AJ denied Ms. King’s motion to reopen the record, on the ground that Ms. King had failed to satisfy the requirements for reopening. At the same time, he ruled that Ms. King was entitled to priority consideration on June 7, 2000, the date the agency was deemed to have received her May 31, 2000 letter. The AJ’s initial decision became the final decision of the Board when Ms. King failed to petition the Board for review. This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
III.
Our scope of review in an appeal from a decision of the Board is limited. Specifically, we must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained with*206out procedures required by law, rule or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c); see Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed. Cir.1998). The decision of the Board in this case is none of these.
Preliminarily, we see no error in the AJ’s denial of Ms. King’s motion to reopen the record. The AJ determined that Ms. King had failed to show that the evidence and arguments to which she pointed in her motion were not readily available before the record closed. Significantly, on appeal, Ms. King does not challenge the AJ’s decision on her motion to reopen. Thus, she has failed to show that the AJ abused his discretion, see 5 C.F.R. § 1201.58, in denying the motion to reopen the record. Rather, she simply advances the argument that she failed to make before the Board while the record was open—that she is entitled to a priority consideration date of January 1,1993.
Turning to the merits, the Board did not err in holding that Ms. King was entitled to a priority consideration date of June 7, 2000, the date the agency was deemed to have received her May 31, 2000 letter. It was in that letter that Ms. King copied the agency with OWCP’s May 9, 2000 letter advising her that her claim for OWCP benefits was accepted and in which she stated that she “assumed” the agency would make her “a written job offer.” Even if Ms. King’s claim that she made a verbal request for priority consideration in 1991 (which claim was the subject of her motion to reopen and which forms the basis for her assertion that she is entitled to a January 1, 1993 priority date) were properly before us, she would not prevail. The reason is that, assuming such a verbal request was made, it was not made after the retroactive cessation of benefits, which was December 31, 1992. See 5 C.F.R. § 353.301(b) (stating that an employee who has been “separated because of a compensable injury and whose full recovery takes more than 1 year” is entitled to “priority consideration” for restoration “provided he or she applies for reappointment within 30 days of the cessation of compensation”).1
For the foregoing reasons, the final deci- ° sion of the Board is affirmed.
. Ms. King's reliance on Delalat v. Dep’t of the Navy, 86 M.S.P.R. 455 (2000), and Beltran v. United States Postal Serv., 50 M.S.P.R. 425 (1991), is misplaced. In both of those cases, one way or the other, application for re-employment was within 30 days of the cessation of OWCP compensation. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217955/ | PER CURIAM.
Harry T. Mosier petitions this court to review the dismissal of his appeal by the Merit Systems Protection Board (Board). Because the Board properly determined it lacked jurisdiction to hear Mr. Mosier’s appeal, this court affirms.
I.
Mr. Mosier was a Postmaster with the United States Postal Service (USPS) in Tuscaloosa, Alabama. Following a congressional inquiry pertaining to allegations of misconduct by Mr. Mosier while serving as Postmaster, the USPS issued a notice of proposed removal. A decision letter later followed on January 9,1992, which advised Mr. Mosier that he would be removed from service effective January 15, 1992. During this period, Mr. Mosier filed a CA-2, Notice of Occupational Disease and Claim for Compensation, alleging medical problems due to jvork-related stress.* Mr. Mosier appealed his removal to the Board. During the appeal process, Mr. Mosier remained on the postal rolls pursuant to postal regulations in a non-duty, non-pay status. Later, through counsel, Mr. Mosier filed a motion to dismiss his appeal without prejudice. In his motion, Mr. Mosier asserted that proceeding with the appeal would cause undue stress and anxiety, and that his physician had advised a recovery period of six to nine months *208prior to further pursuing his appeal. The administrative judge granted the motion to dismiss without prejudice, with the caveat that Mr. Mosier must re-file his appeal no later than January 30,1993.
Mr. Mosier re-filed his appeal on January 20, 1993, within the time period set by the administrative judge assigned to his initially filed appeal. A January 19, 1993 letter from Mr. Mosier’s psychiatrist, Dr. James Hall, accompanied the papers filed. In that letter, Dr. Hall stated that Mr. Mosier had been under his medical care for the preceding four months. Dr. Hall also stated that Mr. Mosier had no “physical or psychological restrictions,” and, with respect to the litigation over his removal from the USPS, found Mr. Mosier “fully capable at this time of participating in these matters and advocating for his interests.”
During the processing of this second appeal, Mr. Mosier, through counsel, entered into a settlement agreement with the USPS. This settlement was prompted by a nationwide postal restructuring initiative, in which all postal employees having more than twenty-five years of service were offered the opportunity to retire early. The preamble to Mr. Mosier’s settlement agreement reflects this offer, stating that Mr. Mosier “was eligible for and did utilize this opportunity; and he voluntarily retired from the Postal Service on September 3, 1992.” Amongst other terms, the settlement agreement expressly states that Mr. Mosier waived all rights to seek employment with the USPS, and that while he may enforce the agreement through the Board, Mr. Mosier could not seek to rescind the agreement due to a dispute with the implementation of the settlement. The settlement agreement was jointly executed by Mr. Mosier, his counsel, and representatives of the USPS. Upon reviewing the terms of this settlement agreement, the administrative judge noted the parties indicated that they understood the terms of the agreement, and wanted the agreement to be made part of the record for the purposes of later enforcement. The administrative judge dismissed Mr. Mosier’s second appeal in a decision that became final on May 10, 1993.
Roughly nine years later, Mr. Mosier filed a third appeal, this time disputing circumstances of his early retirement. Mr. Mosier claimed he was misled or otherwise coerced into taking early retirement from the USPS, and that he was mentally incapable at the time of making a rational decision regarding his employment status. Mr. Mosier’s arguments were not deemed to be persuasive. The administrative judge determined Mr. Mosier had “failed to even make out a prima facie case that he was misled, coerced, or threatened” by the USPS. The administrative judge concluded that Mr. Mosier “failed to make a nonfrivolous allegation that his retirement was involuntary” and dismissed Mr. Mosier’s third appeal for lack of jurisdiction. Mr. Mosier, now pro se, appeals that dismissal to this court, which has exclusive jurisdiction. 28 U.S.C. § 1295(a)(9) (2000).
II.
The Board’s jurisdiction is limited to adverse personnel actions made reviewable by the Board pursuant to law, rule or regulation. See 5 U.S.C. § 7701(a) (2000); Forest v. Merit Sys. Prot. Bd., 47 F.3d 409, 410 (Fed.Cir.1995). Although not so designated, retirements and resignations shown to be involuntary are constructive removals that fall within the Board’s jurisdiction for review. See Middleton v. Dep’t of Def., 185 F.3d 1374, 1379 (Fed.Cir.1999). Whether the Board has jurisdiction to adjudicate a given appeal is a legal question *209this court reviews de novo. King v. Briggs, 83 F.3d 1384, 1387 (Fed.Cir.1996).
III.
An employee’s resignation or retirement is presumed to be voluntary when evidenced by a formal document signed by the employee. However, this presumption may be rebutted by evidence sufficient to establish that the retirement or resignation was involuntary. See Middleton, 185 F.3d at 1379. The former employee bears the burden of proving involuntariness. Involuntariness can be established via meeting the following criteria: 1) that one party involuntarily accepted the terms of another party; 2) that no alternative existed under the given circumstances; and 3) the circumstances were the result of coercion by the opposing party. See id. (citing Christie v. United States, 207 Ct.Cl. 333, 518 F.2d 584 (1975)).
Mr. Mosier asserts that certain USPS representatives involved in his case are liars and cheats, who threatened or coerced Mr. Mosier into accepting early retirement. According to Mr. Mosier, the USPS misrepresented the offer of early retirement; stating that if Mr. Mosier did not accept early retirement, he would not receive any retirement benefits. However, the record evidence indicates that Mr. Mosier was removed from his position effective January 15, 1992, which is prior to the time the early retirement offer became available. Mr. Mosier was fortunate enough to have the early retirement initiative come to pass during the period between the dismissal of his initial appeal and the time bar for re-filing his appeal. As noted by the administrative judge, “[t]he early retirement was being offered for a limited period of time,” and if Mr. Mosier “did not take the early retirement, he would remain removed.”
Mr. Mosier was not required to take the USPS’s offer for early retirement and sign an agreement settling the litigation involving his removal from the position of Postmaster. However, the settlement agreement executed by Mr. Mosier explicitly states that Mr. Mosier voluntarily retired from the USPS. The settlement agreement itself states that both parties, which includes Mr. Mosier, “determined that the significant economic and other costs of further litigating this appeal and the advantages each party secures from the terms of settlement outlined below outweigh the potential advantages each party might have received from a decision on the merits.” Mr. Mosier had the benefit of professional guidance from his own experienced counsel during the settlement process. The record indicates that Mr. Mosier, rather than risking a loss on appeal (and therewith his chance for retirement benefits), voluntarily opted to take early retirement. The Board found no record evidence of coercion under the circumstances of Mr. Mosier’s retirement, and neither does this court.
Mr. Mosier also contends that he was not mentally competent to assist in his defense at the time he undertook his second appeal and executed the settlement agreement dismissing that appeal. According to Mr. Mosier, he was not capable of confronting issues concerning his employment until August 2001. Contrary to these contentions, record evidence shows that Mr. Mosier’s attending psychiatrist found him mentally capable of assisting in his defense at the time Mr. Mosier filed his second appeal. Moreover, record evidence indicates Mr. Mosier concomitantly pursued a worker’s compensation claim relating to his employment during the same period his second appeal was before the Board.
Mr. Mosier admits he submitted documentation of mental fitness together with his second appeal. Mr. Mosier contends, *210however, that his psychiatrist intentionally misrepresented his mental condition, at Mr. Mosier’s request, in order to be ensured payment on accounts due from the proceeds of Mr. Mosier’s worker’s compensation claim. Mr. Mosier provides no evidence of such complicity. Mr. Mosier’s naked assertion of professional malfeasance by his attending psychiatrist is not well taken by this court.
Because the record evidence indicates that Mr. Mosier voluntarily retired from the USPS, and that the circumstances surrounding bis retirement were not tainted by coercion, Mr. Mosier’s retirement does not rise to the level of constructive removal. Therefore, the decision of the Board to dismiss Mr. Mosier’s appeal for lack of jurisdiction is affirmed.
The exact date of the filing of the CA-2 Notice is not clear from the record, but does not affect the disposition of this case. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217957/ | ORDER
The order of dismissal and the mandate dated March 28, 2003 having been issued in error, the same hereby are, VACATED and RECALLED, and the notice of appeal is REINSTATED.
Petitioner’s brief is due within 21 days from the date of this order. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224417/ | ORDER DENYING IN PART AND GRANTING IN PART DEFENDANT’S MOTION TO DISMISS
RICHARD SEEBORG, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
This matter arises from the decision by defendant Apple, Inc. (“Apple”) to fire plaintiff Joshua Banko (“Banko”). The complaint asserts five claims for relief. Defendant Apple moves to dismiss all five claims for failure to state a claim upon which relief may be granted. For the following reasons, defendant’s motion to dismiss is granted in part and denied in part, with leave to amend. This matter is suitable for disposition without oral argument pursuant to Civil Local Rule 7 — 1(b).
II. BACKGROUND1
Plaintiff Joshua Banko was employed by defendant Apple for 12 years. During this time, Banko worked as an engineer on multiple projects and supervised other engineers. Banko began his employment on an “at-will” basis. During his 12 year career at Apple, Banko received favorable performance reviews, was told he was a valuable employee, and was awarded multiple discretionary bonuses. He did not receive any negative performance reviews and was never put on a performance improvement plan.
In 2012, Banko learned one of the engineers he supervised (“Roe”) had received a $40,000 pay increase and a grant of 1500 Restricted Stock Units, purportedly to prevent Roe from moving to Facebook. Shortly thereafter, Banko noticed Roe had been submitting expense reports which included personal and other expenses that were not properly documented. When Banko directed Roe to remove these inappropriate expenses, she refused.
Upon Roe’s failure to remedy her inaccurate expense reports, Banko came to believe Roe was violating both Apple policy and applicable law. Banko feared this embezzlement might amount to a fraud against shareholders as well as the public by leading Apple to file inaccurate taxes but he was dissuaded from making any report by his supervisors. Ignoring those instructions, Banko reported Roe to Apple’s upper management. Apple then conducted an internal audit to determine if Roe had misrepresented expenses on her expense reports. This audit uncovered over forty instances of inflated or falsified expenses for which Roe received reimbursement from Apple. When Banko recommended Apple upper management terminate Roe for fraud and embezzlement of company funds, his supervisors told him not to pursue the matter. Believing he was obligated by law and Apple policy to terminate Roe, Banko approached Victor Cousins of Apple’s human resources department. In a subsequent meeting not attended by Banko, the decision was taken to terminate Roe. Nonetheless, several *753individuals in Apple management, including those who instructed Banko not to pursue the termination of Roe, were upset Banko had reported Roe to Cousins.
Banko continued his duties at Apple and received praise for the completion of a prototype ahead of schedule before holiday break. Upon returning, Banko received a significant discretionary bonus for his work on the prototype. On January 14, 2013, less than two weeks later, Banko’s employment was terminated. Banko filed this lawsuit on June 27, 2013. He advances five claims for relief: (1) violation of the Dodd-Frank Act; (2) wrongful termination in violation of public policy; (3) violation of Section 1102.5 of the California Labor Code; (4) breach of employment contract; and (5) breach of implied covenant of good faith and fair dealing.
III. LEGAL STANDARD
A complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.Civ.P. 8(a)(2). “Pleadings must be so construed so as to do justice.” Fed.. R.Civ.P. 8(e). While “detailed factual allegations are not required,”' a complaint must have sufficient factual allegations to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is facially plausible “when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. This standard asks for “more than a sheer possibility that a defendant acted unlawfully.” Id. This determination is a context-specific task requiring the court “to draw in its judicial experience and common sense.” Id. at 1950.
A motion to dismiss a complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of the claims alleged in the complaint. See Parks Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). Dismissal under Rule 12(b)(6) may be based on either the “lack of a cognizable legal theory” or on “the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.1990). When evaluating such a motion, the court must accept all material allegations in the complaint as true, even if doubtful, and construe them in the light most favorable to the non-moving party. Twombly, 550 U.S. at 570, 127 S.Ct. 1955. “[C]onclusory allegations of law and unwarranted inferences,” however, “are insufficient to defeat a motion to dismiss for failure to state a claim.” Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir.1996); see also Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (“threadbare recitals of the elements of the claim for relief, supported by mere conclusory statements,” are not taken as true).
In dismissing a complaint, leave to amend must be granted unless it is clear that the complaint’s deficiencies cannot be cured by amendment. Lucas v. Dep’t of Corrections, 66 F.3d 245, 248 (9th Cir.1995). Wfiien amendment would be futile, however, dismissal may be ordered with prejudice. Dumas v. Kipp, 90 F.3d 386, 393 (9th Cir.1996).
IV. DISCUSSION
A. Retaliation
Banko’s first and third claims for relief both allege Apple violated the law by firing Banko for engaging in legally protected actions. The first claim for relief, under the Dodd-Frank Act 15 U.S.C. § 78u-6, is premised on Banko’s reporting what he *754believed to be securities fraud to Apple management. That Act allows for a private claim for relief for violations of Section 1514A of Sarbanes-Oxley. 15 U.S.C. § 78u-6(h)(l)(A)(iii). The third claim arises not only from Banko’s reporting to Apple management, but also from his refusal to cover up or engage in the alleged embezzlement. This third claim is brought pursuant to Section 1102.5 of the California Labor Code, which makes it illegal for an employer to retaliate against an employee for refusing to participate in an activity that would result in a violation of state or federal law. Banko contends his firing violates both the public policy of the Dodd-Frank Act and the Sarbanes-Oxley Act. Apple moves to dismiss both of these claims on three grounds: (1) the statute of limitations for a suit under Sarbanes-Ox-ley has expired; (2) Banko’s actions are not protected under the Sarbanes-Oxley Act; and (3) not having filed a report with the Securities and Exchange Commission (“SEC”), but only with Apple management, Banko is not a “whistleblower” under Dodd-Frank.
i. Statute of Limitations
The Dodd-Frank Act and the Sar-banes-Oxley Act each have their own statutes of limitation. Individuals who bring a Sarbanes-Oxley anti-retaliation claim must first file a complaint with the Secretary of Labor within 180 days of the alleged violation, and are only permitted to sue in federal court if the Secretary has not issued a final order within 210 days. 18 U.S.C. § 1514A(b)(2)(D); 29 C.F.R. § 1980.103(d); 12 U.S.C. § 5567(c)(4)(D). The Dodd-Frank Act provides for a six-year statute of limitations. 15 U.S.C. 78u-6(h)(B)(iii). Apple contends Banko has failed to satisfy the requisite Sarbanes-Oxley limitations period and administrative adjudication requirements. While Banko has not met the requirements of Sar-banes-Oxley, he is well-within the six-year limitations period provided by Dodd-Frank. Id. Although the first and third claims involve Sarbanes-Oxley, they are brought under different statutes. The first claim for relief is brought under Dodd-Frank, which creates a private right of action for violations of Sarbanes-Oxley. 15 U.S.C. § 78u-6(h)(l)(A)(iii). Therefore, it is timely. The third claim for relief is brought under the California Labor Code. This third claim is also timely. Therefore, Apple’s motion to dismiss the third claim for relief is denied.
ii. Protected Actions Under Sarbanes-Oxley
Banko’s claims under the Dodd-Frank Act require that Banko’s reporting and refusing to participate in or cover up the alleged embezzlement require that those actions fall within the protections of Sarbanes-Oxley. 15 U.S.C. § 78u-6(h)(l)(A)(iii). Apple contends Banko’s actions are not protected because, according to Apple, reports regarding another employee’s expense reports, even if accurate, do not sufficiently involve shareholder fraud within the meaning of Sarbanes-Oxley.
Sarbanes-Oxley protects those who provide information that they reasonably believe relates to fraud or securities violations as defined in 18 U.S.C. § 1514A(a)(1). Van Asdale v. Int’l Game Tech, 577 F.3d 989, 996-97 (9th Cir.2009). Here, Banko alleges he reasonably believed Roe’s alleged embezzlement constituted fraud against shareholders. In response, Apple contends Roe’s alleged behavior only amounted to a violation of an internal policy and did not rise to the level of fraud against shareholders as required under Section 1514(A). At this juncture, Banko need only plead facts sufficient to state a claim that relates to one of the listed cate*755gories under Section 1514A. Thus, while Banko’s belief might not be sufficiently reasonable to prevail, he has pled sufficient facts to state a claim for relief. Fed. R.Civ.P. 12(b)(6).
iii. The Availability of Dodd-Frank’s “Whistleblower Protection”
Apple argues that Banko is not a “whistleblower” because he did not file a report with the Securities and Exchange Commission (“SEC”). Implicated by that question is the relationship between Dodd-Frank’s definition of “whistleblower” and the private claim for relief for violations of Sarbanes-Oxley. As discussed above, this claim for relief is brought under the Dodd-Frank Act, which authorizes a private right of action for violations of Sarbanes-Oxley. 15 U.S.C. § 78u-6(h)(l)(A)(iii). The issue here is whether that right of action is available to an individual who does not meet the Dodd-Frank Act’s definition of “whistleblower.” Apple argues an individual must actually make a complaint to the SEC pursuant to Section 78u-6(a), which defines “whistleblower” as “any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the Commission, in a manner established, by rule or regulation, by the Commission.” Banko argues Section 78u-6(h)(1)(A)(iii) allows individuals to bring a private claim for violation of Sarbanes-Oxley even if that individual does not meet Section 78u-6(a)’s definition of “whistle-blower” because Section 78u-6(h)(l)(A)(iii) is an exception to Dodd Frank’s definition of “whistleblower.” This is a matter of first impression in the Ninth Circuit.
The first step in determining whether or not reporting to upper management is sufficient to entitle one to “whistleblower protection” under 78u-6(h) is to decide whether or not the statute is ambiguous. “When faced with questions of statutory construction, ‘we must first determine whether the statutory text is plain and unambiguous’ and, ‘[i]f it is, we must apply the statute according to its terms.’” Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 622 (5th Cir.2013) (citing to Carcieri v. Salazar, 555 U.S. 379, 387, 129 S.Ct. 1058, 172 L.Ed.2d 791 (2009)). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “The inquiry must cease if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” Id. at 340, 117 S.Ct. 843. If the statutory text is unambiguous, the inquiry begins and ends with the text. BedRoc Ltd. v. United States, 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004). However, if the statute is ambiguous, courts look to administrative regulations for clarification. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).
Very few courts have considered this issue. All four district courts that have done so have found the statute to be ambiguous in this regard. See Nollner v. S. Baptist Convention, Inc., 852 F.Supp.2d 986, 988 (M.D.Tenn.2012); Murray v. UBS Sec., LLC, 12 CIV. 5914 JMF, 2013 WL 2190084 (S.D.N.Y. May 21, 2013); Kramer v. Trans-Lux Corp., 3:11 CIV. 1424 SRU, 2012 WL 4444820 (D.Conn. Sept. 25, 2012); Egan v. Trading Screen, Inc., 10 CIV. 8202 LBS, 2011 WL 1672066 (S.D.N.Y. May 4, 2011). These courts premise their holding on three grounds: (1) the purpose of the Dodd-Frank Act was to “improve the accountability and transparency of the finan*756cial system,” and create “new incentives and protections for whistleblowers;” (2) extending the “whistleblower protection” provision only to individuals who meet the Dodd-Frank definition of ‘^whistleblower” would violate a tenant of statutory interpretation by making Section 78u-6(h)(l)(A)(iii) superfluous; and (3) the SEC issued regulation 34300-01 stating 78-u6(h)(l)(A)(iii) protection is available to some individuals who do not report violations consistent with 78u-6(a)(6).
Meanwhile, the only appellate decision to address this issue found the statute unambiguous and held an individual must first meet the definition of “whistleblower” to qualify for “whistleblower protection.” In Asadi v. G.E. Energy (USA), L.L.C., the Fifth Circuit held the statute is unambiguous for three reasons: (1) Section 78u-6(h)(l)(A) limits “whistleblower protection” to “whistleblowers”; (2) “Section 78u — 6(h)(1)(A)(i) protects whistleblowers from employer retaliation for the action that made the individual a whistleblower in the first instance, ie., providing information relating to a securities law violation to the SEC”; and (3) limiting “whistleblower protection” to individuals who are “whistle-blowers” under Section 78u-6(a) does not make 78u — 6(h)(1)(A)(iii) superfluous because it would still protect individuals who filed a complaint with the SEC but were retaliated against for another reason. Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620 (2013).
Applying the rules of statutory interpretation set forth above, the statute is not ambiguous; the “whistleblower protection” provided by Section 78u-6(h) is only available to individuals who meet the Dodd-Frank definition of “whistleblower” found in Section 78u-6(a). To conclude to the contrary, one would have to ignore several canons of statutory interpretation. First, allowing individuals who did not report to the SEC to be designated a “whis-tleblower” under 78u-6(a) would ignore the plain language of that statute. As the Court held in Chevron, the first step of statutory interpretation is asking “whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter.” 467 U.S. at 842-43, 104 S.Ct. 2778. Section 78u-6(h)(l)(A) states “[n]o employer may discharge, demote,, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms, and conditions of employment because of any lawful act done by the whistleblower.” (emphasis added). Thus, the statute specifies that an employer may not take the above actions against a whistleblower. It is not until after this clause that Congress adds protection for reports that are protected by Sarbanes-Oxley, indicating that the latter is subordinate to the former. When read together, 78u-6(h)(l)(A) and 78u-6(h)(l)(A)(iii) state “[n]o employer may discharge, demote, suspend, threaten, harass, directly or indirectly, or in any other manner discriminate against, a whistleblower in the terms and conditions of employment because of any lawful act done by the whistleblower in making disclosures that are required or protected under the Sar-banes-Oxley Act of 2002.” (emphasis added). Congress could have used a word other than “whistleblower” but chose not to. Asadi v. G.E. Energy (USA), L.L.C., 720 F.3d 620, 626 (5th Cir.2013).
Second, as the Fifth Circuit noted in Asadi, interpreting Section 78u-6(h)(l)(A)(iii) to be an exception to the Section 78u-6(a) definition of “whistleblower” would render the words “to the Commission” superfluous. 720 F.3d at 625. Construing the statute in this manner would violate the surplusage canon that every word is to be given effect. See, e.g., *757TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) (“It is a cardinal principle of statutory construction that a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.”)
Third, allowing individuals who do not satisfy the Dodd-Frank definition of “whistleblower” to bring a claim under Section 78u-6(h) would contradict that section’s title. Section 78u-6(h) is titled “whistleblower protection.” While a heading cannot limit the plain meaning of the text, it lends support to the conclusion that Section 78u-6(h) applies only to those individuals who qualify as “whistleblowers” as defined in § 78u-6(a)(6). See Fla. Dep’t of Revenue v. Piccadilly Cafeterias, Inc., 554 U.S. 33, 47, 128 S.Ct. 2326, 171 L.Ed.2d 203 (2008) (“To be sure, a ... heading cannot substitute for the operative text of the statute. Nonetheless, statutory titles and section headings are tools available for the resolution of a doubt about the meaning of a statute.” (citations and internal quotation marks omitted)).
Fourth, the SEC’s regulation should only be granted deference if the statute is ambiguous on its face. The SEC has promulgated a regulation providing an individual may be a whistleblower if he or she reports to persons or authorities other than the SEC. Securities and Exchange Commission, Securities Whistleblower Incentives and Protections, 76 Fed.Reg. 34300-01, at *34304 (June 13, 2011). The plaintiff, and some district courts, point to the SEC’s issuance of this regulation as support for the argument that the statute is ambiguous. Deference, however, is only warranted if the statute is ambiguous on its face. “[I]f the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. Furthermore, the SEC might have reason for issuing this regulation other than statutory ambiguity. Indeed, neither the district court opinions noted above, nor plaintiffs papers, invoke any authority suggesting the SEC issued this regulation because of ambiguity in the statute.
Finally, while the district court opinions are correct that the purpose of the Dodd-Frank Act is to “improve the accountability and transparency of the financial system,” and create “new incentives and protections for whistleblowers,” it is not the only protection available to individuals who believe they are being retaliated against for revealing securities fraud. These plaintiffs have other options. Here, the plaintiff could have filed a complaint with the Secretary of Labor under Sarbanes-Oxley within 180 days of the purported violation. 18 U.S.C. § 1514A(b)(2)(D). Indeed, as discussed above, Dodd-Frank doubled the amount of time an individual has available within which to file such a complaint. The plaintiff chose not to do so. While this forfeiture may sometimes lead to unfortunate results where individuals who take socially-desirous actions fail to be granted protection, this conclusion comes as the result of that individual’s own delay and does not bear upon the availability of Section-78u-6(h) relief.
Because plaintiff did not file a complaint to the SEC, he is not a “whistleblower” under the Dodd-Frank Act. 15 U.S.C. 78u-6(a)(6). For the reasons discussed above, Section 78u-6(h) only extends “whistleblower protection” to individuals who qualify as “whistleblowers” under Dodd-Frank. Plaintiffs first claim for relief is therefore dismissed. Likewise, the Dodd-Frank and Sarbanes-Oxley bases for plaintiffs third claim are also dismissed.
*758B. Wrongful Termination in Violation of Public Policy
Banko’s second claim for relief contends he was wrongfully terminated in violation of public policy. According to Banko, he was fired in response to his report of Roe’s embezzlement. This retaliatory firing, according to Banko, violates the public policies against embezzlement, illegitimate corporate tax deductions, and encouragement of whistleblowing. Apple moves to dismiss, arguing the complaint fails to state a claim because it omits reference to specific public policy and avers only a violation of non-actionable Apple policy.
In the complaint, Banko specifically avers that his termination violates the policy behind both the Sarbanes-Oxley and Dodd-Frank Acts. Apple’s suggestion that an action cannot be against both public policy and company policy is unpersuasive. To hold otherwise would grant companies license to nullify wrongful termination for violation of public policy suits simply by enacting corresponding internal prohibitions. The authority to which Apple points extends only to the proposition that alleged violations of internal policies do not, by themselves, suffice to support a claim for wrongful termination in violation of public policy. See e.g., Turner v. Anheuser-Busch, Inc., 7 Cal.4th 1238, 1257, 32 Cal.Rptr.2d 223, 876 P.2d 1022 (1994). Defendant’s motion to dismiss plaintiffs second claim for relief therefore must be denied.
C. Breach of Employment Contract and Breach of Implied Covenant of Good Faith and Fair Dealing
Plaintiffs fourth and fifth claims sound in contract and aver that Apple violated an employment agreement between the parties as well as the implied covenant of good faith and fair dealing contained in that purported contract. According to Banko, he was given multiple assurances of continued employment at Apple, thereby transforming his employment beyond “at-will.” Those assurances include: positive performance reviews, merit-based pay-raises, assurances that he would not be terminated arbitrarily, oral representations from his supervisor that she would back him up with respect to continued employment, and representations by Apple management that he would be employed by Apple so long as his performance was satisfactory and only terminated for cause. According to Banko, these assurances, along with Apple’s policy of putting employees on performance improvement plans prior to terminating them, constituted a contract and an implied promise to terminate his employment only for good cause. He avers that Apple failed to fulfill its obligation to adhere to this purported employment contract in good faith. Apple moves to dismiss for failure to state a claim, arguing: (1) the complaint fails to allege facts establishing Banko was not an “at-will” employee; (2) Banko has not alleged any facts establishing under what circumstances Apple could terminate his employment; (3) there was no implied covenant of good faith and fair dealing as the parties did not have an operative employment contract; and (4) Banko’s fifth claim does not present facts in addition to those upon which his fourth claim is predicated.
In California, employment having no specified term is presumed to be on an “at-will” basis. Cal. Labor Code § 2922. The parties do not dispute that Banko’s employment was never for a specified term and began as an “at-will” employment. Banko’s contention, and the dispositive issue for defendant’s motion to dismiss the fourth claim, is whether Apple’s assurances to Banko during his 12-year employment were sufficient to shift Banko’s em*759ployment from “at-will.” The presumption to that effect can be altered or limited by oral agreement between an employer and employee. Guz v. Bechtel Nat. Inc., 24 Cal.4th 317, 336, 100 Cal.Rptr.2d 352, 8 P.3d 1089 (2000).
One such potential alteration arises when an employer makes a guarantee to the employee that he will only be fired for good cause. Foley v. Interactive Data Corp., 47 Cal.3d 654, 677, 254 Cal.Rptr. 211, 765 P.2d 373 (1988). The contractual understanding need not be express, but may be implied in fact, arising from the parties’ conduct evidencing their actual mutual intent to create such enforceable limitations. Guz, 24 Cal.4th at 336, 100 Cal.Rptr.2d 352, 8 P.3d 1089. In California, courts consider whether an employment contract is more than “at-will” by looking to “the personnel policies or practices of the employer, the employee’s longevity of service, actions or communications by the employer reflecting assurances of continued employment, and the practices of the industry in which the employee is engaged.” Foley, 47 Cal.3d at 680, 254 Cal.Rptr. 211, 765 P.2d 373. As the California Supreme Court explained in Foley, “[w]hen the parties have enforceable expectations concerning either the term of employment or the grounds or manner of termination, Labor Code section 2922 does not diminish the force of such contractual or legal obligations.” Id.
Neither Banko nor Apple address the Foley factors in their papers, but the application of these factors in Foley is instructive here. Like the plaintiff in Foley, Banko avers his employment agreement evolved to where he could only be fired for cause. Many of the facts that the Foley court found adequate to create a triable issue of fact as to whether or not the parties agreed to fire the plaintiff only for good cause are mirrored in the relationship between Banko and Apple. First, the Court found six years and nine months to be sufficient elapsed time for a trier of fact to find that an implied contract had developed. Id. at 681, 254 Cal.Rptr. 211, 765 P.2d 373. Here, Banko was employed for 12 years, nearly twice as long as the plaintiff in Foley. Second, as in that case, Banko avers repeated oral assurances of job security and consistent promotions, salary increases and bonuses during the term of his employment that contributed to his reasonable expectation of discharge only for good cause. Id. Third, just as the defendant in Foley had self-imposed written termination guidelines, Banko alleges Apple had a common practice of placing struggling employees on a performance improvement plan, which, as in Foley, did not occur here. Id. The presence of these facts in the pleadings is sufficient to state a claim for relief for breach of a contract in violation of Banko’s evolved right to be subject to termination only for good cause.
Apple next argues that plaintiffs complaint fails to state a claim for breach of employment contract because it does not specify under what circumstances such a contract could be terminated. Apple fails to point to any authority, however, suggesting that such a contention is required to show an employment contract is not “at-will” or to state a claim for breach of an employment contract. In any event, Apple’s contention ignores the fact that the complaint plainly acknowledges Apple could terminate the employment agreement for good cause.
In addition to a contract’s express terms, every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. Foley, 47 Cal.3d at 683, 254 Cal.Rptr. 211, 765 P.2d 373. Banko alleges Apple violated the implied covenant in his employment *760contract by firing him in retaliation for his refusal to participate in the cover up of Roe’s embezzlement. This averment, coupled with the alleged existence of a contract, is sufficient to state a claim for violation of the covenant of good faith and fair dealing.
Finally, Apple argues Banko’s claim for violation of the covenant of good faith and fair dealing should be dismissed because it does not present a factual basis independent from Banko’s claim for breach of the employment contract. When an employer’s behavior is actionable under breach of contract, a claim for violation of the covenant of good faith and fair dealing is only available if the plaintiff alleges the employer took actions beyond the breach of contract itself. Guz, 24 Cal.4th at 352, 100 Cal.Rptr.2d 352, 8 P.3d 1089. Here, plaintiffs claimed violation of the covenant of good faith and fair dealing adds nothing to the claim for breach of the employment contract.
The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party’s right to receive the benefits of the agreement actually made. Id. at 349, 100 Cal.Rptr.2d 352, 8 P.3d 1089. The complaint fails to plead any facts to support Apple acted to frustrate Banko’s ability to fulfill his end of the bargain other than by firing him, behavior which is actionable under his breach of contract claim. Had Apple taken steps to undermine Banko’s performance of his obligations under the employment agreement, Banko might have the basis for a claim based on violation of the covenant of good faith and fair dealing. For example, if Apple agreed to fire Banko only for cause, but then frustrated Banko’s ability to perform his contractual obligations, a claim based on the covenant of good faith and fair dealing might arise. No evidence of such behavior, however, is present here. To the contrary, Banko’s complaint avers he continued to garner favorable performance reviews up until the time he was fired. That is to say that the very conduct Banko relies upon to bring his other claims for relief is the reason he likely cannot plead facts to support a claim for violation of the covenant of good faith and fair dealing. Defendant’s motion to dismiss plaintiffs fifth claim for relief is therefore granted.
V. CONCLUSION
For the reasons explained above, defendant’s motion to dismiss his first claim for relief based on retaliation and the fifth claim, for breach of the implied covenant of good faith and fair dealing, is granted with leave to amend. Defendant’s motion to dismiss the wrongful termination and breach of employment contract claims is denied. Defendant’s motion to dismiss the California Labor Code claim is denied. Plaintiff must file any amended complaint within 30 days of the date of this order.
IT IS SO ORDERED.
. The facts are taken from the complaint and assumed to be true for the purposes of this motion to dismiss. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217983/ | ORDER
Linear Technology Corporation and Unitrode Corporation jointly move to dismiss their appeal and cross appeal with respect to each other, 02-1570 and 02-1599. Maxim Integrated Products, Inc. provides a notice of supplemental authority pursuant to Fed. R. App P. 28(j).
Linear states that it will respond to Maxim’s supplemental authority in its brief. Pursuant to the recently amended federal rule, Linear must respond to the supplemental authority in a letter that is similarly limited to no more than 350 words.
*227Accordingly,
IT IS ORDERED THAT:
(1) The joint motion to dismiss 02-1570 and 02-1599 is granted.
(2) Each side shall bear its own costs in 02-1570 and 02-1599.
(3) The revised official caption in 02-1569, -1576 is reflected above.
(4) Linear’s response letter is due within 14 days. Maxim’s letter and Linear’s letter -will be provided to the merits panel that is assigned to hear their appeals. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217985/ | ORDER
Appellant having failed to respond to the show cause order of March 6, 2003, this appeal is hereby dismissed. Each party shall bear its own costs. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217986/ | ORDER
The appellant having failed to file the brief required by Federal Circuit Rule *22931(a) within the time permitted by the rules, it is
ORDERED that the notice of appeal be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217988/ | ORDER
M. Louise Blount requests that the court accept her untimely petition for review.
On September 13, 2002, the Administrative Judge (AJ) issued an initial decision informing Blount that the AJ’s decision would become a final Merit Systems Protection Board decision on October 18, 2002. The AJ’s decision specified that any petition for review must be filed with this court within 60 days of the date the decision became final. Blount’s petition for review was received by the court on December 18, 2002, 61 days after the AJ’s decision became final.
Our review of a Board decision is governed by 5 U.S.C. § 7703(b)(1), which provides that “[notwithstanding any other provision of law, any petition for review must be filed within 60 days after the date the petitioner received notice of the final order or decision of the Board.” This filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transportation, Federal Aviation Administration, 735 F.2d 1335, 1336 (Fed.Cir. 1984). Thus, under the time provision of the statute, Blount’s petition for review was due in this court within 60 days of the Board’s final decision, i.e., December 17, 2002. Because it was received on December 18, 2002, one day late, this court must dismiss Blount’s petition as untimely.*
Accordingly,
IT IS ORDERED THAT:
(1) Blount’s petition for review is dismissed.
(2) Each side shall bear its own costs.
Counsel for Blount states that he sent the petition for review using a private delivery service on December 16, 2002, and that the service acknowledges that the package should have been delivered on December 17, 2002. However, regardless of the circumstances that contributed to the late filing, the time limit for filing a petition for review is mandatory and cannot be waived. See Fed. R.App. P. 26(b)(2) (a court may not extend the time to file a petition for review unless authorized by law). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217990/ | BRYSON, Circuit Judge.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and vacate the Court of Appeals for Veterans Claims September 13, 2002 order and remand this case to the Court of Appeals for Veterans Claims for further proceedings. John Mapu, Jr. opposes.
The Secretary states that the matter should be remanded because the Court of Appeals for Veterans Claims did not have the benefit of our decisions in Jaquay v. Principi, 304 F.3d 1276 (Fed.Cir.2002) (en banc), and Santanar-Venegas v. Principi, 314 F.3d 1293 (Fed.Cir.2002), at the time it ruled on the timeliness of Mapu’s notice of appeal and the availability of equitable tolling. In view thereof, the court remands to afford the Court of Appeals for Veterans Claims an opportunity to conduct further proceedings in light of Jaquay and Santanar-Venegas.
Accordingly,
IT IS ORDERED THAT:
The motions are granted. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217991/ | BRYSON, Circuit Judge.
ORDER
Paul-Francesco: Villella moves for an injunction, pending.appeal, to cease a state court action and to enjoin various parties from trespassing. Mark Drew Biller et al. oppose. We consider whether this appeal should be transferred to the United States Court of Appeals for the Seventh Circuit.
Villella sued various persons in the United States District Court for the Western District of Wisconsin, alleging that they were infringing his asserted “patent” for 34 acres of property. The district court dismissed the action for lack of jurisdiction, noting that an action for patent infringement under 35 U.S.C. § 271 relates to infringement of patented inventions. Villella appealed to this circuit alleging that this court had jurisdiction pursuant to 28 U.S.C. § 1295(a).
We have jurisdiction to review, inter alia, appeals from district courts if the district court’s jurisdiction was based, in whole or in part, on 28 U.S.C. § 1338. Section 1338 provides district courts with jurisdiction over an action arising under an act of Congress related to, inter alia, patents. It is clear from our review of the papers submitted that the district court action did not arise in whole or in part under an act of Congress related to a patent, i.e., a patent regarding an invention. Thus, we have no jurisdiction over this appeal. We transfer this appeal to the regional circuit court of appeals, here the United States Court of Appeals for the Seventh Circuit, pursuant to 28 U.S.C. § 1631.
Accordingly,
IT IS ORDERED THAT:
This appeal is transferred to the United States Court of Appeals for the Seventh Circuit pursuant to 28 U.S.C. § 1631. The motion for an injunction will be transmitted to the Seventh Circuit with the transfer of the appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224419/ | OPINION AND ORDER
REDDEN, District Judge:
Plaintiff Heather Petty brings this action to obtain judicial review of a final decision of the Commissioner of the Social Security Administration (“Commissioner”) denying her claim for Supplemental Security Income (“SSI”). For the reasons set forth below, the decision of the Commissioner is reversed and this matter is remanded for the calculation and payment of benefits.
BACKGROUND
Plaintiff filed her application on January 11, 2010, alleging disability since January 1, 1983, due to “petit mal epilepsy daily from a few sec[onds] to 4 min[utes], depression.” Tr. 60. Plaintiff was 27 years old at the time of application. She completed the 9th grade. Tr. 14, 30. Her application was denied initially and upon reconsideration. A hearing was held on November 29, 2011, Tr. 26-59. The Administrative Law Judge (“ALJ”) found her not disabled on January 5, 2012. The Appeals Council denied Plaintiffs request for review, making the ALJ’s decision the final decision of the Commissioner.
*773
ALJ’s DECISION
The ALJ found Plaintiff had the medically determinable severe impairments of seizure disorder, obesity, anxiety NOS, depression NOS, history of methamphetamine abuse, and borderline intellectual functioning. Tr. 12.
The ALJ found that Plaintiffs impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1. Tr. 12-13.
The ALJ determined Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all exer-tional levels but she was limited to simple, routine, entry level positions requiring no work around heights, heavy machinery, or similar workplace hazards.
At step four, the ALJ found Plaintiff had no past relevant work, but that there were jobs in significant numbers in the national economy that Plaintiff could perform such as assembly worker and janitorial worker. Tr. 19-20.
Plaintiff contends that the ALJ erred by improperly weighing medical opinions.
DISCUSSION
Disability opinions are reserved for the Commissioner. 20 C.F.R. §§ 404.1527(e)(1); 416.927(e)(1). If no conflict arises between medical source opinions, the ALJ generally must accord greater weight to the opinion of a treating physician than that of an examining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995). More weight is given to the opinion of a treating physician because the person has a greater opportunity to know and' observe the patient as an individual. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir.2007). In such circumstances the ALJ should also give greater weight to the opinion of an examining physician over that of a reviewing physician. Id. If a treating or examining physician’s opinion is not contradicted by another physician, the ALJ may only reject it for clear and convincing reasons. Id. (Treating physician); Widmark v. Barnhart, 454 F.3d 1063, 1067 (9th Cir.2006) (examining physician). Even if one physician is contradicted by another physician, the ALJ may not reject the opinion without providing specific and legitimate reasons supported by substantial evidence in the record. Orn, 495 F.3d at 632; Widmark, 454 F.3d at 1066. The opinion of an nonexamining physician, by itself, is insufficient to constitute substantial evidence to reject the opinion of a treating or examining physician. Widmark, 454 F.3d at 1066 n. 2. The ALJ may reject physician opinions that are “brief, conclusory, and inadequately supported by clinical findings.” Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.2005).
I. Caleb Burns, Ph.D.
Dr. Burns conducted a neuropsy-chological evaluation of Plaintiff on January 14, 2009. Tr. 229-47. The evaluation consisted of an interview, a mental status examination, and psychological testing including the Wechsler Adult Intelligence Scale-TV (WAIS-TV), the Wechsler Memory Scale-Ill, Trail Making A and B; the Reitan-Indiana Aphasia Screening Test, the Word Reading subtest of the Wide Range Achievement Test-4, the Mood Assessment Scale, and the M Test. Dr. Burns concluded regarding Plaintiffs employability:
Her combination of cognitive deficits, seizure disorder, history of suicide attempts, her posttraumatic stress disorder symptoms, etc., along with her reported physical limitations probably will render her unemployable for at least the next twelve months. If she is placed in a work situation she is at great risk of *774decompensating. However, given her ongoing seizures it is very difficult to imagine any employer willing to risk her having seizures in a workplace. (With the onset of the partial seizures she has, she either freezes in place or continues to do what she was doing before. She has walked in front of a car before — and was nearly hit — has walked into walls, poles, fallen down stairs numerous times, etc.)
Tr. 241.
Dr. Burns’s diagnostic impressions were Depressive Disorder, NOS, Posttraumatic Stress Disorder, Methamphetamine Abuse, currently in remission, Borderline Intellectual Functioning, and he assessed a GAF of 48. Tr. 241-42. Dr. Burns completed a State of Oregon Department of Human Resources form “Rating of Impairment Severity Report,” in which he opined that Plaintiff was markedly restricted in Activities of Daily Living, moderately and markedly impaired in social functioning, and moderately impaired in concentration, persistence, or pace. Tr. 243.
Dr. Burns stated that a minimal increase in mental demands or change in environment would cause Plaintiff to de-compensate. Tr. 244. Dr. Burns noted Plaintiffs “memory for verbally presented information is very poor.” Tr. 244.
On February 2, 2009, Dr. Burns completed a Mental Residual Function Capacity Report (MRFCR). Tr. 245-46. The MRFCR form lists twenty functional factors. “Markedly Limited” is checked when a “limitation precludes the ability to perform the designated activity on a regular and sustained basis, i.e., 8 hours a day 5 days a week, or an equivalent schedule.” Id. Dr. Burns indicated Plaintiff was markedly limited in the ability to carry out detailed instructions, to maintain attention and concentration for extended periods, and to sustain an ordinary routine without special supervision. Tr. 246. Dr. Burns indicated that Plaintiff was markedly limited in the ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Dr. Burns found Plaintiff markedly limited in the ability to be aware of normal hazards and take appropriate precautions, and in the ability to travel in unfamiliar places or use public transportation. He asserted that Plaintiffs conditions had been disabling since 2007.
The ALJ noted Dr. Burns’s reports and stated “these opinions are viewed with extreme caution as the conclusions reached appear quite suspect and inconsistent with the objective evidence.” Tr. 16. The ALJ stated that “[a]side from cognitive testing, these diagnoses were based entirely on the claimant’s self-report without review of any other evidence.” Tr. 17. The ALJ cited Dr. Burns’s opinion that Plaintiff would be unemployable for the next twelve months due to both psychological and physical limitations, and found it “appears this opinion was based on factors uncertain to Dr. Burns and unrelated to the purpose •of his examination. Assessing limitations based on alleged physical limitations that have no foundation in evidence is considered careless and reduces Dr. Burns’ credibility as a psychological evaluator.” Id. The ALJ concluded:
In his assessment, Dr. Burns found the claimant’s mental functioning to markedly impair her activities of daily living; however, this is inconsistent with his clinical interview, which included report of providing care for three children under the age of 7, total independence in personal care activities, cleaning her apartment daily and to a ‘spotless’ level of clean. Dr. Burns found the claimant’s mental functioning to markedly impair *775her social functioning; however, this is inconsistent with his clinical interview, which included report of grocery shopping, taking public transportation, going to church “at least” four times a week, and going out to movies and restaurants, which she indicated she would do more often if she had more money, [citation omitted]. Accordingly, as Dr. Burns’ conclusions are internally inconsistent with his clinical interview, his opinions are given very little weight.
Tr. 17.
A. Activities of Daily Living
Dr. Burns noted Plaintiff stated she stays out of the kitchen because of her seizures, and that there have been fires. Tr. 233. She reported showering or bathing daily, as well as brushing her teeth daily, As to transportation, Plaintiff told Dr. Burns “I go with my husband, Most of the time I don’t go anywhere without him,” Tr. 234. She has never had a driver’s license. Plaintiff told Dr. Burns that she shops at times with her husband, and sometimes has anxiety attacks in stores.
Plaintiff told Dr. Burns that she cleans, does laundry, bathes and dresses the kids, works with them on their flash cards, and watches cartoons with them. Id., Plaintiff said her apartment was clean, “[i]t’s spotless. I am a clean freak. I can’t handle a mess.” Tr. 234. Sometimes she will clean house all night.
B. Social Interactions
Plaintiff stated she goes to church “at least” four times a week. ' Tr. 235. Friends come to see her every several days, but she does not go to visit other people because she is afraid the children might be hurt if she had a seizure. “Most of the time when I go anywhere it is with my mom or my husband.” Id., She goes out to restaurants and movies “at times” and would go more if she had the money to do so. She stays home most days.
The ALJ relies heavily on the assertion that Dr. Burns’s conclusions are inconsistent with his clinical interview. Considering the record as a whole, the ALJ did not identify specific and legitimate or clear and convincing reasons to find Dr. Burns’s opinion entitled to little weight.
II. Kay Stradinger, Psy.D.
Dr. Stradinger examined Plaintiff on April 17, 2010, Tr. 301-07. She reviewed chart notes from Michael Grady, M.D., from December 2009 and January 2010, in which Dr. Grady noted a convulsive disorder, depression, anxiety, and obesity. Tr. 290-96. Dr. Stradinger diagnosed Mood Disorder NOS, rule out bipolar disorder with dissociative features, history of multiple substance abuse/dependence, rule out borderline intellectual functioning, and assessed a GAF of 53. She concluded:
The claimant is capable cognitively of performing simple and repetitive work-type tasks.
The claimant may have some difficulty interacting appropriately, effectively, and on a sustained basis with supervisors, coworkers and the public given her mood disorder.
The claimant would have a difficult time completing a full workday or workweek independently, effectively, and on a sustained' basis given her mood disorder. This seems related to social skill deficits as well.
Tr. 306-07.
The ALJ rejected Dr. Stradinger’s conclusion regarding Plaintiffs ability to sustain work, stating “the evidence does not demonstrate an inability to perform simple and basic tasks.” Tr. 17. The ALJ continued:
*776Further, the conclusions reached by Dr. Stradinger appear to be speculative and based entirely on the claimant’s self-report, particularly those findings related to mood and social difficulties. As noted during the course of Dr. Burns’ January 2009 assessment, clinical interview included report of grocery shopping, taking public transportation, going to church “at least” four times a week, and going out to the movies and restaurants. While difficult to confirm, the possibility always exists that an examiner may express an opinion in an effort to assist an individual with whom'he or she sympathizes for one reason or another, such as furtherance of a person’s application of general assistance. As such, the opinion of Dr. Stradinger is given limited weight to the extent it supports the residual functional capacity finding, but this opinion is also considered with caution as it reflects an inordinate degree of reliance upon the subjective descriptions of symptomatology and limitations set forth by an individual seeking cash and medical assistance.
Id.
Dr. Stradinger’s opinion is bolstered by the fact that it is substantially similar to the opinion of Dr. Boyd. The ALJ stated that the “residual functional capacity has been reduced to accommodate the limitations suggested by Dr. Stradinger.... ” Tr. 17, However, the ALJ failed to include the limitations Dr. Stradinger identified-relating to supervisors, coworkers, and the public. The ALJ failed to include in the RFC the functional limitations Dr. Stradinger identified regarding Plaintiffs ability to complete a full workweek “independently, effectively, and on a sustained basis.... ” Tr. 306-07. The ALJ failed to identify specific and legitimate or clear and convincing reasons to reject Dr. Stra-dinger’s opinion.
III. Joshua Boyd, Psy. D.
Dr. Boyd reviewed Dr. Burns’s evaluation and completed a Psychiatric Review Technique form and a Mental Residual Functional Capacity Assessment on June 11, 2009. Tr. 259-72, 281-84. Dr. Boyd noted borderline intellectual functioning, depressive disorder, and posttrau-matic stress disorder, and assessed mild limitations in activities of daily living and social functioning, and moderate difficulties in maintaining concentration, persistence and pace. Dr. Boyd opined that Plaintiff was moderately limited in the ability to understand, remember, and carry out detailed instructions. Tr. 281. Dr. Boyd found “Dr. Burns’ opinion of disability is not consistent w/ his own exam findings. Clmt. is denying many symptoms of depression and is relatively independent in ADL’s,” Tr. 271. Dr. Boyd concluded that the RFC as assessed by the ALJ was accurate.
The ALJ gave “some weight” to Dr. Boyd’s assessment, but “the social limitations assessed do not seem particularly significant, especially in light of the claimant’s report of social activities detailed during the course of Dr. Burns’ January 2009 assessment.” Tr. 18. As noted above, the ALJ failed properly to weigh the evidence of social limitations.
IV. Remand for Payment of Benefits
The decision whether to remand for further proceedings or for immediate payment of benefits is within the discretion of the court. Harman v. Apfel, 211 F.3d 1172, 1178 (9th Cir.2000), cert. denied, 531 U.S. 1038, 121 S.Ct. 628, 148 L.Ed.2d 537 (2000). The issue turns on the utility of further proceedings. A remand for an award of benefits is appropriate when no useful purpose would be served by further administrative proceed*777ings or when the record has been fully developed and the evidence is insufficient to support the Commissioner’s decision. Strauss v. Comm’r, 635 F.3d 1135, 1138 (9th Cir.2011) (quoting Benecke v. Barnhart, 379 F.3d 587, 593 (9th Cir.2004)). The court may not award benefits punitively, and must conduct a “credit-as-true” analysis to determine if a claimant is disabled under the Act. Id. at 1138.
Under the “credit-as-true” doctrine, evidence should be credited and an immediate award of benefits directed 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. Id. The “credit-as-true” doctrine is not a mandatory rule in the Ninth Circuit, but leaves the court flexibility in determining whether to enter an award of benefits upon reversing the Commissioner’s decision. Cornett v. Barnhart, 340 F.3d 871, 876 (9th Cir.2003) (citing Bunnell v. Sullivan, 947 F.2d 341 (9th Cir.1991) (en banc)). The reviewing court should decline to credit testimony when “outstanding issues” remain. Luna v. Astrue, 623 F.3d 1032, 1035 (9th Cir.2010).
The ALJ’s failure to credit the opinions of the two examining physicians is erroneous for the reasons set out above. The Vocational Expert testified that, if Drs. Burns and Stradingers’ opinions are credited, Plaintiff would be unable to maintain employment. Tr. 47.
Accordingly, this matter is remanded for the calculation and award of benefits.
CONCLUSION
For these reasons, the Court REVERSES the decision of the Commissioner and REMANDS this matter to the Commissioner pursuant to Sentence Four, 42 U.S.C. § 405(g) for the immediate calculation and payment of benefits to Plaintiff.
IT IS SO ORDERED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217993/ | ORDER
BRYSON, Circuit Judge.
Joseph A. Gentiluomo petitions for a writ of mandamus to direct the United States District Court for the Northern District of New York to, in essence, correct the errors that Gentiluomo alleges the district court previously made in his case, Gentiluomo v. Brunswick Bowling & Billiards Corp., No. 96-cv-544 (N.D.N.Y. Nov. 1, 1999).
Brunswick Bowling & Billiards Corporation and Geniluomo each filed a motion for summary judgment regarding the issue of validity in the district court. The district court granted Brunswick’s motion and denied Gentiluomo’s motion, holding that the four relevant claims of Gentiluomo’s patent were invalid. Gentiluomo appealed and on June 5, 2002 we affirmed the judgment of invalidity of three of the claims. We subsequently denied Gentiluomo’s petition for panel rehearing. On December 2, 2002, the Supreme Court denied Gentiluomo’s petition for a writ of certiorari.
Gentiluomo now seeks review of the district court’s judgment by way of this petition for writ of mandamus. However, a mandamus petition may not be used to secure review of a case when that case may be reviewed by way of ordinary appeal. Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 9 n. 6, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983) (a court of appeals has no occasion to engage in extraordinary review by mandamus “in aid of its jurisdiction,” 28 U.S.C. § 1651, when it can exercise the same review by a contemporaneous ordinary appeal). Gentiluomo has already been provided with a review of the district court judgment on ordinary appeal. He exhausted the avenues of further review when the Supreme Court denied his petition for a writ of certiorari.
Accordingly,
IT IS ORDERED THAT:
The petition is denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217994/ | ORDER
The petitioner having failed to file the required Statement Concerning Discrimination, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217995/ | ORDER
The parties having so agreed, it is
ORDERED that the proceeding is DISMISSED under Fed. R.App. P. 42(b). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217996/ | ORDER
Order Vacated, see 2003 WL 21377707.
The petitioner having failed to file the required Statement Concerning Discrimination, it is
*234ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217997/ | DECISION
PER CURIAM.
Joseph P. Carson appeals from the final decision of the Merit Systems Protection Board denying his request for consequential damages resulting from his successful individual right of action (“IRA”) appeal. Carson v. Dep’t of Energy, 92 M.S.P.R. 440 (2002) (“Final Decision”). We affirm.
BACKGROUND
Mr. Carson began his employment in the Department of Energy (“DOE”) in 1990, serving as an “EH Resident” in the Office of Environment, Safety and Health at the Oak Ridge National Laboratory in Oak Ridge, Tennessee. Carson v. Merit Sys. Prot. Bd., No. 00-3237, 2000 WL 1720671, at *1, 2000 U.S.App. LEXIS 29289, at *1-2 (Fed.Cir. Nov. 16.2000). During his employment at that facility, Carson made numerous disclosures of alleged fraud, waste, abuse, and safety violations. Id. at *1, 2000 U.SApp. LEXIS 29289, at *2. Subsequently, in 1997, DOE removed certain duties from Carson’s work responsibilities, issued a letter admonishing him, and reassigned him to DOE’s offices in Germantown, Maryland. Id. Carson filed several IRA appeals to the Board, claiming that DOE had retaliated against him for protected whistleblowing. The Board granted Carson’s request for corrective action and ordered DOE to provide him with interim relief. Final Decision ¶ 2.
On June 28, 2000, Carson filed a request for consequential damages, pursuant to 5 U.S.C. § 1221(g)(l)(A)(ii), seeking the following relief: $244,700 in pecuniary losses, restoration of 1100 hours of annual leave and sick leave that he had taken since 1997, compensation for approximately 200 hours of leave without pay that he had taken since 1997, and certain non-pecuniary damages. Carson v. Dep’t of Energy, Nos. AT-1221-98-0250-P-3, AT-1221-98-0623-P-3, slip op. at 1-3, 6 n. 5 (MSPB Mar. 28, 2001) {“Initial Decision”). The administrative judge (“AJ”) issued an ini*236tial decision in which he granted in part and denied in part Carson’s motion. First, the AJ denied Carson’s request for non-pecuniary damages, noting that the statutory term “consequential damages” has been interpreted to exclude non-pecuniary losses. Id. at 2 (citing Bohac v. Department of Agriculture, 239 F.3d 1334 (Fed. Cir.2001)). Second, the AJ denied Carson’s request for damages for his and his wife’s personal time spent working on his appeal because such losses are speculative and non-pecuniary. Id. at 3. Third, the AJ rejected Carson’s claim for costs relating to newspaper advertisements and development of a web site, finding that those expenses were neither necessary nor were they consequences resulting from DOE’s actions. Id. at 3-4. Fourth, rejecting evidence that Carson submitted after the close of record and without good cause, the AJ denied Carson’s claim for certain taxes and accounting fees on the ground that Carson had failed to present any evidence showing that those expenses were incurred as a result of DOE’s retaliation against him for whistleblowing. Id. at 4. Fifth, the AJ granted Carson $4788.03 for the costs of preparation of an amicus brief filed by the American Engineering Alliance (“AEA”), a professional organization to which Carson belongs. Id. at 4-5. Finally, accepting Carson’s declaration that he was required to take hundreds of hours of personal time and leave due to the stress, fatigue, and illness caused by DOE’s retaliatory actions, the AJ ordered DOE to restore all of Carson’s annual leave and sick leave between January 1, 1997 and February 3, 2000 and to compensate Carson for all leave without pay during that period. Id. at 5-7.
Carson filed a petition for review of the AJ’s decision, contesting only the AJ’s denial of consequential damages for his additional taxes and accounting fees. DOE filed a cross-petition for review in which it challenged the AJ’s award of damages for the AEA amicus brief and the amount of annual leave, sick leave, and leave without pay that the AJ ordered to be restored or reimbursed. The full Board denied Carson’s petition; granted in part and denied in part DOE’s cross-petition; and, addressing the issue on its own motion, denied Carson’s motion for consequential damages for the leave he took from work. Final Decision ¶ 1. The Board found that Carson failed to present any new and material evidence relating to his request for consequential damages for taxes and accounting fees, and therefore denied his petition for review on that issue. Id. ¶ 7. The Board also found that the AJ erred in awarding Carson $4788.03 for the AEA amicus brief on the grounds that attorney fees and associated legal costs are not consequential damages and that an amicus curiae is not an adversarial party entitled to attorney fees. Id. ¶¶ 8-10. Finally, addressing on its own motion whether damages may be awarded for leave taken, the Board determined that Carson was not entitled to consequential damages for the annual leave, sick leave, and leave without pay that he used allegedly as a result of DOE’s unlawful reprisal. The Board observed that, after the AJ issued the initial decision in this case, the Board held in Reams v. Department of the Treasury, 91 M.S.P.R. 447, ¶¶ 8, 14 (2002), that consequential damages do not include reimbursing an appellant for annual leave expended in pursuing an IRA appeal. Final Decision ¶ 12. Applying the rationale of Reams, the Board found that consequential damages similarly do not include leave without pay expended in pursuing an IRA appeal. Id. ¶ 13. Moreover, the Board found that, even assuming that restoration of sick leave is payable as “medical costs incurred” under 5 U.S.C. § 1221 (g)(1)(A)(ii), Carson had not submit*237ted any evidence showing that he used hundreds of hours of sick leave as a result of DOE’s whistleblowing reprisal. Id. ¶¶ 14-15. Accordingly, the Board denied Carson’s request for consequential damages for the annual leave, sick leave, and leave without pay between 1997 and 2000.
Carson timely appealed to this court. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(9).
DISCUSSION
Our scope of review in an appeal from a decision of the Board is limited. We must affirm the Board’s decision unless we find it to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; obtained without procedures required by law, rule, or regulation having been followed; or unsupported by substantial evidence. 5 U.S.C. § 7703(c) (2000); Kewley v. Dep’t of Health & Human Servs., 153 F.3d 1357, 1361 (Fed.Cir.1998).
Congress enacted the Whistleblower Protection Act of 1989, Pub.L. No. 101-12, 103 Stat. 16 (codified as amended in scattered sections of 5 U.S.C.) (“WPA”), to strengthen the protections available to federal whistleblowers from reprisals for protected disclosures. Under the WPA as originally enacted, a prevailing employee in an IRA could recover, in addition to corrective action, only “reasonable attorney’s fees and any other reasonable costs incurred.” 5 U.S.C. § 1221(g)(l)-(2) (Supp. I 1989). Congress amended the WPA in 1994 to provide additional rights and remedies for protected whistleblowers. Pub.L. No. 103-424, § 8(b)(2), 108 Stat. 4361, 4365 (codified at 5 U.S.C. § 1221(g) (2000)). In its amended form, § 1221(g) provides that “corrective action” by the Board may include:
(i) that the individual be placed, as nearly as possible, in the position the individual would have been in had the prohibited personnel practice not occurred; and
(ii) back pay and related benefits, medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential [damages].1
5 U.S.C. § 1221(g)(1)(A) (2000).
The question before us on appeal is whether the various alleged damages that Carson seeks are recoverable as “consequential damages” under 5 U.S.C. § 1221(g)(l)(A)(ii). Carson argues that the Board read § 1221(g) so narrowly as to deny corrective action for pecuniary losses incurred by the very individuals - i.e., meritorious whistleblowers - for whose protection Congress enacted the WPA. In Carson’s view, the Board improperly “explained away all the pecuniary losses that [he] has suffered” as a result of DOE’s unlawful reprisal. Carson thus contends that the Board erred in ruling that he is not entitled to consequential damages for the taxes and accounting fees that he incurred; the amicus brief that the AEA submitted; and the sick leave, annual leave, and leave without pay that he took “to deal with the suffering he and his family ... endured in confronting the agency’s unlawful actions.” We discuss each of these contentions in turn.
A. Taxes and Accounting Fees
Carson first challenges the Board’s denial of damages for the additional taxes he allegedly incurred as a result of DOE’s unlawful reprisal. Carson maintains that he submitted “clear evidence” of his increased tax liability and that he provided an “adequate reason” for his delay in sub*238mitting that evidence. Carson also objects to the Board’s rejection of the supplemental information that he provided while his petition for review was pending. The government responds that the Board did not err in affirming the AJ’s refusal to consider Carson’s evidence regarding taxes and accounting fees because Carson submitted that evidence in an untimely fashion and failed to provide a reason why that evidence was not available before the record closed.
We agree with the government that the Board properly denied Carson’s petition for review relating to his request for consequential damages for taxes and accounting fees. To begin with, Carson presented no evidence to the AJ to support his assertion that he incurred taxes and accounting fees as a result of DOE’s retaliation against him, even after the AJ advised him to submit bills for the claimed damages. Initial Decision, slip op. at 4. Although Carson attempted to file such evidence after the close of record, the AJ was entitled to reject that submission because Carson failed to show good cause for his untimely filing. See 5 C.F.R. § 1201.58(c) (2002) (“Once the record closes [in an appeal to the Board], no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.”). In his informal brief to us on appeal, Carson’s bare assertion that he provided an “adequate reason” for the delay is not sufficient to show that the AJ erred in rejecting the untimely evidence. Acceptance of untimely-filed evidence is generally within the discretion of a trial judge whose decisions on such matters are rarely reversed on appeal.
Moreover, the Board properly denied Carson’s petition for review on the issue of taxes and accounting fees, as he failed to show any error in the AJ’s decision or to present any new and material evidence on that issue. See 5 C.F.R. § 1201.115(d) (2002) (“The Board ... may grant a petition for review when it is established that: (l)[n]ew and material evidence is available that, despite due diligence, was not available when the record closed; or (2)[t]he decision of the [AJ] is based on an erroneous interpretation of statute or regulation.”). Nor did the Board err in refusing to consider the supplemental information that Carson submitted to the Board after the record closed. See 5 C.F.R. § 1201.114(i) (2002) (“Once the record closes [in a petition for review of an initial decision], no additional evidence or argument will be accepted unless the party submitting it shows that the evidence was not readily available before the record closed.”). On appeal, Carson still offers no reason, let alone a persuasive one, as to why he could not have submitted that evidence earlier. Thus, because he failed to timely submit any evidence proving that he incurred taxes and accounting fees as a result of DOE’s unlawful reprisal and because he has not shown that he should have been permitted to submit such evidence to the AJ or to the Board after the close of the record, Carson has not met his burden of proving that the Board’s denial of his petition for review on this issue was in error.
B. Amicus Curiae Brief
' Carson also challenges the Board’s decision reversing the AJ’s award of $4788.03 in damages for the costs that Carson incurred for the AEA amicus brief. Carson argues that those costs are not attorney fees, but pecuniary losses that are recoverable as consequential damages. In response, the government contends that the Board correctly held that Carson is not entitled to damages for the costs of the amicus brief, as those costs are neither *239consequential damages nor recoverable attorney fees and expenses.
We agree with the government that Carson is not entitled to recover damages for any costs he incurred in connection with the AEA amicus brief. According to the record, Carson submitted a bill for $4788.03, comprised of $3600 in attorney fees and $1188.03 in expenses, “for the attorney who assisted in preparing the amicus curiae brief.” Final Decision ¶ 8. The record also suggests that Carson assisted in researching and preparing the brief himself. Id. Athough the AJ found the costs for the amicus brief to be “a reasonable and foreseeable consequence of retaliation for whistleblowing” and thus awarded Carson $4788.03 in consequential damages, Initial Decision, slip op. at 5, the full Board reversed that award on the ground that attorney fees and associated legal costs are not consequential damages, Final Decision ¶ 9.
We agree with the Board that costs for an amicus brief are not consequential damages within the meaning of the statute. The costs that Carson incurred in preparing the amicus brief are in the nature of legal costs, which are statutorily distinct from “consequential damages.” As discussed above, the WPA provides that corrective action for a prevailing party in an IRA appeal “may include ... reasonable and foreseeable consequential [damages].” 5 U.S.C. § 1221(g)(l)(A)(ii) (2000). A separate provision of the WPA, however, sets forth the legal costs that a prevailing party may recover, providing that corrective action “shall include attorney’s fees and costs.” Id. § 1221(g)(1)(B). As a matter of statutory construction, it would be illogical to interpret the term “consequential damages” in the former provision to include legal expenses, the subject of the latter provision. Moreover, to the extent that Carson seeks monetary relief for his own efforts in researching and preparing the amicus brief, he is not entitled to consequential damages because he may not be compensated for his own time spent pursuing his appeal. See Bohac, 239 F.3d at 1339 (limiting consequential damages under the WPA to reimbursement of out-of-pocket expenses); see also Pickholtz v. Rainbow Techs., Inc., 284 F.3d 1365, 1375-76 (Fed.Cir.2002) (observing that there is no direct financial “expense” associated with the expenditure of one’s own time); Naekel v. Dep’t of Transp., 845 F.2d 976, 980 (Fed.Cir.1988) (holding that a pro se litigant may not receive payment under the Back Pay Act for his own time expended because such payment would be beyond the statutory purpose of making the employee-litigant reasonably whole).
Having concluded that the costs of an amicus brief are not consequential damages, we next address the Board’s holding that Carson is not entitled to attorney fees for the amicus brief. The WPA provides that a “prevailing party” in an IRA is entitled to “reasonable attorney’s fees and any other reasonable costs incurred.” 5 U.S.C. § 1221(g)(2)-(3) (2000). However, because an amicus curiae is expressly not a party to an appeal before the Board, 5 C.F.R. § 1201.34(e) (2002), Carson is not entitled to recover those legal costs, which extend beyond those incurred in his own representation. An amicus curiae is a friend of the court, i.e., the tribunal to which its brief is presented. It is not a prevailing party. Thus, “reasonable attorney’s fees” under the statute do not extend to friends of the court who choose to advance their own interests or even what they perceive to be the public interest, even if they coincide with the position of a party whom they are supporting. Moreover, since the statute specifically provides for reasonable attorney’s fees for a party, the phrase “other reasonable costs” must *240refer to costs other than attorney’s fees, and therefore do not encompass attorney’s fees of an amicus. See Universal Oil Prods. Co. v. Root Refining Co., 328 U.S. 575, 581, 66 S.Ct. 1176, 90 L.Ed. 1447 (1946) (“[(Compensation is not the normal reward of those who offer such services [amici who represent the public interest].”); A. Hirsh, Inc. v. United States, 948 F.2d 1240, 1250-51 (Fed.Cir.1991) (holding that an amicus who voluntarily appeared before the court could not be awarded sanctions in the form of legal costs under 28 U.S.C. § 1927); Morales v. Turman, 820 F.2d 728, 732 (5th Cir.1987) (holding that amici are not entitled to fees under 42 U.S.C. § 1988 because they are not parties to the litigation). Nor may Carson, who is not an attorney, recover attorney fees and costs for his own efforts in researching and preparing the amicus brief. See Pickholtz, 284 F.3d at 1375-76 (noting that “attorney fees” require an attorney-client relationship). Accordingly, we conclude that the Board did not err in reversing the AJ’s award of damages for the amicus brief.
C. Annual Leave, Sick Leave, and Leave Without Pay
Finally, Carson challenges the Board’s decision reversing the AJ’s awards of restored annual leave, restored sick leave, and compensation for leave without pay. Carson argues that he is entitled to consequential damages for such leave because those hours of leave, which can be converted into compensation upon leaving federal service, are reasonable pecuniary losses that occurred as a consequence of DOE’s unlawful actions. Moreover, Carson asserts that the Board misapplied Bohac, which he reads as requiring that reasonable pecuniary losses be awarded to prevailing whistleblowers. In addition, Carson argues that if the grounds for awarding restoration of his sick leave were not adequately established in the case record, the Board should have remanded that issue to the AJ with instructions as to what would constitute sufficient evidence to support restoration of his sick leave.
The government responds that the Board correctly held that restoration of annual leave and sick leave and reimbursement for leave without pay are not consequential damages. According to the government, the term “consequential damages” in 5 U.S.C. § 1221(g)(l)(A)(ii) is limited to reimbursement of out-of-pocket costs and does not include leave voluntarily used to pursue an appeal before the Board. With regard to Carson’s sick leave, the government argues that Carson failed to present any evidence showing that he was diagnosed with a medical condition or sought treatment for stress or illness during his sick leave or that there was a nexus between DOE’s reprisal and any illness.
We agree with the government that the Board did not err in reversing the AJ’s awards of restored annual and sick leave and compensation for leave without pay. In Bohac v. Department of Agriculture, 239 F.3d 1334 (Fed.Cir.2001), we examined the meaning of the term “consequential damages” in 5 U.S.C. § 1221(g)(l)(A)(ii). Rejecting the argument that we should adopt that term’s common law meaning, we held that “consequential damages,” as used in § 1221(g), are limited to reimbursement of out-of-pocket costs and do not include non-pecuniary damages. Id. at 1339-43. Carson’s request for consequential damages for the leave that he took, however, are not out-of-pocket costs. Restored leave or monetary compensation for the leave that Carson voluntarily took from his job to pursue his appeal before the Board would effectively be compensation for Carson’s own time, rather than reimbursement of an out-of-pocket ex*241pense. In addition, to the extent that he took leave due to stress and fatigue, Carson’s request is akin to a request for non-pecuniary damages. That Carson has characterized his request for damages in terms of hours of leave to be restored or compensated does not change the essential nature of the damages he seeks. We thus conclude that leave voluntarily taken from work to pursue an appeal is not a reimbursable out-of-pocket expense and that Carson is therefore not entitled to consequential damages for annual leave, sick leave, and leave without pay.
We also agree with the Board that Carson is not entitled to restoration of sick leave under § 1221(g)(l)(A)(ii)’s provision for damages for “medical costs incurred.” Before both the AJ and the full Board, Carson asserted that he took 400 hours of sick leave due to the stress, fatigue, and illness caused by DOE’s unlawful actions. On appeal, Carson argues that the Board should have remanded the issue of sick leave to the AJ with instructions as to what would constitute sufficient evidence. However, both the AJ and the Board notified Carson that he must prove his claimed damages with specificity and must establish that his claimed damages were reasonable, foreseeable, and causally related to DOE’s whistleblowing reprisal. Final Decision ¶ 15. Nevertheless, the only evidence that Carson submitted to prove his claim for restored sick leave was his leave and earning statements. In light of those facts, we conclude that the Board gave Carson sufficient instruction on his evidentiary burden and properly concluded that Carson had not proved that he was entitled to compensation for sick leave as a “medical cost incurred.”2
CONCLUSION
We conclude that the Board did not act arbitrarily or capriciously, abuse its discretion, commit legal error, or lack substantial evidence in its decision denying Carson’s petition for review of the AJ’s denial of consequential damages for taxes and accounting fees; reversing the AJ’s award of damages for the costs of the AEA amicus brief; and reversing the AJ’s awards of restored annual leave, restored sick leave, and compensation for leave without pay. Accordingly, the Board’s decision is affirmed.
. The actual text of § 1221(g)(l)(A)(ii) provides for recovery of "consequential changes." The reference to "changes,” however, has been viewed as a mistake and has been construed to mean "damages.” Bohac, 239 F.3d at 1338-39.
. Like the Board, we express no opinion as to whether any type of leave may ever be restored as a "medical cost[] incurred” under § 1221(g)(l)(A)(ii). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7217999/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218000/ | JUDGMENT
PER CURIAM.
This CAUSE having been heard and considered, it is ORDERED and ADJUDGED: AFFIRMED. See Fed. Cir. R. 36 | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218001/ | JUDGMENT
PER CURIAM.
This cause came to be heard on a petition for review of an order of the Federal Labor Relations Authority and was briefed and argued by counsel. It is
Ordered and Adjudged that the petition for review is hereby denied.
Petitioner National Treasury Employees Union, Chapter 161 (“Union” or “NTEU”) challenges a decision by the Federal Labor Relations Authority (“Authority” or “FLRA”) to set aside an arbitration award relating to a bargaining dispute between the Union and the United States Customs Service (“Customs”). The Union argues that it did not receive adequate notice from Customs about a change in an overtime policy affecting bargaining unit employees, and, therefore, that it did not waive its right to bargain by filing a grievance rather than making a request to bargain. Petitioner further argues that any request to bargain would have proved futile. An arbitrator upheld the Union’s grievance, holding that, because Customs had not provided NTEU with adequate notice of its intent to change the disputed overtime policy, the Union did not waive its right to bargain over the matter. The FLRA set aside the arbitrator’s award, finding that the arbitrator had misapplied 17. S. Army Corps of Engineers, Memphis District, Memphis Tennessee, 53 F.L.R.A. 79, 1997 WL 358858 (1997) (“Corps of En*246gineers”), in holding that Customs did not provide adequate notice of its decision to change conditions of employment. The Authority concluded that the notice from Customs was sufficient under Corps of Engineers, and that the Union had waived its right to bargain by not making a request to bargain after receiving adequate notice. U.S. Dep’t of the Treasury, U.S. Customs Serv., Port of New York & Newark & NTEU, Chapter 161, 57 F.L.R.A. No. 151, 2002 WL 442949, 2002 FLRA LEXIS 20, at *13 (F.L.R.A. Mar. 20, 2002) (“FLRA Order”). We can find no error in the Authority’s judgment.
In support of its holding that NTEU received adequate notice from Customs of the planned change in overtime policy, FLRA found that the Union was fully apprised of the nature of the new policy, the likelihood that the change would occur, and the timing of the pending change. FLRA Order, 2002 FLRA LEXIS 20, at *10-*11. On these findings, the Authority reasonably construed Corps of Engineers to require that the Union make a request for bargaining in order to preserve its right to bargain. See 53 F.L.R.A. at 82-83. And, in reaching this conclusion, the Authority rejected the arbitrator’s contrary construction and application of Corps of Engineers. We can find no error in the Authority’s application of Corps of Engineers or in its rejection of the arbitrator’s view of that precedent.
Before this court, the Union’s theory of the case has changed rather dramatically. The Union now claims that Patent Office Professional Ass’n v. FLRA, 872 F.2d 451 (D.C.Cir.1989) (“POPA”), not Corps of Engineers, is the controlling precedent in this case. In POPA, the court held that a union did not waive its right to bargain over official time for representational activities by requesting that the agency not implement changes until a ruling was obtained as to their legality. The court noted:
The union’s protest against the change and its inquiry into legal remedies did not waive its right to bargain, as much as initiate it. Moreover, the union actually filed an unfair labor practice complaint, charging that the change in the official time practice was a violation of the Memorandum of Understanding and the Statute’s requirement that the parties bargain in good faith. As counsel for the FLRA conceded in oral argument, the principal remedy that would be available to the union pursuant to its unfair labor practice charge is an order for the agency to bargain over the change. Thus, when the union protested the agency’s proposed change in official time, then sought a delay in the change pending resolution of disputed legal issues, and then filed an unfair labor practice charge seeking to block the agency’s unilateral change, it surely did not “waive” whatever right it had to bargain over official time for representational activities. Indeed, the Authority’s position on this point defies comprehension.
Id. at 455-56 (emphasis in the original). The Union here contends that, when it filed a grievance challenging Customs’ unilateral action as a breach of the duty to bargain, this was no different than the union’s filing of an unfair labor practice charge in POPA. In other words, in each case, “[t]he union’s protest against the change and its inquiry into legal remedies did not waive its right to bargain, as much as initiate it.” This is a compelling claim. It fails, however, because this theory of the case was never advanced before the FLRA. The claim is therefore waived and the court has no authority to consider it. See United States Dep’t of Defense v. FLRA 982 F.2d 577, 579-80 (D.C.Cir.1993); 5 U.S.C. § 7123(c).
*247The Union concedes that it did nothing more than defend the arbitrator’s decision in defending the initial award before the Authority. See Petitioner’s Reply Br. at 5. The arbitrator did not rely on a POPA no-waiver rationale, however. Rather, the arbitrator construed Corps of Engineers in addressing the “adequacy of notice” issue. POPA was not cited to the arbitrator, nor was it discussed by him. In defending the arbitrator’s award before the FLRA, the Union did not cite POPA, nor did it pursue a waiver theory following the rationale of POPA. And upon, issuance of the FLRA’s decision, which clearly rested on the Authority’s view of Corps of Engineers, the Union did not petition for reconsideration on the ground that the FLRA had erred in failing to consider and apply POPA.
For the same reason, we have no authority to consider the Union’s additional claim that any bargaining request would have proved futile. Petitioner never pressed this argument either in the proceedings before the arbitrator or on review before the Authority. And even if the issue were properly before us, we find no record evidence suggesting that Customs would have declined an opportunity to bargain had the Union made such a request.
Under 5 U.S.C. § 7123(c), “[n]o objection that has not been urged before the Authority ... shall be considered by the court, unless the failure or neglect to urge the objection is excused because of extraordinary circumstances.” There are no “extraordinary circumstances” in this case justifying the Union’s failure to raise the POPA issue or the futility issue before the Authority. We are therefore barred from considering these issues.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218002/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs by the parties and oral arguments of counsel. It is
Ordered and Adjudged that the District Court’s dismissal of appellant’s complaint is hereby affirmed. Appellees have admitted error in this case: Although the Selected Reserve Transition Program requires that certain members of the Selected Reserve whose units were deactivated should be given priority for affiliation over other equally qualified applicants for vacancies with Selected Reserve Units, the proper procedures were not in place to ensure that appellant would receive such priority. However, the error in this case was harmless, because the undisputed record indicates that appellant would not have been assigned by a General Officer Assignment Selection Board even if the proper procedures had been in place. In two instances, better qualified candidates were selected over appellant, so appellant was not entitled to a priority as an “equally qualified” applicant; and in one instance, in which appellant was initially selected, the vacancy failed to materialize, because the incumbent’s tour of service was extended. Therefore, the judgment for appellees was fully warranted.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218003/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court *249for the District of Columbia and on the briefs and arguments by counsel. It is
ORDERED that the judgments from which this appeal has been taken be affirmed. The district court correctly held that the appellants failed to make a prima facie case of discriminatory misclassification because they “failed to demonstrate that < other employees of similar qualifications ... were indeed promoted at the time [Plaintiffs’] request for promotion was denied’ ” or “to show the additional background. circumstances that would support the conclusion that the Defendant <is that unusual employer who discriminates against the majority.’ ” Joint App. 323 (quoting Bundy v. Jackson, 641 F.2d 934, 951 (D.C.Cir.1981), and Parker v. Baltimore & Ohio R.R., 652 F.2d 1012, 1017 (D.C.Cir.1981)). The court also correctly concluded the appellants failed to carry their burden on the retaliation claim because their lateral transfers were not “adverse employment actions,” see Broim v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999), and because the failure to give the appellants performance awards in 1996 was not causally linked to the administrative discrimination complaint they filed while employed at the RTC in 1994. See Jones v. Washington Area Metro. Transit Auth., 205 F.3d 428, 433 (D.C.Cir.2000) (to establish prima facie case of retaliation plaintiff must demonstrate that “<(1) [she] engaged in protected activity, (2)[she] was subjected to adverse action by the employer and (3) there existed a causal link between the adverse action and the protected activity1 ”) (quoting Thomas v. National Football League Players Ass’n, 131 F.3d 198, 202 (D.C.Cir.1997) (citing Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985))).
On the claim of failure to promote to a Senior Attorney position, the court properly granted summary judgment because Sussman failed to show he was qualified for the position or that the proffered reason for not promoting him-that he did not meet the published qualifications-was pretextual. See Aka v. Washington Hosp. Ctr., 156 F.3d 1284, 1289 (D.C.Cir.1998) (en banc). As to the plaintiffs’ claim that the FDIC maintains an impermissible affirmative action plan, the district court did not abuse its discretion in assuming that the program neither gives preferential treatment to minorities nor encourages hiring minorities inasmuch as the plaintiffs cited no evidence refuting the FDIC’s statement or material facts not in dispute. See Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 154 (D.C. Circuit 1996). The plaintiffs therefore have failed to show that the plan unconstitutionally discriminates against them.
Finally, we affirm the court’s dismissal of the appellants’ claim of misclassification under the Administrative Procedure Act because in its post-trial order the court expressly found that the appellants were “properly classified” at grade GS-13, Joint App. 303, and this finding is not clearly erroneous, see United States v. Mahoney, 247 F.3d 279, 283 (D.C.Cir.2001) (“We may set aside a district court’s factual findings only if they are < clearly erroneous.’ ”) (citing Fed.R.Civ.P. 52(a); United States v. Mathis, 216 F.3d 18, 26 (D.C.Cir.2000)).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218004/ | JUDGMENT
PER CURIAM.
This cause was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties and oral arguments of counsel. It is
Ordered and Adjudged that the judgments of the district court be affirmed. The Secret Service Operating Procedures Manual does not require the Secret Service to open a special investigation in response to an allegation of employee misconduct; instead, it provides when such an investigation would be appropriate. Cf. Cope v. Scott, 45 F.3d 445, 450 (D.C.Cir.1995). Since the decision whether to open a special investigation “involves elements of judgment and choice,” it falls within the discretionary function exception. Sloan v. United States Dep’t of Housing & Urban Dev., 236 F.3d 756, 762 (D.C.Cir.2001). Sovereign immunity therefore bars Murphy’s negligence claims. See 28 U.S.C. § 2680(a).
As to Murphy’s invasion of privacy claim, 28 U.S.C. § 2675(a) prohibits a plaintiff from bringing an action for damages against the United States unless he has first presented to the appropriate Federal agency “a written statement sufficiently describing the injury to enable the agency to begin its own investigation.” GAE Corp. v. United States, 818 F.2d 901, 919 (D.C.Cir.1987). To establish liability for the tort of invasion of privacy under District of Columbia law a plaintiff must show: “1) publicity 2) about a false statement, representation or imputation 3) understood to be of and concerning the plaintiff, and 4) which places the plaintiff in a false light that would be offensive to a reasonable person.” Kitt v. Capital Concerts, Inc., 742 A.2d 856, 859 (D.C.1999). Murphy’s allegation that “he was the victim of an assault as well as negligent investigation and negligent maintenance of records,” Brief for Appellant at 28, did not alert the Secret Service that it should have investigated whether any false statements were published. See Murrey v. United States, 73 F.3d 1448, 1453 (7th Cir.1996).
With respect to Murphy’s Privacy Act claim, Murphy did not dispute the government’s submission of material fact that Special Agent Wolford had not seen the investigation documents before deciding to transfer Murphy. He therefore has failed to establish that the documents’ alleged inaccuracies caused his transfer. See Hubbard v. EPA, 809 F.2d 1, 7 (D.C.Cir.1986). Furthermore, the documents reflect only subjective opinions, and not factual inaccuracies. See Blazy v. Tenet, 979 F.Supp. 10, 20 (D.D.C.1997), aff'd, 1998 WL 315583 (D.C.Cir.1998). Since Murphy’s complaint did not seek redress pursuant to 5 U.S.C. § 552a(g)(l)(D), his suggestion that his emotional suffering presents a cognizable harm under § 552a(g)(l)(D) is not proper*251ly before the court. See Lomont v. O’Neill, 285 F.3d 9, 15 n. 8 (D.C.Cir.2002).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218038/ | PER CURIAM:
Darryl Allmond appeals the district court’s order denying his motion for reconsideration in this 42 U.S.C. § 1983 (2000) action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Allmond v. Alexandria Sheriff’s Dep’t, No. CA-02-309-A (E.D. Va. filed Jan. 22, 2003 & entered Jan. 23, 2003; Jan. 29, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224420/ | *781TABLE OF CONTENTS
ORDER PAGE
Order on Pending Motions (1/16/04) 782
Order Denying Petition for Review (1/22/04) 783
Order Granting Suquamish Tribe’s Motion for a Preliminary Injunction (5/18/04) 784
Memorandum on Order Granting Suquamish Tribe’s Motion for a Preliminary Injunction (5/28/04) 784
Order on Motion for Reconsideration (6/10/04) 789
Stipulation and Order of Continuance (7/15/04) 790
Order Denying Motion for a Temporary Restraining Order (7/16/04) 796
Stipulation and Order of Dismissal (9/27/04) 797
Order Granting Suquamish Tribe’s Motion for Summary Judgment re: A & K Trust (3/21/05) 797
Order on Motion of Certain Tribes to Adopt an Interim Halibut Commercial Fishery Management Plan (5/3/05) 797
Order on Cross — Motion for Summary Judgment (7/20/05), (393 F.S.2d 1089) See Appendix
Order on Pending Motions (9/6/05) 798
Order on Motion for Reconsideration (10/21/05) 800
Order on Motion to Dismiss (10/27/05) 802
Order on Motion to Compel (12/19/05) 806
Decision (12/30/05) 809
Order on Motions for Clarification and for Reconsideration (1/23/06) 814
Order on Motion for Reconsideration (1/26/06) 815
Order on Motion for Reconsideration (3/17/06) 818
Order on Motion for Clarification (3/17/06) 818
*782Order on Motion for a Protective Order (8/15/06) 818
Order on Motion to Compel (8/15/06) 820
Order on Pending Motions to Strike Expert Witnesses (10/10/06) 821
Order on Motion to Dismiss (11/21/06) 822
Order on Pending Motions (12/4/06) 827
COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2006)
ORDER ON PENDING MOTIONS
Subproceeding No. 89-3
(January 16, 2004)
RICARDO S. MARTINEZ, United States Magistrate Judge.
Now before the Court are cross-motions for amendment and for clarification of the previous Order on Motion for Reconsideration. The Tulalip Tribes, Swinomish Tribal Community, and Upper Skagit Indian Tribe (“Tribes”) have joined in a motion to alter or amend the judgment. Dkt. # 17608. The Suquamish Tribe, in turn, has moved for clarification of the same motion. Dkt. # 17617. Having considered the motions and all memoranda filed in support and in opposition, the Court does now find and ORDER:
(1) The Tribes’ Motion to Alter or Amend the Judgment.
The parties are familiar with the facts and issues related to the current dispute. The Tribes seek amendment of the language in the Order on Motion for Reconsideration, striking footnote 3 in the Order on Motion for a Temporary Restraining Order (TRO) only to the extent that it could be considered to address primary rights. The Tribes ask that the footnote be stricken in its entirety; they argue that the footnote amounts to a sua sponte determination by the Court of the extent of the Suquamish Tribe’s usual and accustomed fishing areas, thus exceeding the jurisdictional scope of the TRO proceedings. However, the Tribes put in issue the scope of the Suquamish Tribe’s usual and accustomed fishing areas by asserting that scope as one basis for the requested TRO:
Suquamish has violated the Implementation Order, State/Tribal Harvest Plan, and intertribal harvest management agreements for Region 2E by issuing regulations without participating in management discussions, executing applicable management plans, and otherwise failing to follow the proper procedures for opening a fishery. Suquamish’s actions threaten to disturb management planning, and disrupt the fishery and the Tribes’ winter crab harvest in Region 2E. Suquamish has also violated the Stipulation Re: Presentation of Tribal Usual and Accustomed Fishing Places (“Shellfish Stipulation”) by seeking to expand the status quo established for shellfishing rights outside the scope of the usual and accustomed fishing grounds and stations (“U & A”) previously determined in United States v. Washington and stipulated agreements.
Motion for Temporary Restraining Order, p 2 (emphasis added). In support of their “status quo” argument, the Tribes presented evidence that the Suquamish had never fished in Region 2E; this evidence was disputed by the Suquamish. It was thus necessary for the Court, in ruling on the TRO, to determine whether Region 2E is within the scope of the Suquamish Tribe’s U & A as it was previously determined by Judge Boldt or, if relevant, as modified by subsequent stipulations or determinations. United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash 1978). There was no evidence before the Court which would allow it to conclude that Region 2E is not within the Suquamish U & A as defined by *783Judge Boldt, nor any evidence that Judge Boldt’s determination has been modified or limited by subsequent proceedings or agreements. Therefore, the Court ruled that the Tribes had not met the “threat of irreparable harm” or “probability of success on the merits” standards for obtaining a TRO. Dkt. # 17563. Such ruling does not amount to an “adjudication” of the Suquamish Tribe’s U & A; as the Tribes themselves asserted in their original Motion for a TRO, that was “previously determined in United States v. Washington and stipulated agreements.”
Accordingly, the Tribes’ Motion to Alter or Amend the Judgment is GRANTED IN PART. Footnote 3 of the Order on Motion for a Temporary Restraining Order is hereby STRICKEN, to be replaced with language as follows:
FN 3: The Court notes that “[t]he usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into western side of this portion of Puget Sound and also Hood Canal,” United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash. 1978). No evidence has been presented to the Court which would place Region 2E outside of this area.
(2) The Suquamish Tribe’s Motion for Clarification.
In a cross-motion, the Suquamish Tribe moves the Court to allow footnote 3 to stand, but asks that the Court clarify the discussion regarding “status quo” in the Order on Motion for Reconsideration, As set forth above, this motion is GRANTED IN PART with respect to footnote 3. The Court declines to further discuss the “status quo” and as to that request the motion is DENIED.
(3) Clarification of the upcoming status conference.
The Tribes have also asked the Court to clarify the purpose of the upcoming status conference in this matter. The Court has requested the conference for the purpose of establishing procedures for resolving further disputes under Paragraph 9.2 of the Implementation Plan. The conference shall be limited to procedural issues. Accordingly, the Tribes’ Motion for Clarification of this matter is GRANTED.
ORDER DENYING PETITION FOR REVIEW
Subproceeding No. 89-3
(January 22, 2004)
ROBERT S. LASNIK, District Judge.
This matter comes before the Court on the petition of the Tulalip Tribes, Swinomish Indian Tribal Community, and Upper Skagit Indian Tribe for review of United States Magistrate Judge Ricardo S. Martinez’ discussion of the Suquamish Tribe’s usual and accustomed fishing places in footnote 3 of his Order on Motion for a Temporary Restraining Order (Dkt. # 17563) and in the related Order on Motion for Reconsideration (Dkt. # 17601). The Court has authority to hear this petition for review pursuant to the Stipulation and Order Amending Shellfish Implementation Plan, Attachment A, ¶ 9.1.4 (Dkt. # 17340).
Shortly before filing this petition for review, the Tribes filed a motion to alter or amend the judgment before Judge Martinez. After considering the Tribes’ arguments and the cross-motion of the Su-quamish Tribe, Judge Martinez revised footnote 3 to clarify that his ruling does not amount to an adjudication of the Su-quamish Tribe’s usual and accustomed *784fishing places insofar as that determination had already been made in United States v. Washington, 459 F.Supp. 1020, 1049 (W.D.Wash.1978). See Order on Pending Motions (Dkt. # 17629).
Having reviewed the record that was before Judge Martinez and the arguments of the parties, the Court finds that revised footnote 3 accurately quotes pre-existing judicial determinations and that the information was appropriately included in the order because it was relevant to Judge Martinez’ denial of a temporary restraining order. Revised footnote 3 neither expands nor limits the geographic scope of the Suquamish Tribe’s usual and accustomed fishing grounds: it simply identifies one of the difficulties the Tribes faced when attempting to enforce the “status quo.” The petition for review is DENTED.
ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION
Subproceeding No. 89-3-03
(May 18, 2004)
RICARDO S. MARTINEZ, United States Magistrate Judge.
This matter is before the Court for consideration of a Motion for Preliminary Injunction, under authority conferred by the Stipulation and Order Amending Shellfish Implementation Plan ¶ 9.1 (April 8, 2002). The Suquamish Tribe seeks a court Order enjoining the A & K Trust (“Trust”) or its designee from harvesting clams from property leased by the Trust at Erlands Point in Kitsap County, Washington. The court heard oral argument on May 14, 2004, and accepted a supplemental memorandum on behalf of Puget Sound area shellfish growers, and a supplemental reply from the Tribe, Having fully considered the matter, the court now finds and rules as follows:
(1) The Suquamish Tribe’s motion for a preliminary injunction is GRANTED.
(2) The Trust (or anyone acting on its behalf) shall immediately cease the harvest of clams from the Erlands Point property.
(3) The Trust shall permit the Tribe, upon 24 hours notice, to survey the remaining clam populations on the Erlands Point property.
(4) The Trust shall document, by species and date, the quantities (if any) of shellfish that have been harvested from the Erlands Point property, and the quantities and value of each species of shellfish (if any) that have been sold from such harvest. The Trust shall provide this documentation to the Tribe and to this Court within seven days of the date of this Order.
(5) Neither the Trust nor anyone acting in its behalf may resume harvesting of clams on the Erlands Point property until further Order of this Court. The Trust may move for such Order after satisfying the Court that sections (3) and (4) above have been satisfied.
(6) In light of counsel’s statement at the hearing that no harvest of clams is currently underway, no security under F.R.Civ. Proc. 65(c) is deemed necessary.
(7) A written memorandum on this decision shall follow within ten days, pursuant to § 9.2.5 of the Revised Shellfish Implementation Plan.
MEMORANDUM ON ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR A PRELIMINARY INJUNCTION
Subproceeding No. 89-3-03
(May 28, 2004)
On May 18, 2004, the court granted the Suquamish Tribe’s motion for a prelim*785inary injunction, enjoining the A & K Trust from harvesting clams from property at Erlands Point until further order of the court. The court has jurisdiction to resolve this dispute under authority conferred by the Stipulation and Order Amending Shellfish Implementation Plan ¶ 9.1 (April 8, 2002) (“Implementation Plan”). Pursuant to § 9.2.5 of the Implementation Plan, the court now enters this memorandum stating reasons for granting the injunction.
(1) On April 28, 2004, the Suquamish Tribe filed a request for dispute resolution regarding the Tribe’s treaty right to harvest shellfish from tidelands at Erlands Point in Dyes Inlet, Kitsap County. The property is currently under lease to the A & K Trust (“the Trust”). Together with the request for dispute resolution, the Tribe filed a motion for a preliminary injunction to enjoin the Trust, or anyone acting on its behalf, from harvesting shellfish from Erlands Point tidelands until the Tribe has had an opportunity to survey and, if appropriate, harvest its treaty share. The Trust opposes such survey and harvest on the grounds that the shellfish beds at Erlands Point are “staked and cultivated,” At the May 14, 2004 hearing on the motion, the Tribe’s request was narrowed to address clams at Erlands Point, not all shellfish. The findings and conclusions herein are thus specifically limited to clams.
(2) The dispute herein arises over the application of the so-called “Shellfish Proviso” in the Stevens Treaties. In 1855, the United States negotiated five Treaties with the Tribes of western Washington, at that time a territory. These treaties reserved to the Tribes the “right of taking fish, at all usual and accustomed grounds and stations ... in common with all citizens of the Territory.” United States, et al. v. Washington, et al., 157 F.3d 630, 637 (9th Cir.1998). With respect to shellfish, however, this right was limited by the Shellfish Proviso, which stated, “Provided, however, That they shall not take shellfish from any beds staked or cultivated by citizens.” Id. at 638. The parties are familiar with the extensive litigation spawned by the Treaty language, and with the principles of Treaty construction which were applied by the court in resolving the issues, The cases will thus be reviewed only to the extent necessary to resolve the current dispute, which evolves from the parties’ differing interpretations of the term “staked and cultivated.”
(3) This court' addressed the Shellfish Proviso in a series of cases beginning in 1994, In Shellfish I,1 the court “interpreted the Treaties to award fifty percent of the shellfish harvest in Washington waters to the Tribes”, Id. at 641. That award, however, was subject to the limitations of the Shellfish Proviso. First, the court concluded that the Shellfish Proviso did not apply at all to natural or native shellfish beds. Shellfish I, 873 F.Supp. at 1429, The court then interpreted the term “staked and cultivated by citizens” to describe “artificial shellfish beds created by private citizens,” including “the intervenor growers’ farms.” Id. at 1441. The court found that such artificial beds are not subject to Tribal treaty fishing, “except to the extent that natural clam beds may be sub-adjacent to the staked or cultivated shellfish beds.” Id. The court then held a six-day trial, the purpose of which was to receive evidence from which the parties. could develop a plan to implement Shellfish I.
(4) The implementation plan was incor*786porated into Shellfish II.2 The court defined a “natural bed” (that is, one which under Shellfish I could not be staked and cultivated) as one “which is capable of sustaining a yield of shellfish that will support a commercial livelihood.” 898 F.Supp. at 1460-61. The determination of that threshold amount was left to procedures set up in the Implementation Plan. Id. The court noted that all parties agreed that “any shellfish beds created exclusively by the Growers’ efforts — ‘by scratch’, as it were” are clearly “staked and cultivated” within the meaning of the Shellfish Proviso. Id. at 1462. The court then applied equitable principles to include within the Shellfish Proviso (and exclude from Tribal harvest) natural beds which had been enhanced by the Growers’ efforts, Such as planting, seeding, or netting, and predator control. Id. at 1462. This portion of Shellfish II was reversed by the Ninth Circuit. Noting the long-established principle that the terms of a treaty must be strictly construed in favor of the Tribes’ fishing rights, the appeals court ruled that the district court erred in using its equitable powers to modify the terms of the Treaties to exclude Growers’ beds from Tribal harvest. 157 F.3d at 642, 649-50.
(5) The district court in Shellfish II improperly broadened the definition of “cultivated” shellfish beds to include so-called “de facto artificial beds”, meaning natural shellfish beds that have been enhanced by human means. Id. at 650. Ruling that the Tribes could not be excluded from their ancient fisheries, but merely from taking an unfair share, the appeals court devised the following allocation scheme: (1) a shellfish bed on Grower’s property that existed “solely by virtue of the natural propagation of the species” — a “natural bed” — is subject to “a full fifty percent harvest allocation.” Id. at 652. (2) Where a Grower has enhanced the natural production of a bed through cultivation efforts, the Tribal share is “fifty percent of the pre-enhanced sustainable shellfish production”. Id. at 653. For such enhanced natural beds, the burden is on the Growers to “demonstrate what portion of their harvest is due to their labor, as opposed to what portion would exist absent the Growers’ enhancement.” Id. Only that portion which is proven to be due to the Grower’s efforts is excluded from Tribal harvest. Id. at 653. (3) Artificial beds, defined as “Grower beds that did not support a sustainable commercial density of shellfish prior to cultivation” are not subject to Tribal harvest at all. Id. The Ninth Circuit court remanded the matter for further proceedings consistent with the opinion. Pursuant to that remand, the court on April 5, 2002, approved the parties’ stipulation which created the Revised Shellfish Implementation Plan (“Implementation Plan”).
(6) The Suquamish Tribe initiated the dispute resolution process pursuant to § 9 of the Implementation Plan after the Tribe’s Treaty right to survey and harvest shellfish at Erlands Point was challenged by the Trust. Vivianne Barry, Shellfish Biologist for the Suquamish Tribe, gave notice on March 1, 2004, of the Tribe’s intent to survey and harvest the shellfish population at Erlands Point, Declaration of Paul Williams, attachment E. On March 7, 2004, the Tribe received the following response from Tal Price, Trustee of the A & K Trust:
Dear Ms. Barry:
For your information, the tidelands referred to in your letter of 1 March 2004 (which I received in my Post office box on 4 March) are part of a licensed Aquatic (Shellfish) Farm (farms) and *787therefore are covered by the “staked and cultivated” beds provisions of US v. Washington, C70-9213. I would specifically direct your attention to subpro-ceeding No. 89-3 and subsequent orders.
As we have previously informed the Su-quamish Tribe, we will challenge any attempts to assert treaty rights over these shellfish beds and require the Su-quamish Tribe to comply with the provision of subproceeding 89-3 and subsequent orders.
As you should know, you have no right to “inspect or survey” these shellfish beds absent a resolution of the “dispute resolution provisions of the Implementation Plan.”
Sincerely,
Tal Price, Trustee
A & K Trust
Declaration of Paul Williams, attachment F. The Tribe then filed this request for dispute resolution, together with a motion for a preliminary injunction to prevent the Trust from harvesting any more clams before the Tribe’s Treaty share could be determined.
(7) At the hearing on the Tribe’s motion, the Trust argued that the shellfish beds at Erlands Point are staked and cultivated by a licensed grower, and that therefore the Tribe should have proceeded under § 6 of the Implementation Plan, rather than treating the Trust as a recreational property owner under § 7. The Trust also argued that the § 6.1 procedures for notice and determination of the Tribe’s share of commercial shellfish beds cannot be initiated at this time, because “Exhibit A” has not been completed. Exhibit A is described in the Implementation Plan as “a chart showing the minimum density of commercial shellfish species needed to establish the existence of a natural bed ...” Implementation Plan § 6. The Plan contemplated that Exhibit A would be completed within six months of April 8, 2002. However, two years later it is still not complete, and the latest stipulation of the parties in Subproceeding 89-3-01 (the “density dispute”) requests a trial date after October of 2005 — more than a year away, Dkt. # 17637. However, the Implementation Plan itself provides for the invocation of the dispute resolution process for “any disagreements remaining after six months [from April 8, 2002]” regarding, among other matters, “the natural bed threshold for any particular species, region and time interval ...” Implementation Plan, § 6. Therefore this dispute is properly before the court.
(8) From the record before the court, it appears that the Tribe properly proceeded under § 7 of the Implementation Plan. Although Mr. Price asserts that the Trust is a “licensed shellfish grower”, there is no evidence before the court to support that assertion with respect to the clam beds at Erlands Point. Mr. Price did not present, by testimony or by affidavit, any evidence specific to cultivation of clams at Erlands Point; his declaration regarding “seeding and cultching” with bags of oyster shells is not directed to any specific area and uses terms, relevant to oyster farming, not clam cultivation. Nor did he present any evidence that either he or the A & K Trust possesses a license to cultivate clams at this site. There are several types of licenses and certificates issued to commercial shellfish growers by the State of Washington, The Department of Health issues site-specific certificates of approval for shellfish harvests pursuant to RCW 69.30.050. The Department of Health also issues annual shellfish operation licenses, required of “any person who possesses a commercial quantity of shellfish or any quantity of shellfish for sale for human consumption.” WAC 246-282-014; 246-*788282-990. Both are required of “persons who conduct shellfish operations.” WAC 246-282-012. There is also a requirement for registration as an aquatic farm with the Department of Fish and Wildlife prior to beginning cultivation activities. WAC 220-76-020(1). Such registration must be renewed annually, and is not transferable. WAC 220-76-010(2), (3). While it was not possible for the Trust to obtain a harvest certificate prior to December of 2003, due to the pollution status of Dyes Inlet, there was no impediment to registration as an aquatic farm.
Indeed, the one document presented by the Trust to support its claim of being a licensed grower of clams at Erlands Point is an Aquatic Farm Registration Certificate purportedly issued to “A & K Trust” and dated January 31, 1996.3 Declaration of Tal Price, Exhibit C. The Tribe has produced a copy of the same document obtained from the Washington Department of Fish and Wildlife; it shows that the copy submitted by the Trust was altered to indicate only the Trust as holder of the registration, while in fact it was issued jointly to the A & K Trust and the Lindsay Beach Shellfish Company, owned by Thomas Pepper. Declaration of Cory Al-bright, attachment 2(a), (b). There is no evidence of renewal by either the Trust, Mr. Price, the Lindsay Beach Shellfish Company, or Thomas Pepper. This document does not establish that the Trust was a licensed grower of clams at Erlands Point as of the effective date of the Implementation Plan, and it will not be considered further. Nowhere in the file is a copy of a shellfish operation license issued to the Trust, as described in WAC 246-282-014 and 246-282-990. The only harvest site approval certificate for Erlands Point was issued to Chuck Dahman of Clam Acres on December 3, 2003, well after the effective date of the Implementation Plan. Declaration of Paul Williams, attachment B.
As to the Intervenors’ argument that a Grower is anyone who cultivates shellfish, regardless of whether he or she possesses a license to do so, or registers as an aquatic farm, the court notes that this “activity based” argument was rejected by the court in Shellfish I. The Growers offered in those proceedings a definition of “staked and cultivated beds” that included any bed that was “in some fashion improved by human labor.” 873 F.Supp. at 1431. The Ninth Circuit affirmed the district court’s rejection of the Growers’ proffered definition, finding the Growers’ interpretation “totally inconsistent with the ‘United States’ avowed intention to preserve for the Indians their ancient fisheries.’ ” 157 F.3d at 648. Further, Shellfish II specifically limited the application of the Implementation Plan procedures to “existing beds on property owned or leased by Growers licensed by the State of Washington.” 898 F.Supp. at 1461. While the Ninth Circuit reversed some aspects of Shellfish II, as noted above in ¶ 4, it did not alter the quoted limitation. 157 F.3d at 650.
This dispute resolution proceeding is not the place to enlarge the scope of the term “Grower” beyond that already defined by the court. Indeed, the Implementation Plan itself explicitly states that the “parties are bound by the definitions prescribed by the Court” in Shellfish I, Shellfish II, and the decision of the Ninth Circuit. Implementation Plan, § 6. That means that § 6 can only apply to beds on property owned or leased by a Grower licensed by the State of Washington. There are strong public policy reasons For maintaining the requirement for a license; foremost among these is protection *789of public health. Further, the courts’ application of the Shellfish Proviso is only meaningful if the Tribes have notice of its reach — in other words, if they can determine with some certainty who is a Grower and which beds are “staked and cultivated” as that term has been interpreted by the court and the parties in the Implementation Plan. It would impermissibly erode the carefully crafted provisions of the Implementation Plan if the Trust could claim Grower status on the basis of vague and unsupported allegations of unlicensed and unregistered cultivation activities.
Therefore, the court finds that there is no evidence to establish that, as of the date of the Implementation Plan, the clam beds at Erlands Point qualified as “existing beds on property owned or leased by Growers licensed by the State of Washington,” subject to the restrictions and procedures set forth in § 6.1 of the Implementation Plan. Accordingly, the Tribe may properly proceed under § 7 of the Implementation Plan in its request to survey and, if appropriate, harvest clams from Erlands Point. This ruling is limited to the unique and specific circumstances presented in this dispute.
(9) In order to obtain a preliminary injunction, the moving party must show either (1) a combination of probable success on the merits together with the possibility of irreparable harm, or (2) that serious questions are raised, and the balance of hardships tips sharply in favor of the moving party. Textile Unlimited, Inc. v. A. BMH Co., Inc., 240 F.3d 781, 786 (2001). Here, the Tribe has demonstrated a strong likelihood of success on the merits in this dispute. It has also shown that continued harvest of clams by the Trust in defiance of the Tribe’s Treaty rights poses a threat of irreparable harm not only to the Tribe, but to the principles of treaty construction embodied in this case and the Implementation Plan: the Shellfish Proviso is an exception to the Tribes’ broad fishing rights, and as such must be strictly construed, 157 F.3d at 642, citing Sutherland on Statutory Construction, § 20.22 at 110 (5th ed.1992).
(10) Under the injunction issued on May 18, 2004, neither the Trust nor its designee Clam Acres may harvest any more clams at Erlands Point until further order of the court. Such order will issue upon a showing by the Trust that it has negotiated in good faith with the Tribe to ensure the proper exercise of the Tribe’s Treaty rights. Such negotiation shall take place according to § 7 of the Implementation Plan.
(11) The Trust moved at the May 14 hearing to strike the Tribe’s reply memorandum as overlength. This motion is DENIED, because the brief is not over-length. Local Rule CR 7(e)(3).
ORDER ON MOTION FOR RECONSIDERATION
Subproceeding No. 89-3-03
(June 10, 2004)
The Court, having considered the A & K Trust’s Motion for Reconsideration, and the balance of the file, does now find and Order:
(1) Motions for reconsideration are disfavored, and are granted only with a showing of manifest error in the prior ruling, or a showing of new facts or legal authority which could not with reasonable diligence have been brought to the Court’s attention earlier. Local Rule CR 7(h)(1). The Trust has shown neither.
(2) Manifest error.
The Trust argues that the Court’s limitation of Section 6 of the Implementation Plan to Growers licensed by the State of Washington has no basis in law. That is not so. The Ninth Circuit Court of Appeals reversed the district court’s application of equitable principles to limit Tribal *790harvest from “existing beds on property owned or leased by Growers licensed by the State of Washington.” United States, et al. v. State of Washington, et al., 157 F.3d 630, 649 (9th Cir.1998). While it thereby altered the treatment of such beds under the Implementation Plan, it did not alter the district court’s actual definition of those beds. Section 6 of the Implementation Plan, as noted in the prior Order, expressly maintains the “definitions prescribed by the Court” in the various shellfish cases. Such definitions are an essential component of the Implementation Plan. The Trust has pointed to no other possible definition, in any of the relevant cases, than that set forth above.
(3) New Facts.
In support of its claim to be a Grower licensed by the State of Washington, the Trust has presented oyster transfer permits issued to Tal Price in 1993 and 1995, for the transfer of oysters to Chico Bay. Even if the Court were to accept these permits as “new facts” which could not have been brought earlier with reasonable diligence, the Court declines to accept them as proof of the Trust’s status as a Grower licensed by the State of Washington to cultivate the clams at Erlands Point which are the subject of this dispute.
(4) Accordingly, the Trust’s Motion for Reconsideration is DENIED. The Court renews the prior caution that the findings and rulings herein are limited to the unique and specific circumstances of this dispute, and extend only to the clam beds on Trust property at Erlands Point.
STIPULATION AND ORDER OF CONTINUANCE
Subproceeding 03-1
(July 15, 2004)
INTRODUCTION
This stipulation to stay the proceeding is entered into between the United States, Hoh Tribe, and State of Washington. As outlined below and explained in the parties’ July 1, 2004 Joint Progress Report, the Washington Department of Fish and Wildlife and the Hoh Tribe have tentatively reached agreement on a framework management plan for Hoh River Winter Steelhead for the 2004-2005 to 2006-2007 seasons. However, the plan is contingent on the Washington Fish and Wildlife Commission (“Commission”) adopting a rule in August 2004 allowing some retention of wild steelhead. If the Commission adopts such a rule, the parties agree to stipulate to dismissing this subproceeding, without prejudice, pursuant to Federal Rule of Civil Procedure 41(a)(l)(ii) alter September 1, 2004. However, if the Commission bans retention of all steelhead, such an event will trigger the need to renegotiate the terms of the tentative framework agreement.
In the mean time, the parties have reached an agreement regarding the 2004-2005 Hoh River Winter Steelhead fishery. This season’s agreement contemplates two possible scenarios: the Commission allowing some nontreaty retention of wild steel-, head and the Commission prohibiting non-treaty retention of wild steelhead. The parties have agreed to possible fishing schedules, taking into consideration both possibilities.
Because the parties have reached an agreement regarding this season’s fishery, there will be time to renegotiate the framework agreement should it be necessary to do so. In the event the Commission prohibits retention of wild steelhead, the parties will endeavor to work cooperatively and in good faith to reach a final agreement by July 1, 2005. If no framework agreement has been reached by that date, the stay of this proceeding would end *791and a litigation schedule as described below would resume.
HOH INDIAN TRIBE WASHINGTON DEPARTMENT OF FISH AND WILDLIFE FRAMEWORK MANAGEMENT PLAN FOR HOH RIVER WINTER STEELHEAD (2004-2005 THROUGH 2006-2007 SEASONS)
I. Introduction
The Hoh Indian Tribe (Tribe) and the Washington Department of Fish and Wildlife (Department) have overlapping interests and jurisdictions relative to the management of Hoh River winter steel-head that creates the need for a co-management relationship. The Tribe and the Department recognize that it is mutually beneficial to jointly develop management and harvest strategies designed to meet tribal and state fishery objectives.
The Tribe and the Department seek to promote resource protection and annual fishery stability. The objective of this plan is to establish fisheries management principles by setting goals and objectives by which the Department and the Tribe will address conservation, harvest management, allocation, and enhancement issues. It also allows the parties to put aside potential points of disagreement to the extent possible so that they can focus their efforts on improving future steelhead management in the Hoh River system. Such issues may include: the calculation of shares of wild and hatchery steelhead; foregone opportunity; non-harvest impacts of each fishery, and escapement management.
An important priority of this plan and future efforts is to restore and maintain the diversity and long-term productivity of Hoh River wild winter steelhead, In a manner consistent with this primary goal, the Hoh Tribe and the Department will seek to develop and manage fisheries to achieve cultural, economic, and recreational fishing benefits for the citizens of Washington State and members of the Hoh Tribe.
The plan is intended to provide a level of certainty and stability for state and tribal fisheries. The plan provides for tribal commercial, ceremonial and subsistence, and non-Indian recreational opportunity for catch and keep, and catch and release fisheries.
Finally, the plan contains objectives for monitoring, evaluation, and enforcement.
1. Disclaimer
The Parties do not claim that the provisions of this agreement necessarily address or strictly meet any of their respective interpretations of the law or the application of legal principles which may otherwise be applied to the specific outstanding issues previously identified. The Parties’ objective in this agreement is to provide a three-year management framework, make progress on the technical issues raised and find information and common ground to reach future agreements.
The applicable federal court orders under U.S. v. Washington shall apply to any Party’s activities not expressly provided for in this management plan, annual agreements, or any potential amendments to annual agreements or this plan. No Party waives any rights, claims, appeals, or arguments by entering into this management plan.
2. Term
This harvest management plan is effective when signed by both the Tribe and the Department. The term' of this plan *792is from the date of execution until May 1, 2007, or until superseded by a subsequent management plan signed by both Parties.
3. Escapement Goal
The annual escapement goal for wild steelhead entering the Hoh River is 2,400 wild adults. The Parties agree to manage their fisheries to meet the wild spawning escapement goal.
Annual total allowable wild harvest equals the pre-season wild run size minus 2,400. There is no escapement goal for hatchery fish introduced into the Hoh River for harvest augmentation. Annual total allowable hatchery harvest equals the pre-season hatchery run size.
4. Management Objectives
The Tribe and the Department will seek to develop and manage their steelhead fisheries to achieve cultural, economic, and recreational benefits consistent with the following:
A. Maintain self-sustaining wild steel-head and their habitats at a healthy level.
B. Provide adequate enforcement of regulations that are designed to protect and conserve wild steelhead. This includes habitat protection and compliance with seasons, bag limits, catch reporting requirements, fishing area and gear restriction’s, and release of wild fish, as required.
C. Non-treaty fishery goals and objectives:
a. Provide full season fisheries from December 1 to April 15 (including ONP waters)
b. Provide a mix of harvest and catch and release opportunities
c. Provide quality fishing opportunity by having enough wild fish present to provide a meaningful fishery
D. Treaty fishery goals and objectives:
a. Provide a minimum of a two day per week fishery from week 49— week 14
b. Accommodate Ceremonial and Subsistence needs
c. Adjust fishing schedule if extremely high river flow conditions cause the river to be completely unfishable for at least one full day
E. Monitor and evaluate the health and diversity of wild steelhead and provide active effort and support for regulations to protect and fully recover habitat.
5.Accounting for Each Party’s Fishery Related Mortalities
The parties agree to work together during the period of this agreement to evaluate fishery related mortalities for both treaty and non-treaty fisheries and how related estimates should be used in management. The primary categories that the Parties agree to assess are:
A. Non-landed mortalities associated with catch and release regulations, including:
• The number of wild steelhead encountered and released, estimated through a Department administered, two-year creel census begun in 2003-2004; and
• The associated number of released fish mortalities
B. Mortalities associated with encounters with treaty and non-treaty fishing gear that are not subject to handling by fishers (e.g., those fish that drop off or out of gear); and
C. Mortalities associated with predation by marine mammals
The Parties also agree to convene a technical work group to evaluate the *793interaction of the recreational fishery with spawning wild steelhead and potential associated mortalities that occur upstream of Morgan’s Crossing from April 1 through April 15. Following this technical review WDFW and Tribal policy representatives will meet to discuss the results and decide on an appropriate response, if any. These evaluations and discussions will be completed in 2004 no later than the respective technical and policy dates specified in Sections 8.E. and 8.F. below.
6. Hatchery Augmentation
The Tribe and the Department agree that the annual hatchery augmentation goal will be to release 100,000 smolts below the Highway 101 Bridge. The smolts released will be from the Cook Creek stock or as otherwise agreed. All smolts released will be marked with an adipose fin clip. There are no egg-take requirements for the returning adult hatchery steelhead.
7. Data Base Maintenance
The Parties agree to maintain a joint database for computation of annual run sizes for both hatchery and wild steel-head runs. These data will be used by the Parties to make pre-season forecasts of run strength, and harvest rates to guide annual harvest plans. The components of this database will be:
Wild Run Size = tribal catch + sport catch + escapement Hatchery Run Size = tribal catch + sport catch + escapement
The Parties also agree to seek the means to address priority run size, escapement and harvest impact assessment needs in order to maintain a complete joint database.
8.Annual Harvest Management Procedures and Dates
A. The annual harvest management procedures in Sections 8.B. and 8.C. and the associated harvest rates in Table 1 are contingent on the Fish and Wildlife Commission allowing retention of wild steelhead consistent with the management objectives contained within this plan. If retention of wild steelhead by the nontreaty fishery is prohibited, the Parties agree to revisit the provisions in Sections 8.B. and 8.C.
B. Allowable wild steelhead mortality rates and associated fisheries will be based on a sliding scale dependent on forecasted wild steelhead abundance as shown in Table 1. Each party will design its fishery to not exceed the mortality rates shown in the “Wild Treaty HR” and the “Wild Non-Treaty HR” columns. Wild harvest rates in Table 1 will apply to run sizes through 4,800. Wild harvest sharing at run sizes above 4,800 will be determined by agreement through the annual management planning process.
C. Since the estimated sport fishery harvest rate is only based on one year, the 2004-2005 season will have similar regulations as 2008-2004, including provisions for wild fish retention, and be assumed to equal a 15% wild fish exploitation rate. Subsequent seasons’ regulations may be changed, as necessary, if available estimates of recreational harvest rates warrant it. In addition, throughout the duration of this plan, recreational regulations for hatchery steelhead may be liberalized through week # 6.
D. Tribal fishing schedules will be modeled using the rolling average of the wild harvest rates observed for the four most recent completed sea*794sons. The tribe will identify a block of fish for ceremonial and subsistence needs that will be included in the tribal allowable exploitation rate. Adjustments may be made in the tribal commercial fishery schedule if extremely high river flow conditions cause the river to be completely unfishable for at least one full day. These river flow conditions can occur several times during the winter fishing seasons. In most cases, make-up fishing days will be during the same week as the day lost. However, in the rare instances when river height conditions prevent fishing days from being made-up in the same week, the days will be added in subsequent weeks, provided the resulting harvest rate docs not exceed the rate identified in Table 1 and the total number of fishing days in a week does not exceed the normally scheduled days plus one. The Tribe will notify the Department by telephone of its intent to make up a lost fishing day on the working day prior to an extension of the weekly period.
E.Technical information/agreement will be developed by Tribal and Department staff by November 10 each year and submitted to the policy representatives along with a written summary of any unresolved issues to be decided by the parties’ policy representatives. Technical information for the preseason ran size forecasts for the coming season will be jointly agreed upon and the estimated spawning escapements for the previous winter steelhead season will be jointly agreed upon and this data will be added to the data base. Fishery impact models will be updated to include the most recent year’s catch and harvest rate data in order to project expected fishery impacts of proposed fishing schedules.
F. Policy representatives of the Hoh Tribe and the Department will meet no later than November 20 each year to reach agreement on each party’s fisheries for the coming season. The agreement shall be memorialized in an annual management plan signed by each party. If agreement is not reached at the first meeting, a second meeting of the policy representatives will occur no later than December 1 to resolve any outstanding issues. Neither party will authorize fishing beyond statistical week # 6, unless an agreement is reached or the disputed matters are resolved pursuant to section 9. Absent an agreement, the Hoh Tribe will not authorize a fishery that exceeds three days per week through week # 6, and wild harvest rates for treaty and non-treaty fisheries will be limited to those rates defined in Table 1.
G. In the event Sections 8B and Section 8C are re-negotiated as provided in Section 8.A., and if the Parties fail to reach agreement on revisions to these sections, the Tribe shall be allowed to conduct its 2004-05 fishery for two days per week through week # 12 and one day per week for weeks # 13 and # 14, or to fish to the wild treaty harvest rates allowed in Table 1, at the Tribe’s option. The non-treaty fishery shall be allowed to fish according to provisions contained in the 2004/2005 WDFW Sport Fishing Rules pamphlet, and recreational regulations for hatchery steelhead may be liberalized through week # 6.
9. Dispute Resolution
The Parties agree that disputes arising under this management plan will first be addressed cooperatively by policy repre*795sentatives of both parties in a face-to-face meeting to avoid the need to resort to judicial or other third party dispute resolution mechanisms. The parties expect that this cooperative approach will resolve a majority of the issues. Absent resolution by the policy representatives, the dispute resolution process prescribed under U.S. v. Washington will be employed as follows unless otherwise agreed in writing. Resolution of all technical issues associated with implementing the plan will utilize the Fisheries Advisory Board. Any unresolved policy disputes will be resolved pursuant to “Order Modifying Paragraph 25 of Permanent Injunction,”
If renegotiation of Sections 8.B. and 8.C. is necessary, disputes arising in such context are not subject to this provision. However, if a new agreement is reached through renegotiation, any questions regarding its implementation would be resolved under this section.
10. Changes to the Plan
Changes to this framework plan must be made in writing and signed by policy representatives of both Parties.
Table 1 — Hoh River Winter Wild Steelhead Harvest Schedule and Expected Escapements
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1/ Wild harvest rates at run sizes above 4,800 will be determined by agreement through the annual management planning process.
2/ Harvest rates at intermediate run sizes will be interpolated, accordingly.
LITIGATION SCHEDULE IN THE ABSENCE OF A MULTI-YEAR MANAGEMENT PLAN
State to Supplement Interrogatory Responses July 8, 2005
*796All Parties May Review Documents Produced July 1-22, 2005
Exchange of Expert Reports and Disclosures July 29, 2005
Identification of Non-Expert Witnesses August 5, 2005
Exchange of Rebuttal Expert Reports and Disclosures August 26, 2005
Depositions Aug. 15-Sept. 12, 2005
Deadline for Filing Dispositive Motions September 16, 2005
State and Tribes Serve Pretrial Statements (CR 16(h)) October 3, 2005
State and Tribes Serve Responses to Pretrial Statements (CR 16(ij) October 7, 2005
Conference of Attorneys (CR 16(k)) October 28, 2005
Pretrial Order Lodged (CR 16(1)) November 4, 2005
Final Pretrial Conference (CR 16(m)) November 14, 2005
Trial To Be Set By Court
Accordingly, the parties jointly request a stay of this proceeding until July 1, 2005 to permit, if necessary, the parties additional time for negotiation of a long term management plan that would remove the need for further litigation of the underlying issue.
ORDER
IT IS HEREBY ORDERED THAT this subproceeding is stayed until July 1, 2005, on the terms set out in the above stipulation of the parties. If no long-term agreement has been reached by July 1, 2005, the litigation schedule set out above in the stipulation of the parties shall go into effect without further order of this court. If a long-term agreement is achieved by July 1, 2005, the Court will sign an Order of Dismissal, without prejudice, pursuant to Fed.R.Civ.P. 42(a)(l)(ii). The parties will provide an update regarding this subpro-ceeding to the Court by July 1, 2005.
ORDER DENYING MOTION FOR A TEMPORARY RESTRAINING ORDER
Subproceeding 04-1
(July 16, 2004)
This matter is before the Court on the Motion for a Temporary Restraining Order (TRO) filed by the Port Gamble S’Klal-lam and Jamestown S’Klallam Tribes (Tribes). The Court, having reviewed the file and heard oral argument on the motion, finds that the Tribes have failed to show good cause why the Skokomish Tribe should be restrained from proceeding with the Hood Canal shrimp fishery under Regulation s04-84. Accordingly, the Motion for a TRO is DENIED.
The Court acknowledges the good faith agreement of the Skokomish tribal council, made in open court, to set aside one thousand pounds of shrimp from the current harvest for the Tribes’ ceremonial needs. The parties are urged to continue to negotiate in the spirit represented by the Sko-komish stipulation, illustrating the close inter-tribal relationship between the par*797ties as set forth in the Hood Canal Agreement. Should such negotiations fail to achieve an agreement, the parties may jointly or individually file a Request for Determination and request the Court to appoint a settlement judge to aid in resolution of the issues by agreement rather than by further litigation.
STIPULATION AND ORDER OF DISMISSAL
Subproceeding 03-1
(September 27, 2004)
This stipulation of dismissal is entered into between all parties to United States v. Washington, Subproceeding No. 03-1. The parties reached an agreement outlined in the Stipulation and Order of Continuance signed by the Court on July 13, 2004. As explained in that stipulation, the framework management plan for the Hoh River Winter Steelhead for the 2004-2005 to 2006-2007 seasons was made contingent upon the Washington Fish and Wildlife Commission (“Commission”) adopting a rule allowing some retention of wild steel-head. On September 2, 2004 the Commission adopted such a rule. As a result, the contingency for the framework management plan has been met, providing enough certainty for the next three seasons that the parties have agreed to dismiss this subproceeding without prejudice.
ORDER
IT IS HEREBY ORDERED that United States v. Washington, Subproceeding No. 03-1 is dismissed without prejudice.
ORDER GRANTING SUQUAMISH TRIBE’S MOTION FOR SUMMARY JUDGMENT RE: A & K TRUST
Subproceeding No. 89-3-03 (Shellfish)
(March 21, 2005)
This matter comes before the Court on the Suquamish Tribe’s Motion for Summary Judgment Re: A & K Trust. The Court has considered the papers submitted and the oral arguments presented by the parties. The Court hereby GRANTS the Suquamish Tribe’s Motion for Summary Judgment Re: A & K Trust. The Court hereby ORDERS as follows:
1. The Tribe shall have the opportunity to immediately harvest its treaty share of the harvestable biomass of clams present on the Trust’s Erlands Point property— 50,463 pounds of manila clams and 13,335 pounds of native littleneck clams — in compliance with section 7.2 of the Revised Shellfish Implementation Plan. The Tribe shall inform the Trust and WDFW of the dates that it will harvest as soon as practical.
2. The Trust, or anyone acting on its behalf or in concert with it, shall not harvest any clams from the Trust’s Erlands Point property until the Tribe has completed the harvest of its allocation or until five months have elapsed from the date of the Court’s order, whichever comes first. The Tribe shall promptly notify the Trust when it has completed the harvest of its allocation.
3. The clerk is directed to enter judgment accordingly.
ORDER ON MOTION OF CERTAIN TRIBES TO ADOPT AN INTERIM HALIBUT COMMERCIAL FISHERY MANAGEMENT PLAN
Subproceeding No. 91-1
(May 3, 2005)
This matter is before the Court for consideration of a motion by certain named tribes to adopt an interim plan for the 2005 commercial halibut fishing season. The motion was filed by nine of the tribes *798having an interest in the halibut fishery, namely the Jamestown, Lower Elwha, and Port Gamble S’Klallam Tribes, the Makah Tribe, the Lummi Nation, the Quinault Tribe, the Suquamish Tribe, Swinomish Tribal Community, and the Tulalip Tribes. In the motion, filed just days before the opening of the 2005 commercial halibut fishery, these Tribes ask the Court to adopt their proposed 2005 interim management plan, provided no other Tribes objected. The Quileute Indian Tribe filed a response to the motion, asking that the Court not adopt the 2005 plan. On March 21, 2005, the Monday following the March 18 noting date for the motion, the Hoh Indian Tribe filed a declaration which the Court construes as an objection. By this time the 2005 halibut season was well underway.
Accordingly, the Court declines to adopt the proposed interim management plan. Instead, a hearing shall be held to address the issues raised in the moving Tribes’ motion, to assess their effect on the current halibut season, and to develop a plan to avoid a recurrence of this dispute in the 2006 season.1 The hearing is set on the Court’s calendar for Thursday, June 2 at 1:30 pm. The Tribes who are parties to this subproceeding may file pre-hearing memoranda, including any suggestions for avoiding recurrence, on or before Friday, May 27, 2005.
ORDER ON PENDING MOTIONS
(September 6, 2005)
Subproceeding No. 05-3
This matter is before the Court for consideration of the motion to dismiss filed by the Suquamish Tribe (“Suquamish”) and a motion for leave to file a cross-request for determination by the Swinomish Indian Tribal Community (“Swinomish”). The Court has reviewed the motions, the responses and replies, and relevant case documents. For the reasons set forth below, the Court now DENIES the motion to dismiss, and GRANTS the motion for leave to file a cross-request for determination.
I. Motion to Dismiss
In 1974, in language that lies at the heart of the current dispute, the Honorable George Boldt described the usual and accustomed fishing grounds (“U & A”) of the Suquamish as follows:
The usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal.
United States v. Washington, 459 F.Supp. 1020, 1049 (1978). A dispute has arisen among several Tribes concerning whether this language includes certain areas on the east side of Whidbey Island. This request for determination (“Request”) was filed by the Upper Skagit Indian Tribe (“Upper Skagit”), who ask the Court to determine that certain defined areas of Saratoga Passage and Skagit Bay are not within the Suquamish U & A as defined by Judge Boldt.
The Suquamish have moved to dismiss the Request for lack of jurisdiction and failure to state a claim, as well as under the doctrine of res judicata. They argue that their U & A has been specifically determined, and that the Court does not now have jurisdiction under the permanent injunction in this case to alter or amend *799that determination. They also assert that the Request fails to allege any cognizable legal theory justifying relief. None of these arguments is persuasive.
Under Paragraph 25 of the permanent injunction in this case, as modified August 23, 1993, this Court retains jurisdiction to consider “[w]hether or not the actions intended or effected by any party ... are in conformity with Final Decision # I or this injunction.; ...” The Request alleges that the Suquamish have been fishing for crab in certain areas on the east side of Whid-bey Island that are within the Upper Skagit’s own U & A, and that this action is not in conformity with Judge Boldt’s determination of the Suquamish U & A because this area is not included within Puget Sound as Judge Boldt intended that term This Court therefore has jurisdiction under Paragraph 25 to consider this Request.
The Court agrees with Suquamish that the U & A determination is a final decision that cannot now be altered or amended. It may, however, be clarified, as this Court has done on several prior occasions where Tribes have disagreed on the reach of the term “Puget Sound” as used by Judge Boldt in his various U & A determinations. Muckleshoot Indian Tribe, et al. v. Lummi, 141 F.3d 1355 (9th Cir.1998) (“Muckleshoot I”), Puyallup Indian Tribe, et al. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir.2000) (‘Muckleshoot III”). Indeed, The Suquamish have themselves complained of the “maddening imprecision and inconsistency with which the Court, the parties, the witnesses, and the exhibits in this case have used the phrase ‘Puget Sound.’” Brief of Appellees in Muckleshoot III, Dkt. # 25, Exhibit A.
As there is sufficient ambiguity in Judge Boldt’s use of the term “Puget Sound” in describing the Suquamish U & A to require clarification, and there is at present a live controversy between the parties because of that ambiguity, the motion to dismiss the Request is DENIED.
II. Motion for Leave to File a Cross-Request for Determination
The Swinomish have filed a motion for leave to file a cross-request for determination, pursuant to Paragraph 25(b)(4) of the permanent injunction. They assert that the term “Puget Sound” as used by Judge Boldt in describing the U & A of the Suquamish requires clarification, and they ask for a determination that certain waters on the east side of Whidbey Island were not included in that determination. The Suquamish, in response, contend that the cross-request is not ripe because the Swi-nomish did not follow the pre-litigation “meet and confer” procedures set forth in Paragraph 25. However, under Paragraph 25(b)(4), no specific requirement for a meet and confer is imposed upon a party seeking to file a cross-request. Instead, the party must seek leave of Court, which the Swinomish have done. While cross-requests are discouraged and leave to file them may often be denied, this case presents circumstances in which the cross-request is deemed appropriate. A clarification of the term “Puget Sound” in the Suquamish U & A will affect the Swinomish as it will the Upper Skagit. The Swi-nomish motion for leave to file a cross-request for determination is accordingly GRANTED.
III. Motion to Strike.
In their reply on the motion to dismiss, the Suquamish move to strike the declaration of Barbara Lane, attached to the Upper Skagit’s response to the motion to dismiss. The Suquamish contend that it is a conflict of interest for Dr. Lane to represent an opposing party and testify against her own testimony. Dr. Lane ac*800cording to her declaration, however, prepared and submitted reports on all tribes except the Yakima. In order for there to be a conflict of interest the Suquamish must establish they had a confidential relationship with Dr. Lane. Wyatt By and Through Rawlins v. Hanan, 871 F.Supp. 415 (M.D.Ala.1994). The Suquamish do not claim there is one, nor does it appear likely this is the case given Dr. Lane’s work with almost all the Tribes in U.S. v. Washington.
The Suquamish further argue that the declaration should be stricken because it is latter-day testimony that is inadmissible under Muckleshoot I. The Court agrees. The Ninth Circuit Court of Appeals held that the only relevant evidence in this type of subproceeding is what was before Judge Boldt at the time of his decision. Muckleshoot I, 141 F.3d at 1359. Accordingly, the motion to strike the Declaration of Barbara Lane is GRANTED.
IV. Motion for Summary Judgment and Motion to Strike.
The Upper Skagit filed a motion for summary judgment which was ripe for determination on September 2, 2005. The Suquamish, in response, moved to strike that motion as premature. As a determination on the merits of this matter will require the submission by the parties, and review by the Court, of evidence that was before Judge Boldt some thirty years ago, and that evidence has yet to be presented, the Court finds that the summary judgment motion is indeed premature. Accordingly, the Suquamish motion to strike (Dkt. # 40) is GRANTED, and the Upper Skagit motion for summary judgment (Dkt.- # 22) is STRICKEN, without prejudice to re-filing at the proper time.
The Clerk shall now issue an Order directing the filing of a Joint Status Report.
ORDER ON MOTION FOR RECONSIDERATION
Subproceeding 05-01
(October 21, 2005)
The Skokomish Indian Tribe (“Skokomish”) has moved for reconsideration of the Court’s July 20, 2005 Order on the parties’ cross-motions for summary judgment on all claims. Such motions are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier.... ” Local Rule CR 7(h)(1). The Court finds that the Skokomish motion has failed to meet this standard, except in one area as set forth below.
First, the Skokomish assert that the Court overlooked catch data which showed that they did not regulate S’Klallam fishing, because the S’Klallam actually caught more crab and geoduck than did the Sko-komish. “In light of this catch data, it is inconceivable that the Skokomish letters amount to an ‘exercise’ of its ‘primary right’ ‘against’ the S’Klallams.” Motion for Reconsideration, p. 4. This argument overlooks the language of the Hood Canal Agreement, in which the Skokomish agreed not to “exercise or seek to exercise” its primary right against the S’Klal-lam or other stipulating Tribes in Hood Canal north of Ayock Point. United States v. Washington, 626 F.Supp. 1405, 1469 (W.D.Wash.1985) (emphasis added). It was the Court’s ruling that the Skokomish sought to regulate other Tribes’ fishing by issuing unilateral harvest plans and quotas for the other Tribes, and that such attempt to regulate constituted a violation of the Hood Canal Agreement. The actual amounts subsequently harvested are irrelevant to that determination.
*801Next, the Skokomish assert that the Court “misapprehended” the effect of letters written by the Skokomish Tribe to other Tribes, and argue that “it is manifestly improper for the Court to grant summary judgment by relying on eviden-tiary matters to which the Skokomish Tribe had no notice were at issue.” Motion for Reconsideration, p. 8. The Sko-komish by this argument refer to the Court’s finding that these letters, with their accusations of bad faith, constituted an assertion of social disapproval. Social disapproval and magical retaliation were previously found by the Court, Judge Boldt presiding, to be the primary methods by which the Twana, as aboriginal predecessors of the Skokomish, regulated fishing by other Tribes in their own fishing grounds. Id. at 1491. There was no lack of notice on this issue; it was the Skokomish Tribe that itself put the tribal methods of fishing regulation at issue by contending that such regulation of other Tribes’ fishing required an exercise of police powers, or the imposition of time, place or manner restrictions. In rejecting that argument, the Court referred back to Judge Boldt’s earlier language to find that regulation could be accomplished by means other than physical force. Only if “the other deterrents proved inadequate” would the Twana have responded with physical force. Id. As to magical retaliation, it should have been clear that the Court was not serious in suggesting, in a footnote, that threats of litigation might be the modern-day equivalent. The Court finds no basis for reconsidering its ruling in this area.
The third argument put forth by the Skokomish is that the Court “Misapprehended the Requested Relief As Nothing in the Hood Canal Agreement ... Supports a Declaration of an “In-Common” Fishing area.” Motion for Reconsideration, p. 9. The Court did not “misapprehend” the relief requested by the S’Klallam Tribes; the Request for Determination clearly asked for a declaration that the area of Hood Canal north of Ayock Point be designated an “in-common” management area. Request for Determination, p. 10. Nor does the designation of the area as an “in-common” management area conflict with the language of the Hood Canal Agreement, which states that in this area “the Sko-komish and the Klallam Bands may exercise their respective treaty fishing rights without any limitation or control whatsoever ... except as the stipulating parties may mutually agree by compact or otherwise.” U.S. v. Washington, 626 F.Supp. at 1469 (emphasis added). However, the Court notes that the S’Klallam did not actually include this aspect of the Request for Determination in the motion for summary judgment. See, Motion for Summary Judgment, Dkt. # 141; Proposed Order, Dkt. # 147. That portion of the Order declaring the area north of Ayock Point ■an “in-common” management area shall therefore be stricken.
Finally, the Skokomish assert that “the Court Misapprehended the Language of the Hood Canal Agreement” by stating at page 7, lines 20-21 that “the Skokomish may not exercise [their] primary right against the S’Klallam” It is the Skokomish position that this language, by omitting reference to the area north of Ayock Point, changes the meaning of the Hood Canal Agreement. That is not so. The omission of the limiting language “north of Ayock Point” did not write it out of the Hood Canal Agreement; that language was implicit in the Court’s statement even though not expressly quoted. Similarly, as to the Court’s discussion of “consent”, the Sko-komish argue that the Court “has turned the Agreement on its head by shifting the authority to grant consent from the Sko-*802komish Tribe to the Two S’Klallam Tribes.” Motion for Reconsideration, p. 12. That is not the case. The Court’s use of the word “consent” on page 6 was linked to previously-quoted language in the Hood Canal Agreement in which
the Skokomish agreed that ‘it will not, under any condition or for any reason whatsoever, exercise or seek to exercise its primary right on Hood Canal north of Ayock Point ... against any of the other stipulating parties without its or their express consent.’
Order on Cross-Motions for Summary Judgment, p. 2, quoting U.S. v. Washington, 626 F.Supp. at 1469. Contrary to the Skokomish argument, this language clearly requires the consent of the S’Klallam Tribes before the Skokomish can exercise their primary right north of Ayock Rock. By referring to this “consent”, the Court did not, in the words of the Skokomish, turn the Hood Canal Agreement “on its head.”
Plaintiffs motion for reconsideration is accordingly GRANTED IN PART and DENIED IN PART. The Court STRIKES that portion of the Order declaring “that the area north of Ayock Point is an ‘in common’ management area....” Order on Cross-Motions for Summary Judgment, p. 8. The Court declines to further modify or reconsider the Order.
ORDER ON MOTION TO DISMISS
Subproceeding No. 05-4
(October 27, 2005)
This matter is before the Court for consideration of the motion to dismiss filed by the Suquamish Tribe (“Suquamish”). The Court has reviewed the motion, the response and replies, and relevant case documents. For the reasons set forth below, the Court now GRANTS the motion to dismiss.
DISCUSSION
This is the second Request for Determination filed this year concerning the extent of the usual and accustomed fishing grounds (“U & A”) of the Suquamish, described by the Honorable George Boldt in 1974 as follows:
The usual and accustomed fishing places of the Suquamish Tribe include the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal.
United States v. Washington, 459 F.Supp. 1020, 1049 (1978). In June, 2005, two months before this subproceeding was initiated, the Upper Skagit Indian Tribe (“Upper Skagit”) filed a Request for Determination (“Request”) asking the Court to determine that certain defined areas of Saratoga Passage and Skagit Bay, both to the east of Whidbey Island, are not within the Suquamish U & A as defined by Judge Boldt. U.S. v. Washington, Cause No. 70-9218, sub-proceeding 05-03. The Swinomish Indian Tribal Community (“Swinomish”) moved for leave to file a Cross-Request for Determination to include a larger portion of Saratoga Passage, known as Catch Reporting Area 24C, and the motion was granted. The Suquamish then moved to dismiss the Request for lack of jurisdiction and failure to state a claim, as well as under the doctrine of res judicata.
The Court found in sub-proceeding 05-OS that it retained jurisdiction under Paragraph 25 of the permanent injunction in this case, as modified August 23, 1993, to consider the Request of the Skagit and Swinomish. And although the Court noted its agreement with Suquamish that the U & A determination is a final decision that *803cannot now be altered or amended, it found that it may be clarified where necessary. Without specifically finding that the term “Puget Sound” is ambiguous in the context of the Suquamish U & A, the Court found sufficient ambiguity in Judge Boldt’s use of the term “Puget Sound” in this case to allow that sub-proceeding to go forward. The Court therefore denied the motion to dismiss.
This Request for Determination was filed as sub-proceeding 05-04 by the Tu-lalip Tribes (“Tulalip”), who ask the Court to find that all of Saratoga Passage, together with additional areas designated as Perm Cove, Holmes Harbor, Port Susan, Tulalip Bay, Port Gardner, a portion of Possession Sound, and the east side of Admiralty Inlet, including Admiralty Bay, Mutiny Bay, Useless Bay, and Cultus Bay, all lie outside the Suquamish U & A as defined by Judge Boldt. The Suquamish have moved to dismiss the Request, this time asserting three bases for dismissal: lack of subject matter jurisdiction, res ju-dicata, and laches. The Tulalip, in response, have asked the Court to follow the ruling in sub-proceeding 05-03 and deny the motion to dismiss. There are, however, significant differences between the positions of the parties in the two sub-proceedings, which here compel a different result.
In 1974 or 1975, the Tulalip Tribes filed a Request for Determination as to their own U & A. Judge Boldt noted that the areas claimed by the Tulalip as usual and accustomed fishing grounds included
(1) All marine waters of the State of Washington lying within the lands and waters ceded to the United States of America by Article I of the treaty of Point Elliot.
(3) All marine waters of Puget Sound and of the Strait of Juan de Fuca lying within the territorial limits of the State of Washington and outside of those waters ceded to the United States of America by Article I of the treaty of Point Elliot.
U.S. v. Washington, 459 F.Supp. at 1058. Judge Boldt issued provisional findings limiting the Tulalip U & A to a clearly defined area, described as “[bjeginning at Admiralty Head on Whidbey Island and proceeding south ...thence southeasterly, northeasterly, and northwesterly up to a line “drawn true west of Camano on Camano Island.” Id. at 1059. This was a provisional finding, and various Tribes, including the Suquamish, entered into negotiations with the Tulalip Tribe for final determination of the Tulalip U & A.
In 1983, the Suquamish, Muckleshoot, and Tulalip Tribes entered into a stipulated settlement which resolved “some of the issues raised in the Tulalip Tribes’ request for final determination_” Su-quamish Reply, Dkt. # 13, Exhibit 2. That stipulation was filed with and approved by the Court, Judge Craig presiding, in 1983. U.S. v. Washington, 626 F.Supp. 1405, 1476-78 (W.D.Wash.1985). Subsequently, in 1985, Judge Craig issued a final decision as to the U & A of the Tulalip Tribe, the extent of which is not directly relevant to these proceedings. Id. at 1527-1532. Notably, however, Judge Craig referred at several points to the stipulated settlement agreements reached with the Suquamish and Muckleshoot Tribes, as well as eight other Tribes. Id., Finding of Fact ¶ 383, Conclusions of Law ¶¶ 94, 100, 101, 102. The Court stated,
Pursuant to those agreements the stipulating tribes, with a single limited exception, did not participate in the adversarial proceedings of this dispute and thus had no opportunity to present evidence of their own, to cross-examine Tulalip witnesses or to challenge Tulalip evi*804dence. Some of the evidence offered by the Tulalip Tribes dealt with activities, persons or events in areas which are of concern to the stipulating tribes. It should therefore be stressed that the findings of fact and conclusions of law which are adopted in this proceeding are not to be cited or relied' upon in any manner against or to the prejudice of the stipulating tribes in this or any other judicial or other proceeding, provided that this shall not prevent the independent establishment of the same fact or conclusion in a future proceeding.
Id., Finding of Fact ¶ 383.
In May of 1985, the Suquamish filed a new Request for Determination seeking to establish their right to fish in certain areas as successors to the treaty-time Duwamish Tribe. The Court, after referring the matter to a Special Master for trial, denied the Request, and that denial was affirmed on appeal. U.S. v. Suquamish Indian Tribe, 901 F.2d 772 (9th Cir.1990). The appeals court, in setting forth the background of the dispute, variously used the terms “eastern Puget Sound”, “eastern side of Puget Sound”, and “east of Puget Sound” apparently interchangeably, and also referred to the Suquamish U & A area as “western Puget Sound” and “the west side of Puget Sound” without actually defining those areas. These vague references to “eastern” and “western” Puget Sound appear to form part of the basis for the Tulalip’s Request here. The Court notes, however, that when describing the actual usual and accustomed fishing grounds of the Duwamish “on the eastern side of Puget Sound”, the appeals court stated that they “included, but were not limited to, Lake Washington, Lake Union, Lake Sam-mamish, the Black and Cedar Rivers, and the lower White or Duwamish River...” U.S. v. Suquamish Indian Tribe, 901 F.2d 772, 774 n. 2 (9th Cir.1990).
The Court has described these prior proceedings with some particularity, because each of them provides some basis for finding that the Tulalip’s Request for Determination is either barred or untimely, and must be dismissed.
In the initial proceedings on their Request for Determination before Judge Boldt in 1975, the Tulalip Tribe claimed as their usual and accustomed fishing areas “[a]ll marine waters of Puget Sound and of the Strait of Juan de Fuca lying within the territorial limits of the State of Washington,” together with “[a]ll marine waters of the State of Washington lying within the lands and waters ceded to the United States of America....” U.S. v. Washington, 459 F.Supp. at 1058. Significantly absent from this claim is any separate reference to Saratoga Passage, Port Susan, Skagit Bay, or any of the other areas near the Tulalip Indian Reservation which the Tulalip now contend are not within “Puget Sound” as Judge Boldt used that term in describing the Suquamish U & A. Thus, the Tulalip claim in 1975 to a U & A in “all marine waters of Puget Sound” must necessarily have included those very areas to the east of Whidbey Island which they now assert are excluded. In other words, they are now arguing for a limitation on the term “Puget Sound” which is inconsistent with their 1975 claim This is impermissible, particularly in the context of this case.
The doctrine of judicial estoppel, sometimes referred to as the doctrine of preclusion of inconsistent positions, may be invoked to prevent a party from changing its position over the course of judicial proceedings. Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir.1990). It is an equitable doctrine invoked by the Court at its discretion. Yanez v. United States, 989 F.2d 323, 326 (9th Cir.1993). Judicial estoppel applies to a party’s stated position, wheth*805er that be an expression of intention, a statement of fact, or a legal assertion. Wagner v. Professional Engineers in California Government, 354 F.3d 1036, 1044 (9th Cir.2004). The purpose of the doctrine is to protect the integrity of the judicial process. Rissetto v. Plumbers and Steamfitters Local 343, 94 F.3d 597, 601 (9th Cir.1996); quoting Yanez v. U.S., 989 F.2d at 326.
Although it appears that this doctrine may well apply to the inconsistent positions taken by the Tulalip Tribe on the extent of “Puget Sound” here, the Court declines to apply judicial estoppel to bar this Request at this time because it has been raised on the Court’s own motion, and the Tulalip have not been given an opportunity to respond. However, the Court deems it unnecessary to delay the proceedings to allow such opportunity, because the Request is subject to dismissal on other grounds asserted by the Suquamish Specifically, the Court agrees with the Suquamish that this Request is barred by the doctrines of laches and res judicata.
“Res judicata, also known as claim preclusion, bars litigation in a subsequent action of any claims that were raised or could have been raised in the prior action.” Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.2001); quoting Nelson v. City of Irvine, 143 F.3d 1196, 1200 (9th Cir.1998). The doctrine is applicable when there is (1) an identity of claims, (2) a final judgment on the merits, and (3) identity or privity between the parties. Id. These requirements are met here. Res judicata applies to the Judge Boldt’s 1975 rulings on the Suquamish U & A, Judge Craig’s 1985 ruling on the Tulalip U & A, and to the 1983 stipulated settlement between the Su-quamish and the Tulalip, which resolved overlapping claims to some of the areas now in dispute. That settlement was incorporated into a judgment which conclusively determined the issues as between these two parties. U.S. v. Washington, 626 F.Supp. at 1476-78. To any extent that the Tulalip claim that the Suquamish U & A did not include certain areas on either side of Whidbey Island as asserted here, they could and should have raised that issue and resolved it in the 1975 proceedings and /or the 1983 settlement. It would seriously impact the finality of those judgments to allow them to re-open the issue now.
Finally, to the extent that the Tulalip argue that the Ninth Circuit’s 1990 language regarding eastern and western Puget Sound in U.S. v. Suquamish Indian Tribe somehow limited the Suquamish U & A to the boundaries asserted here, they are barred from asserting that claim by the doctrine of laches. “Laches is an equitable time limitation on a party’s right to bring suit.” Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir.2002) (quoting Boone v. Mech. Specialties Co., 609 F.2d 956, 958 (9th Cir.1979)). A party asserting laches must show that it suffered prejudice as a result of the plaintiffs unreasonable delay in bringing suit. Id., citing Couveau v. American Airlines, Inc., 218 F.3d 1078, 1083 (9th Cir.2000). The fifteen years that have passed since the Ninth Circuit’s language provided fuel for the Tulalip “eastern Puget Sound” argument constitute unreasonable delay. The Suquamish have been prejudiced by this delay, in that they have been intimidated from fishing in certain areas, with no judicial resolution of the dispute. See, Declaration of Robert Purser.
In opposing the Suquamish laches argument, the Tulalip assert that laches should not be applied in a “continuing jurisdiction” case such as this. No legal authority is offered for this proposition, and the Court rejects it. While the Court did and *806does retain jurisdiction to hear and determine certain claims in this case, as set forth in Paragraph 25 of the Permanent Injunction, all applicable legal and equitable doctrines still apply to claims within that jurisdiction.
Accordingly, the Suquamish motion to dismiss is GRANTED, and this Request for Determination is DISMISSED. To the extent that this ruling differs from the ruling issued in Subproceeding 05-03, that difference is compelled, as noted above, by the prior history of these two parties, and by the additional argument of laches asserted by the Suquamish in this subpro-ceeding.
ORDER ON MOTION TO COMPEL
Subproceeding No. 05-3
(December 19, 2005)
This matter is before the Court for consideration of the motion to compel filed by the Upper Skagit Indian Tribe (“Upper Skagit”). The motion has been opposed by the Suquamish Tribe (“Suquamish”). For the reasons set forth below, this motion is DENIED.
DISCUSSION
This subproceeding was initiated by the Upper Skagit as a Request for Determination under Paragraph 25 of the permanent injunction herein. The Upper Skagit asked the Court to find that certain defined areas of Saratoga Passage and Skagit Bay, described as the “Subproceed-ing Area”, are not within the usual and accustomed fishing area (“U & A”) of the Suquamish as it was described by Judge Boldt in 1974. Although the Upper Skagit did not specifically cite a jurisdictional basis for this Request, the Court has found that it has jurisdiction pursuant to Paragraph 25(a)(1), which states that the Court retains jurisdiction to determine “[wjhether or not the actions intended or effected by any party ... are in conformity with Final Decision # 1 or this injunction.... ” Order Modifying Paragraph 25 of Permanent Injunction, dated August 23, 1993.1 The Court denied a motion to dismiss by the Suquamish, finding that there is sufficient ambiguity in Judge Boldt’s description of that U & A to allow this Request for Determination to proceed.2 The Court also cited to language to the effect that “the only relevant evidence in this type of subproceeding is what was before Judge Boldt at the time of his decision.” Order dated September 6, 2005. As this statement oversimplifies the rulings of the Ninth Circuit Court of Appeals in the cases which guide the Court in these proceedings and in this discovery dispute, relevant portions of those opinions must be reviewed.
In Muckleshoot I, one issue before this Court was the extent of the U & A of the Swinomish Tribal Community, described in Decision II as including “the marine areas of northern Puget Sound south to and including Whidbey Island.... ” Finding of *807Fact (“FF”) 6, 459 F.Supp. at 1049 (emphasis added). The Ninth Circuit Court of Appeals affirmed this Court’s grant of summary judgment against the Swinomish Tribal Community, finding that the Swi-nomish had offered “no evidence that suggests that FF6 is ambiguous or that the court intended something other than its apparent meaning....” Muckleshoot I, 141 F.3d at 1359.
A second issue before the Court in Muckleshoot I was the southern extent of the- Lummi Tribe’s U & A, described in Decision /• as including “marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle ...” FF 46, 384 F.Supp. at 360 (emphasis added). The Ninth Circuit reversed this Court’s grant of summary judgment against the Lummi Tribe, finding that the district court erred in considering latter day téstimony of an expert whose anthropological report was cited by Judge Boldt. Muckleshoot I, 141 F.3d at 1359. The court also erred in entering supplemental findings, under subpara-graph f of Paragraph 25 (now Paragraph 25(a)(6)), by which the Court retains jurisdiction “to determine the location of a tribe’s usual and accustomed fishing grounds not specifically determined by [Decision /]....” Id. at 1360. The appeals court noted that this subsection “does not authorize the district court to clarify the meaning of terms used in the decree or to resolve an ambiguity with supplemental findings which alter, amend or enlarge upon the description in the decree.” Id. The Court was instead instructed to proceed under subparagraph a of Paragraph 25 (now subparagraph (a)(1)) to resolve the dispute. The appeals court then stated that
[i]t will be up to the parties to offer admissible evidence to enable the district court to interpret the decree in specific geographic terms. While evidence that was before Judge Boldt when he made his finding is obviously relevant, there may be other evidence indicative of the contemporary understanding of “the present environs of Seattle.”
Id.
After remand, the matter went back to the Ninth Circuit Court of Appeals. Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir.2000) (“Muckleshoot II”). The appeals court reiterated the principle that “the critical issue was the meaning Judge Boldt intended at the time he wrote his opinion.” Id. at 1100, citing Muckleshoot I, 141 F.3d at 1359. However, in so finding, the appellate court did not “freeze the record”; indeed it approved the use of a geography expert to assist the district court in determining “where the northern environs of Seattle were located at the time of Judge Boldt’s decision.” Id. The court ruled that the district court correctly interpreted Judge Boldt’s opinion “on the basis of information known to Judge Boldt and the words he chose.” Id. at 1101.
Finally, in Puyallup Indian Tribe, et al. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir.2000) (“Muckleshoot III”), the Ninth Circuit affirmed this Court’s grant of summary judgment against the Muckle-shoot Tribe in a dispute involving the extent of their U & A. This was described in Decision I as being primarily on various rivers, and “secondarily in the saltwater of Puget Sound.” FF 76, 384 F.Supp. at 367. The Muckleshoot argued that this language was unambiguous because “ ‘Puget Sound’ has a well-understood, common geographical meaning.” Muckleshoot III, 235 F.3d at 432. The opposing Tribes, on the other hand, argued that the phrase “secondarily in the waters of Puget Sound” was ambiguous in the context of the evidence that was before Judge Boldt. Id.
*808In considering the issue, the Ninth Circuit noted that
the parties’ debate over whether the language of Finding 76 is unambiguous is largely misdirected, inasmuch as an analysis of the decision is necessary, whether the text is unambiguous or not, in order to understand Finding 76 “in light of the facts of the case.” An unambiguous text is certainly a factor to be considered in this analysis, but it does not necessarily terminate the inquiry.
Id. at 433. The appeals court then cited its ruling in Muckleshoot I as authority for the principle that the Tribe asserting ambiguity or a lack of clarity in Judge Boldt’s U & A determination must offer “evidence that suggests that FF[76] is ambiguous or that the court intended something other than its apparent meaning....” Id., quoting Muckleshoot I, 141 F.3d at 1369.
These rulings inform this Court’s 'decision on the motion to compel, as they define the scope of discovery in this matter. The burden in this subproceeding is on the requesting parties — the Upper Skagit and the Swinomish Tribal Community — to offer evidence that FF 5 is ambiguous, or that Judge Boldt “intended something other than its apparent meaning.” Id. Since the apparent meaning of the phrase “the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits.... ” is in dispute here, it must be determined by the Court. The relevant evidence on this issue is evidence which indicates the contemporary understanding of the extent of “the marine waters of Puget Sound ... ”, which will “shed light on the understanding that Judge Boldt had of the geography at the time.” Muckleshoot I, 141 F.3d at 1360; Muckleshoot II, 234 F.3d at 1100. This may be provided by supplementation of the record, at the appropriate time, with declarations of geography experts. Id. Such evidence may be offered by the parties to “enable the district court to interpret the decree in specific geographic terms.” Muckleshoot I, 141 F.3d at 1360.
Should the evidence show that the common understanding of the term “Puget Sound” in 1974 included Saratoga Passage and Skagit Bay, the Upper Skagit or Swi-nomish Tribe must produce evidence that suggests that Judge Boldt intended something other than this apparent meaning when he wrote FF 5. Muckleshoot I, 141 F.3d at 1359. The evidence that is relevant to Judge Boldt’s intent comprises “the entire record before the issuing court and the findings of fact [which] may be referenced in determining what was decided.” Muckleshoot I, 141 F.3d at 1359. It is this evidence which is the subject of this motion to compel.
The documents sought by the Upper Skagit in the motion to compel were originally requested in three Requests for Production:
REQUEST FOR PRODUCTION NO. 1 Please produce all documents and/or information of any type that constituted the evidence before U.S. District Judge George Boldt in 1974 at the time of his original decision in this matter, that referred to, related to, and/or supported in any fashion the contention that the Suquamish Tribe ever fished and/or shellfished in any areas set forth in Subproceeding 05-3, including without limitation Skagit Bay and/or Saratoga Passage.
REQUEST FOR PRODUCTION NO. 2 Please produce all documents and/or other information of any type that was presented to U.S. District Judge George Boldt at any time after 1974 that referred to, related to and/or supported in any fashion the contention that the Suquamish Tribe ever fished *809and/or shellfíshed any areas set forth in Subproceeding 05-3, including without limitation Skagit Bay and/or Saratoga Passage.
REQUEST FOR PRODUCTION NO. 3 Please produce all documents and/or information of any type that constituted the evidence before U.S. District Judge George Boldt at the time of his original decision in this proceeding and/or thereafter concerning the extent and/or boundaries of the usual and accustomed fishing grounds of the Suquamish Tribe.
Motion to Compel, p. 2.
The Suquamish object to producing these documents on three bases: (1) the documents sought are not in their control or possession but rather are in the control and possession of the Court; (2) the documents sought are court records which are public and available to all parties; and (3) the Upper Skagit seek information which is beyond the geographic scope of the dispute as defined in their Request for Determination.
The Court agrees that the documents sought are part of the Court record and equally available to all parties, and DENIES the motion to compel on that basis.3 These are not, as the Upper Skagit assert, akin to voluminous business records subject to the requirements of F.R.Civ. Proc. 33(d). The burden of locating the relevant documents within the Court record is no greater for the Upper Skagit than it is for the Suquamish. The Court shall assist the parties, upon request (and within reason), by providing copies of relevant exhibits that were considered by Judge Boldt.4 Such exhibits are those which will assist the Court in determining “the meaning Judge Boldt intended at the time he wrote his opinion.” Muckleshoot II, 234 F.3d at 1100. Counsel may contact chambers staff at (206) 370-8883 to arrange for this assistance..
The Court notes that a scheduling Order has not yet been entered in this case, and the parties have requested, in their Joint Status Report, a conference to resolve their differences about scheduling. Such conference, limited to the three Tribes who have actively participated in this case, shall be scheduled by the Court during January 2006. Counsel shall contact the courtroom deputy at (206) 370-8521 after January 3, 2006 to set a date and time for the conference.
DECISION
Subproceeding No. 89-3-04 (Shellfish)
(December 30, 2005)
KAREN L. STROMBOM, United States Magistrate Judge.
This matter is before the court pursuant to the dispute resolution process set forth in the Revised Shellfish Implementation Plan (Plan). Exh. 1. The Quileute Tribe disputes the State of Washington’s plan to open the 2005-2006 commercial non-tribal Dungeness Crab fishery on December 20, 2005. The State proposed this plan pursuant to 4.6 of the Revised Shellfish Implementation Plan. The Quileute Tribe timely objected to the State’s proposed regulation and this court conducted a full day hearing on December 16, 2005.
*810Pursuant to 4.7 of the Plan, the Tribe’s written objection addressed the proposed opening date of the commercial fishery, which had been scheduled for December 20, 2005.1 The Quileute Tribe proposes an opening date of January 15, 2006. In its briefing, and during the hearing, the Qui-leute Tribe also objected to the western 'boundary of the U & A utilized by the State. The Court notes, however, that this was not raised in the 4.7 written objection. The State utilizes an approximate three mile western boundary delineating the Washington State territorial sea whereas the Quileute Tribe proposes the use of a 40 mile boundary, as defined in federal regulations.
The undersigned sustains the Quileute Tribe’s objection to the opening date for the commercial non-tribal Dungeness Crab fishery and finds that the opening should be delayed until January 15, 2006. The undersigned further declines to rule with regard to the request to utilize a forty mile western boundary for the U & A as opposed to the three mile boundary.
OPENING THE CRAB FISHERY
The Quileute Tribe has the right to take fifty percent of the Dungeness Crab found anywhere within the Tribe’s usual and accustomed fishing areas. United States v. State of Washington, 873 F.Supp. 1422, 1431 (9th Cir.1994). This right is recognized in the Plan. The challenge faced by the parties in this sub-proceeding is to fashion management techniques which will result in both tribal and non-treaty fishers harvesting their fair share. While the Court recognizes that it will be difficult to reach an exact fifty-fifty share, the law is clear and the management steps taken by the parties must head in the direction of providing treaty and non-treaty fishers a fair opportunity to catch their fair share.
Based on the exhibits and the testimony presented at the hearing, it is apparent that it is not possible to accurately predict the harvestable surplus of Dungeness Crab from year to year. This makes it extremely difficult to “determine” a fair share without the use of hindsight. Section 2.2 of the Plan allows for this situation and requires the Tribes and State to “develop a cooperative approach to management with the goal of maximizing harvest and equalizing allocation, consistent with conservation of the resource.” The parties have, in fact, used different management techniques with the goal of “equalizing allocation.” These management techniques include the establishment of Special Management Areas (SMA’s), gear restrictions, and a “head start” for the tribal fishermen.
Even though a number of management techniques have been employed by the State of Washington in the past, the goal of equal shares was never reached until the 2004-2005 season when, for the first time, the Quileute Tribe harvested 58% of the Dungeness Crab in Area 59A-1. Exh. 16. According to the figures provided by the Quileute Tribe, this was the first time in eight fishing seasons that the tribe harvested more crab than non-tribal fishers. In the 2003-2004 season the tribe harvested 32% of the crab and in the 2001-2002 season it harvested 37%. For all of the other fishing seasons, the Quileute Tribe harvested less than 20% of the crab. The Quileute Tribe attributes their success in the 2004-2005 season to the fact that the State had to delay opening of the fishery until January 16th.
*811The State presented testimony through Philip Anderson, Special Assistant to the Director of the Department of Fish and Wildlife, regarding Exhibit N. This exhibit set forth percentages of catch by the Qui-leute Tribe that differ from those set forth in Exhibit 16. Exhibit N, however, was not made by, or under the direction of Mr. Anderson, although he assumes it to be accurate. While the figures used to reflect the non-treaty harvest are the same in both exhibits, the Quileute Tribe actually reported a larger catch for the 2002-2003 and the 2003-2004 seasons than is reflected on Exhibit N. Inasmuch as there was no testimony presented to the Court regarding the source of these numbers, the Court chooses to rely on the figures provided in Exhibit 16.
Three new management techniques are proposed by the State of Washington for the 2005-2006 season. One change is the requirement that all commercial crab fishers fishing in waters adjacent to the Washington coast “attach a buoy tag purchased from the Department of Fish and Wildlife to each piece of gear deployed by the fisher.” Exh. 5. This new requirement is intended to enhance the enforceability of the State’s current pot limit program which was adopted in 2002. The State has also reached an agreement with the Makah Tribe which creates an additional small northern SMA off the coast near Lake Ozette. Finally, the State of Washington and State of Oregon have reached an agreement to place geographic restrictions on vessels that fish in federal waters adjacent to Washington and Oregon. This means that vessels licensed solely by Oregon will be prohibited from fishing off the Washington Coast. Exh. 5.
The results of the last crab season have confirmed the capability of the Quileute to harvest their fair share and the State acknowledges they have this capability. The State, however, believes that the new buoy tag requirement, the creation of a secondary SMA per agreement with the Makah Tribe, the agreement with the State of Oregon, and the increase in experience of the tribal fishers will allow the Quileute to reach the 50% goal while still opening the non-tribal fishery on December 31, 2005. On the other hand, the Quileute Tribe believes that an additional “headstart” is a significant management technique that must be continued in order to allow them their fair opportunity to harvest their fair share.
This Court has a difficult time seeing how the changes proposed by the State will reach the hoped for result. With regard to the agreement with the State of Oregon, testimony at the hearing offered additional specifics which were not included in the State’s initial letter to the Qui-leute Tribe. Even with the agreement, there are approximately 55 fishing vessels which have dual licenses with both states while approximately 40 boats are just licensed in the State of Oregon. There is no information as to how many of these boats actually fished in 59A-1. This restriction, however, is of further limited use regarding this sub-proceeding in that the 2004-2005 reported harvest of Dungeness Crab landed in Oregon and harvested in 59-A1 was only 9,830 pounds. (Catch Area 10, Exhibit O). The tribal and non-treaty fishers in Washington reported a total catch of 2,765,020 pounds for that season. Exh. 16. The Oregon catch represents less than one percentage point of the total pounds of Dungeness Crab harvested in 59A-1. (9,830 2,774,850 = 0.00354). Based on all the information provided by the State, it does not appear that the agreement between the two states will significantly impact the fishing opportunity of the Quileute Tribe.
*812While the State has reached an agreement with the Makah Tribe and created a secondary SMA, the Court has no information as to the expected impact this would have with regard to the crab harvest by the Quileute Tribe.
Finally, with regard to the purchase of buoy tags, the State’s witness was unable to give any accurate prediction as to what, if any, impact this will have on non-tribal fishers exceeding the pot limit. This buoy tag requirement creates the inference that the pot limitation is not being followed by non-tribal fishers. If this is in fact the case, there is nothing before the Court which suggests the extent of this violation or the impact the buoy markers will have on encouraging non-tribal fishers to comply with the law.
Section 4.7 of the Plan places the burden of proof on the Quileute Tribe as its objection has to be based:
on a well-founded assertion that the proposed regulation would result in:
(1) an over-harvest on an allocation or conservation basis in violation of the standards set by the Court in United States v. Washington, or other conservation standards agreed to by the State and affected Tribes; or
(2) otherwise violate this Implementation Plan or other applicable orders of the Court. The objection must state the reasons for the objection, the data on which it is based, and any other pertinent information available to the objecting party.
The undersigned finds that the Quileute Tribe has met its burden of proof. The court recognizes that the Quileute Tribe added another boat to its fleet and that its tribal fishers have gained experience in fishing for crab. However, the addition of a single boat, which increases the size of the Quileute fleet to seven is a factor that can be assessed only in hindsight, as is the case with the Dungeness Crab fishery. This court also notes that the State estimates that the non-tribal harvest will include 56 vessels with 15,000 crab pots. See Notice of Amended Coastal Dungeness Crab Fishery Opening Pursuant § 4.6. While the additional boat will assist the Quileute Tribe it is not sufficient reason to ignore history.
The delay in the opening of the non-tribal fishing season to the January 16, 2005 date is logically a major factor in the Quileute Tribe’s success in the 2004-2005 season. The track record created by the start dates shown in Exhibit 16 for the seasons prior to the 2004-2005 season show that opening the fishery to non-tribal fishers in December does not give the Quileute Tribe a fair opportunity to catch its fair share.
The undisputed testimony is that the Quileute Tribe’s goal of reaching the 50/50 share was made known to the State by 2001. However, any changes in the fisheries management did not accomplish the fair share goal until the Quileute Tribe was given a greater head start. This Court is very aware of the fact that the Tribe and the non-treaty fishers are each entitled to their fair share and that the State is concerned that a delay to January 15, 2006 will result in the Quileute Tribe harvesting more than its fair share. That is also a concern of this Court. However, the steps taken to date by the State have not provided the Quileute Tribe with its fair opportunity to catch its fair share and in fact have resulted in over-harvesting every year but one by non-treaty fishers. Adjustments will have to be made based on experience. It may be that the Quileute Tribe will harvest more than 50% this season. No one can know until the season is over. If that is in fact the case, then there will have to be another adjustment to the opening date. It appears that experience is the *813best indicator of the future regarding the crab fishery. Prior to the 2008-2004 season, experience showed that the goal was not being reached. The 2003-2004 season, with the delayed opening of the fishery, added an additional element which cannot be ignored by the Court.
By approving the opening date of January 15, 2006 this Court feels compelled to comment on the testimony of Resource Economist Phil Meyer. Mr. Meyer simply took the opening dates of the state fishery and the percentage harvested by the Qui-leute Tribe corresponding to each opening date and created a linear relationship between the points which he then used to predict an appropriate opening date -for non-tribal fishers. He readily admitted that more data points would be helpful in light of the fact that there was only one non-tribal opening date in January and the rest of the opening dates were either in November or December. Mr. Meyer testified that the information was “something I think we can work with.” The Court, however, declines to accept this testimony as something to “work with” for purposes of prediction. On cross-examination Mr. Meyers admitted that use of this “predictive model” shows only a 40% Quileute harvest in the 2005-2006 season with an opening date of January 15th. This Court is of the opinion that the model has no real predictive value at this time and gives it no weight.
Another area of concern for this court was the uncontradicted testimony of Mr. Anderson with regard to crab harvested by the Quileute Tribe south of 59A-1. He testified that this catch should be added to the harvest in 59A-1 as it suggests the Tribe is not expending maximum effort in the 59A-1 area. Due to the fact that the testimony was a general statement, the testimony did not impact this Court’s decision. This Court also recognizes that the Tribe does not believe that it is a fair comparison to add in that catch. However, for the future, it would be wise to determine whether this is a factor that should be considered. The Tribe is asserting that it needs the additional head start in order to have a fair opportunity to catch its fair share. The Court assumes, from that statement, that maximum effort would be given by the tribe during the head start. If it is not, then it is arguable that the Tribe is not taking advantage of its fair opportunity and that may impact an appropriate opening date for non-tribal fishers.
WESTERN BOUNDARY OF THE U & A
In its written objection to the State, the Tribe stated as follows: “Because the State has focused all of its regulatory actions in Area 59A-1 alone, we will focus on that area as well, even though it is the Tribe’s position that this Area does not represent the Tribe’s entire II & A.” Exh. 6, pages 1 and 2. The objection further stated, at page 3:
While the Tribe firmly believes that it is entitled to 50% of the crab in the Tribe’s entire U & A as defined by the federal government for other ocean species, at this point the Tribe will only seek restriction in the area that is bounded by northern line drawn west from Sand Point (48°07'36") and a southern line drawn west the coast near Destruction Island (47°40'30").
Based on the statements in the written objection, this Court finds that the Qui-leute Tribe did not preserve any right to raise the western boundary in this dispute resolution process,. In addition, this Court is of the opinion that resolution of the western boundary of the U & A is not an appropriate subject for the dispute resolution process as set forth in the Revised Shellfish Implementation Plan.
*814Section 1.3 of the Plan requires all provisions of the Plan and “all management plans that are developed from it” to comply with the Court’s December 20, 1994 decision. This decision was referred to in the hearing as the Rafeedie decision and is found at United States v. State of Washington, 873 F.Supp. 1422 (W.D.Wash.1994). Judge Rafeedie affirmed the U & A determinations made by Judge Boldt in Washington I
Washington I [U.S. v. State of Washington, 384 F.Supp. 312 (W.D.Wash.1974)] made a series of determinations as to the meaning and import of the phrase “usual and accustomed grounds and stations,” in the context of adjudicating where the plaintiff Tribes enjoyed the right to fish for salmon and steelhead. No party to this sub-proceeding has challenged these determinations, and the Court finds, as explained below, that they are the usual and accustomed grounds and stations for shellfishing.
Id. at p. 1430.
The terms of the Revised Shellfish Implementation Plan require adherence to Judge Rafeedie’s decision which in turn relies on the finding in Washington I. The undersigned finds that any other determination as to the western boundary of the U & A for the Quileute Tribe is not subject to the dispute resolution process as established in the Plan. The Court, therefore, declines to make any ruling in that regard other than to affirm that for purposes of this hearing, the only area impacted by this decision as to the opening date for non-tribal fishers is 59A-1.
CONCLUSION
In summary, this Court orders that the opening of the Dungeness Crab commercial non-tribal fishery be set for January 15, 2006, with allowance for the 64-hour gear-setting period which may precede the season opening. The State is further expected to implement the management techniques which were identified in Exhibit 5 and during the testimony of Mr. Anderson (buoy tags, the agreement with the State of Oregon, and the addition of the small northern SMA off the coast near Lake Ozette).
Finally, this Court is denying the request of the Quileute Tribe to rule that the western boundary of its U & A is other than established in the Rafeedie decision and Boldt decision as that is not a proper subject for the dispute resolution process contained in the Plan.
ORDER ON MOTIONS FOR CLARIFICATION AND FOR RECONSIDERATION
Subproceeding No. 05-3
(January 23, 2006)
RICARDO S. MARTINEZ, District Judge.
This matter is before the Court for consideration of motions by the opposing parties for clarification and for reconsideration of the Court’s December 19, 2005 Order on the Upper Skagit Tribe’s motion to compel. Having considered the motions, and the response to the motion for clarification, the Court finds and rules as follows:
(1) Motion for Clarification (Dkt. # 72)
The Suquamish Tribe has asked for clarification of the cut-off date for relevant exhibits in this matter. The Court agrees that exhibits entered in the record up until Judge Boldt’s April 18, 1975 ruling on the Suquamish U & A are relevant to an understanding of what he meant in describing that U & A, and hereby amends the previous ruling to reflect that date. However, exhibits considered by Judge Boldt *815after that date, in proceedings involving other matters, are not relevant to the meaning he intended on April 18, 1975. Accordingly, the Suquamish Tribe’s motion for clarification is GRANTED IN PART and DENIED IN PART.
(2) Motion for Reconsideration (Dkt. #73)
The Upper Skagit Tribe has asked for reconsideration of the same Order. Such motions are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier....” Local Rule CR 7(h)(1). No response to such motion is required unless the Court so directs. Local Rule CR 7(h)(3). The Court hereby directs the Su-quamish Tribe to respond only to that portion of the motion requesting the Court to order the Suquamish to simply identify, rather than produce, the responsive documents, which are already in the record.
The motion for reconsideration shall'be noted on the Court’s calendar for February 10, 2006. The response shall be due February 6, 2006, and the Upper Skagit may file a reply on February 10.
ORDER ON MOTION FOR RECONSIDERATION
Subproceeding No. 05M:
(January 26, 2006)
This matter is before the Court on the motion of the Tulalip Tribes (“Tulalip”) for reconsideration of the Court’s October 27, 2005 Order granting the motion to dismiss filed by the Suquamish Tribe (“Suquamish”). The Court directed the Suquamish. to respond to the motion, pursuant to Local Rule CR 7(h)(3), and the matter has been fully considered. For the reasons set forth below, the motion for reconsideration is DENIED.
Motions for reconsideration are disfavored and will be denied in the absence of “a showing of manifest error in the prior ruling or a showing of new facts or legal authority which could not have been brought to its attention earlier....” Local Rule CR 7(h)(1). The Tulalip argue that the Court committed error by (1) considering matters outside the pleadings, thereby converting the motion to dismiss into a motion for summary judgment without notice to Tulalip; (2) failing to accept Tulal-ip’s factual allegations as true; and (3) improperly applying the doctrines of lach-es and res judicata. None of these contentions provides a basis for reconsideration.
In ruling on the motion to dismiss, the Court considered, in addition to the actual pleadings, the motion, response and reply, and the relevant case documents. Dkt. # 17, p. 1. The Court did not consider the Declaration of Robert Purser or the facts alleged therein, except for the limited purpose of establishing prejudice from the delay in asserting this claim To whatever extent this was error, it does not warrant reconsideration of the entire ruling, because the delay of itself creates a rebutta-ble presumption of prejudice. Boone v. Mechanical Specialties Company, 609 F.2d 956, 958 (9th Cir.1979); citing International T & T Corp. v. General T. & E. Corp., 518 F.2d 913, 926 (9th Cir.1975). Other than the bare assertion that there has been no delay, the Tulalip have offered no rebuttal to this presumption.
As to other documents outside the pleadings, the Court did consider prior rulings in this case, as well as the 1983 settlement agreement between these parties, and found these case documents highly relevant to the motion to dismiss. The Court may take notice of matters of public record without converting the motion to *816dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir.2001); citing MGIC Indemnity Corporation v. Weisman, 803 F.2d 500, 504 (9th Cir.1986). The settlement agreement and prior Orders are not only a matter of public record, they are part of the record in this very case.1 The Court may take judicial notice of its own records, whether requested by a party or not. Fed.R.Evid. 201(c); Chandler v. United States, 378 F.2d 906, 909 (9th Cir.1967); citing Ira S. Bushey & Sons, Inc. v. W.E. Hedger Trans. Corporation, 167 F.2d 9, 12 (2d Cir.1948).
The Tulalip argue that the Court failed to follow the Rule 12 requirement of accepting all allegations in the Request for Determination as true. Specifically, the Tulalip point to their assertion that the Suquamish only began to fish in the marine waters at issue here in 2003. Had the Court accepted that allegation as true, the Tulalip argue, it could not have found this Request barred by the doctrine of laches. However, the Court’s ruling was not based on either side’s allegations regarding Su-quamish fishing or attempts at fishing in the disputed area. Instead, the Court looked to prior rulings on the matter, namely the determinations of the two Tribes’ respective Usual and Accustomed Areas (“U & A’s”), the 1983 settlement agreement, and a 1985 subproceeding regarding a Suquamish Request for Determination that they were a successor in interest to the treaty-time Duwamish Tribe.
The Tulalip asserted in their Request for Determination that in 1985, “the Su-quamish filed an action to expand their usual and accustomed fishing places to the eastern side of Puget Sound.” Request, ¶ 12. They then quote the Ninth Circuit Court of Appeals finding that, in treaty times, the Suquamish “did not fish in those areas, which were the usual and accustomed fishing places of the Duwamish.” United States v. Suquamish Tribe, 901 F.2d 772, 774 (9th Cir.1990). Id. It is this aspect of the Request for Determination — the assertion that the Suquamish U & A does not encompass “eastern Puget Sound” — that the Court found is barred by the doctrine of laches, because the claim arose, at the latest, in 1990. Order, p. 6.
The Tulalip also argue that the doctrine of laches is generally inapplicable in these proceedings. The Ninth Circuit Court of Appeals has indeed held that the doctrine of laches does not apply to “defeat Indian treaty rights.” U.S. v. Washington, 157 F.3d 630, 649 (9th Cir.1998). That rule does not apply here; Tulalip has asserted no treaty right which has been defeated by the application of laches. Instead, Tulalip has advanced a claim that the Suquamish have been fishing or attempting to fish outside the boundaries of their U & A, described by Judge Boldt as “the marine waters of Puget Sound”. The claim arises from a dispute over the Court’s prior language, not from a treaty right.
The Tulalip point to prior language in this case stating that “equitable defenses are not available in the determination of usual and accustomed fishing places.” Order of February 15, 1990 (Dkt. # 11596). However, this Request for Determination does not, and cannot, involve a determination of the Suquamish U & A; that has already been determined. Judge Coyle’s language regarding equitable defenses is therefore inapplicable to this subproceed-ing.
*817Next, the Tulalip assert that res judicata should not apply to preclude this Request. They contend that a request for clarification of a U & A is substantively different from a request for determination of a U & A, and is not barred by the Court’s earlier rulings on the Suquamish and Tulalip U & A’s. The Court finds no basis for reconsideration in that argument. The Tulalip asserted in their Request for Determination that the Court has jurisdiction under Paragraphs 25(a)(4), (a)(6), and (a)(7) to “clarify ambiguities and interpret, define and identify the geographic scope” of each Tribe’s U & A. However, the Ninth Circuit Court of Appeals has rejected those bases for the Court’s jurisdiction in this type of dispute, ruling instead that a request to clarify Judge Boldt’s language must proceed under Paragraph 25(a)(1), which vests continuing jurisdiction to determine “whether or not the actions ... by any party ... are in conformity with [Decision I] of this injunction.” Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355, 1360 (9th Cir.1998).2 A request under Paragraph 25(a)(6) is barred by res judicata because the Suquamish U & A has been specifically determined.
Res judicata applies to “any claims that were raised or could haVe been raised in the prior action”. Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.2001). Having themselves originally asserted a claim to “all marine waters of Puget Sound and of the Strait of Juan de Fuca” as their own U & A,3 the Tulalip Tribes should reasonably have expected the Suquamish to have the same broad view of the term “marine waters of Puget Sound,” so as to encompass saltwater areas to the east of Whidbey Island. Despite their broad claim, the Tulalip Tribes’ U & A was subsequently narrowed by the Court, following a series of settlement agreements with various Tribes. United States v. Washington, 626 F.Supp. 1405, 1527-1532 (W.D.Wash.1985). These settlement agreements were negotiated among various Tribes, including the two here, to resolve their objections regarding the Tulalip Tribes’ U & A. Id. at 1471-1482. Any claim by the Tulalip Tribes that the Suquamish U & A in the marine waters of Puget Sound did not include areas to the east of Whidbey Island, overlapping their own U & A, could and should have been put to rest, as between these two parties, in the 1983 settlement. Should the Suquamish now be violating the terms of that agreement, the settlement itself provides for resolution of disputes arising under or relating to its terms within the Court’s continuing jurisdiction in this case. Id. at 1478. However, the Tu-lalip have neither pled nor asked for enforcement of the settlement agreement, and their attempt to bring claims regarding the Suquamish U & A apart from that settlement threatens the integrity of that carefully crafted agreement. The Court declines to view this Request to “clarify” the Suquamish U & A as a completely separate matter.
As the Tulalip have not demonstrated manifest error in the Order of dismissal, *818the motion for reconsideration is DENIED.
ORDER ON MOTION FOR RECONSIDERATION
Subproceeding No. 05-3
(March 17, 2006)
This matter is before the Court for consideration of the motion for Upper Skagit Indian Tribe’s motion for reconsideration of this Court’s Order on Motion to Compel (Dkt. #71, 73). The Court directed the Suquamish Tribe to respond to the motion, and the Tribe has done so. Although the Upper Skagit argues in reply that the Suquamish response does not address the issues, the Court finds otherwise.1 Identification of relevant documents can be done in response to an interrogatory as suggested by the Suquamish Tribe. Accordingly, the motion for reconsideration is DENIED.
ORDER ON MOTION FOR CLARIFICATION
Subproceeding No. 05-3
(March 17, 2006)
This matter is before the Court for consideration of the motion of the Port Gamble and Jamestown S’Klallam Tribes for clarification as to the scope of this subproceeding. They ask that it be limited to 'the issues raised in the original Request for determination in this matter, together with the Cross-Request for Determination. The Nisqually Indian Tribe and Swinomish Indian Tribal Community have joined in the motion, and the Upper Skagit Indian Tribe and the Suquamish Tribe have stated no objections to it. The Tulalip Tribe asserts that each Tribe should be able to determine its own level of participation in this matter. The Lum-mi Nation opposes both the motion and the standing of the two S’Klallam Tribes to bring this motion.
The concept of standing is difficult to apply in this case, in which a great many parties’ interests are at stake. The fear of the S’Klallam, Nisqually and Swinomish Tribes that this subproceeding could expand to create a global definition of “Puget Sound,” applicable to all Tribes’ usual and accustomed,fishing areas (U & A) is well-founded. Such expansion is not appropriate and shall not be allowed.
Accordingly, the motion for clarification is GRANTED. This subproceeding is limited in scope to a determination as to whether the U & A of the Suquamish Tribe, as described by Judge Boldt, includes the subproceeding areas in Sarato-' ga Passage and Skagit Bay, as set forth in the Request and Cross-Request for Determination. This subproceeding will not define the term “Puget Sound” as used by Judge Boldt in describing any other U & A, nor for any purpose other than to resolve the issues between the requesting and responding Tribes named in this sub-proceeding. As to the subproceeding area, however, the Court’s determination as to whether that area is included in the Su-quamish Tribe’s U & A shall be binding on all Tribes.
ORDER ON MOTION FOR A PROTECTIVE ORDER
Subproceeding No. 01-2
(August 15, 2006)
This matter is before the Court for consideration of the Samish Indian Nation’s (“Samish”) second motion for a protective *819order (Dkt. # 187). This motion has been opposed by the United States of America (“United States”) and by the Lummi Nation (“Lummi”), the Swinomish Indian Tribal Community (“Swinomish”), the Upper Skagit Indian Tribe (“Upper Skagit”), the Tulalip Tribes (“Tulalip”), and the Port Gamble and Jamestown S’Klallam Tribes “(S’Klallam”) (together, the “Treaty Tribes”). For the reasons stated below, the motion shall be denied.
DISCUSSION
This motion concerns two memos written by counsel for the Samish: one dated July 17, 1998 and addressed to the Samish Tribal Council, and one dated October 26, 1999 and addressed to Vernon Peterson, then Assistant Regional Solicitor for the United States. Copies of these memos were provided by Samish counsel to the United States to support the Samish request that the United States either provide representation for the Samish in these proceedings, or provide federal funds to hire an attorney. 25 C.F.R. § 89.40, 43. Pursuant to these regulations, a tribe requesting such assistance must provide background information to explain why the claim it wishes to assert in litigation has merit. Id.
By letter dated September 20, 1999, Mr. Peterson, Assistant Regional Counsel, stated to counsel for the Samish,
I would like to take you up on your offer to provide additional information .... I recognize that you may not want to share confidential attorney work product. If the memorandum is confidential I would not be able to assure you it would be protected from release under the Freedom of Information Act or pursuant to discovery in U.S. v. Washington, if you did provide me a copy. However, understanding your views regarding the legal basis or bases for seeking relief from judgment under Rule 60(b) would be very helpful to our office in providing legal advice to the Assistant Secretary on the issues raised in the Tribe’s letter.
Declaration of Craig Dorsey, Exhibit B. Counsel states that “I informed my client [the Samish] that “disclosure of the documents could potentially waive attorney client privileges, but that we would claim the privilege. My client believed the issue important enough to risk waiving the privilege.” Declaration of Craig Dorsey, ¶ 4. Subsequently, the United States declined to provide representation for the Samish in this matter. Id,., ¶ 5.
During discovery in this subproceeding, the United States produced copies of these two documents to the Samish in response to a discovery request. These discovery responses, including copies of the two documents, were also- provided to other parties in this subproceeding. The Samish now assert that these documents are protected by attorney-client privilege; they ask that all outstanding copies by returned to them, and that the adverse parties be foreclosed from using these documents in this subproceeding or any other. Both the United States and the Treaty Tribes oppose this request.
Counsel for the Samish contends that the privilege was asserted when the documents were provided to the United States, and that he and Mr. Peterson reached a verbal agreement which was “memorialized” in Mr. Peterson’s September 20, 1999, letter. Declaration of Craig Dorsey, Exhibit C. However, there is no evidence in the record that the privilege was ever asserted in writing. Further, the language of the September 20 letter does not reflect any understanding or agreement, but rather advises counsel that confidentiality cannot be assured, specifically referencing discovery in this ease as well as the *820Freedom of Information Act. Counsel also acknowledges that the Samish assumed the risk of waiving attorney-client privilege, believing that the possible benefit of litigation funds made that worthwhile.
It is not necessary for the Court to determine whether these two documents are actually subject to attorney-client privilege,1 because the Court finds that any attorney-client privilege that attached to the documents was waived by their disclosure to the United States. The Samish argue that this would be an unfair result, given that the United States has now aligned itself with the Treaty Tribes. However, the Court notes that under the cited regulation it was not necessary for the Samish to provide these actual documents in requesting litigation funds; all that is required is “a. detailed statement describing the nature and scope of the problems for which legal services are sought,” as well as a detailed financial statement. 25 C.F.R. § 89.43(a). By providing the actual documents, after being advised by the United States that it could not assure they would be protected from discovery, the Samish waived any attorney-client privilege that existed as to these two documents.
The motion for a protective order is accordingly DENIED.
ORDER ON MOTION TO COMPEL
Subproceeding No. 01-2
(August 15, 2006)
This matter is before the Court for consideration of a motion to compel by the Samish Indian Nation (“Samish”). Dkt. #228. The Samish seek to compel the Swinomish Indian Tribal Community (“Swinomish”) and Lummi Nation (“Lum-mi”) to produce certain documents generated during settlement proceedings. The Swinomish and Lummi have opposed the motion. The relevant facts are known to the parties and need not be reviewed here. For the reasons set forth below, the motion shall be granted.
DISCUSSION
In response to a Samish discovery request, the Lummi and Swinomish produced copies of a settlement agreement between them, dated June 15, 1998. This settlement agreement, which among other matters resolved issues between these two tribes regarding their rights as successors to the aboriginal Samish, was not approved by the Court nor filed in U.S. v. Washington. After receiving a copy of the settlement agreement, the Samish argued that they were entitled to discovery of the documents relevant to the formation of this settlement agreement. The Lummi and Swinomish asserted that any documents that evidence communications leading to the formation of the settlement agreement are “privileged” pursuant to Federal Rule of Evidence 408, and accordingly provided a privilege log of the documents. Declaration of Craig Dorsey, Exhibit 6, 7. The Samish contend in this motion that the documents themselves should be provided.
Rule 408 states that evidence related to a settlement agreement
is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise *821negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
Fed. R.Evid. 408. The Samish argue that they are entitled to these documents because their purpose does not go to the liability of the settling parties, but rather to their motive in reaching the settlement, and their conduct in the earlier proceedings in this litigation. The Samish contend that these matters are relevant to the equitable considerations at issue in this sub-proceeding.
The Lummi and Swinomish, in response, contend that their conduct in reaching the settlement agreement is not relevant to the equitable considerations at issue in these Rule 60(b) proceedings. They contend that the issue in a Rule 60(b) motion is whether the moving party (here, the Samish) acted equitably, not whether they did. They also argue that the real purpose of the Samish motion is to force the Lummi and the Swinomish to relitigate the issue of succession from' the treaty-time Samish, a matter already decided by this Court. Finally, they contend that Samish is trying to “poison the well” by implying there was a “nefarious scheme” by the other tribes to deprive the Samish their due.
The Court finds that the documents sought here fall under the Fed.R.Evid. 408 exceptions, in that they may be relevant to the undue delay which is at issue here. The Court declines to adopt the argument of the Lummi and Swinomish that only the conduct of the moving party may be considered in this Rule 60(b) proceeding. Rule 60(b)(6) relief is an extraordinary remedy, which will not be granted “unless the moving party is able to show both injury and that circumstances beyond its control prevented timely action to protect its interests.” U.S. v. Alpine Land & Reservoir, Co., 984 F.2d 1047, 1049 (9th Cir.); cert. denied, 510 U.S. 813, 114 S.Ct. 60, 126 L.Ed.2d 29 (1993). The conduct of other parties may be part of those circumstances beyond the control of the Samish. As the documents here may be relevant to those circumstances, the Samish are entitled to discovery. Their use will be limited, by Court Order if necessary, to purposes which are permissible under Rule 408.
The Samish motion to compel is accordingly GRANTED. The disputed documents shall be provided to the Samish within one week of the date of this Order.
ORDER ON PENDING MOTIONS-TO STRIKE EXPERT WITNESSES
Subproceeding No. 05-3
(October 10, 2006)
This matter is before the Court for consideration of motions by the opposing parties to strike each others’ expert witnesses. The Court finds merit in both motions, and for the reasons set forth below, now grants both motions.
(1) Motion to. Strike Barbara Lane, Ph.D. as an Expert Witness (Dkt. # 118).
The Suquamish Tribe (“Suquamish”) has moved to strike Barbara Lane, Ph.D., as an expert witness for the Upper Skagit Tribe (“Upper Skagit”). Dr. Lane is an anthropologist whose report on historical tribal fishing grounds was a major item of evidence considered by Judge Boldt in U.S. v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) {“Washington I”). The Upper Skagit has identified her as an expert witness in this subproceeding, stating that she is “uniquely qualified to express *822an opinion about Judge Boldt’s intent in connection with his use of the phrase ‘the marine waters of Puget Sound’ ” in the context of the this case. Upper Skagit’s Opposition, p. 2. However, this Court has already ruled, in accordance with Muckleshoot Tribe v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir.1998) (“Muckleshoot I ”), that Dr. Lane may not offer latter-day testimony regarding the evidence that was before Judge Boldt when he rendered his decision in 1974. Dkt. # 43. Although Dr. Lane’s assistance was of enormous value to the Court, the record now speaks for itself, and Dr. Lane may not offer her opinion as to what she believes Judge Boldt intended.
The Suquamish motion to strike the expert testimony of Dr. Barbara Lane is accordingly GRANTED.
(2) Motion to Strike Roger Shuy, Ph.D., as an Expert Witness (Dkt. # 122).
The Swinomish Indian Tribal Community (“Swinomish”), joined by the Upper Skagit, have moved to strike Roger Shuy, Ph.D., as an expert witness for the Suquamish. Dr. Shuy is a professor of linguistics (emeritus), who proposes to apply the linguistic tools of semantics, discourse analysis, lexicography, and syntax to assist the Court in determining that Judge Boldt’s use of the term “Puget Sound” was not ambiguous. The Suquamish argue that this testimony meets all the requirements of Fed.R.Evid. 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). In response, the Swinomish and Upper Skagit assert that regardless of reliability, this testimony is beyond the scope of this Court’s order relating to testimony beyond the record.
This Court, citing to Muckleshoot I, earlier defined the scope of the relevant evidence in this proceeding. At the first step, the determination as to whether Judge Boldt’s language was ambiguous, the relevant evidence is that “which indicates the contemporary understanding of the extent of ‘the marine waters of Puget Sound ... ’ which will ‘shed light on the understanding that Judge Boldt had of the geography at the time.’” Dkt. #71, p. 4; quoting Muckleshoot I, 141 F.3d at 1360; and Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099, 1100 (9th Cir.2000) (“Muckleshoot II”). Should the evidence show that the areas disputed here are within the geographic reach of Puget Sound as that term was commonly understood in 1974, the requesting parties must then produce evidence that Judge Boldt intended some other meaning when he wrote Finding of Fact 5. Id. “The evidence that is relevant to Judge Boldt’s intent comprises ‘the entire record before the issuing court and the findings of fact [which] may be referenced in determining what was decided.’ ” Id., quoting Muckleshoot I, 141 F.3d at 1359.
Nowhere was it contemplated that linguistic analysis would be relevant to the determination of ambiguity or intent in Judge Boldt’s language. The motion of the Swinomish and Upper Skagit to strike the expert testimony of Dr. Roger Shuy is accordingly GRANTED.
ORDER ON MOTION TO DISMISS
Subproceeding No. 05-2
(November 21, 2006)
This matter is before the Court for consideration of a motion to dismiss filed by the Port Gamble and Jamestown S’Klallam Tribes (“S’Klallam”). Dkt. #57. The Skokomish Indian Tribe (“Skokomish”), joined by the Lower Elwha Klallam Tribe (“Lower Elwha”), has opposed the motion. Oral argument was heard on November 7, 2006, and the matter is now ripe for deci*823sion. For the reasons which follow, the Court shall grant the S’Klallam motion and dismiss this Subproceeding.
BACKGROUND AND DISCUSSION
The S’Klallam Tribes initiated this case by filing a Request for Determination in January 2005, which was opened as sub-proceeding 05-01. The Request sought a determination that the Skokomish Tribe may not “open or conduct ... [a]ny fishery in Hood Canal ... in violation of the Hood Canal Agreement.” They also requested a determination that the Skokomish may not conduct
Any action such as the promulgation of any Fisheries Management Plan or Quota based allocation, or any other action controlling the harvest of fish and shellfish in Hood Canal ... without Plaintiffs “express consent” by “Compact or otherwise” as required in the above Hood Canal Agreement.1
Request for Determination (“Request”), p. 1-2. The Skokomish filed an answer and a Counter-Request for Determination, which was bifurcated on the Court’s motion from Subproceeding 05-01, and opened as Sub-proceeding 05-02. The Skokomish then filed an amended Request for Determination in this Subproceeding, asking that “the Court determine and declare an equitable treaty fishing harvest allocation for the available harvest of all species of fin-fish and shellfish in Hood Canal.” Dkt. # 55. The S’Klallam have moved to dismiss, asserting that the Court does not have jurisdiction to allocate 'the fisheries resources among the tribes. They also advance arguments based on res judicata and standing. The Court finds reason to dismiss on both jurisdictional and res judi-cata grounds, and need not reach the standing argument.
I. Subject Matter Jurisdiction
The Court retained jurisdiction in this matter for certain specified purposes, set forth in Paragraph 25 of the Permanent Injunction. U.S. v. Washington, 384 F.Supp. 312, 419 (W.D.Wash.1974). The Skokomish allege jurisdiction in this Sub-proceeding under three separate sections of Paragraph 25, as amended by Court *824Order dated August 23, 1993. Paragraph 25 states, in relevant part,
(a) The parties or any of them may invoke the continuing jurisdiction of this court in order to determine:
(1) Whether or not the actions intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # 1 or this injunction;
(4) Disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves;
... and
(7) Such other matters as the court may deem appropriate.
C70-9213, Dkt. # 13599. The Skokomish have invoked this Court’s jurisdiction under these three sections.
In moving to dismiss, the S’Klallam have only addressed the Skokomish Request under sections (4) and (7). These arguments shall be addressed first.
The S’Klallam assert that section (4) is inapplicable to confer jurisdiction because the parties have settled their dispute, with finality, through the Hood Canal Agreement. The dispute here does not arise from the Hood Canal Agreement, and it cannot be settled by looking to its terms. Instead, the Skokomish are asking the Court to bypass the Agreement and create an allocation for the parties because they cannot agree among themselves as required by the Agreement.
The Skokomish, in response, contend that the Court’s power arises from the language in the Hood Canal Agreement stating that
north of Ayock Point on Hood Canal the Skokomish and the Klallam Bands may exercise their respective treaty fishing rights without any limitation or control whatsoever by any of the stipulating parties, except as the stipulating parties may mutually agree by compact or otherwise.
U.S. v. Washington, 626 F.Supp. at 1469.
The Skokomish argue that the “or otherwise” language suggests that if the parties cannot reach an agreement they can “take advantage of any other remedy, including the Court’s continuing jurisdiction over this case.” Opposition to Motion to Dismiss, p. 8. That is not merely a strained reading of the language, it is incorrect. The term “or otherwise” clearly refers to a manner in which the parties may agree— “by compact or otherwise.” But come to agreement they must. Neither this section nor any other provision in the Hood Canal Agreement empowers the Court to allocate harvest shares in the absence of the agreement of the parties. Thus, while this Court may interpret and enforce the Agreement, as indeed it did in Subpro-ceeding 05-01, it cannot take action which would be contrary to it. Forcing an allocation of harvest shares upon the other tribes, in the absence of their consent, would be contrary to the Agreement.
The Skokomish also contend that the Court has jurisdiction under Paragraph 25, section (4) to resolve disputes which the parties are unable to resolve themselves. However, the Court’s power under this section extends only to “disputes concerning the subject matter of this case” which the parties have been unable to resolve. The subject matter of this case is treaty fishing rights, not the equitable rights of any one tribe to harvest a certain allocation of fish. Thus, a dispute over the exercise of a tribe’s primary rights would fall under the Court’s jurisdiction. But this dispute is not over the primary right of the Skokomish. Both that primary right, and the exercise of that primary *825right, were addressed in prior orders of U.S. v. Washington and the Hood Canal Agreement, and those decisions are res judicata. Nowhere in these decisions is there a finding that inter-tribal allocation (as opposed to allocation between treaty-, and non-treaty fishermen) is the subject matter of this case.
The Skokomish assert that this Court “has accepted jurisdiction to hear all prior disputes concerning some aspect of inter-tribal allocation. See, e.g., Subproceeding Nos. 83-3, 83-9, 86-5, 86-8, 86-10, 87-2, 87-4, 88-2, 89-2, 91-1, and 96-1....” Opposition to Motion to Dismiss, p. 11. This statement is not supported by citation to any specific prior language of the Court. The parties were asked prior to oral argument to provide specific citations, by docket number, to Orders filed in other Sub-proceedings to which they would make reference or upon which they would rely. Only one document from the quoted list of Subproceedings was provided, namely a declaration from 86-5, to which was attached the referenced South Puget Sound Region of Origin Treaty Salmon Allocation Agreement. C70-9213, Dkt. # 14804. This document does not support the Sko-komish assertion that the Court has accepted jurisdiction to hear allocation disputes. Instead, it demonstrates that the tribes negotiated among themselves and arrived at an allocation by agreement.
The Skokomish also quoted in their opposition from an Order filed in Subpro-ceeding 91-1 (“Halibut Subproceeding”), establishing an interim management plan for the halibut fishery. C70-9213, Dkt. # 17112. Again, in that Subproceeding, the Court did not actually allocate the halibut harvest, but chose among several management plans proposed by different tribes. Most importantly, the Court specifically noted that “the instant parties have consented to the authority of this court to enter an order adopting an FMP [Fisheries Management Plan] for the 2001 halibut fishery.” C70-9231, Dkt. # 17112, p. 5 (emphasis added). Such consent is lacking in this Subproceeding: the S’Klal-lam do not consent to have the Court craft a management plan or harvest allocation for the Hood Canal fishery. Absent that consent, the Court does not have jurisdiction under Paragraph 25(a)(4) to do so.
The Skokomish also contend that the Court has jurisdiction to determine an allocation under section (7) of Paragraph 25, which- is reserved for “such other matters as the court may deem appropriate.” This is a discretionary section, and in light of the considerations set forth elsewhere in this opinion, the Court does not deem it appropriate to take jurisdiction of this matter.
Finally, the Skokomish argue that nowhere did the S’Klallam oppose jurisdiction under section (1) of Paragraph 25, and that therefore this point is conceded. However, the Court may consider matters of its jurisdiction on its own motion, regardless whether a party addresses it. Under section (1) of Paragraph 25, the Court retains jurisdiction to consider “[wjhether or not the actions intended or effected by any party (including the party seeking a determination) are in conformity with Final Decision # 1 or this injunction.” C70-9213, Dkt. # 13599. Nowhere have the Skokomish identified how this Subpro-ceeding concerns an “action” by any party which is, or is not, in conformity with the final decision. Instead, they are asking the Court to take an action — one that is not in conformity with the final decision, for the reasons set forth above.
Under their section (1) argument, the Skokomish assert that “[t]he Court has been clear since the late 1970’s that jurisdiction concerning ‘[rjegulation and harvest control over the fish allocated to trea*826ty fisherman [sic] ... shall remain with the court.’ ” Response at 7, citing U.S. v. Washington, 459 F.Supp. 1020, 1103 (1978). That language was lifted from the Memorandum Order and Preliminary Injunction re: Allocation of 1977 Salmon Runs and Other Matters, dated September 28, 1977. The “allocation” in this order refers to allocation of salmon between treaty- and non-treaty fisherman, not allocation among tribes. The cited paragraph further required that “[t]ribal regulations governing such fishery shall be adopted and filed with the court in strict conformance with final Decision # 1 and subsequent orders of this court.” Id. This language simply requires that the tribes adopt their own fishing regulations in conformity with Final Decision #1; it does not supercede the jurisdictional limitations set forth in Paragraph 25 of the permanent injunction.
In summary, the Court has retained jurisdiction in this case for the specific purposes set forth in Paragraph 25, and no other. The request for allocation of the treaty harvest as a form of equitable relief does not fall within any of the purposes set forth therein. Fishing in the Hood Canal is governed by the Hood Canal Agreement, which does not provide for Court intervention should the parties fail to agree on management. The resulting “race fishery,” should it come to that, may be undesirable in the eyes of some, but the Hood Canal Agreement does not address any other alternative should the parties to that Agreement fail to agree on harvest quotas.2
II. Res Judicata
As the S’Klallam so ably argued at oral argument, the Hood Canal Agreement is res judicata as between the parties here. All the necessary elements for application of res judicata have been met: rights or interests established in the Agreement would be eroded or impaired by Court intervention in the Hood Canal fishery; the same evidence is relevant to both the prior actions and this one; the same rights are at issue; and both the prior determinations (those culminating in the Hood Canal Agreement) and this Sub-proceeding arise from the same transactional nucleus of facts. Costantini v. Trans World Airlines, 681 F.2d 1199, 1201 (9th Cir.1982).
CONCLUSION
The court finds, as set forth’ above, that it does not have jurisdiction under Paragraph 25 of the Permanent Injunction to grant the relief requested here. The rights and obligations of the parties here have been conclusively set forth in the Hood Canal Agreement, which itself does not empower the Court to allocate fisheries resources among the tribes fishing in Hood Canal. In the Agreement, the Sko-komish specifically agreed that they would not, “under any condition or for any reason whatsoever, exercise or seek to exercise its primary right on Hood Canal north of Ayock Point ... against any of the other stipulating parties without its or their express consent.” U.S. v. Washington, 626 F.Supp. at 1469. The Skokomish benefited from the Agreement in that it resulted in the recognition of their primary right in Hood Canal, and they may not now avoid that Agreement or any provision thereof. Nor may they ask the Court to intervene *827in the name of “equity” and take action which they themselves cannot.
Accordingly, the S’Klallam motion to dismiss for lack of jurisdiction is GRANTED and this Subproceeding is DISMISSED.
ORDER ON PENDING MOTIONS
Subproceeding No. 05-3
(December 4, 2006)
This matter is before the Court for consideration of several motions which the Court deems appropriate for a ruling prior to the December 12, 2006 oral argument: the Suquamish motion to dismiss the Tu-lalip Tribes as a party to this action (Dkt. # 152), and several Tribes’ motions to strike certain portions of one Suquamish reply brief, Dkt. # 175 (Dkt. ## 181, 182, 184). The Court finds it unnecessary to direct a response to the motions to strike. Having considered the motions and the responsive memoranda, the Court now finds and rules as follows:
(1) Suquamish Motion to Dismiss Tulal-ip as a Party to this Subproceeding
The Suquamish have moved to dismiss the Tulalip Tribes from this subproceed-ing, contending that their issues were already litigated in the dismissed subpro-eeeding C05-04, and that participation here allows them a “third bite at the apple.” The Court ruled in C05-04 that issues between the Tulalip and Suquamish Tribes had been conclusively resolved in prior proceedings, including a settlement, and that those prior decisions, including a settlement, would not be re-visited. That ruling does not mean that the Tulalip Tribes, as a party to this case, may not participate in this subproceeding. It was the claims raised in C05-04 that were subject to dismissal, not the Tulalip Tribes themselves. The Court can find no authority, even in Rule 21 as argued by the Suquamish, for dismissing a party to this case from any individual subproceeding.
The Suquamish motion to dismiss the Tulalip Tribes from this subproceeding is accordingly DENIED.
(2) Motions to Strike
The Port Gamble and Jamestown S’Klal-lam Tribes, the Tulalip Tribes, and the Upper Skagit Indian Tribe have all filed surreplies to one Suquamish reply, in which Suquamish invited the Court to expand the scope of this subproceeding to include the western boundary of the Su-quamish U & A.1 Two of the surreplies were designated as motions to strike specific portions of the Suquamish reply in which the Suquamish discussed this option. The Court finds it unnecessary to strike those portions of the reply, but also declines to expand the subproceeding as suggested. The scope of this subproceeding remains as stated in the prior Order on clarification:
This subproceeding is limited in scope to a determination as to whether the U & A of the Suquamish Tribe, as described by Judge Boldt, includes the subpro-ceeding areas in Saratoga Passage and Skagit Bay, as set forth in the Request and Cross-Request for Determination. This subproceeding will not define the term “Puget Sound” as used by Judge *828Boldt in describing any other U & A, nor for any purpose other than to resolve the issues between the requesting and responding Tribes named in this subproceeding.
Dkt. # 95, p. 2.
The Court notes the Suquamish argument that “[t]o properly define ‘Puget Sound’ in the context of this litigation, the Court must identify the geographic extent of ‘Puget Sound’ as it relates to Suquamish’s determination. This determination necessarily includes all exterior boundaries of ‘Puget Sound’.” Suquamish Reply, Dkt. # 175, p. 2. This argument misapprehends the scope of this subproceeding, which is to determine whether Saratoga Passage and Skagit Bay lie within the area described as the “marine waters of Puget Sound” from the northern tip of Vashon Island to the mouth of the Fraser River. The western limits of the Suquamish U & A are not at issue in this subproceeding, and need not be determined in order to reach a decision on the eastern limits in the area at issue here. While the Suquamish protest that so limiting this subpro-ceeding may leave them open to multiple litigation, that fear is purely speculative. To whatever extent there may be a dispute involving the Strait of Juan de Fuca or other areas to the west, that dispute has not been properly brought before the Court, and will not be considered in this subproceeding. Nor will the Court attempt to arrive at a global definition of the term “Puget Sound,” or determine the geographical extent of “Puget Sound,” except as necessary to decide whether the subproceeding area is within the area described by Judge Boldt.
The motions to strike are accordingly DENIED as moot.
. 873 F.Supp. 1422 (W.D.Wa.1994).
. 898 F.Supp. 1453 (W.D.Wa.1995).
. This date is after the date the parties agree was the effective date of the Implementation Plan, originally set forth in Shellfish II August 28, 1995.
. The Court notes that similar disputes, resulting in requests by one or more Tribes for the Court’s intervention, arose in 2001, 2002, and 2003. Dkt. ## 75, 88, 109.
. This paragraph refers to “Final Decision # 1”, meaning U.S. v. Washington, 384 F.Supp. 312 (W.D.Wash.1974) {“Decision I”), while the Suquamish U & A was described by Judge Boldt in U.S. v. Washington, 459 F.Supp. 1020, 1059 (W.D.Wash.1978) ("Decision II"). Because the location of the U & A was "specifically determined” in Decision II, it is subparagraph (a)(1), rather than (a)(6), which provides jurisdiction over this Request. See, Muckleshoot Tribe, et al. v. Lummi Indian Tribe, 141 F.3d 1355, 1360 (9th Cir.1998) ("Muckleshoot I").
. The Court's ruling would have better been expressed with the language "There is sufficient ambiguity surrounding Judge Boldt’s use of the term 'Puget Sound'..,” and the previous Order is hereby amended to reflect that modification.
. The Court notes, however, that Requests for Production 2 and 3, to the extent they seek documents that were before Judge Boldt after his 1974 decision, seek information that is not relevant to the claims herein.
. Judge Boldt specifically referenced Exhibits USA-20 to 30 and 53 as “established by a preponderance of the evidence.” 384 F.Supp. at 350. In describing the method of determining U & A’s, he also referenced Exhibit USA-52, as well as the Final Pretrial Order (FPTO).
. At the hearing, the State advised the Court that the opening date had been adjusted to December 31, 2005.
. Although this case has been divided into "subproceedings” for the purpose of management of individual disputes among the parties, the subproceedings are all part of the original case, C70-9213, brought under the Court’s continuing jurisdiction in this matter.
. The Suquamish asserted this defect in pleading jurisdiction in their motion to dismiss. In the previous Order, the Court noted that this subproceeding is subject to dismissal because it differs in significant ways from subproceeding 05-03, in which Paragraph 25(a)(1) was asserted as a basis for jurisdiction. However, the Court did not actually address the jurisdictional argument, because it could easily be cured by amendment. Instead, the Court found sufficient basis for dismissal on the grounds of res judicata and laches.
. U.S. v. Washington, 459 F.Supp. 1020, 1058 (W.D.Wash.1978).
. The Court notes that the upper Skagit reply brief is not signed as required by the Court’s electronic filing procedures. The reply has nevertheless been considered.
. Counsel for the Samish himself described the attorney-client privilege status of these two documents as “uncertain” in an April 28, 2006 letter to counsel for the Treaty Tribes. Declaration of Craig Dorsey, Exhibit A.
. The Hood Canal Agreement between the Skokomish and three S’Klallam Tribes was signed in 1982 and adopted by the Court in 1983. United States v. Washington, 626 F.Supp. 1405, 1468-9 (W.D.Wash. 1985). In the Agreement, the other signatory tribes recognized the Skokomish Tribe’s primary right to fish in Hood Canal. In exchange, the Sko-komish agreed that
it will not, under any condition or for any reason whatsoever, exercise or seek to exercise its primary right on Hood Canal north of Ayock Point ... against any of the other stipulating parties without its or their express consent.
626 F.Supp. at 1469. Subsequently, in 1984, the Court issued a judicial determination of the primary right of the Skokomish in Hood Canal. The Court ruled that
No tribe or member of a tribe shall exercise treaty fishing rights within the area of Hood Canal or on rivers or streams draining into Hood Canal subject to the primary right of the Skokomish Indian Tribe without the prior express consent of the Sko-komish Indian Tribe or as otherwise provided by the Hood Canal Agreement ... and Order of March 8, 1983.
Id. at 1487. The Court noted in its Conclusions of Law that the Agreement
contains the consent of the Skokomish Indian Tribe to fishing within certain parts of its territory, or primary right area, by members of the named Klallam bands, subject to conditions stated therein. That stipulation and order shall continue to govern treaty fishing by members of the Klallam bands in the areas described in it.
Id. at 1491. Thus, the Court's Order determining the primary right of the Skokomish maintained the force and effect of the Hood Canal Agreement on that primary right. This ruling was affirmed by the Ninth Circuit. U.S. et al. v. Skokomish, 764 F.2d 670 (9th Cir.1985).
. The Lower Elwha argued, in opposition to dismissal, that a race fishery in Hood Canal would result in destruction of the resource through a "tragedy of the commons”. This cannot occur, however, because the total combined harvest of each species by all the Tribes is limited by state fisheries regulations which are not at issue here.
. The Lower Elwha Klallam Tribe also objected to the Suquamish suggestion to expand the scope of this subproceeding, in a filing designated as "joinder in opposition to motion for summary judgment” (Dkt. # 186). As opposition to the Suquamish motion for summary judgment, this filing is untimely. However, the substance of the argument presented relates to the Suquamish request to expand this subproceeding. The Court has therefore considered this document as a joinder in the three surreplies. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224421/ | TABLE OF CONTENTS
ORDER PAGE
Minute Order (1/3/07) 831
Order on Motions for Summary Judgment (1/3/07) 831
Order on Motion for Reconsideration (1/17/07) 841
Stipulation of Plaintiffs and State of Washington regarding Scope of Subproeeeding, and Order (1/29/07) 845
Joint Motion for Order and Consent Decree Approving Settlement Agreement (6/20/07) Order and Consent Decree Approving Settlement Agreement (6/21/07) 845
Joint Motion for Order Approving Consent Decree and Settlement Agreement (6/29/07) 874
Joint Motion for Order Approving Consent Decree and Settlement Agreement re Manila Clams, Native Littleneck Clams and Pacific Oysters (6/29/07) 881
Order Approving Consent Decree and Settlement Agreement (7/11/07) 889
Order Approving Consent Decree and Settelement Agreement re Manila Clams, Native Littleneck Clams and Pacific Oysters (7/11/07) 889
Order on Cross-Motion for Summary Judgment (8/22/07) 889
*831COMPILATION OF MAJOR POST-TRIAL SUBSTANTIVE ORDERS (Through December 31, 2007)
MINUTE ORDER
Subproceeding 05-02
(January 3, 2007)
RICARDO S. MARTINEZ, District Judge.
The following Minute Order is made by direction of the Court, the Honorable Ricardo S. Martinez, United States District Judge:
The motion for reconsideration filed by the Lummi Nation and Swinomish Indian Tribal Community (Dkt. # 96) is GRANTED. The Court hereby amends the language of the Court’s Order dated November 21, 2006, to read as follows:
The Lower Elwha argued, in opposition to dismissal, that a race fishery in Hood Canal would result in destruction of the resource through a “tragedy of the commons.” This cannot occur, however, because the total harvest of each stock is subject to conservation regulation. See, inter alia, Stipulation and Order Adopting Shellfish Implementation Plan, Dkt. # 17340; Order Adopting Puget Sound Salmon Management Plan, Dkt. # 10180; U.S. v. Washington, 384 F.Supp. 312, 402 (W.D.Wash.1974); Puyallup Tribe v. Department of Game, 433 U.S. 165, 177, 97 S.Ct. 2616, 53 L.Ed.2d 667 (1977).
ORDER ON MOTIONS FOR SUMMARY JUDGMENT
Subproceeding No. 05-3
(January 3, 2007)
This subproceeding was initiated as a Request for Determination (“Request”) filed by the Upper Skagit Indian Tribe (“Upper Skagit”), asking the Court to determine that certain areas known as Sara-toga Passage and Skagit Bay, on the eastern side of Whidbey Island, are not within the usual and accustomed fishing area (“U & A”) of the Suquamish Indian Tribe (“Su-quamish”) as it was defined in U.S. v. Washington, 459 F.Supp. 1020 (1978). A Cross-Request for Determination was filed, with leave of Court, by the Swinomish Indian Tribal Community (“Swinomish”), essentially joining in the Request of the Upper Skagit.1 The Suquamish filed an Answer opposing both Requests. The matter is now before the Court for consideration of summary judgment motions filed by the three parties. Oral argument was heard on December 12, 2006, and the arguments and memoranda of the parties, and other Tribes who appeared as interested parties, have been fully considered. As the three motions argue the same points and issues, they shall be discussed together.
BACKGROUND
In 1975, in the language that lies at the heart of this dispute, U.S. District Court Judge George Boldt described the U & A of the Suquamish as
the marine waters of Puget Sound from the northern tip of Vashon Island to the *832Fraser River including Haro and Rosario Straits, the streams draining into the western side of this portion of Puget Sound and also Hood Canal.
Finding of Fact # 5 (“FF 5”), U.S. v. Washington, 459 F.Supp. 1020, 1049 (1978). The Upper Skagit and Swinomish assert in their separate Requests for Determination that this language is ambiguous as to certain waters lying on the eastern side of Whidbey Island, known as Saratoga Passage and Skagit Bay. They ask for a determination that the Suquamish U & A do'es not include these areas. The Suquamish, in answering the Request, contend that this language is not ambiguous, and that it unambiguously includes the contested areas.
The Court has ruled previously that there is sufficient ambiguity surrounding Judge Boldt’s use of the term “Puget Sound” in describing the Suquamish U & A to require clarification, thus allowing this subproceeding to go forward. Dkt. # 43, pp. 2-3; Dkt. # 71, n. 2. In a later Order, the Court set out a two-step procedure for reaching an understanding of Judge Boldt’s intent. Referring to prior decisions of the Ninth Circuit Court of Appeals known as Muckleshoot I (Muckleshoot Indian Tribe, et al. v. Lummi Indian Tribe, 141 F.3d 1355 (9th Cir.1998)), Muckleshoot II (Muckleshoot Indian Tribe v. Lummi Indian Nation, 234 F.3d 1099 (9th Cir.2000)), and Muckleshoot III (Puyallup Indian Tribe, et al. v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir.2000)), the Court stated,
These rulings inform this Court’s decision on the motion to compel, as they define the scope of discovery in this matter. The burden in this subproceed-ing is on the requesting parties — the Upper Skagit and the Swinomish Tribal Community — to offer evidence that FF 5 is ambiguous, or that Judge Boldt “intended something other than its apparent meaning.” Id. [citing to Muckleshoot I, 141 F.3d at 1359.] Since the apparent meaning of the phrase “the marine waters of Puget Sound from the northern tip of Vashon Island to the Fraser River including Haro and Rosario Straits....” is in dispute here, it must be determined by the Court. The relevant evidence on this issue is evidence which indicates the contemporary understanding of the extent of “the marine waters of Puget Sound ... ”, which will “shed light on the understanding that Judge Boldt had of the geography at the time.” Muckleshoot I, 141 F.3d at 1360; Muckleshoot II, 234 F.3d at 1100. This may be provided by supplementation of the record, at the appropriate time, with declarations of geography experts. Id. Such evidence may be offered by the parties to “enable the district court to interpret the decree in specific geographic terms.” Muckleshoot I, 141 F.3d at 1360.
Should the evidence show that the common understanding of the term “Puget Sound” in 1974 included Saratoga Passage and Skagit Bay, the Upper Skagit or Swinomish Tribe must produce evidence that suggests that Judge Boldt intended something other than this apparent meaning when he wrote FF 5. Muckleshoot I, 141 F.3d at 1359. The evidence that is relevant to Judge Boldt’s intent comprises “the entire record before the issuing court and the findings of fact [which] may be referenced in determining what was decided.” Muckleshoot I, 141 F.3d at 1359.
Dkt. # 71 (emphasis added).
ANALYSIS
A. Ambiguity and Apparent Meaning
The first step, as set forth above, is to determine whether Judge Boldt’s language *833is actually ambiguous. The Skagit and Swinomish assert that it is; the Suquamish contend that it is not. The Skagit and Swinomish counter that Suquamish should be estopped from asserting unambiguity, hecause they have in the past, in other subproceedings, argued that the term is ambiguous.
As the Court has stated previously, it is not the meaning of “Puget Sound” that is at issue here, but rather its use by Judge Boldt in describing that portion of Puget Sound that constitutes the Suquamish U & A. That is, the term must be viewed in context: “the marine waters of Puget Sound from the tip of Vashon Island to the mouth of the Fraser River.”
Black’s Dictionary defines “ambiguity” as:
Doubtfulness; doubleness of meaning. Duplicity, indistinctness, or uncertainty of meaning of an expression used in a written instrument. Want of clearness or definiteness; difficult to comprehend or distinguish; of doubtful import.
Ambiguity of language is to be distinguished from unintelligibility and inaccuracy, for words cannot be said to be ambiguous unless their signification seems doubtful and uncertain to persons of competent skill and knowledge to understand them.
It is latent where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings, as where a description apparently plain and unambiguous is shown to fit different pieces of property. A patent ambiguity is that which appears on the face of the instrument, and arises from the defective, obscure, or insensible language used.
Black s Law Dictionary, 5th ed., abridged, p. 41.
The Upper Skagit and Swinomish assert that the Court has already determined that Judge Boldt’s language in describing the Suquamish U & A is ambiguous, and that such determination is the law of the case. However, the Court’s previous ruling was not that the language was ambiguous, but rather that there was sufficient ambiguity “surrounding” Judge Boldt’s language to justify clarification. While a latent ambiguity may have arisen later from various judges’, and parties’ imprecise use or differing understanding of the term “Puget Sound”, it is the possible ambiguity in Judge Boldt’s use of the term in 1975 that is at issue here.
In support of their contention that the language is not ambiguous, the Suquamish point to various places in the record where “Puget Sound” was actually defined by the Court. Specifically, Judge Boldt expressly adopted the definition of Puget Sound set forth in the “Joint Statement Regarding the Biology, Status, Management, and Harvest of the Salmon and Steelhead Resources of the Puget Sound and Olympic Peninsula Drainage Area of Western Washington”, Exhibit JX-2a from the original U.S. v. Washington proceedings. That definition states: “As used in this report (except where the context clearly indicates otherwise) the term ‘Puget Sound’ includes the Strait of Juan de Fuca and all saltwater areas inland therefrom, ...” Ex. JX-2a, p. i. (emphasis added). Judge Boldt expressly adopted this definition in his Findings of Fact in Washington I. Referring to the facts set forth in the report, he stated, “The contents of said report are hereby incorporated by reference as Findings of Fact herein.” Washington I, 384 F.Supp. 312, 338 (W.D.Wash.1974). This became Finding of Fact 164. *834Id. The contents of the report necessarily include the definitions.
The Skagit and Swinomish attempt to minimize the significance of this report by characterizing it as simply a fisheries management tool. However, this case arose out of fisheries management in Washington State, and tribal participation therein. Judge Boldt’s understanding and use of the term “Puget Sound” would necessarily have been shaped by the fisheries reports and regulations that were under discussion at that time. It was therefore reasonable for the Court to consider and adopt the terminology used in fisheries management in discussing the case area.
This was not Judge Boldt’s only reference to Puget Sound as a broad area encompassing all the saltwater areas inward from the entrance to the Strait of Juan de Fuca. This same broad definition was used on defining the case area in Conclusion of Law # 7:
This case is limited to the claimed treaty-secured off-reservation fishing rights of the Plaintiff tribes as they apply to areas of the Western District of Washington within the watershed of Puget Sound and the Olympic Peninsula north of Grays Harbor, and in the adjacent offshore waters which are within the jurisdiction of the State of Washington.
U.S. v. Washington, 384 F.Supp. at 400. This language is taken verbatim from ¶ 5 of the Final Pretrial Order (“PTO”), Dkt. # 353, p. 5. This PTO was signed by all the parties to the case at that time, including the Upper Skagit, and approved by Judge Boldt
The parties’ and the Court’s common understanding of the extent of Puget Sound is indicated once again later in the PTO:
Each of the Plaintiff tribes has usual and accustomed fishing places within the area described in paragraph 5 supra, including, among others, the waters of Puget Sound, Strait of Juan de Fuca, off-shore marine waters, the Nisqually River, the Puyallup River and Commencement Bay, the White River, the Green-Duwamish River, Lake Washington, Cedar River, Stillaguamish River, Sauk River, Skagit River, the Nooksack River, the waters of Hood Canal and the rivers flowing into said Canal, the Hoko River, the Quilayute River and its tributaries, and the Hoh River.
Final Pretrial Order ¶ 7-14, Dkt. # 353, p. 122. In designating only the Strait of Juan de Fuca and Hood Canal as separate areas, this language necessarily subsumes the other bays and inlets, including the areas at issue here, into Puget Sound, as the term was used in this case.2
The Court notes that the very maps used by the parties, admitted as exhibits by the Court on April 10, 1975 in the herring fisheries proceedings, also indicate a very broad region as Puget Sound. The maps themselves are National Oceanic and Atmospheric Administration (“NOAA”) nautical maps with separate designations for each bay and inlet. Exhibit JX-3, JX-4. However, written by the parties in large letters on each map are the designations “Central and Southern Puget Sound” (Ex-*835Mbit JX-3) and “Northern Puget Sound” (Exhibit JX-4). Thus, the map labeled by NOAA as “Strait of Georgia and Strait of Juan de Fuca” is designated by the parties as Northern Puget Sound. Exhibit JX-4. Similarly, the map labeled by NOAA as depicting “Admiralty Inlet and Puget Sound” is designated by the parties as Central and Southern Puget Sound. These handwritten designations on these maps are specific to this case, and indicate that the terms used and understood by the parties and the Court in the April, 1975 proceedings were Southern, Central, and Northern Puget Sound, rather than the NOAA designation of separate bays and inlets. The handwritten labels on these maps are thus highly significant to an understanding of Judge Bolt’s use of the term “Puget Sound” during the 1975 proceedings.
These definitions, maps, and references support the conclusion that in 1975 the parties and the Court had a common understanding of Puget Sound as the case area, encompassing all the saltwater areas inward from the mouth of the Strait of Juan de Fuca. Indeed, Judge Boldt so stated in September 1975, five months after the ruling at issue here, in addressing the' coho salmon fishery:
As used in this Order the term “Puget Sound”, when referring to the waters of origin or the place of salmon harvest, includes all the marine waters of Washington inland from the mouth of the Strait of Juan de Fuca (Tatoosh Island) together with the freshwater streams and lakes draining into such marine waters.
Order dated September 13, 1975, Dkt. # 1381. The Skagit and Swinomish assert that the language in this Order may not be considered, because the Court has limited the evidence under consideration in this subproceeding to that which was before the Court in April of 1975. However, this cited Order is not “evidence” within the meaning of that limiting rule, and it may therefore be considered as yet another indication of Judge Boldt’s understanding, in 1975, of the extent of Puget Sound for the purposes of this case. As noted, in every instance in 1975 where Judge Boldt did state a definition for Puget Sound, it is a broad one which necessarily includes both Saratoga Passage and Skagit Bay.
Indeed, that conclusion is the only logical one, in light of Judge Boldt’s description, in the very paragraph following the Suquamish U & A description, of the U & A of the Swinomish:
The usual and accustomed fishing places of the Swinomish Tribal Community include the Skagit River and its tributaries, the Samish River and its tributaries and the marine areas of northern Puget Sound from the Fraser River south to and including Whidbey, Camano, Fidal-go, Guemes, Samish, Cypress, and the San Juan Islands, and including Belling-ham Bay and Hale Passage adjacent to Lummi Island.
Finding of Fact # 6, U.S. v. Washington, 459 F.Supp. at 1049. This description, issued the same day and in the same Order as the Suquamish U & A, necessarily includes Skagit Bay and Saratoga Passage as within the “marine waters of northern Puget Sound”., and within the U & A of the Swinomish.
Earlier, the Court invited the parties, pursuant to direction given in Muckleshoot I, to supplement the record, if appropriate, with declarations of geography experts in order to aid the Court in interpreting the language of the Suquamish U & A in specific geographic terms. Dkt. # 71, citing Muckleshoot I, 141 F.3d at 1360. In light of the definitions in the record itself, and the maps known to be used by the Court as cited above, the Court now deems it *836unnecessary and inappropriate to turn to extrinsic evidence in order to fathom Judge Boldt’s meaning. This is particularly so in view of the lack of any evidence that Judge Boldt consulted a geography expert for definitions of the geographical terms he used; instead it appears that the terms were defined by the fisheries consultants.
Even if the Court were to consider the extrinsic evidence offered, and could find it relevant to Judge Boldt’s understanding, it would find that the experts’ opinions here are not based upon sufficient facts and data, and do not adequately reflect the application of scientific methods to the facts of this case. F.R.Evid. 702. The Upper Skagit and Swinomish experts Richard Hart and Theresa Trebon (both of whom are historians, not geography experts) examined historical maps, journals, dictionaries, atlases, and other sources. They both noted that the meaning of “Puget Sound” has changed over the years, from the original naming by Captain George Vancouver of the area at the southernmost end of the waterway. They both advanced the opinion that in 1975, as indicated on contemporary maps and charts, the term was generally used to describe the waters from the southern end up to (but not including) Admiralty Inlet. This opinion is clearly incompatible with Judge Boldt’s own language in describing the Suquamish and Swinomish U & A’s, which viewed Puget Sound as extending all the way north to the mouth of the Fraser River. The historians’ opinions must therefore be disregarded as useless in shedding light on Judge Boldt’s understanding of the extent of Puget Sound.
Moreover, it appears that neither historian consulted the official United States Geological Survey (“USGS”) definition of Puget Sound, which would have been a highly reliable source to consult, and more precise than maps.3 The Suquamish earlier asked the Court to take judicial notice of this official USGS definition of Puget Sound:
Bay, with numerous channels and branches, [which] extends 144 km S from the Strait of Juan de Fuca to Olympia; the N boundary is formed, at its main entrance, by a line between Point Wilson on the Olympic Peninsula and Partridge on Whidbey Island; at a second entrance, by a line between West Point on Whidbey Island, Deception Island, and Rosario Head on Fidalgo Island; at a third entrance, the S end of Swinomish Channel between Fidalgo Island and McGlinn Island.
U.S. Department of the Interior, USGS Geographic Names Information System, quoted at Dkt. # 6, p. 12. This “official” USGS definition of Puget Sound includes Saratoga Passage and Skagit Bay, which lie just south of the second-and third-named entrances. However, it appears that this definition was adopted in 1979, and no copy of the earlier version, adopted in 1961, has been presented to the Court. Therefore, the Court cites this definition here only as a basis for disregarding the experts’ opinions as insufficiently grounded in facts and data.
Similarly, it appears that neither historian consulted the Washington Administrative Code, which in 1975 codified many of the tribal fishing regulations, area by area, *837and could have shed some meaningful light on the question. Washington Administrative Code (“WAC”) 220-47-001 et seq. Indeed, the Exhibit JX-2a definition, adopted by Judge Boldt, mirrored the definition stated in these regulations:
The term “Puget Sound” shall be construed to include all the waters of Puget Sound outside the mouth of any river or stream including the Strait of Juan de Fuca, Georgia Strait, and all bays and inlets thereof.
WAC 220-16-210 (adopted 1969). Copies of certain regulations, namely WAC 220-47-206 through 220-47-268, defining the boundaries of various Puget Sound fishing areas, were provided to the Court by the Upper Skagit, in support of their motion. Declaration of David Hawkins, Dkt. # 144 Exhibit C, pp. 14-19. The definition of Puget Sound applicable to these regulations, quoted above, was not provided. However, the parties agreed with the Court at oral argument that the Court may take judicial notice of the WACs. Here, the Court does so only for the purpose of pointing out deficiencies in the facts and resources researched by the two experts.
The Suquamish also presented the declaration of an expert, geographer Dr. Jon Kimerling. The Skagit in their reply asked the Court to strike Dr. Kimerling’s opinion because he was identified only as a rebuttal witness, not in the original designation of experts. The Suquamish did not file a surreply to oppose the motion to strike. The Court therefore grants the motion to strike those portions of Dr. Kim-erling’s report which offer direct, as opposed to rebuttal, testimony.
Based on the discussion above, the Court finds that Judge Boldt demonstrated his understanding of the extent of Puget Sound by defining it in the record, and it is not appropriate to resort to extrinsic evidence to determine his meaning. As Judge Boldt defined Puget Sound as the case area, it includes the waters of Sarato-ga Passage and Skagit Bay.
B. Judge Boldt’s Intent
The determination that Judge Boldt in 1975 defined the term “Puget Sound” broadly, to include the disputed area here, does not end the inquiry. Under the rules developed by the Ninth Circuit, the Court must look to the actual evidence that was before Judge Boldt to determine if it “suggests that Judge Boldt intended something other than this apparent meaning when he wrote FF 5.” Muckleshoot I, 141 F.3d at 1359. In this inquiry, the burden is on the Upper Skagit and the Swinomish to demonstrate that there was no evidence before Judge Boldt that the Suquamish fished on the east side of Whidbey Island, or traveled through there on their way up to the San Juans and the Fraser River area.
Both this Court and the Ninth Circuit Court of Appeals have noted on several occasions that Judge Boldt relied heavily on the reports and testimony of anthropologist Dr. Barbara Lane in determining the U & A’s of various tribes. Muckleshoot I, 141 F.3d at 1359 (Dr. Lane’s report was cited and heavily relied upon by Judge Boldt in his decision); Muckleshoot III, 235 F.3d at 437 (Judge Boldt specifically noted that Dr. Lane’s testimony prevails over that of expert Dr. Riley in the event of a conflict).
Dr. Lane’s report on the Suquamish is titled “Identity, Treaty Status and Fisheries of the Suquamish Tribe of the Fort Madison Reservation” (“Report”). It was admitted as an exhibit on April 9, 1975. Dr. Lane testified in that day’s proceedings, and the transcript of her testimony appears in the record at Docket # 7268 (“Transcript”). In both her report and her *838testimony, Dr. Lane characterized the Su-quamish as a people who traveled widely by canoe, ranging as far north as the mouth of the Fraser River. She also stated that “[i]t was normal for all the Indians in western Washington to travel extensively either harvesting resources or visiting in-laws, ... visiting for social occasions such as potlatches, weddings, feasts ... or inter-community ceremonials or celebrations.” Transcript, p. 48.
In the section of her report devoted to fisheries, Dr. Lane stated that the Su-quamish fished for fall and winter salmon at the mouths of the Duwamish and Snohomish Rivers, and in the “adjacent marine areas.” Report, p. 15. In the spring and summer, they traveled by canoe as far north as Fort Langley on the Fraser River. Id. Dr. Lane stated,
In my opinion, the evidence that the Suquamish travelled [sic] to the Fraser river [sic] in pre-treaty times documents their capability to travel widely over the marine waters in what are now known as the Strait of Juan de Fuca and Haro and Rosario Straits. -According to oral tradition, the Suquamish regularly trav-elled through the San Juan Islands and to the Fraser river. •
The Fort Langley journal documents that the Suquamish did travel .to the Fraser river. It is my opinion that the Suquamish undoubtedly would have fished the marine waters along the way as they travelled. It is likely that one of the reasons for travel was to harvest fish. The Suquamish travelled to Whid-bey Island to fish and undoubtedly used other marine areas as well.
Report, p. 16. Dr. Lane also mentioned seasonal camps for smoke-curing fish on Bainbridge Island. Id.
The Report then listed the following places where the Suquamish traditionally took fish (salmon, herring, steelhead, halibut, and shellfish), by trolling, spearing, nets, or traps: Apple Cove Point, Hood Canal, Dye’s Inlet, Liberty Bay, the head of Sinclair Inlet, Skunk Bay, Union River and Curley Creek, Blake Island, Jefferson Head, Point to Point, Rich’s Passage, Orchard Point, Indianola, Ross Point, Miller’s Bay, Agate Passage, and the area between Chico and Erland’s Point. Report, p. 19-20. This list was accompanied in the Report by a map indicating the above-named fishing places, described as being within Suquamish territory. Report, p. 20. 22. In her testimony, Dr. Lane clarified that the places marked on this map, all on the western side of Puget Sound, were sites within Suquamish territory, and did not indicate other areas where they may have traveled to fish. Transcript, p. 57.
At the April 9, 1975 hearing, Dr. Lane was questioned at length about the travels of the Suquamish. She. affirmatively stated that they did travel through the San Juan Islands to the Fraser River. Transcript, p. 49. When questioned specifically about fishing in the area of the San Juan Islands, Birch Bay, and up to the Fraser River, she stated that she could not specifically cite to any documentation regarding Suquamish fishing for herring there, but that
it’s entirely likely that they fished for whatever was available as they were traveling through those waters and that they visited those waters regularly as a usual and accustomed matter in order to fish and to do other things.
Transcript, p. 52.
Upon Dr. Lane’s re-cross examination, the. discussion turned to a map that accompanied the Suquamish April 3, 1975 proposed fishing regulations. A copy of this map appears as an attachment to the Declaration of James Janetta, Dkt. # 146, p. 74. The map divides greater Puget Sound into numbered areas, clearly separated by *839lines drawn on the map. Area 1 includes the San Juan Islands, south about halfway down Whidbey Island, and the Strait of Juan de Fuca. Area 2 lies entirely above the San Juan Islands, extending to the Canadian border. Area 3 encompasses Samish Bay and Bellingham Bay. Area 4 includes the very south-eastern end of the Strait of Juan de Fuca, plus Admiralty Inlet, lower Puget Sound, Saratoga Passage, and Skagit Bay. Id. Referring to this map, attorney Paul Solomon for the Department of Game questioned Dr. Lane. The following colloquy occurred:
Q. And looking at their map attached, here, what has been described as Area Number 2, is this the area, roughly speaking, that Mr. Stay has asked you about, the Strait of Juan de Fuca, Haro Strait, and whatnot?
A. I think he has asked me about what is labeled 1 and 2 on that map.
Q. Both areas 1 and 2. That’s what your comments pertain to?
A. Well, I am speaking about the San Juan Island area, what is marked Number 1 there, and then 2.
Q. Now, your report on the Suquamish notes that they traveled from their regular area up north as far as the Fraser River, which would cover areas 1 and 2 on this.
A. Part of the Area 1
Q. Part of Area 1, and 2.
Transcript, pp. 56-57.
Nowhere in this discussion, or in Dr. Lane’s entire testimony, was the area designated as Area 4 on the map mentioned. Nor were Skagit Bay and Saratoga Passage ever mentioned in Dr. Lane’s testimony regarding the Suquamish travels and fishing, or in her Report. While she did testify that the Suquamish traveled up to the Fraser River, her reference to the Strait of Juan de Fuca, Haro and Rosario Strait places their route on the west side of Whidbey Island, from the Port Madison area and up through the San Juan Islands. Her one statement in her report that the Suquamish traveled “to” Whidbey Island is insufficient to support a finding that they fished or traveled in the waters on the eastern side of Whidbey Island.'
This absence of evidence regarding Squamish fishing or travel through Sarato-ga Passage and Skagit Bay leads the Court to conclude that the Upper Skagit and Swinomish have met their burden of demonstrating that Judge Boldt did not intend to include these areas- in the Su-quamish U & A. The Suquamish must now point to some evidence in the record that demonstrates that this conclusion is incorrect.
In support of their assertion that their U & A includes waters on the east side of Whidbey Island, the Suquamish point to Dr. Lane’s finding that the treaty-time Suquamish were competent mariners who traveled widely. They assert that those travels would necessarily have included waters east of Whidbey Island. However, as noted above, Dr. Lane testified that it was “normal” for “all the Indians in Western Washington to travel extensively ...” Transcript, p. 48. Thus such travel was not unique to the Suquamish, and no conclusion with respect to the subproceeding area can be drawn from the mere statement that they traveled widely. Dr. Lane’s actual testimony, as shown above, addressed only travel from the Suquamish territory up across the Strait of Juan de Fuca and through Haro and Rosario Straits, and the San Juan Islands. It would be pure speculation to conclude that those travels must also have included the east side of Whidbey Island, as there is absolutely no evidence in the record that they did so.
*840Next, the Suquamish point to the fact that they were found to fish at the mouth of the Snohomish River, which is on the eastern side of Whidbey Island, but well south of the area at issue. They assert that this fishing on the east side of Whid-bey Island means that they could have well headed north into Saratoga Passage in their travels. However, Suquamish fishing in this area was described by Dr. Lane as fall and winter fishing at the mouth of a river, presumably to take the abundant migrating salmon. This fall and winter fishery was described by Dr. Lane as separate and distinct from the spring and summer travels up to the Fraser River. Thus, this reference to fishing at the mouth of'the Snohomish River in the fall and winter cannot be deemed evidence that the Suquamish also traveled through that area on their way north to the Fraser River in the spring and summer. There was no mention in Dr. Lane’s Report of Suquamish fishing anywhere north of the Snohomish River in their fall and winter fishery.
Finally, the Suquamish point to the close relations between their people and the Skagit and Snohomish people, who had fishing camps on Whidbey and Camano Islands. They ask that the Court assume that the close relations between the tribes meant that the Suquamish must necessarily have camped and fished there as well. However, any connection between the Snohomish and Skagit camps on Whidbey and Camano Islands, and the Suquamish fishing in these areas, would again be purely speculative. There is nothing in Dr. Lane’s report that places Suquamish camps in these areas, or documents Su-quamish fishing there.
Judge Boldt found Dr. Lane’s testimony to be authoritative and reliable in the original U.S. v. Washington, 384 F.Supp. at 350. His description of the Suquamish U & A tracks nearly verbatim the language in Dr. Lane’s report, that the Suquamish had the “capability to travel widely over the marine waters in what are now known as the Strait of Juan de Fuca and Haro and Rosario Straits.” Report, p. 16. Further, she reported, they “regularly travelled [sic] through the San Juan Islands and to the Fraser River.” Id. In naming these specific areas in describing the Suquamish U & A, Judge Boldt demonstrated his intent to conform the Suquamish U & A to those areas documented by Dr. Lane. As noted by the Ninth Circuit Court of Appeals, where Judge Boldt has cited the specific, rather than the general, evidence presented by Dr. Lane, that evidence determines the boundaries of a tribe’s U & A. U.S. v. Lummi Indian Tribe, 235 F.3d at 451.
For these reasons, the Court concludes that Judge Boldt did not intend to include Saratoga Passage or Skagit Bay within the U & A of the Suquamish. Indeed, it appears from the record that this is how the Suquamish themselves interpreted their U & A. The Suquamish understanding, in 1975, that their U & A excluded waters on the eastern side of Whidbey Island is indicated in the fishing regulations they issued following the Court’s ruling on their U & A. These regulations appear in the record in the Declaration of David Hawkins, Dkt. # 144, Exhibit C. These regulations set guidelines for fishing in specified marine and freshwater fishing areas. No fishing was proposed in marine area 5, on the eastern side of Whidbey Island, which at that time included the areas at issue in this subproceeding. Id. While the Suquamish correctly argue that it would be improper to use these fishing regulations as evidence of Judge Boldt’s intent, it is not improper to use them as evidence of the Suquamish Tribe’s understanding of their own U & A at that time.
*841CONCLUSION
The Court has reviewed the evidence that was before Judge Boldt in the April 1975 proceeding that led to the determination of the Suquamish U & A. That evidence, including maps, fisheries reports, anthropological reports, and testimony, demonstrates that the Court and the parties had a common understanding that the term “Puget Sound” generally described a continuous body of saltwater in western Washington, including all the bays and inlets, and specifically including Skagit Bay and Saratoga Passage. On some occasions, areas such as the Strait of Juan de Fuca and Hood Canal were described separately. On other occasions, Puget Sound was treated as divided into regions, namely Southern, Central, and Northern Puget Sound. Regardless of these differences, the term “Puget Sound” as used generally by Judge Boldt included Saratoga Passage and Skagit Bay.
However, in describing the individual tribes’ usual and accustomed fishing areas, Judge Boldt was necessarily indicating only a portion of that broader Puget Sound, even when, as here, he used the term “Puget Sound” without qualification. Thus, for example, in the description of the U & A of the Muckleshoot Tribe, the Court has found that the term “saltwater of Puget Sound” refers only to that portion of Puget Sound in Elliott Bay. See, Muckleshoot III, 235 F.3d at 438. Similarly, it has been judicially determined that the Lummi U & A, described in part as “the marine areas of Northern Puget Sound from the Fraser River south to the present environs of Seattle” does not include the Strait of Juan de Fuca or Hood Canal. U.S. v. Lummi, 235 F.3d at 451-52.
Here, the Court finds that in describing the Suquamish U - & A as the marine waters of Puget Sound from Va-shon Island up to the Fraser River, Judge Boldt could not have intended to include Saratoga Passage or Skagit Bay. Judge Boldt relied heavily on the report and testimony of Dr. Barbara Lane, and indeed in describing the Suquamish U & A he used terms and place names taken directly from her report on the Suquamish fishing and travels. Dr. Lane reported and testified that the Suquamish traveled by canoe from their territory (Port Madison) up through the San Juan Islands, and Haro and Rosario Straits, as far as the Fraser River. Nothing in her testimony or her report indicated a Suquamish presence in Saratoga Passage or Skagit Bay, neither as winter fishing grounds, nor as a route for travel up to the San Juan Islands.
The Court thus finds that there are no factual issues in dispute, and that the requesting parties are entitled to judgment as a matter of law on their claim that the Suquamish U & A does not include Sarato-ga Passage or Skagit Bay. Accordingly, the motions for summary judgment by the Upper Skagit and Swinomish are GRANTED, and the Suquamish motion for summary judgment is DENIED. As no issues remain to be determined, the trial date of February 26 is now STRICKEN.
ORDER ON MOTION FOR
RECONSIDERATION
Subproceeding No. 05-2
(January 17, 2007)
This matter is before the Court for a ruling on a motion for reconsideration of the Court’s November 21, 2006 Order on Motion to Dismiss, filed by the Makah, Quinault, Puyallup, Quileute, Lummi, Su-quamish, Upper Skagit, Nisqually and Squaxin Island Tribes, and the Swinomish Indian Tribal Community (“Moving Parties”). Dkt. # 98. The Moving Parties seek reconsideration only of that portion of the Court’s Order holding that it does not *842have jurisdiction to resolve an inter-tribal dispute over the allocation of fisheries resources. The Court deems it unnecessary to direct that a response to the motion be filed and, for the reasons set forth below, shall deny the motion.
DISCUSSION
This matter was initiated as a Cross-Request for Determination filed by the Skokomish Indian Tribe (“Skokomish”) in Subproceeding 05-01, asking that the Court “determine and declare an equitable treaty fishing harvest allocation for the available harvest of all species of finfish and shellfish in Hood Canal.” Dkt. # 55. This Cross-Request was bifurcated from Subproceeding 05-01 and opened as a separate Subproceeding. The Port Gamble and Jamestown S’Klallam Tribes (“S’Klal-lam”) then moved to dismiss on the basis of lack of subject matter jurisdiction, res judicata and standing. The Court found reason to dismiss on both jurisdictional and res judicata, grounds, and did not reach the standing argument.
It is the jurisdictional determination which the Moving Parties now challenge. They assert that the Court’s retention of jurisdiction over “[disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves” encompasses allocation disputes, and that this Court has specifically so held in the past. The Moving Parties have provided copies of eleven documents, plus citations to specific language in U.S. v. Washington, 626 F.Supp. 1405 (W.D.Wash.1985), in support of their contention. However, when these documents are considered in context and together with other rulings in this case, they provide no basis for reconsideration.
As noted in the previous Order, the Court retained jurisdiction in this matter for certain specified purposes, set forth in Paragraph 25 of the Permanent Injunction. U.S. v. Washington, 384 F.Supp. 312, 419 (W.D.Wash.1974), as amended by Court Order dated August 23, 1993. The relevant section of Paragraph 25 states,
(a) The parties or any of them may invoke the continuing jurisdiction of this court in order to determine:
(4) Disputes concerning the subject matter of this case which the parties have been unable to resolve among themselves[.]
C70-9213, Dkt. # 13599.
In moving to dismiss, the S’Klallam asserted that section (4) of Paragraph 25 is inapplicable to confer jurisdiction because the parties have settled their dispute, with finality, through the Hood Canal Agreement. In considering this argument, the Court exercised its inherent power to determine subject matter jurisdiction, and found that it did not have jurisdiction to consider the inter-tribal allocation dispute presented here, because such dispute did not concern the subject matter of this case. That subject matter, as stated clearly in the original decision in this case, is treaty-secured fishing rights:
This case is limited to the claimed treaty-secured off-reservation fishing rights of the Plaintiff tribes as they apply to areas of the Western District of Washington within the watershed of Puget Sound and the Olympic Peninsula north of Grays Harbor, and in the adjacent offshore waters which are within the jurisdiction of the State of Washington. The subject matter of this case is limited to the application of those rights to the anadromous fish which are in the waters described, including such fish as are native to other areas.
U.S. v. Washington, 384 F.Supp. 312, 400 (W.D.Wash.1974). While the pool of spe*843cies covered by this case has been expanded to include non-anadromous fish and shellfish, the subject matter remains limited to the application of treaty rights to the fish. Thus, one statement to which the Moving Parties point, that “this Court has jurisdiction over the subject matter of the dispute, the fish”, does not correctly state the subject matter of the case. Subject matter was defined in the first part of the same sentence: “This case is about enforcement of each of the tribes’ treaty fishing rights adjudicated in this case ...” U.S. v. Washington, 626 F.Supp. at 1470. While those treaty rights secured to the tribes the right to fish at their usual and accustomed places, they did not create the equitable right of any one tribe to harvest a certain portion of the treaty share.
Thus, a dispute over the exercise of a tribe’s primary right, or concerning its usual and accustomed fishing area, would fall under the Court’s jurisdiction, because it arises from a treaty right. But nowhere have the Moving Parties pointed to treaty language which confers upon any tribe, vis-a-vis another tribe, the right to an allocation of a portion of the treaty share of fish.
The Moving Parties contend that in its prior rulings in this case, “the Court has expressly held that it has subject matter jurisdiction over inter-tribal allocation disputes, and it has repeatedly exercised jurisdiction over such disputes.” Motion for Reconsideration, p. 2-3. In reviewing the cited Orders, the Court finds that they do not support the Moving Parties’ assertion with respect to jurisdiction over allocation disputes.
In 1983, in a subproceeding addressing the ocean troll fishery, the Court found that it had jurisdiction to determine whether one tribe’s actions infringed the adjudicated treaty rights of other tribes, U.S. v. Washington, 626 F.Supp. at 1470-71. The Court noted that a prior ruling that “the question of intertribal allocation is a matter for the tribes rather than the state to resolve” did not limit the Court’s jurisdiction over matters affecting treaty fishing. Id. The Court did not specifically rule that it could adjudicate an allocation dispute, apart from matters related to treaty rights. Nor did the Court in any way allocate the fishering among the tribes. Instead, the Court directed the disputing tribes to “confer and negotiate their differences with respect to sharing of treaty runs.” Id. at 1471.
The Moving Parties have also cited to Subproceeding 86-5. There, the tribes designated as South Puget Sound tribes alleged that salmon originating in their streams were being intercepted upon return by tribes fishing further north, so that there were few or no salmon left to reach South Sound waters and streams. The tribes had previously negotiated among themselves an allocation of the migrating salmon, as exemplified by the 1980 South Puget Sound Region of Origin Treaty Salmon Allocation Agreement. Subpro-ceeding 86-5, Dkt. # 173. Then, in 1986, the South Puget Sound tribes requested an injunction to protect South-Sound coho salmon stocks from interception. Dkt. # 98, Exhibit 1. Although the Orders provided by the Moving Parties do not specifically address subject matter jurisdiction, the Court notes that jurisdiction over this issue would be appropriate because it directly concerned treaty rights of the South Puget Sound tribes, rather than an allocation as such. That is, the South Sound tribes sought to enforce their right to take salmon at their usual and accustomed fishing places, as provided in the relevant treaties. If the entire tribal share of salmon were intercepted by tribes fishing farther north, the treaty rights of the South Sound tribes to take fish in their usual and *844accustomed areas would be infringed. Jurisdiction was therefore appropriate to protect treaty fishing rights. Further, it appears from the various Orders filed that the interested tribes all consented to have the Court resolve the matter.
Consent to adjudication of the matter was also a factor in subproceeding 91-1, which has also been cited by the Moving Parties. In the 2001 Order Establishing Interim Halibut Fishery Management Plan”, the Court stated,
The court has retained jurisdiction to consider tribal treaty fishing issues in proceedings ancilliary [sic] to Judge Boldt’s landmark decision in United States v. Washington, C70-9213, and the instant parties have consented to the authority of this court to enter an order adopting an FMP for the 2001 halibut fishery.
Subproceeding 91-1, Dkt. # 75, p. 5. This was another case in which treaty-based fishing rights were at issue: the moving tribes alleged that unrestricted halibut fishing in the ocean by certain tribes would quickly exhaust the entire tribal quota, leaving few or no halibut for the other tribes. See, Report and Recommendation on Halibut Allocation, Subproceeding 91-1, Dkt. # 2240, p. 2. Again, jurisdiction was proper in order to protect certain tribes’ treaty rights to fish for halibut.
Finally, the Moving Parties point to sub-proceeding 96-1, regarding the black cod fishery. In that subproceeding, three petitioning tribes alleged that fishing by the Quileute tribe with pot gear would completely preempt their long-line fishery, or force them to use pot gear themselves. In granting a motion for a preliminary injunction, the Court specifically noted that the Quileute Tribe had agreed with the petitioning tribes’ request for an equitable allocation. Subproceeding 96-1, Dkt. #47, p. 3. It was this consent that provided a basis for the Court’s jurisdiction to determine an allocation.
Pursuant to Paragraph 25 of the permanent injunction in this case, jurisdiction has been retained for certain limited purposes, as set forth in that paragraph. The parties to this case, whether tribal, state, or federal, have waived sovereign immunity for those purposes only. In consideration of the importance of sovereign immunity, such purposes may not be broadened without the parties’ consent.
In 1993, in objecting to a proposed “Sunset Order” which would close this case, the tribes invoked sovereign, immunity as a basis for asking that the Court keep this case open until “all the disputes between these parties regarding treaty fishing rights have been resolved.” Dkt. # 98, Exhibit 9, p. 7. While the tribes speculated that such adjudicable disputes could include resolution of intertribal allocation issues, there was no such specific finding by the Court. Id. It is this Court’s view that equitable allocation is a management issue, and does not arise from the tribes’ treaty rights. The tribes in their objection to the Sunset Order, including every tribe now before the Court as a Moving Party, assured the Court that concern over Court involvement in fisheries regulation was without basis, because “most of the underlying disputes are not with management per se but with essential legal issues which need determination by a court of law.” Id., p. 5.
A simple request for equitable allocation, in the absence of factors by which one or more tribes may completely preempt another tribe’s right to fish, does not present a legal issue for determination by this Court. The Court thus declines to reconsider its ruling that it does not have jurisdiction under Paragraph 25 to consider such request, in the absence of consent by *845all parties. The motion for reconsideration is accordingly DENIED.
STIPULATION OF PLAINTIFFS AND STATE OF WASHINGTON REGARDING SCOPE OF SUB-PROCEEDING, AND ORDER
Subproceeding No. 01-1 (Culverts)
(January 29, 2007)
In order to resolve potential disagreement concerning the scope of the claims in this sub-proceeding and the relief, if any, that may be appropriate to resolve those claims, and thereby to promote the objectives of Federal Rules of Civil Procedure 1, 8, and 16, Plaintiffs and the State of Washington stipulate as follows, and move for entry of a corresponding order:
1. The scope of this sub-proceeding only includes those culverts that block fish passage under State-owned roads. Culverts that do not block fish lie beyond the scope of this case, even though they may adversely affect river or stream ecological functions. Tidegates are also beyond the scope of this sub-proceeding.
2. In any remedy stage of this sub-proceeding, the Plaintiffs are not limited in arguing and the Court is not limited in granting relief that requires that culverts identified as adversely affecting fish passage be repaired to remove any impediments to both fish passage and to ecological functions. This Stipulation does not reduce or enlarge the equitable powers of the Court to formulate a remedy consistent with the orders entered in this case and the application of applicable law.
3. In any remedy stage of this sub-proceeding, the parties reserve the right to argue whether the culvert inventories were adequate to identify the culverts that do not pass fish, and whether further inventories should be ordered to identify such culverts. Culverts that exist on the date that the Court enters a final order in this sub-proceeding and that affect ecological functions but are not fish passage barriers need not be inventoried, repaired, or replaced as part , of any relief ordered in this sub-proceeding.
4.The Plaintiffs are not limited as a result of this sub-proceeding from seeking relief against the State in another sub-proceeding or case, to repair or replace State-owned tidegates or culverts that do not block fish but adversely affect river or stream ecological functions. The Plaintiffs may seek relief against the State to repair or replace State-owned tidegates and culverts that may be identified in the future as adversely affecting fish passage or ecological functions, but which are not identified as fish passage barriers in any inventory of barriers prepared prior to or pursuant to entry of a final order in this sub-proceeding.
ORDER
JOINT MOTION FOR ORDER AND CONSENT DECREE APPROVING SETTLEMENT AGREEMENT
Note On Motion Calendar: June 20, 2007
Subproceeding No. 89-3(Shellfish)
The Parties identified below seek this Court’s entry of an Order that approves the Parties’ Settlement Agreement attached hereto as Exhibit A. The Parties to the Settlement Agreement are as follows:
Plaintiff Indian Tribes: Tulalip, Stilla-guamish, Sauk Suiattle, Puyallup, Squaxin Island, Makah, Muckleshoot, Upper Skag-it, Nooksack, Nisqually, Lummi, Skokomish, Port Gamble S’Klallam, Lower Elwha Klallam, Jamestown S’Klallam, Suquamish and Swinomish (“Tribes”);
Plaintiff United States of America;
Defendant State of Washington; and
*846Intervenor-Defendant Puget Sound Shellfish Growers: Taylor United, Inc.; Olympia Oyster Company; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minter-brook Oyster Company; Charles and Willa Murray; Skookum Bay Oyster Company; and J & G Gunstone Clams, Inc. (“Growers”).
The undersigned representatives of the Parties affirm and agree that the Settlement Agreement is fair and reasonable and, by the signatures of their representatives below, the Parties consent to and are fully bound by all its terms. The undersigned further affirm and agree that the contingencies identified in ¶ 9.A.1, ¶ 9.A.2, and II 9.A.4 of the Settlement Agreement have been fully and completely satisfied, as evidenced by the attached Exhibits B through D.
Each undersigned representative of the Parties to this Consent Decree certifies that he or she is fully authorized by that Party to enter into and execute the terms and conditions of this Joint Motion for Approval of Settlement Agreement, and to legally bind such Party to the Order and the Settlement Agreement. By their representatives’ signatures below, the Parties consent to the entry of the Order Approving the Settlement Agreement.
EXHIBIT A
SETTLEMENT AGREEMENT
THE HONORABLE RICARDO S. MARTINEZ
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON AT SEATTLE
UNITED STATES OF AMERICA, et al., Plaintiffs
v.
STATE OF WASHINGTON, et al., Defendants
Case No.: C70-9213
Subproceeding No. 89-3 (Shellfish)
SETTLEMENT AGREEMENT
The Tribes listed in section 1 (“Tribes”), the Puget Sound Shellfish Growers (“Growers”), the United States Department of the Interior, and the State of Washington, by and through the undersigned representatives, hereby enter into this Settlement Agreement.
WHEREAS the Tribes have asserted treaty right claims to take shellfish from lands owned, leased, or otherwise subject to harvest by the Growers, which claims have resulted in the following decisions:
1. United States v. Washington, 873 F.Supp. 1422 (W.D.Wash.1994).
2. United States v. Washington, 898 F.Supp. 1453 (W.D.Wash.1995) (as modified by the Stipulation and Order Amending Shellfish Implementation Plan, dated April 8, 2002) (hereinafter the “Revised Shellfish Implementation Plan”).
3. United States v. Washington, 909 F.Supp. 787 (W.D.Wash.1995).
4. United States v. Washington, 157 F.3d 630 (9th Cir.1998);
WHEREAS the parties to this Settlement Agreement acknowledge that the district court found that the Growers are “innocent purchasers who had no notice of the Tribes’ fishing right when they acquired their property.” 898 F.Supp. at 1457;
WHEREAS the parties agree that numerous unresolved issues remain outstanding regarding implementation of the Tribes’ treaty right to take shellfish from lands owned, leased or otherwise subject to harvest by the Growers; and
*847WHEREAS the Tribes, Growers, the United States Department of the Interior, and the State of Washington are interested in resolving any and all disputes between and among them regarding implementation of the Tribes’ treaty right to take shellfish from lands owned or leased by the Growers, they agree as follows.
SETTLEMENT AGREEMENT
1. TRIBES.
The Tribes bound by this Settlement Agreement are the Tulalip, Stillaguamish, Sauk Suiattle, Puyallup, Squaxin Island, Makah, Muckleshoot, Upper Skagit, Nook-sack, Nisqually, Lummi, Skokomish, Port Gamble S’Klallam, Lower Elwha Klallam, Jamestown S’Klallam, Suquamish, and the Swinomish Tribes (hereinafter “Tribes”). The Tribes are parties to the following treaties: Treaty of Medicine Creek, December 26, 1854 (10 Stat. 1132); Treaty of Point Elliott, January 26, 1855 (12 Stat. 927); Treaty of Point No Point, January 26, 1855 (12 Stat. 933); Treaty with the Makah, January 31, 1855 (12 Stat. 939) (hereafter “the treaties”).
2. INTERVENOR DEFENDANTS.
A. The intervenor defendants bound by this Settlement Agreement shall include the following: Taylor United, Inc.; Olympia Oyster Company; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minterbrook Oyster Company; Charles and Willa Murray; Skookum Bay Oyster Company; and J & G Gunstone Clams, Inc. These growers need only file with the Court and serve on Plaintiff Tribes by March 1, 2008 a sufficiently identified list of their tidelands, for example, by county and county tax parcel, owned, leased from a private party or otherwise subject to a right to harvest by these growers as of August 28, 1995.
B. In addition, all persons who are members of the Puget Sound Shellfish Growers Legal Defense Fund, Inc., and who on or before August 28, 1995, owned, leased from a private party, or otherwise had a right to commercial harvests of shellfish from tidelands in Washington State, and either:
(i) on or before August 28, 1995, had an active aquatic farm registration for commercial shellfishing from those tidelands and a Washington Department of Health certification for those tidelands, provided, that they intervene and file with the Court and serve on Plaintiff Tribes by March 1, 2008, copies of the documents that establish their compliance with this subsection and a sufficiently identified list of those tidelands, for example, by county and county tax parcel; or
(ii) on or before the date the person seeks to intervene had an active aquatic farm registration for commercial shell-fishing and a Washington Department of Health certification for those tidelands, provided, that such persons Intervene and file with the Court and serve on the Plaintiff Tribes by March 1, 2008, copies of documents that establish their compliance with this subsection and a sufficiently identified list of those tidelands, for example, by county and county tax parcel, and, further, file documentary evidence establishing that those tidelands were used for sustained commercial production of shellfish during some portion of the time between January 1, 1985, and August 28,1995;
shall be covered by the terms of this Settlement Agreement.
C.In addition, a person who between August 28, 1995 and March 1, 2008 acquires the right to harvest from a person whose tidelands are covered under section 2(A) and section 5 or from a person whose tidelands would have been eligible to become covered tidelands under section *8482(B)(i) or (ii) and section 5, so long as the eligibility for including the tidelands under section 2(B)(i) or (ii) is documented as provided in those subsections, and on or before the date the person seeks to intervene had an active aquatic farm registration for commercial shellfishing and a Washington Department of Health certification for those tidelands, provided, that such persons intervene and file with the Court and serve on the Plaintiff Tribes by March 1,2008, copies of documents that establish their compliance with this subsection, shall be covered by the terms of this Settlement Agreement.
D. Any person holding a commercial shellfish lease for state tidelands identified in section 4(A) shall be covered by the terms of this Settlement Agreement.
E. A person who at any time acquires the right to harvest from tidelands covered pursuant to section 5, from a person who actually intervened pursuant to section 2(A), 2(B), 2(C), 2(D), or this subsection, may become bound by the terms of this Settlement Agreement by filing with the Court a request to intervene in this proceeding for that limited purpose, supported by a copy of their aquatic farm registration for' commercial shellfishing filed with the Washington Department of Fisheries and Wildlife, their Washington Department of Health certification for those tidelands, and their deed, lease or contract showing the locations of the tidelands on which they have acquired the right to harvest.
F. All persons who fulfill the conditions of section 2(8), 2(C), 2(D) or 2(E) may intervene as defendants for the limited purpose only of participation in this Settlement Agreement. Any person who fails to actually intervene, except to the extent that a person is covered pursuant to section 2(D), shall have no rights under this Settlement Agreement.
G. Participation in this Settlement Agreement is a result of settlement and compromise and establishes only those persons who are covered by this Settlement Agreement. Such participation does not represent an admission or agreement by any party that a participant could or could not qualify as a commercial shellfish grower within the terms of the Revised Shellfish Implementation Plan. Therefore no person may refer to or rely upon this Settlement Agreement, nor any person’s participation in the Settlement Agreement, and the Court shall not consider any such evidence, in any dispute as to the requirements necessary for any person to qualify as a commercial shellfish grower for purposes of the Revised Shellfish Implementation Plan.
H. A person who files a list of tidelands called for in section 2(A), 2(B), 2(C) or 2(E) and discovers that the list was incomplete through inadvertence or oversight may amend the list to include those tidelands.
3. STATE OF WASHINGTON AND UNITED STATES.
Except as set forth in section 12, the State of Washington acknowledges and appreciates the efforts of the Tribes and Growers to resolve the existing disputes and supports this Settlement Agreement. Except as set forth in section 12, the United States supports the efforts of the Tribes and Growers to resolve any and all existing disputes between and among them through this Settlement Agreement.
4. STATE-OWNED TIDELANDS COVERED BY RELEASE.
A. Subject to subsections 4(B), (C), (D), and (E) and Section 9, below, the tidelands covered by the following State of Washington Department of Natural Resources (hereinafter “DNR”) agreements *849shall be considered “covered tidelands” for the purposes of Section 6 of this Settlement Agreement when leased for any shellfish cultivation purpose:
LEASE# COMPANY USE START Em WATERBODY C TWN RANGE
20009733 LITTLE SKOOKUM SHELLFISH CLAM OYSTERS 28-Jun-93 30-Jun-03 PS SKOOKUM 10 19 03 W
20009719 TAYLOR UNITED CLAM OYSTERS 28-Jun-93 30-Jun-03 PS SKOOKUM 10 19 03 W
20009703 LITTLE SKOOKUM SHELLFISH CLAM 28-Jun-93 30-Jun-03 PS SKOOKUM 19 03 W
20A09206 JEFFREY DELIA OYSTERS 30-Sep-99 29-Sep-09 HC DABOB 21 27 01 W
20A09307 E YAMASHITA OYSTERS 2-Dec-99 1-Dec-09 HC DABOB 28 26 01 W
20012043 ROGER C LINDEMAN CLAM 5-Mar-94 4-Mar-04 PS SEQUIM 36 30 03 W
20A12047 JODI CLAM COMPANY CLAM 17-Sep-96 l-Nov-08 PS SEQUIM 36 30 03 W
20A12695 WALLY PEDERSON OYSTERS 1-May-99 30-Apr-09 HC DABOB 27 27 01 W
20A12355 TAYLOR RESOURCES OYSTERS CLAM 19-Jun~96 18-Jun-08 HC DOSEWALLIPS 02 W
20-A09868 CWGUNSTONE CLAM 3-Mar-90 3-Mar-00 ST DISCOVERY 36 30 03 W
20-A11121 E YAMASHITA OYSTERS 1~Aug-89 31-Jul-99 HC DABOB 16 27 01 W
20-A10234 ****CRESENT OYSTERS BEACH OYSTER AND CLAM 11-Apr-84 11-Apr-92 PS SHIP 13 37 02W
20010050 JJ BRENNER CLAM OYSTER CO 22-Dec-90 22-Dec-00 PS SKOOKUM 9 19 03 W
22002530 ET&ME CLAM HAEFLIGER 1-Sep-80 1-Sep-95 PS OAKLAND 16 20 03 W
20A12800 GUNSTONE CLAMS CLAM 31-Oct-88 1-Nov-98 PS SEQUIM 23 30 03 W
20009956 GARY & JANICE CLAM MAZZONCINI OYSTERS 7-Jul-90 1-Ju!-00 HC HAMMA HAMMA 03 W
20011283 JERRY YAMASHITA OYSTERS 5-May-91 1-May-01 HC DABOB 15 & 27 01 W 16
20013012 JAMESTOWN KLALLAM TRIBE OYSTERS 1-Aug-90 1-Aug-00 PS DUNGENESS 23 31 04 W
20012571 JAMESTOWN KLALLAM TRIBE OYSTERS 1-Jun-87 1-Jun-97 PS SEQUIM 12 29 03 W
OYSTERS 20012924 JAMESTOWN KLALLAM TRIBE 1-Jan-90 1-Jan-00 PS SEQUIM 1 & 12 29 03 W
20012228 CHARLES & MARIE CLAM BRODERS 1-Aug-85 1-Aug-96 ST DISCOVERY 7 & 18 29 01 W
20011665 TAYLOR UNITED OYSTERS 1-Jul-81 1-Jul-93 HOOD CANAL 31 22 03 W
**** Crescent Beach Oyster and Clam app rejected, new app pending
B. For a lease of covered tidelands identified in subsection 4(A) that has expired before the date the Court signs a Consent Decree which implements the terms of this Settlement Agreement, DNR shall have up to eighteen months from the date of the Court’s signature to execute a renewal of the lease with the prior lessee, or, where the prior lessee is deceased, the prior lessee’s interest is now held by a member of the immediate family, or where the prior lessee was a business and the name of the business changed without a change in ownership, with that lessee’s successor in interest. DNR agrees to ex*850pedite its efforts to obtain a lease renewal and to notify the tribes as soon as a lease renewal has been signed or a determination has been made that no renewal will take place. As soon as DNR determines that no renewal can or will take place with the prior lessee (or its immediate successor in interest as provided above), and notifies the tribe of that fact; or eighteen months after the Court signs a Consent Decree which implements the terms of this Settlement Agreement without a new lease being signed, whichever is sooner, the tribes shall have up to ninety days to elect to either exercise their treaty shellfishing rights using the principles of section 4 of the Revised Shellfish Implementation Plan, or negotiate a lease for those covered tidelands.
(i) If tribes elect to exercise treaty shellfishing rights on the subject property DNR may attempt to lease the subject covered tidelands for up to three years from the date the tribes make the election. Any new lease must be issued at a fair market rental rate that is comparable to other commercial shellfish leases for the type of property and shellfish cultivation operation being considered. If DNR enters into a new lease within the three-year period, tribal shellfish harvesting pursuant to this subsection will cease as of the date that lease is executed. If no new lease has been signed within the three year period the subject property will cease to be considered covered tidelands and Will be fully subject to the Revised Shellfish Implementation Plan. Tribal exercise of shellfishing rights during the three year period for State leasing efforts shall be undertaken in a manner that does not interfere with or impair DNR’s ability to issue a new lease. As part of exercising their Treaty shellfish harvesting right pursuant to this subsection, the Tribes will conduct a shellfish population survey and provide a copy to DNR.
(ii) (a) If tribes elect to negotiate a lease for the covered tidelands, DNR and the tribes will negotiate a lease on terms that are comparable to other commercial shellfish leases for the type of property and shellfish cultivation operation being considered. If no property boundary survey is required, DNR and the tribes will have six months from the date the tribes make their election pursuant to subsection 4(B) to execute a lease. If a property boundary survey is required, DNR and the tribes will have nine months from the date the tribes make their election pursuant to subsection 4(B) to execute a lease. During such lease negotiations, the tribes may exercise their treaty shellfishing rights on the subject property as provided in subsection 4(B)(i), provided however, the tribes pay DNR a mutually agreed-upon rate for any shellfish taken during such negotiation period.
(ii) (b) If the tribes reject the lease terms offered by DNR or the lease is not executed within the time periods identified in the preceding subsection, DNR may attempt (during the remainder of the three year period that began with the tribes’ election pursuant to subsection 4(B)) to lease the subject tidelands to another person so long as the terms offered to such person are no more favorable to that person than the terms last offered to the tribes. During such leasing efforts the tribes may exercise their treaty shellfishing rights on the subject property as provided in subsection 4(B)(i). For the purpose of determining whether DNR has offered a lease to a third party on terms no better than were offered to the tribes, the tribes recognize that rental rates for DNR shellfish leases are based in part *851on variables like the amount of shellfish on the leased parcel, the mortality rate of the shellfish and the market price of the shellfish. The tribes further recognize that a change in these kinds of variables, like a change in the amount of shellfish on that parcel due to tribal harvesting, a change in mortality rate, or a change in the market price for the shellfish, will likely change the rent offered to the lessee of that parcel. The tribes agree that any such rent changes will not be considered “terms ... more favorable to that [third] person than the terms last offered to the tribes.”
C. When a lease of covered tidelands identified in subsection 4(A) is terminated before the lease expiration date DNR shall give immediate notice to the tribes. The tribes will have ninety days from the date of that notice to elect to either exercise their treaty shellfishing rights using the principles of the Revised Shellfish Implementation Plan, take over the lease for the duration of the remaining period of the lease, including all rights, if any, to renew that lease upon its expiration, or attempt to negotiate a new lease with DNR. If the tribes elect to exercise their treaty shell-fishing rights the provisions of subsection 4(B)(i) shall apply. If the tribes elect to attempt to negotiate a new lease with DNR the provisions of subsection 4(B)(ii) shall apply. However, if the funding anticipated by section 7 on the schedule expressed in section 9 is not realized, then the provisions of this subsection do not apply.
D. When a lease of covered tidelands identified in subsection 4(A) expires after the date the Court signs the implementing Consent Decree without being renewed, including those leases previously renewed pursuant to subsection 4(B), DNR shall have up to six months from the date of the expiration of the lease, or nine months in the event a property boundary survey is needed, to execute a renewal of the lease with the prior lessee. DNR agrees to expedite its efforts to obtain a lease renewal and to notify the tribes as soon as a lease renewal has been signed or a determination has been made that no renewal will take place. As soon as it has been determined that no renewal will take place, or six months (or nine months where a property boundary survey was needed) after the expiration of the lease without a renewal being signed, whichever is sooner, the tribes will have ninety days to elect to either exercise their treaty shellfishing rights using the principles of the Revised Shellfish Implementation Plan, or negotiate a lease for the covered tidelands. If the tribes elect to exercise their treaty shellfishing rights the provisions of subsection 4(8)(i) shall apply. If the tribes elect to attempt to negotiate a new lease with DNR the provisions of subsection 4(B)(ii) shall apply.
E.(i) Subject to the exceptions set forth in subsection 4(E)(ii) below, when the lessee of a lease of covered tidelands identified in subsection 4(A) attempts to transfer ownership of the lease DNR will give immediate notice to the tribes. The tribes will have ninety days from the date of that notice to elect to either exercise their treaty shellfishing rights using the principles of the Revised Shellfish Implementation Plan, take over the lease for the duration of the remaining period of the lease, including all rights to renew that lease, if any, upon its expiration, or attempt to negotiate a new lease with DNR. If the tribes elect to exercise their treaty shell-fishing rights the provisions of subsection 4(B)(i) shall apply. If the tribes elect to attempt to negotiate a new lease with DNR the provisions of subsection 4(B)(ii) shall apply.
*852(ii) However, the provisions of subsection 4(E)(i) do not apply where the transfer of the lease is to a member of the lessee’s immediate family, where the transfer is only the result of a change in the form of organization holding the lease without any change in control to any new persons, or where' the transfer is part of a bulk sale of all the lessee’s shellfish cultivation landholdings.
F. Renewals of leases and leases of covered tidelands identified in subsection 4(A) shall be for no longer than a period of ten years.
G. These provisions of section 4 shall not be applied to eliminate or modify any pre-existing statutory or contractual rights, including the right to freely assign a lease. DNR shall include provisions in future leases that facilitate the tribes’ rights to lease pursuant to this section 4 by requiring the lessee to agree that the lease will subject to the terms of this section 4.
H. DNR shall include a provision in its leases and lease renewals that are entered into after December 1, 2003 for the covered tidelands in subsection 4(A) that provides: if the funding anticipated by Section 7 on the schedule expressed in Section 9 is not realized then the leases and or lease renewals shall, for the remainder of the lease term, be subject to a request for Tribal harvest under section 6 of the Revised Shellfish Implementation Plan, notwithstanding any failure by the Tribe to give notice under section 8.2.2 of the Revised Shellfish Implementation Plan, and not withstanding the requirements of section 6.1.4 of the Revised Shellfish Implementation Plan.
5. TIDELANDS COVERED BY RELEASE.
A. Tidelands and Transfers of Control of Tidelands.
In addition to those State owned tidelands identified in section 4 of this Settlement Agreement, and in addition to the tidelands owned, leased from a private party, or otherwise subject to a right to harvest as of August 28, 1995, by the persons identified in subsection 2(A) above, the following tidelands shall be covered tidelands for the purposes of Section 6 of this Settlement Agreement:
a. those non-State owned tidelands owned, leased from a private party, or otherwise subject to a right of harvest as of August 28, 1995, by the persons who intervene in this proceeding pursuant to section 2(B), and
b. those non-State owned tidelands owned, leased from a private party, or otherwise subject to a right of harvest after August 28, 1995, where those tidelands were, before the date that a Consent Decree implementing this Settlement Agreement is entered by the Court, established not to include a natural shellfish bed pursuant to section 6.3 of the Revised Shellfish Implementation Plan.
(ii) If the right to harvest tidelands identified in subsection 5(A)(i) above are or were transferred to a person identified under subsection 2(A), 2(B), 2(C), 2(D) or 2(E) above at any time after August 28, 1995, those tidelands shall remain covered by section 6 of this Settlement Agreement.
B. Tidelands covered pursuant to subsections 5(A), above, shall cease to be covered if those tidelands are sold, deeded, or otherwise permanently transferred so that the tidelands are no longer used for the commercial cultivation of shellfish (commercial cultivation, for purposes of this subsection, includes allowing the land to lie idle when done with the intent of using *853those tidelands for commercial purposes in the future).
C. Whenever covered tidelands are sold, deeded, or otherwise permanently transferred, the transferring party shall promptly provide notice of that fact, including the location of the tidelands affected and the name and address of any new owner of the affected tidelands. Notice shall be sufficient if it is sent to the Northwest Indian Fisheries Commission, 6730 Martin Way E., Olympia, WA 98516. Failure to provide such notice, however, will not affect the validity of the sale, deed or transfer, nor affect the status of the tidelands as covered for purposes of this Settlement Agreement.
6. RELEASE OF CLAIMS.
A. Tribes’ Treaty Claims. Upon fulfillment of all contingencies stated in Section 9 A. below, and for the purpose only of this Settlement Agreement, the Tribes agree, on their own behalf and on behalf of their predecessors, successors, and members, that any and all shellfish on “covered tidelands” within the terms of sections 4 and 5, above, are deemed as of the date of this Settlement Agreement to be “staked or cultivated by citizens” for the purpose of implementing the Treaties referenced in section 1, above. The Tribes hereby represent that they are intimately acquainted with the Puget Sound area and with all tribes, or their successors, who are or were party to the treaties listed in section 1 and that, to the best of their knowledge, there are presently no tribes or persons, other than the signatories to this Settlement Agreement, who have a right to take shellfish under the treaties listed in section 1.
B. Tribes’ Claims Against the United States and State of Washington. Upon fulfillment of all contingencies stated in Section 9 A. below, the Tribes, on their own behalf and on behalf of their predecessors, successors, and members, hereby waive and release forever the United States and the State of Washington from all past and present claims, known and unknown, arising from or related to actions or inactions by the United States or the State of Washington arising from or related to the Tribes’ treaty rights of taking shellfish from covered tidelands set forth in section 4 and 5 above. Such claims regarding those covered tidelands include, but are not limited to, 1) claims for alleged injury to the treaty shellfishing rights resulting from human activities authorized or permitted by the United States or the State of Washington on the covered tidelands; 2) breach of trust claims against the United States for failure or delay in the protection, acquisition, enhancement or development of the shellfish resource on the covered tidelands; and 3) breach of trust claims arising from or related to the United States’ actions in this sub-proceeding 89-3, including but not limited to claims related to the litigation of this sub-proceeding and negotiation, execution and approval of this Settlement Agreement, including its terms.
C.Growers’ Claims Against the United States. Upon fulfillment of all contingencies stated in Section 9 A., below, the Growers listed in section 2, and any persons or entities that become an Inter-venor Defendant under section 2 above, on their own behalf and on behalf of their predecessors, successors, and members, waive and release forever the United States from any claims arising from or related to the existence of treaty rights to harvest shellfish from any tidelands they own, lease or in which they otherwise have a legal interest. Such claims include, but are not limited to, 1) all claims arising from or related to the actions, inaction, or *854alleged delay in taking action, by the United States related to the enforcement or protection of the Tribes’ treaty shellfishing rights; and 2) all claims for taking of private or other property rights or interests in connection with the United States’ enforcement or protection of the Tribes’ treaty shellfishing rights.
D. Grower’s Claims Against the State. Upon fulfillment of all contingencies stated in Section 9 A., below, the growers listed in section 2, and any persons or entities that become an Intervenor Defendant under section 2 above, forever waive and release the State of Washington from any claims arising from or related to the existence of treaty rights to harvest shellfish from any tidelands they own, lease, or in which they otherwise have a legal interest. For the purposes of this provision, the term “tidelands” includes all aquatic lands in which Intervenor Defendants have some interest and which were conveyed by the State of Washington or are currently owned by the State of Washington subject to some interest held by Intervenor Defendants. This waiver and release of claims against the State of Washington shall be binding upon and inure to the benefit of the parties’ successors and assigns. Once effective, this waiver and release continues in force and with the same effect if covered tidelands cease to be covered tidelands at some future date.
E. State’s Claims Against the United States. Upon the fulfillment of all contingencies stated in Section 9 A. below, the State of Washington waives and releases forever the United States from any claims arising from or relating to the existence of treaty rights to harvest shellfish from any covered tidelands set forth in Section 4 and 5 that the State owns or any covered tidelands in which the State acquires some real property interest. Such claims in-elude, but are not limited to, all claims related to the actions, inactions, or alleged delay in taking action, by the United States related to the enforcement or protection of the Tribes’ Treaty shellfishing rights on the covered tidelands.
F.United States’ Claims Against the State. Upon the fulfillment of all contingencies stated in Section 9 A., below, and release of the tribal claims, the United States waives and releases forever the State of Washington from any claims arising from or related to the existence of treaty rights to harvest shellfish from any covered tidelands described in Sections 4 and 5 supra that the State owns or any covered tidelands in which the State acquires some real property interest. Such claims include, but are not limited to, all claims arising from or related to the actions, inaction, or alleged delay in taking action, by the State of Washington related to the recognition of the Tribes’ treaty shellfishing rights on the covered tidelands as well as any existing claims for alleged injury to the treaty shellfishing rights resulting from human activities authorized or permitted by the State of Washington on the covered tidelands.
7. CONSIDERATION.
In consideration for the releases set forth above in section 6, the Tribes shall receive $33,000,000 from state or federal sources, as set forth in Section 9, below. The monies to be received by the Tribes shall be used by the Tribes for the development of their shellfisheries, including, but not limited to, the acquisition of appropriate properties. The Tribes and Growers shall make their best concerted efforts to jointly request that $33,000,000 be appropriated from federal or state sources.
*8558. PURCHASE OF GROWER PROPERTY.
In recognition of the treaty rights recognized by the courts in this action, the Growers further agree that within one year from the date that all contingencies in Section 9.A of this settlement agreement have been fulfilled, the Growers shall make available to the Tribes for purchase, at fair market value, at least 80 acres of tidelands, at least 40 acres of which shall be in Samish Bay, that are producing or are suitable for producing commercial harvests of shellfish. Fair market value for the land to be made available for sale shall be determined by an appraiser agreed upon by the selling grower and the tribe or tribes purchasing the land. If no agreement on an appraiser can be reached, each side shall appoint an' appraiser. The two appraisers shall select a third appraiser. The appraiser mutually agreed by the-parties, or the third appraiser, shall establish the fair market value of the land, which appraised value shall be final and binding so that the selling grower shall be bound to sell at the appraised price. The tribes may choose not to purchase the offered property at that price; in that event the Growers shall not be obligated to make any additional or different offer for the number of acres contained in the rejected offer.
The tribes may choose to purchase less than the entire acreage offered to them where the cost of the whole offering would exceed the amount the tribes have set aside for purchase of tideland properties, provided that they may not choose only the most select of scattered parcels from the overall property offered in such a way as to substantially reduce the value of the remaining parcels. If the tribes choose to purchase less than the entire amount offered, the selling grower and the purchasing tribes shall agree on the portion to be made available to the tribes. Any disagreement as to the price shall be resolved by the same appraisal procedure as set forth above. Any dispute as to the portion to be made available to the tribes shall be subject to the dispute resolution procedure set forth in section 11.
9. CONTINGENT AGREEMENT.
A. This Settlement Agreement is expressly conditioned and contingent on the following:
1. By June 29, 2007, enactment of legislation by the United States Congress that is signed by the President that:
(a) approves this Settlement Agreement,
(b) outlines a process for the consideration of the inclusion of other treaty tribe(s) in this Settlement Agreement without abrogation, ex-tinguishment, or other equivalent action by Congress, the Secretary of Interior, or any other entity,
(c) authorizes the appropriation of money for the benefit of the Tribes that are parties to this Settlement Agreement, in the amounts and by the dates stated below in subsection 9.C, and
(d) authorizes the Tribes that are parties to this Settlement Agreement, either individually or collectively, to bring suit against the United States in the United States Court of Federal Claims for money damages, including interest, in the event that any payment by the United States required by subsection 9.0 is not made in the full amount, or not within six months following the date required by subsection 9.C, or not in a manner con-' sistent with the unanimous written *856agreement of the Tribes as served on all parties pursuant to subsection 9.A(4).
2. By June 29, 2007, appropriation of $11,000,000 from the State of Washington for the benefit of the Tribes that are parties to this Settlement Agreement. The parties acknowledge that the State of Washington has appropriated funds for this settlement agreement under Section 308(8) of ESSB 6386 (Laws of 2006, Chapter 372), but that the actual release and application of the appropriated monies is subject to contingencies regarding the execution and full effectiveness of this settlement and the accompanying consent decree. The contingencies set forth in ESSB 6386, Section 308(8), must be fulfilled by June 29, 2007 or the appropriation lapses and the terms of this settlement agreement will not be fulfilled and this agreement may be certified as null and void in accordance with Section 9.B.
3. By June 29, 2007, the United States District Court which is presiding over United States v. Washington, Civ. No. C70-9213, Sub-proceeding No. 89-3 (shellfish), approves this Settlement Agreement and enters a corresponding consent decree.
4. By May 15, 2007, the Tribes that are parties to this Settlement Agreement unanimously agree in writing on the payee or payees, and the allocation of payments to be made, for receipt of the funds appropriated pursuant to subsections 9.A(1) and (2), and serve such writing on the other parties to this agreement.
B. If any one of the conditions stated in subsection 9.A are not fulfilled, without regard to the reason, and without regard to the fault of any party, this Consent Decree and Settlement Agreement shall be vacated and null and void and no party shall have any rights hereunder, and any individual tribal party or any other party may request, and the Court shall so certify, that this settlement agreement has become null and void. From the date of that certification the provisions of the Revised Shellfish Implementation Plan will have full force and éffect, provided, however, that the Tribes’ starting one year opportunity to give notice to Growers pursuant to sections 6.1 and 6.1.4 of the Revised Shellfish Implementation Plan shall begin with the date of certification or the date Exhibit A of the Revised Shellfish Implementation Plan is completed with respect to at least manila clams, native littleneck clams, geoduck clams and pacific oysters, whichever is later. Future opportunities for tribal notice shall then occur pursuant to the terms of section 6.1.4 of the Revised Shellfish Implementation Plan.
C. Payments to the Tribes that are parties to this Settlement Agreement of the funds appropriated by the United States and State of Washington, in accordance with the written agreement served on the parties pursuant to subsection 9.A(4), shall be made as follows:
1. From the United States:
$2,000,000 by 09/03/2007, plus
$5,000,000 by 09/03/2008, plus
$5,000,000 by 09/03/2009, plus
$5,000,000 by 09/03/2010; plus
$5,000,000 by 09/03/2011; and
*8572. From the State of Washington, $11,000,000 will be disbursed by September 3, 2007, upon timely ful-' fillment of all contingencies specified in Section 308(8) of ESSB 6386. The terms and conditions of this settlement agreement shall not be ' vacated or certified as null and void for any deficiency in the United States failure to make the payments specified in this Section subsequent to June 29, 2006. The provisions of Sections 9.A, 9.B, and 9.0 are provided to address that circumstance.
3. If all contingencies set forth in ESSB 6386, Section 308(8), are fulfilled by June 29, 2007, but the payment required from the State of Washington by subsection 9.0 is not made in the full amount, or not by the date required by subsection 9.C, or not in a manner consistent with the unanimous written agreement of the Tribes as served on all parties pursuant to subsection 9.A(4), the State of Washington waives its im- • munity and consents to suit by the Tribes that are parties to this Settlement Agreement, either individually or collectively, for money damages equal to the amount of any required payments that are not made in a timely manner, together with interest on those liquidated damages running from September 3, 2007 to the date that any required payments are finally made.
4. To facilitate timely payment, the Tribes agree that, as a part of the notice provided pursuant to subsection 9.A(4), they will notify the State if there is a means for individual payees to receive required payments by wire transfer and that such payees will assist in the facilitation of wire transfer payments where possible. Where wire transfer is not possible, the Tribes agree that the notice provided pursuant to subsection 9.A(4) will designate a payee and mailing address for required payments that may be mailed.
D. So long as all the contingencies stated in subsection 9.A are fulfilled, the Tribes will not seek any access to tidelands where both (1) the tidelands would qualify as “covered tidelands” under the terms of this Settlement Agreement, and (2) the tidelands are subject to harvest by a person who may qualify to be an Intervenor Defendant under the terms of this Settlement Agreement. In every other respect, however, the Tribes may continue to exercise their rights pursuant to the Revised Shellfish Implementation Plan, including litigation of any disputes arising under the Revised Shellfish Implementation Plan.
E. In the event that another tribe or tribes may establish treaty shellfish rights to the covered tidelands, the Parties agree to follow the process outlined in the legislation pursuant to subsection 9.A(1) to consider the inclusion of such tribe or tribes in this Settlement Agreement.
10. PROPERTY HELD IN TRUST BY THE UNITED STATES.
The Growers agree that they will not oppose or object to the United States holding in trust any and all properties acquired by the Tribes pursuant to this Consent Decree and Settlement Agreement.
11. RESOLUTION OF DISPUTES.
All disputes arising in the interpretation, implementation and enforcement of this Settlement Agreement and the Revised *858Shellfish Implementation Plan, including but not limited to disputes as to the definition and existence of natural shellfish beds, the qualifications of any person to become an intervenor-defendant pursuant to section 2, whether a particular tideland is covered within the meaning of section 5, and the suitability of any property offered for sale pursuant to section 8, shall be resolved as set forth in the Revised Shellfish Implementation Plan entered April 8, 2002 (or as thereafter amended). This Court retains continuing jurisdiction for this purpose.
12. RESERVATION OF RIGHTS.
Notwithstanding any other provision of this settlement, the State of Washington and the United States expressly reserve their rights and their discretion to consider, comment, and/or act upon any legislation, including appropriations, seeking to implement this agreement. Such consideration, comment, and/or action or lack thereof, shall not be deemed a breach of this agreement. Implementation of this Settlement Agreement by the United States or its agencies is subject to the requirements of the Anti-Deficiency Act, 31 U.S.C. Sec. 1341-1519, and the availability of appropriated funds. Nothing in this Settlement Agreement is intended or shall be construed to require the obligation, appropriation, or expenditure of any money by the State of Washington. As noted more fully in Section 9.A.2, Washington State has enacted a contingent appropriation of money in partial fulfillment of the funding requirements of this agreement. The determination of whether the contingencies to the Washington State budget appropriation have been met remains within the sole discretion of the State of Washington. Nothing in this Settlement Agreement is intended or shall be construed to require the obligation, appropriation, or expenditure of any money from the U.S. Treasury, subject to the terms of any legislation passed consistent with section 9(A)(1)(d). The Parties acknowledge that the United States shall not be required under this Settlement Agreement to expend any appropriated funds unless and until an authorized official of the U.S. Department of the Interior affirmatively acts to commit to such expenditures in writing, subject to the terms of any legislation passed consistent with section 9(A)(1)(d).
13. GROWER ENHANCEMENT OF STATE-OWNED TIDELANDS.
To enhance recreational shellfish harvest opportunities for the citizens of Washington State, as a condition of this settlement agreement, the Growers agree to provide recreational shellfish enhancements to the State and its citizens as set forth in this section. Subject to the fulfillment of the provisions of section 7, the Growers shall each year for a period of ten years contribute to the State of Washington $50,000 worth of shellfish (Manila clam, Pacific oyster, Olympia oyster, or geoduck) enhancement to State-owned tidelands. The $50,000 dollar value to be contributed to the State and its citizens by the Growers each year for that ten year period shall be satisfied through any combination of the fair market value of shellfish seed and any grower-furnished labor, materials and equipment expended to assist the enhancement of State-owned tidelands. The State may choose how the Growers contribute the $50,000 shellfish enhancement through any combination of seed, the species of seed (Manila clam, Pacific oyster, Olympia oyster, or geo-duck), and grower-furnished labor, materials and equipment expended in enhancing state-owned tidelands for recreational harvest. A voluntary committee of State, *859Grower and Tribal representatives may be called by the State to meet annually to assist the State in determining what proportion of seed species and Grower-furnished enhancement efforts would be most useful to the State in increasing the shellfish resource available for recreational harvest on state-owned tidelands. Nothing is this section is intended to modify the Tribes’ rights to harvest up to 50% of the harvestable shellfish from state-owned tidelands as provided in the Court’s Implementation Order and as further clarified by decisions of this Court. In particular, without setting any precedent for situations that may arise in other contexts, the Tribes’ rights to up to 50% of the harvesta-ble shellfish from state-owned tidelands are preserved with respect to state-owned tidelands enhanced pursuant to this section.
DATED this _ day of_, 2007.
/s/
Carl J. Artman, Assistant Secretary — Indian Affairs
United States Department of the Interior
David Bernhardt, Solicitor
United States Department of the Interior
___ Christine
O. Gregoire, Governor State of Washington
Jeff P. Koenings Ph.D, Director
Washington Department of Fish and Wildlife
_Doug
Sutherland
EXHIBIT B
FEDERAL LEGISLATION
IN FULFILLMENT OF ¶ 9.A.1
UNITED STATES PUBLIC LAWS
109th Congress — Second Session
Convening January 7, 2005
Copr. © 2007 Thomson/West. No Claim to Orig. U.S. Govt. Works
Additions and Deletions are not identified in this database.
Vetoed provisions within tabular material are not displayed.
PL 109-479 (HR 5946)
January 12, 2007
MAGNUSON-STEVENS FISHERY CONSERVATION AND MANAGEMENT REAUTHORIZATION
ACT OF
2006
An Act To amend the Magnuson-Ste-vens Fishery Conservation and Management Act to authorize activities to promote improved monitoring and compliance for high seas fisheries, or fisheries governed by international fishery management agreements, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
TITLE VII — MISCELLANEOUS
Sec. 701. Study of the acidification of the oceans and effect on fisheries.
Sec. 702. Puget Sound regional shellfish settlement.
*860SEC. 702. PUGET SOUND REGIONAL SHELLFISH SETTLEMENT.
(a) FINDINGS AND PURPOSES.—
(1) FINDINGS. — Congress finds that—
(A) the Tribes have established treaty rights to take shellfish from public and private tidelands in Washington State, including from some lands owned, leased, or otherwise subject to harvest by commercial shellfish growers;
(B) the district court that adjudicated the Tribes’ treaty rights to take shellfish found that the growers are innocent purchasers who had no notice of the Tribes’ fishing right when they acquired their properties;
(C) numerous unresolved issues remain outstanding regarding implementation of the Tribes’ treaty right to take shellfish from lands owned, leased, or otherwise subject to harvest by the growers;
(D) the Tribes, the growers, the State of Washington, and the United States Department of the Interior have resolved by a settlement agreement many of the disputes between and among them regarding implementation of the Tribes’ treaty right to take shellfish from covered tidelands owned or leased by the growers;
(E) the settlement agreement does not provide for resolution of any claims to take shellfish from lands owned or leased by the growers that potentially may be brought in the future by other Tribes;
(F) in the absence of congressional actions, the prospect of other Tribes claims to take shellfish from lands owned or leased by the growers could be pursued through the courts, a process which in all likelihood could consume many years and thereby promote uncertainty in the State of Washington and the growers and to the ultimate detriment of both the Tribes and other Tribes and their members;
(G) in order to avoid this uncertainty, it is the intent of Congress that other Tribes have the option of resolving their claims, if any, to a treaty right to take shellfish *3650 from covered tidelands owned or leased by the growers; and
(H) this Act represents a good faith effort on the part of Congress to extend to other Tribes the same fair and just option of resolving their claims to take shellfish from covered tidelands owned or leased by the growers that the Tribes have agreed to in the settlement agreement.
(2) PURPOSES. — The purposes of this section are—
(A) to approve, ratify, and confirm the settlement agreement entered into by and among the Tribes, commercial shellfish growers, the State of Washington, and the United States;
(B) to provide other Tribes with a fair and just resolution of any claims to take shellfish from covered tidelands, as that term is defined in the settlement agreement, that potentially could be brought in the future by other Tribes; and
(C) to authorize the Secretary to implement the terms and conditions of the settlement agreement and this section.
(b) APPROVAL OF SETTLEMENT AGREEMENT.—
(I) IN GENERAL. — The settlement agreement is hereby approved, ratified, and confirmed, and section 6 of the settlement agreement, Release of Claims, is specifically adopted and incorporated into this section as if fully set forth herein.
(2) AUTHORIZATION FOR IMPLEMENTATION. — The Secretary is hereby authorized to implement the terms and conditions of the settlement agreement in *861accordance with the settlement agreement and this section.
(c) FUND, SPECIAL HOLDING ACCOUNT, AND CONDITIONS.—
(1) PUGET SOUND REGIONAL SHELLFISH SETTLEMENT TRUST FUND.—
(A) There is hereby established in the Treasury of the United States an account to be designated as the “Puget Sound Regional Shellfish Settlement Trust Fund”. The Secretary shall deposit funds in the amount of $22,000,000 at such time as appropriated pursuant to this section into the Fund.
(B) The Fund shall be maintained and invested by the Secretary of the Interior pursuant to the Act of June 24, 1938 (25 U.S.C. 162a) until such time as all monies are transferred from the Fund.
(C) The Secretary shall transfer monies held in the Fund to each Tribe of the Tribes in the amounts and manner specified by and in accordance with the payment agreement established pursuant to the settlement agreement and this section.
(2) PUGET SOUND REGIONAL SHELLFISH SETTLEMENT SPECIAL HOLDING ACCOUNT.—
(A) There is hereby established in the Treasury of the United States a fund to be designated as the “Puget Sound Regional Shellfish Settlement Special Holding Account”. The Secretary shall deposit funds in the amount of $1,500,000 into the Special Holding Account in fiscal year 2011 at such time as such funds are appropriated pursuant to this section.
*3651
(B) The Special Holding Account shall be maintained and invested by the Secretary of the Interior pursuant to the Act of June 24, 1938, (25 U.S.C. 162a) until such time as all monies are transferred from the Special Holding Account.
(C) If a court of competent jurisdiction renders a final decision declaring that any of the other Tribes has an established treaty right to take or harvest shellfish in covered tidelands, as that term is defined in the settlement agreement, and such tribe opts to accept a share of the Special Holding Account, rather than litigate this claim against the growers, the Secretary shall transfer the appropriate share of the monies held in the Special Holding Account to each such tribe of the other Tribes in the amounts appropriate to compensate the other Tribes in the same manner and for the same purposes as the Tribes who are signatory to the settlement agreement. Such a transfer to a tribe shall constitute full and complete satisfaction of that tribe’s claims to shellfish on the covered tidelands.
(D) The Secretary may retain such amounts of the Special Holding Account as necessary to provide for additional tribes that may judicially establish their rights to take shellfish in the covered tidelands within the term of that Account, provided that the Secretary pays the remaining balance to the other Tribes prior to the expiration of the term of the Special Holding Account.
(E) The Tribes shall have no interest, possessory or otherwise, in the Special Holding Account.
(F) Twenty years after the deposit of funds into the Special Holding Account, the Secretary shall close the Account and transfer the balance of any funds held in the Special Holding Account at that time to the Treasury. However, the Secretary may continue to maintain the Special Holding Account in order to resolve the claim of an other Tribe that has notified the Secretary in writing within the 20-year term of that Tribe’s interest in resolving *862its claim in the manner provided for in this section.
(G) It is the intent of Congress that the other Tribes, if any, shall have the option of agreeing to similar rights and responsibilities as the Tribes that are signatories to the settlement agreement, if they opt not to litigate against the growers.
(3) ANNUAL REPORT. — Each tribe of the Tribes, or any of the other Tribes accepting a settlement of its claims to shellfish on covered lands pursuant to paragraph (2)(C), shall submit to the Secretary an annual report that describes all expenditures made with monies withdrawn from the Fund or Special Holding Account during the year covered by the report.
(4) JUDICIAL AND ADMINISTRATIVE ACTION. — The Secretary may take judicial or administrative action to ensure that any monies withdrawn from the Fund or Special Holding Account are used in accordance with the purposes described in the settlement agreement and this section.
(5) CLARIFICATION OF TRUST RESPONSIBILITY. — Beginning on the date that monies are transferred to a tribe of the Tribes or a tribe of the other Tribes pursuant to this section, *3652 any trust responsibility or liability of the United States with respect to the expenditure or investment of the monies withdrawn shall cease.
(d) STATE OF WASHINGTON' PAYMENT. — The Secretary shall not be accountable for nor incur any liability for the collection, deposit, management or nonpayment of the State of Washington payment of $11,000,000 to the Tribes pursuant to the settlement agreement.
(e) RELEASE OF OTHER TRIBES CLAIMS.—
(1) RIGHT TO BRING ACTIONS. — As of the date of enactment of this section, all right of any other Tribes to bring an action. to enforce or exercise its treaty rights to take shellfish from public and private tidelands in Washington State, including from some lands owned, leased, or otherwise subject to harvest by any and all growers shall be determined in accordance with the decisions of the Courts of the United States in United States v. Washington, Civ. No. 9213 (Western District of Washington).
(2) CERTAIN RIGHTS GOVERNED BY THIS SECTION. — If a tribe failing within the other Tribes category opts to resolve its claims to take shellfish from covered tidelands owned or leased by the growers pursuant to subsection (c)(2)(C) of this section, that tribe’s rights shall be governed by this section, as well as by the decisions of the Courts in United States v. Washington, Civ. No. 9213.
(3) NO BREACH OF TRUST. — Notwithstanding whether the United States has a duty to initiate such an action, the failure or declination by the United States to initiate any action to enforce any other Tribe’s or other Tribes’ treaty rights to take shellfish from public and private tidelands in Washington State, including from covered tidelands owned, leased, or otherwise subject to harvest by any and all growers shall not constitute a breach of trust by the United States or be compen-sable to other Tribes.
(f)CAUSE OF ACTION. — If any payment by the United States is not paid in the amount or manner specified by this section, or is not paid within 6 months after the date specified by the settlement agreement, such failure shall give rise to a cause of action by the Tribes either individually or collectively against the United States for money damages for the amount authorized but not paid to the Tribes, and *863the Tribes, either individually or collectively, are authorized to bring an action against the United States in the United States Court of Federal Claims for such funds plus interest.
(g) DEFINITIONS. — In this section:
(1) FUND. — The term “Fund” means the Puget Sound Shellfish Settlement Trust Fund Account established by this section.
(2) GROWERS. — The term “growers” means Taylor United, Inc.; Olympia Oyster Company; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minterbrook Oyster Company; Charles and Willa Murray; Skookum Bay Oyster Company; J & G Gunstone Clams, Inc.; and all persons who qualify as “growers” in accordance with and pursuant to the settlement agreement.
(3) OTHER TRIBES. — The term “other Tribes” means any federally recognized Indian nation or tribe other than the Tribes described in paragraph (6) that, within 20 years after the deposit of funds in the Special Holding Account, establishes a legally enforceable treaty right to take shellfish from covered *3653 tidelands described in the settlement agreement, owned, leased or otherwise subject to harvest by those persons or entities that qualify as growers.
(4) SECRETARY. — The term “Secretary” means the Secretary of the Interior.
(5) SETTLEMENT AGREEMENT.— The term “settlement agreement” means the settlement agreement entered into by and between the Tribes, commercial shellfish growers, the State of Washington and the United States, to resolve certain disputes between and among them regarding implementation of the Tribes’ treaty right to take shellfish from certain covered tidelands owned, leased or otherwise subject to harvest by the growers.
(6) TRIBES. — The' term “Tribes” means the following federally recognized Tribes that executed the settlement agreement: Tulalip, Stillaguamish, Sauk Suiat-tle, Puyallup, Squaxin Island, Makah, Muckleshoot, Upper Skagit, Nooksack, Nisqually, Skokomish, Port Gamble S’Klal-lam, Lower Elwha Klallam, Jamestown S’Klallam, and Suquamish Tribes, the Lummi Nation, and the Swinomish Indian Tribal Community.
(7) SPECIAL HOLDING ACCOUNT. — The term “Special Holding Account” means the Puget Sound Shellfish Settlement Special Holding Account established by this section.
(h) AUTHORIZATION OF APPROPRIATIONS. — There are authorized to be appropriated $23,500,000 to carry out this section—
(A) $2,000,000 for fiscal year 2007;
(B) $5,000,000 for each of fiscal years 2008 through 2010; and
(C) $6,500,000 for fiscal year 2011.
EXHIBIT C
STATE LEGISLATION
IN FULFILLMENT OF 119.A.2
remove lost and abandoned fishing nets and crab and shrimp pots that may be dangerous to humans and that unintentionally trap and kill endangered salmon and other aquatic species.
(((21))) (31) $4,000 of the wildlife account — state appropriation is provided solely to implement House Bill No. 1210 (temporary fishing license). If the bill is not enacted by June 30, 2005, the amount provided in this subsection shall lapse.
(32) Within existing appropriations and utilizing all available federal moneys allocated for the crab buy-back program, the department shall develop and implement a crab buy-back program that allows com*864mercial crab fishers the opportunity to sell their licenses back to the state and exit from the crabbing fishery. The department shall report to the office of financial management and the appropriate fiscal committees of the legislature its detailed implementation plan no later than December 1, 2006.
(33) $660,000 of the general fund — federal appropriation is provided solely to initiate a review of the hydraulic project approval permit rules and to undergo a public process for adoption of new or revised rules that my be needed. Upon completion, the department shall complete a habitat conservation plan for the hydraulic project approval program, and shall seek legislative review prior to adoption of new or revised rules.
(34) $125,000 of the state wildlife account — state appropriation is provided to implement Engrossed Senate Bill No. 5232 (turkey tags). If the bill is not enacted by June 30, 2006, the amount provided in this subsection shall lapse.
*Sec. S07 was partially vetoed. See message at end of chapter.
*Sec. 308. 2005 c 518 s 308 (uncodified) is amended to read as follows:
*865FOR THE DEPARTMENT OF NATURAL RESOURCES
General Fund — State Appropriation {FY 2006). (($49,-220,000)) $40.473.000
General Fund — State Appropriation (FY 2007). ( ($43, 75-7-/000)) $53.999.000
General Fund — Federal Appropriation . (($15,202,000)) ' $15.215.000
General Fund — Private/Local Appropriation . (($1,275,000)) $1.276.000
Forest Development Account — State Appropriation ... (($-54,-4-41/000)) $54.697.000
Off-Road Vehicle Account — State Appropriation.(($3/086, 000)) $4.001.000
Surveys and Maps Account — State Appropriation.(($2 — 43-6-7-&8Q-)) $2.447.000
Aquatic Lands Enhancement Account — State Appropriation.-. ■ (($B — 344—00 0)) $8.451.000
Resources Management Cost Account — State Appropriation. ( ($85,94-l,-000-)) $86.332.000
Surface Mining Reclamation Account — State Appropriation.(($1,841/00-8-) ) $2.828.000
Disaster Response Account — State Appropriation . $5,000,000 Water Quality Account — State Appropriation. (($27-63-07-000)') $2.636.000
Aquatic Land Dredged Material Disposal Site Account — State Appropriation. (($652,000)) $1.321.000
Natural Resources Conservation Areas Stewardship Account — State Appropriation . $34,000 State Toxics Control Account — State Appropriation . $2,155,000 Air Pollution Control Account — State Appropriation ... (($555,008)) $556.000
Derelict Vessel Removal Account — State Appropriation . (($1,137/000-) ) $1.138.000
Agricultural College Trust Management Account — State Appropriation . {($1/962,000)) $1.966.000
Pension Funding Stabilization Account — State ‘ Appropriation . $136.000 TOTAL APPROPRIATION.(($280,568,000) ) S284-.661.000
The appropriations in this section are subject to the following conditions and limitations:
(1) As described in section 129(7) of this act, the department shall make recommen*866dations and report on monitoring activities related to salmon recovery.
(2) $18,000 of the general fund — state appropriation for fiscal year 2006, $18,000 of the general fund — state appropriation for fiscal year 2007, and $1,652,050 of the aquatic lands enhancement account appropriation are provided solely for the implementation of the Puget Sound conservation and recovery plan and agency action items DNR-01 and DNR-02.
(3) $138,000 of the resource management cost account — state appropriation is provided solely to implement Engrossed Second Substitute House Bill No. 1896 (geoduck harvest). If the bill is not enacted by June 30, 2005, the amount in the subsection shall lapse.
(4) (($953;QQQ)) $972,000 of the general fund — state appropriation for fiscal year 2006 and (($950,000)) $994,000 of the general fund — state appropriation for fiscal year 2007 are provided solely for deposit into the agricultural college trust management account and are provided solely to manage approximately 70,700 acres of Washington State University’s agricultural college trust lands.
(5) ((4:10,635,000)) $10,689,000 of the general fund — state appropriation for fiscal year 2006, $13,635,000 of the general fund — state appropriation for fiscal year 2007, and $5,000,000 of the disaster response account — state appropriation are provided solely for emergency fire suppression. Of these amounts, up to $250,000 may be expended for staff and other necessary resources to design and implement a fire data-collection system that includes financial and performance-management information for fires over 10 acres in size.
None of the general fund and disaster response account amounts provided in this subsection may be used to fund agency indirect and administrative expenses. Agency indirect and administrative costs shall be allocated among the agency’s remaining accounts and appropriations.
(6) $582,000 of the aquatic lands enhancement account appropriation is provided solely for spartina control.
(7) Fees approved by the board of natural resources in the 2005-07 biennium are authorized to exceed the fiscal growth factor under RCW 43.135.055.
(8) $9,000,000 of the general fund — state appropriation for fiscal year ((2006)) 2007 and $2,000,000 of the aquatic lands enhancement account — state appropriation are provided solely for the purposes of settling those claims identified in ((the-eon-sent decree and settlement agreement in)) U.S., et al. v. State of Washington, et al. Subproceeding No. 89-3 (Shellfish), United States District Court for the Western District of Washington at Seattle, Case No. C70-9213. The expenditure of this appropriation is contingent on ((the -release-of those-claims-in -this subproceeding, — In- the event- that ■ -the federal ■ government does not appropriate $22,000,000 for this purpose — by-June -30, 2006,)) a settlement agreement that includes the state of Washington as a party to the agreement which is fully executed by June 29, 2007, and a consent decree entered by June 29, 2007, by the United States District Court for the Western District of Washington settling and releasing the identified treaty claims to harvest shellfish previously negotiated in the settlement agreement. By June 29, 2007, the release of claims associated with the settlement agreement and consent decree must be fully effective and there must be no unfulfilled contingencies that could cause the settlement agreement or consent decree to be vacated at some future date if not fulfilled. In the event that these contin*867gencies are not met, the amounts provided in this subsection shall lapse.
(9) $2,155,000 of the state toxics account — state appropriation is provided solely for the department to meet its obligations with the U.S. environmental protection agency for the clean-up of Commencement Bay and other sites.
(10) The department shall not develop the Gull Harbor facility without first submitting a master plan to the appropriate committees of the legislature. The plan shall ensure continued public access to the waterfront. The plan shall also examine alternative locations to the Gull Harbor site that would colocate marine equipment for all state agencies needing water access in Thurston county. The report shall be submitted by December 1, 2006.
(11) $250,000 of the general fund — state appropriation for fiscal year 2006, $250,000 of the general fund — state appropriation for fiscal year 2007, and $500,000 of the resource management cost account — state appropriation are provided solely for a report on the future of Washington forests. The purpose of the report is to examine economic.
EXHIBIT D
TRIBES’ PAYMENT ALLOCATION AGREEMENTS IN FULFILLMENT OF ¶ 9.A.4
THE HONORABLE RICARDO S. MARTINEZ
UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE
UNITED STATES OF AMERICA, et al., Plaintiffs,
vs.
STATE OF WASHINGTON, et al., Defendants.
Civil No. C70-9213
Subproceeding No. 89-3 (Shellfish)
NOTICE OF COMPLIANCE WITH SHELLFISH SETTLEMENT AGREEMENT SECTION 9.A(4)
Section 9.A(4) of the Shellfish Settlement Agreement provides that the Agreement is expressly conditioned and contingent on the following: “By May 15, 2007, the Tribes that are parties to this Settlement Agreement unanimously agree in writing on the payee or payees, and the allocation of payments to be made, for receipt of the funds appropriated pursuant to subsections 9.A(1) and (2), and serve such writing on the other parties to this agreement.”
All Tribes party to the Settlement Agreement have agreed, in writing, on the allocation of payments and the payees for those payments, as required by Section 9.A(4). Those allocations, and the designation of the names and mailing addresses of the payees, are set forth in the attached documents: South Puget Sound Tribes’ Notice Of Agreement Re: Allocation Of Shellfish Settlement Funds And Payee, with signatures in counterpart; Hood Canal and Strait of Juan de Fuca Regional Shellfish Settlement Fund Memorandum of Agreement, with signatures in counterpart; North Sound Tribes Settlement Agreement, with signatures in counterpart.' These documents and this notice have been served on all other parties by electronic mail, with hard copies placed in the mail, on this 15th day of May, 2007. As required by section 9.C(4) of the Shellfish Settlement Agreement, the tribes notify the State that there is presently no means for individual payees to receive the required payments by wire transfer.
*868The Tribes have therefore fulfilled the contingency set forth in Section 9.A(4).
Respectfully submitted this 15th day of May, 2007.
KANE & KATZEN, PLLC
s/ PHILLIP E. KATZEN, WSBA # 7835
Tribal Co-lead Counsel
MORISSET, SCHLOSSER, JOZWIAK AND
s/MASON D. MORISSET, WSBA # 273
Tribal Co-lead Counsel
SOUTH PUGET SOUND TRIBES’ NOTICE OF AGREEMENT RE: ALLOCATION OF SHELLFISH SETTLEMENT FUNDS AND PAYEE
WHEREAS, section 9.A(4) of the Shellfish Settlement Agreement provides that the Agreement is expressly conditioned and contingent on the following, inter alia: “By May 15, 2007, the Tribes that are parties to this Settlement Agreement unanimously agree in writing on the payee or payees, and the allocation of payments to be made, for receipt of the funds appropriated pursuant to subsections 9.A(1) and (2), and serve such writing on the other parties to this agreement”;
WHEREAS, the Squaxin Island Tribe, the Nisqually Indian Tribe, and the Pu-yallup Indian Tribe (collectively, the “South Puget Sound Tribes”) has each approved the South Puget Sound Regional Shellfish Settlement Fund Trust Agreement (“Trust Agreement”);
WHEREAS, the South Puget Sound Tribes desire to provide notice of their unanimous agreement as to the allocation of Shellfish Settlement Agreement funds and as to the payee for funds allocated to the South Puget Sound Tribes;
WHEREAS, each of the tmdersigned is authorized to enter this Notice of Agreement;
THEREFORE, in satisfaction of section 9.A(4), the South Puget Sound Tribes hereby provide the following Notice of Agreement, consistent with their Trust Agreement
All payments under the Shellfish Settlement Agreement, whether from the United States or the State of Washington, shall be allocated as follows: the South Sound regional' allocation shall be fifteen million dollars payable as 45.454545% of each payment,-whether the payment is from the United States or the State of Washington; the North Sound regional allocation shall be eight million dollars payable as 24.242424% of each payment, whether the payment is from the United States or the State of Washington; and the Hood Canal/Strait of Juan de Fuca regional allocation shall be ten million dollars payable as 30.303030% of each payment, whether the payment is from the United States or the State of Washington.
All South Sound regional allocation payments shall be made and delivered to Charles Schwab & Co., Inc., 1148 Broadway, Suite 110, Tacoma, Washington, 98402, Account No. 90766958.
Dated this 14th of May, 2007.
Squaxin Island Tribe
By: Kevin Lyon, Tribal Attorney
/s/
Nisqually Indian Tribe
By: Bill Tobin, Tribal Attorney
Puyallup Indian Tribe
By: Samuel Stiltner, Tribal Attorney
*869HOOD CANAL AND STRAIT OF JUAN DE FUCA REGIONAL SHELLFISH SETTLEMENT FUND MEMORANDUM OF AGREEMENT
A. Parties
The Parties to this Memorandum of Agreement (MOA) are the Port Gamble S’Klallam, Skokomish, Makah, Lower El-wha Klallam and Jamestown S’Klallam Tribes.
B. Purpose
The Purpose of this MOA is to provide instructions for the Parties’ funds received from the Puget Sound Regional Shellfish Agreement and Consent Decree (Settlement Fund) to be entered in United States v. Washington, Case No. C70-9213, Sub-proceeding 89-3. This MOA also outlines a the frame and specific actions the Parties-will engage-in to develop a Long Term Agreement regarding the use of these funds.
The payments from the United States and the State of Washington are as follows:
1. From the United States:
$2,000,000 by September 3,2007; plus
$5,000,000 by September 3,2008; plus
$5,000,000 by September 3,2009; plus
$5,000,000 by September 3,2010; plus
$5,000,000 by September 3,2011; and
2. From the State of Washington: $11,000,000 will be disbursed by September 3,2007.
C. Regional Share from the Settlement Fund
The Parties’ Hood Canal and Strait of Juan de Fuca (FIC/S3F) regional allocation & Jim the total payments is $10 million, payable as 30,303030% of each payment, whether each payment is from the United States or the State of Washington.
The Parties to this MOA recognize that the South Sound regional allocation from the total payments is $15 million, payable as 45.454545% of each payment, whether each payment is from the United States or the State of Washington; and that the North. Sound regional allocation from the total payment is $8 million, payable as 24.242424% of each payment, whether each payment is from the United States or the State of Washington.
D. Temporary Trust Account
The Parties agree that the fast payment amounts, $3,333,333.33 from the State payment and $606,060.61 from the U.S. payment, for a total of S3,939,393.94 will barnacle payable to, and deposited in, the Temporary Trust Account of Attorney Phil Katzen, of Kati & Matzen, PLLC, 100 South King Street, Suite 560, Seattle, WA 98104. This will be disbursed, along with any interest earned, pursuant to the terms of section “E” below.
When a Joint Investment Vehicle has been selected pursuant to section “E” below, the United States and State of Washington will be notified of the new recipient of the funds to replace the Kanji & Katzen Temporary Trust Account. However, If a new Joint Investment Vehicle, pursuant to section “E” below, is not established by the time of the second and future payment(s) are made, payments will continue to be made to this Temporary Trust Account trail notification of anew Joint Investment Vehicle or Long Terra Agreement bee been, provided to the United States and the State of Washington.
E. Joint Investment Vehicle
The Parties agree to meet within thirty days from the execution of this agreement to establish an agreed upon joint investment vehicle. In order to accomplish this, and seek the best advice on establishing a *870safe and positive return, the Parties agree to consult with financial advisor(s). When a replacement investment vehicle has been selected and approved by the Parties, the entire balance in the temporary trust account (see “D” above) will be transferred in accordance with the Parties’ instructions.
The Parties farther agree that no individual Tribe shall have access to either the Temporary Trust Account or the Joint Investment Vehicle until a long-term agreement (see “F” below) regarding the management and for distribution of the total HUSH portion of the Regional Settlement Fund has been developed.
F. Long Term Agreement
The Parties agree to jointly develop a Long Tenn Agreement for the management and distribution of the proceeds from the HC/SJF Regional Settlement Fund. Ones executed, it shall replace this Memorandum. & Agreement.
The Parties agree that they will meet no less than once per quarter in an effort to reach a permanent agreement concerning the best use of the funds, and that joint meeting locations shall rotate between the Tribes. The Parties agree to exercise good, faith and prudent management practices in all their transactions and negotiations.
G. Agreement Facilitation
If the Parties have not succeeded in completing a Long Term Agreement by September 3,2011, which is the date of the fired payment by the United States, the Parties may submit to mediation, with a mediator to be chosen by the Parties. The costs of any mediation process shall be borne equally by The Parries to this Agreement. The funds, including future HC/SJF Regional Settlement Fund payment and earnings shall remain in the Joint Investment Vehicle until a Long Term Agreement has been finalized regarding their use.
Executed on the 11 of May, 2007, by the undersigned representatives of the Parties
For the Port Gamble S’Klallam Tribe
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Chairman
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For the Makah Tribe
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Chairman
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For the Jamestown S’Klallam Tribe
/s/ (name)
Chairman
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For the Skokomish Tribe
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Chairman
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For the Lower Elwha Klallam Tribe
_:_(name)
_(title)
NORTH SOUND TRIBES SETTLEMENT AGREEMENT
AGREEMENT entered into this 15th day of May, 2007, by and among the following federally recognized Indian Tribes holding Treaty fishing rights reserved in the Treaty of Point Elliott the Lummi Nation (“Lummi”), the Upper Skagit Indian Tribe (“Upper Skagit”), Swinomish Indian Tribal Community (“Swinomish”), the Tulalip Tribes (“Tulalip”), the Suquamish Tribe (“Suquamish”), the Muckleshoot Indian Tribe (“Muckleshoot”), the Nooksack *871Tribe (“Nooksack”), the Sauk-Suiattle Indian Tribe (Sauk-Suiattle), and the Stilla-guamish Tribe (“Stillaguamish”), which have been identified as the “North Sound Tribes” in a certain settlement agreement with. Shellfish Grower parties in the litigation known as United States v. Washington (“Shellfish Settlement Agreement”) and shall be referred to as the “North Sound Tribes” in this Agreement. This instant agreement shall be identified as the “North Sound Agreement” or “Agreement”;
WHEREAS, many of the parties in U.S. v. Washington, Subproceeding 89-3 (“Shellfish Litigation”), including Swinomish, Suquamish, Muckleshoot, and Nook-sack who are parties to this Agreement have entered into or approved the Shellfish Settlement Agreement, a copy of which is attached hereto and made a part hereof as Exhibit A (the “Settlement Agreement”); and
WHEREAS, neither Upper Skagit nor Tulalip have approved the Shellfish Settlement Agreement nor executed any document or resolution which would require them to sign the Shellfish Settlement Agreement; and
WHEREAS, Lummi, has indicated that it is not bound by its earlier resolution to support the Shellfish Settlement Agreement, which resolution has expired by its terms. Lummi has now indicated its willingness to approve the Shellfish Settlement Agreement; and
WHEREAS, the parties hereto are desirous of settling certain issues among themselves as sovereigns and, after the execution of this North Sound Agreement, authorizing and signing the Shellfish Settlement Agreement. Those issues include: 1) the distribution of moneys designated for the North Sound Tribes; 2) the determination of which tribes will have the right to the purchase tideland properties in Samish Bay which must be offered for sale by certain non-Indian shellfish growers (“Growers”) pursuant to the Shellfish Settlement Agreement; and 3) the nature of the rights a Tribe acquires, as against the other parties to this Agreement, upon purchasing such tidelands or any other tidelands in any location.
NOW THEREFORE, in consideration of the mutual promises contained herein, the payments provided for herein and other good and valuable consideration, the parties hereto hereby agree as follows:
1. a.) Solely for the purposes of this North Sound Agreement as part of the Shellfish Settlement Agreement the “Payee Tribes” shall be and be deemed to be Lummi, Upper Skagit, Swinornish, Tulalip, Suquamish, Muckleshoot, and Nooksack;
b.) The Sauk-Suiattle and Stillaguamish Tribes are each holders of the right of taking fish under the Treaty of Point Elliott and as signatories of this agreement are not precluded from participation to the extent applicable upon establishing their respective usual and accustomed fishing areas.
2. The sum of $8.0 million dollars provided to go to the North Sound Tribes shall be paid and distributed to the Payee Tribes equally, each tribe receiving $1,142,857.14 in principal distributions. Payment shall be made in installments as specified herein. Disbursement of each installment payment chill be made within ten (10) business days of the date on which such funds are made available for distribution. Interest and other earnings on the settlement funds shall follow principal and shall be distributed with each installment in equal shares to the North Sound Tribes.
*8723. a.) The 40 acres of tidelands to be available for purchase from the Growers in Samish Bay as set forth in the Settlement Agreement shall be available for purchase exclusively by a consortium consisting of Lummi, Upper Skagit, and Swinomish, based upon the U and A rights of those Tribes in Samish Bay, each member of the consortium contributing its share of the acquisition cost, including, without limitation, all costs associated with title, inspections, closing, division and placing the tidelands (or any portion thereof) into trust, if'the three Tribes so desire. If these tidelands are to be partitioned among these three Tribes, each Tribe shall be responsible for the costs related to its parcel(s) after partition. Nothing herein implies that any Point Elliott Treaty Tribe does not have usual and accustomed fishing grounds and stations in Samish Bay.
b.) Nothing in this section shall prohibit a tribe from purchasing tidelands from a Grower in Samish Bay, which purchase is for tidelands not included in the Grower’s Samish Bay offer in Section 8 of the Shellfish Settlement Agreement.
c.) With respect to section 3(a) above, if the members of the consortium purchase more than 40 acres, then the additional acreage above 40 acres shall be deemed sections 3(6) and 7 acreage. As to such acreage in excess of 40 acres, the consortium shall designate the 40 acres which it wishes to purchase under section 3(a) and the remaining acreage shall be controlled by section 7.
4. Lummi, Upper Skagit and Swinomish shall take steps consistent with buying the said 40 acres, which steps will include either buying the property or properties, offering to purchase the properties, placing earnest money down for such purchase or purchases and/ or, if necessary, seeking court assistance if Lummi, Upper Skagit, and Swinomish believe that either the property or properties offered or the price at which the property is offered is in violation of the Growers’ good faith agreement in the Settlement Agreement.
5. Nothing prohibits or limits the funds which Lummi, Upper Skagit and Swi-nomish are able to use in order to purchase the said 40 acres.
6. As to consortium issues, including the manner and timing of the management of the 40 acres and any potential ceremonial, subsistence and / or commercial use and enhancement of the resources of the property or properties, Lummi, Upper Skagit and Swinomish shall reach joint agreement on such matters through further discussions, negotiations and unanimous consent. Such consortium agreements shall be by separate agreement and not a part of this North Sound Agreement.
7. There are no restrictions prohibiting any of the parties hereto from purchasing tidelands in Samish Bay or any other area under section 3(b) and 3(c). Upon making such purchase, the parties shall take the same rights and responsibilities as a private citizen under the Shellfish Implementation Plan.
8. Nothing in this Agreement shall affect, extinguish, create, increase or decrease any party’s court adjudicated usual and accustomed fishing rights or claims.
9. If a tribe purchases private tidelands within the Point Elliott Treaty area, and on those tidelands there exists a shellfish population that is subject to g & A harvest rights of one or more Point Elliott tribes and the purchasing tribe, *873as the new owner of that property, enhances and increases production, then the extent of U & A harvest rights shall be based on the natural production levels revealed in a survey done originally at or near the time of purchase and not on the increase of production from the efforts of the owner tribe in the same manner as has been required under the Shellfish implementation procedures with other private property owners in the past and future.
10. The provisions of this Agreement apply only to, inhere in and are binding upon the signatory parties to this Agreement. This Agreement is not intended to create any third party beneficiaries with respect to the rights and obligations in this Agreement. '
11. With respect to the consortium interests and activities concerning the 40 acres obtained pursuant to paragraph’ 3(a) set forth above, the parties hereto agree that only Upper Skagit, Swinomish and Lummi have standing to raise an issue with respect to the enforcement of such provisions.
12. This North Sound Agreement shall not be effective unless and until all parties to this Agreement approve and execute the Shellfish Settlement Agreement.
13. a.) The North Sound Tribes hereby agree that, pursuant to the Shellfish Settlement Agreement, they shall receive collectively 24.242424% of the $33 million settlement funds, which when divided equally among the Payee Tribes as set forth above, equals 3.4632035% each.
b.) The North Sound Tribes also agree that the remaining settlement funds shall be disbursed to the other tribes/tribal regions identified in the Shellfish Settlement Agreement as follows: 45.454545% to “South Sound” Tribes and 30.303030% to “Hood Canal/Strait of Juan de Fuea” Tribes, to be directed to such payee or payees and in such amounts as the South Sound Tribes and the Hood Canal/Strait of Juan de Fuca Tribes, respectively, may agree This provision constitutes the agreement of the North Sound Tribes.to these payee designations required by Section 9.A.4. of the Shellfish Settlement Agreement.
14. The North Sound Tribes hereby agree that each disbursement to each Payee Tribe under the Shellfish Settlement Agreement shall be made in the percentage and as provided above with the payment for that tribe delivered to the Chairman of that tribe at the tribal address set forth below.
15. This agreement may be signed in counterparts. Upon signature, the originals shall 13e faxed to the Upper Skagit Indian Tribe at (360) 854-7052 and the originals mailed to the Upper Skagit Indian Tribe, attention Harry Chesnin. When all fax signatures are received by the Upper Skagit Indian Tribe, this Agreement shall be binding upon all the parties hereto and Upper Skagit shall notify all parties by email that the Agreement is binding and shall return a fully executed copy to the chairperson of each signatory tribe at the addresses set forth below.
Swinomish Indian Tribal Community
By: -,-
M. Brian Cladoosby, Chairman
11404 Moorage Way,
POB 817
LaConner WA 98257.
*874ORDER AND CONSENT DECREE APPROVING SETTLEMENT AGREEMENT
Subproceeding No. 89-3 (Shellfish)
(June 21, 2007)
IT IS HEREBY ORDERED:
The Court, having reviewed the Joint Motion for Order And Consent Decree Approving Settlement Agreement, including the June 20, 2007 Settlement Agreement and other documents, finds that the Settlement Agreement is fair and reasonable, both procedurally and substantively, consistent ■ with applicable law, in good faith, and in the public interest. The Settlement Agreement is hereby approved and incorporated as a Consent Decree and Order of this Court.
JOINT MOTION FOR ORDER APPROVING CONSENT DECREE AND SETTLEMENT AGREEMENT
Subproceeding No. 89-3-01 (Shellfish Minimum Density)
Note On Motion Calendar: June 29, 2007
(June 29, 2007)
The Parties identified below seek this Court’s entry of an Order that approves the Parties’ Consent Decree And Settlement Agreement, attached hereto as Exhibit A. The Parties to this Consent Decree and Settlement Agreement, which addresses the minimum density of geo-duck clams, are as follows:
Plaintiff Indian Tribes: Tulalip, Stilla-guamish, Sauk Suiattle, Puyallup, Squaxin Island, Makah, Muckleshoot, Upper Skag-it, Nooksack, Nisqually, Lummi, Skokomish, Port Gamble S’Klallam, Lower Elwha Klallam, Jamestown S’Klallam, Suquamish and Swinomish (“Tribes”);
Plaintiff United States of America;
Defendant State of Washington; and
Intervenor-Defendant Puget Sound Shellfish Growers: Taylor United, Inc.; Olympia Oyster Company; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minter-brook Oyster Company; Charles and Willa Murray; Skookum Bay Oyster Company; and J & G Gunstone Clams, Inc. (“Growers”).
The undersigned representatives of the Parties affirm and agree that the Consent Decree and Settlement Agreement is fair and reasonable and, by the signatures of their representatives below, the Parties consent to and are fully bound by all its terms.
Each undersigned representative of the Parties to this Consent Decree and Settlement Agreement certifies that he or she is fully authorized by that Party to enter into and execute the terms and conditions of this Joint Motion for Order Approving Consent Decree and Settlement Agreement, and to legally bind such Party to the Order and the Settlement Agreement. By their representatives’ signatures below, the Parties consent to the entry of the Order Approving the Consent Decree and Settlement Agreement.
EXHIBIT A
HONORABLE RICARDO MARTINEZ
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF AMERICA, et al., Plaintiffs,
vs.
STATE OF WASHINGTON, et al., Defendants
*875Case No.: C70-9213
Subproceeding No. 89-3-01 (Shellfish Minimum Density)
CONSENT DECREE AND SETTLEMENT AGREEMENT
The Tribes listed in section 1 (“Tribes”), the Intervenor-Defendant Puget Sound Shellfish Growers (“Growers”), and the State of Washington, by and through their undersigned counsel of record, hereby submit this Consent Decree and Settlement Agreement to this Court for its approval.
WHEREAS the Tribes have asserted treaty right claims to take shellfish from tidal and sub-tidal lands owned within the case area in Washington State, which claims have resulted in the following decisions and orders:
1. United States v. Washington, 873 F.Supp. 1422 (W.D.Wash.1994).
2. United States v. Washington, 898 F.Supp. 1453 (W.D.Wash.1995) (establishing a Shellfish Implementation Plan— hereinafter the “Shellfish Implementation Plan”).
3. United States v. Washington, 909 F.Supp. 787 (W.D.Wash.1995).
4. United States v. Washington, 157 F.3d 630 (9th Cir.1998).
5. A Stipulation And Order Amending Shellfish Implementation Plan, dated April 8, 2002) (hereinafter the “Revised Shellfish Implementation Plan”);
WHEREAS the Revised Shellfish Implementation Plan envisions the development of “Exhibit A,” a table of shellfish density values for several species of shellfish, in several regions, and for multiple time periods, the purpose of which is to implement the “staked or cultivated” proviso of the various Stevens Treaties (the “Shellfish Proviso”) as further articulated in the opinions and orders under U.S. v. Washington;
WHEREAS the parties are currently engaged in a dispute resolution sub proceeding to establish density values in Exhibit A for four species of shellfish (geo-duck, pacific oysters, manila clams and native littleneck clams); and
WHEREAS the Tribes, the Growers and the State of Washington are interested in resolving any and all disputes between and among them regarding the appropriate geoduck density value to be applied to aquaculture proposals, they agree as follows.
CONSENT DECREE AND SETTLEMENT AGREEMENT
1. TRIBES.
The Tribes bound by this Consent Decree and Settlement Agreement are the Tulalip, Stillaguamish, Sauk Suiattle, Pu-yallup, Squaxin Island, Makah, Muckle-shoot, Upper Skagit, Nooksack, Nisqually, Lummi, Skokomish, Port Gamble S’Klal-lam, Lower Elwha Klallam, Jamestown S’Klallam, Suquamish, and the Swinomish Tribes (hereinafter “Tribes”) and any other tribe that may be added by agreement or by subsequent order of this Court. The Tribes are parties to the following treaties: Treaty of Medicine Creek, December 26, 1854 (10 Stat. 1132); Treaty of Point Elliott, January 26, 1855 (12 Stat. 927); Treaty of Point No Point, January 26, 1855 (12 Stat. 933); Treaty with the Makah, January 31, 1855 (12 Stat. 939) (hereafter “the treaties”).
2. AQUATIC LANDS COVERED.
This Consent Decree and Settlement Agreement binds the State of Washington, the Growers and the Tribes with respect to intertidal and subtidal lands covered by *876Exhibit A to the Revised Shellfish Implementation Plan or any successor Shellfish Implementation Plan.
3.GEODUCK MINIMUM DENSITY VALUE ESTABLISHED
General Density Value for the Revised Shellfish Implementation Plan: For purposes of aquaculture of geoduck, the geoduek density for all regions and time periods in Exhibit A shall be set at 0.01 geodueks per square foot for the life of this agreement.
Geoduck Beds Identified as “Commercial Beds” in Tract Index Maps: Any subtidal geoduck bed that has been identified as a “commercial bed” in any Commercial Geoduck Tract Index Maps jointly developed by the Tribes and the Washington State Department of Fish and Wildlife, or that is so designated in the future, shall be treated as meeting the 0.01 threshold density of Exhibit A. In the event that intertidal beds of geoducks are added to the Commercial Geoduck Tract Index Maps and designated as a “commercial bed” they shall be treated as meeting the 0.01 threshold density of Exhibit A.
Geoduck Beds Actually Fished for Commercial Purposes: Any subtidal beds of geoducks that have previously been fished commercially pursuant to a state or tribal fishery that was opened pursuant to an agreed fishery plan, or a notice provided pursuant to Section 4.6 of the Revised Shellfish Implementation Plan, shall be treated as meeting the 0.01 threshold density of Exhibit A. Subtidal beds of geoduck clams fished commercially prior to August 28, 1995 pursuant-to the State’s Subtidal Geoduck Dive Fishery program shall also be treated as meeting the 0.01 threshold density of Exhibit A. Where geoduck aquaculture is proposed on intertidal aquatic land that may have been fished commer-dally in the past, such land shall be assessed to determine whether it meets the 0.01 minimum density value for the purposes of this Consent Decree and Settlement Agreement.
If subtidal or intertidal aquatic lands have beds of geoduck clams that have assessed densities of less than 0.01 geoducks per square foot at the time future commercial fishing activity occurs, those beds shall not be treated as meeting the 0.01 threshold density of Exhibit A, unless the parties mutually agree otherwise.
4. TERMS APPLIED SOLELY FOR TREATY PURPOSES
The establishment of a geoduck minimum density value for Exhibit A in this agreement shall not be used to limit or expand any treaty rights to harvest shellfish, identify the existence or absence of natural populations of geoduck, or determine estimates of biomass available for harvest. Any use of the established geo-duck minimum density value of Exhibit A shall be limited to the application of the shellfish treaty harvest principles enumerated in the Revised Shellfish Implementation Plan and the orders and decisions interpreting and applying the Shellfish Proviso.
5. PROTOCOLS FOR ASSESSING GEODUCK DENSITY LEVELS
The density value for a tract of land that is proposed for aquaculture will be computed as an average value across the area that is proposed for aqúaculture cultivation, except to the extent that the proposed area exceeds the size limits stated below. In that case separate average density values will be established for each individual plot and the terms of the Revised Shellfish Implementation Plan will be applied to each plot individually. The computation of an average density value *877for intertidal tracts shall also be computed based upon the upper tidal elevation limit stated below.
The parties acknowledge that geoduck clams are not uniformly distributed when naturally set. To address the risk that commercially interesting conglomerations of clam may be obscured in the assessment of a tract proposed for aquaculture, and to establish a commercially rational and orderly basis for the assessment conducted pursuant to the Revised Shellfish Implementation Plan, the parties agree to employ the following criteria and processes for the development of survey and/or assessment protocols for any proposed geo-duck aquaculture activity:
a.For intertidal beaches: If the area proposed for cultivation exceeds one acre, the identified area will be segmented into separate plots of one acre or less, and the geoduck density value shall be established for each plot. This is not a limitation on the overall size of a proposed intertidal aquaculture tract, but instead a limit on the scale at which geoduck density values are established. Accordingly, each proposed intertidal aquaculture site in excess of one acre will have a separate geoduck density values reported and applied for that plot. The division of a designated aquaculture site into multiple plots shall be undertaken according to protocols agreed upon in accordance with subsection 5(c), below.
For intertidal beaches, geoduck density values will be established by an initial harvest of the entire wild stock on each identified plot, provided that such harvest of the entire wild stock is done pursuant to a written agreement between the State or Grower and affected Tribes, including who will conduct the harvest and how the harvested geoduck will be shared. Where a plot is determined to have a density below 0.01 geo-duck per square foot, the Tribes’ right to a share of geoduck from that plot will not continue beyond the initial harvest. Where a plot is determined to have a density at or above 0.01 geoduck per square foot, the Tribes’ rights will continue as provided by this Settlement Agreement and the Revised Shellfish Implementation Plan.
For intertidal beaches, the computation of an average geoduck density value of the tract of land that is proposed for aquaculture shall not include any portion of the tract that lies above the tidal elevation of +1.0 feet (MLLW).
b. For subtidal areas: If the area proposed for cultivation exceeds three acres, the identified area will be segmented into separate plots of three acres or less, and the geoduck density value shall be established for each plot. The three-acre maximum is not a limitation on the overall size of a subtidal aquaculture tract that may be proposed for lease, but instead a limit on the scale at which geoduck density values are established. Accordingly, proposed subti-dal aquaculture sites in excess of three acres will have separate geoduck density values reported and applied for each identified plot within the proposed lease site. The division of a designated aquaculture site into multiple plots shall be undertaken according to protocols agreed upon in accordance with subsection 5(c), below.
For subtidal beds, geoduck density values will be established by a survey of the wild stock on each identified plot.
c. The State, the Growers and the Tribes agree to work cooperatively to develop more specific protocols for surveys, for division into multiple plots of areas exceeding one and three acres, *878(for intertidal and subtidal beds, respectively), and for the role of show factors in calculating densities from surveys and harvests, to give effect to these provisions. If recreational geoduck catch estimates can reliably assist in the assessment of the geoduck density of State-owned aquatic lands that are proposed for geoduck aquaculture, that information will be factored into the density assessment.
6.TERM OF THIS AGREEMENT AND CONTINUED APPLICATION OF ITS PROVISIONS
Durability of Geoduck Density Threshold Determinations Made With Respect to Specific Aquaculture Proposals: For purposes of determining whether an area or plot proposed for geoduck aquaculture meets the density threshold of Exhibit A, the procedures of the Revised Shellfish Implementation Plan and the orders and decisions interpreting and applying the Shellfish Proviso to proposed aquaculture activity will be applied. This principle shall apply notwithstanding any other limitation on the duration of this Consent Decree and Settlement Agreement.
Continuing Ability to Apply the Agreed Geoduck Density Threshold: The parties agree that the • minimum density established in Section 3 of this Consent Decree and Settlement Agreement, and the other provisions of this Consent Decree and Settlement Agreement that provide for the application of that density level to new geoduck aquaculture activities, shall apply for a period of 25 years from the effective date of this Consent Decree and Settlement Agreement unless renewed or revised by mutual agreement of the parties.
The parties agree to convene a meeting of State, Grower and Tribal representatives at least one year in advance of the expiration of these terms to consider the advisability of extending those terms of this agreement, or modifying the agreement to reflect conditions prevailing at that time.
Agreements to renew or Modify the Terms of this Consent Decree and Settlement Agreement: Any renewal or modifications of this Consent Decree and Settlement Agreement may be undertaken by mutual written agreement between the State, the Growers and any affected Tribe(s) without further action by the court.
Procedures in the event of Non-Renewal: In the event that this Consent Decree and Settlement Agreement expires, the minimum density to be utilized for purposes of the revised Shellfish Implementation Plan shall be determined pursuant to the dispute resolution provisions of that Plan.
7. REVIEW COMMITTEE
The parties agree to form a committee of State, Grower and Tribal representatives to informally address and attempt to resolve specific issues that may arise from the implementation of this Consent Decree and Settlement Agreement.
8. RESOLUTION OF DISPUTES.
All disputes arising in the interpretation, implementation and enforcement of this Settlement Agreement and the Revised Shellfish Implementation Plan that are not resolved informally shall be resolved as set forth in the Revised Shellfish Implementation Plan entered April 8, 2002 (or as thereafter amended). This Court retains continuing jurisdiction for this purpose.
*8799. MINIMUM DENSITY FOR GEO-DUCK NOT A PRECEDENT FOR OTHER SPECIES.
The minimum density for geoduck established by this Consent Decree and Settlement Agreement is based upon a negotiated number that does not reflect the legal positions or factual contentions of either the State, the Growers or the Tribes; it is not based upon any particular method, formula or other calculation that could be used to determine the minimum density or sustainability for any other species or for geoduck in the absence of this agreement. The minimum density for geoduck established by this Consent Decree and Settlement Agreement should not be used or referred to.in any manner or for any purpose as part of the dispute resolution proceedings to determine the minimum density or sustainability of any species.
Respectfully submitted this 29th day of June, 2007.
PLAINTIFF INDIAN TRIBES,
By: s/ PHILLIP E. KATZEN
Phillip E. Katzen, WSBA # 7835
Cory J. Albright, WSBA # 31493
KANJI & KATZEN, PLLC
100 S. King Street, Suite 560
Seattle, WA 98104
Counsel for the Suquamish, Jamestown S’Klallam, Lower Elwha Klallam, Port Gamble S’Klallam, Nisqually, Sauk-Suiat-tle, Skokomish, Squaxin Island, and Stilla-guamish Tribes
By: s/MASON D. MORISSET
Mason D. Morisset, WSBA # 273
MORISSET, SCHLOSSER, et al.
801 Second Ave., Suite 1115
Seattle, WA 98104
Counsel for the Tulalip Tribes
By: s/ LORI E. NIES
Lori E. Nies, WSBA # 26652
SKOKOMISH INDIAN TRIBE
North 80 Tribal Center Rd.
Skokomish Nation, WA 98584
Co-Counsel for the Skokomish Indian Nation
By: s/ALIX FOSTER
Alix Foster, WSBA # 4943
SWINOMISH INDIAN TRIBAL COMMUNITY
PO Box 817
LaConner, WA 98257
Counsel for the Swinomish Indian Tribal Community
By: s/ KEVIN R. LYON
Kevin R. Lyon, WSBA # 15076
SQUAXIN ISLAND LEGAL DEPARTMENT
SE 3711 Old Olympic Hwy.
Shelton, WA 98584
Co-Counsel for the Squaxin Island Tribe
By: s/ MICHELLE HANSEN
Michelle Hansen, WSBA # 14051
SUQUAMISH TRIBE LEGAL DEPARTMENT
PO Box 498
Suquamish, WA 98392
Co-Counsel for the Suquamish Tribe
By: s/ REGINA E, HOVET
Regina E. Hovet, WSBA # 33654
SAUK-SUIATTLE INDIAN TRIBE
5318 Chief Brown Lane
Darrington, WA 98241
Co-Counsel for the Sauk-Suiattle Tribe
By: s/ SAM STILTNER
Sam Stiltner, WSBA # 7765
*880LAW OFFICE, PUYALLUP TRIBE
3009 Portland Ave.
Tacoma, WA 98404
Counsel for the Puyallup Tribe
By: s/ DANIEL A. RAAS
Daniel A. Raas, WSBA # 4970
Harry L. Johnsen, WSBA # 4955
Mary M. Neil, WSBA # 34348
RAAS, JOHNSEN & STUEN, P.S.
1503 E Street
PO Box 5746
Bellingham, WA 98227
Counsel for the Lummi Indian Nation
By: s/ BILL TOBIN
Bill Tobin, WSBA # 4397
LAW OFFICE OF BILL TOBIN
PO Box 1425
Vashon, WA 98070
Co-Counsel for the Nisqually Indian Tribe
By: s/ALAN C. STAY
Robert L. Otsea, Jr., WSBA # 9367
Alan C. Stay, WSBA # 4569
Richard Reich, WSBA # 8178
OFFICE OF THE TRIBAL ATTORNEY
39015 172nd Ave., S.E.
Auburn, WA 98002
Counsel for the Muckleshoot Tribe
By: s/ LAUREN P. RASMUSSEN
Lauren P. Rasmussen, WSBA # 33256
GENDLER & MANN, LLP
1424 4th Ave., Suite 1015
Seattle, WA 98101
Co-Counsel for the Port Gamble and Jamestown S’Klallam Indian Tribes
By: s/ RICHARD BERLEY
Marc Slonim, WSBA # 11181
John Arum, WSBA # 19813
Richard Berley, WSBA # 9209
Brian Gruber, WSBA # 32210
ZIONTZ CHESTNUT, et al.
2101 Fourth Ave., Suite 1230
Seattle, WA 98121
Counsel for the Makah Tribe
By: s/ EDWARD J. WURTZ
Edward J. Wurtz, General Counsel, WSBA # 24741
NOOKSACK INDIAN TRIBE
5048 Mt. Baker Highway
PO Box 157
Deming, WA 98244
Counsel for the Nooksack Tribe
By: s/ HAROLD CHESNIN
Harold Chesnin, WSBA # 398
David Hawkins, WSBA # 35370
UPPER SKAGIT INDIAN TRIBE
25944 Community Plaza Way
Sedro Woolley, WA 98284
Counsel for the Upper Skagit Tribe
THE UNITED STATES OF AMERICA, Plaintiff
By: s/ PETER C. MONSON
Peter C. Monson
United States Department of Justice
Environment and Natural Resources Division
Indian Resources Section
1961 Stout Street, 8th Floor
Denver, CO 80294
THE STATE OF WASHINGTON, Defendant
Rob McKenna
Attorney General of Washington
*881By: s/ MICHAEL S. GROSSMANN
Michael S. Grossmann, WSBA # 15298
Senior Counsel
By: s/ JOSEPH V. PANESKO
Joseph V. Panesko
Assistant Attorney General, WSBA # 25289
Intervenor-Defendant PUGET SOUND SHELLFISH GROWERS,
By: s/ MICHAEL HIMES
Michael Himes, WSBA # 19423
Charles C. Sipos, WSBA # 32825
Perkins Coie LLP
THE HONORABLE RICARDO S. MARTINEZ
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
STATE OF WASHINGTON, et al., Defendants.
NO. C70-9213
Subproceeding No. 89-3-01 (Shellfish Minimum Density)
[PROPOSED] ORDER APPROVING CONSENT DECREE AND SETTLEMENT AGREEMENT
IT IS HEREBY ORDERED:
The Court, having considered the Joint Motion For Order Approving Consent Decree and Settlement Agreement, which addresses the geoduck portion of this minimum density dispute resolution proceeding, finds that the Consent Decree and Settlement Agreement is fair and reasonable, both procedurally and substantively, consistent with applicable law, in good faith, and in the public interest. The Consent Decree and Settlement Agreement is hereby entered and approved. DONE this_day of_, 2007.
Honorable Ricardo S. Martinez
United States Judge, U.S. District Court
Western District of Washington
JOINT MOTION FOR ORDER APPROVING CONSENT DECREE AND SETTLEMENT AGREEMENT RE MANILA CLAMS, NATIVE LITTLENECK CLAMS AND ‘ PACIFIC OYSTERS
Subproceeding No. 89-3-01 (Shellfish Minimum Density)
Note On Motion Calendar: June 29, 2007
(June 29, 2007)
The Parties identified below seek this Court’s entry of an Order that approves the Parties’ Consent Decree And Settlement Agreement Re Manila Clams, Native Littleneck Clams and Pacific Oysters, attached hereto as Exhibit A. The Parties to the Consent Decree and Settlement Agreement are as follows:
Plaintiff Indian Tribes: Tulalip, Stilla-guamish, Sauk Suiattle, Puyallup, Squaxin Island, Makah, Muckleshoot, Upper Skag-it, Nooksack, Nisqually, Lummi, Skokomish, Port Gamble S’Klallam, Lower Elwha Klallam, Jamestown S’Klallam, Suquamish and Swinomish (“Tribes”);
Plaintiff United States of America;
Defendant State of Washington; and
Intervenor-Defendant Puget Sound Shellfish Growers: Taylor United, Inc.; Olympia Oyster Company; G.R. Clam & Oyster Farm; Cedric E. Lindsay; Minter-*882brook Oyster Company; Charles and Willa Murray; Skookum Bay Oyster Company; and J & G Gunstone Clams, Ine. (“Growers”).
The undersigned representatives of the Parties affirm and agree that the Consent Decree and Settlement Agreement is fair and reasonable and, by the signatures of their representatives below, the Parties consent to and are fully bound by all its terms.
Each undersigned representative of the Parties to this Consent Decree and Settlement Agreement certifies that he or she is fully authorized by that Party to enter into and execute the terms and conditions of this Joint Motion for Order Approving Consent Decree and Settlement Agreement, and to legally bind such Party to the Order and the Settlement Agreement. By their representatives’ signatures below, the Parties consent to the entry of the Order Approving the Consent Decree and Settlement Agreement.
EXHIBIT A
HONORABLE RICARDO MARTINEZ
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF AMERICA, et al., Plaintiffs,
vs.
STATE OF WASHINGTON, et al., Defendants
Case No.: C70-9213
Subproceeding No. 89-3-01 (Shellfish Minimum Density)
CONSENT DECREE AND SETTLEMENT AGREEMENT RE MANILA CLAMS, NATIVE LITTLENECK CLAMS AND PACIFIC OYSTERS
The Tribes listed in section 1 below (“Tribes”), the Intervenor-Defendant Puget Sound Shellfish Growers (“Growers”), and the State of Washington, by and through their undersigned counsel of record, hereby submit this Consent Decree and Settlement Agreement to this Court for its approval.
WHEREAS the Tribes have asserted treaty right claims to take shellfish from tidal and sub-tidal lands owned within the case area in Washington State, which claims have resulted in the following decisions and orders:
1. United States v. Washington, 873 F.Supp. 1422 (W.D.Wash.1994).
2. United States v. Washington, 898 F.Supp. 1453 (W.D.Wash.1995) (establishing a Shellfish Implementation Plan-hereinafter the “Shellfish Implementation Plan”).
3. United States v. Washington, 909 F.Supp. 787 (W.D.Wash.1995).
4. United States v. Washington, 157 F.3d 630 (9th Cir.1998).
5. A Stipulation And Order Amending Shellfish Implementation Plan, dated April 8, 2002) (hereinafter the “Revised Shellfish Implementation Plan”);
WHEREAS the Revised Shellfish Implementation Plan envisions the development of “Exhibit A,” a table of shellfish density values for several species of shellfish, in several regions, and for multiple time periods, the purpose of which is to implement the “staked or cultivated” proviso of the various Stevens Treaties (the “Shellfish Proviso”) as further articulated in the opinions and orders under United States v. Washington;
WHEREAS the parties are currently engaged in a dispute resolution sub-pro*883ceeding to establish density values in Exhibit A for four species of shellfish (ie., geoduck, pacific oysters, manila clams and native littleneck clams); and
WHEREAS the parties have reached a separate Consent Decree and Settlement to address the density values for geoduck; and
WHEREAS previously the parties also have agreed to a Settlement Agreement that would resolve the Tribes’ claims to take shellfish on qualifying Growers’ properties held as of August 28, 1995, subject to the fulfillment of certain contingencies spelled out in section 9A of that Settlement Agreement (hereinafter “Shellfish Settlement Agreement”); and
WHEREAS the Tribes, the Growers and the State of Washington are interested in resolving any and all disputes between and among them regarding both the appropriate density value to be applied under Exhibit A to aquaculture proposals for manila clams, native littleneck clams and pacific oysters since August 28,1995 and into the future, and the appropriate allocation of the natural production of those same species if a natural bed is determined to exist.
Now Therefore, in the interest and spirit of cooperation, the parties hereby enter into this Consent Decree and Settlement Agreement and agree to the following:
CONSENT DECREE AND SETTLEMENT AGREEMENT
1. TRIBES.
The Tribes bound by this Consent Decree and Settlement Agreement are the Tulalip, Stillaguamish, Sauk Suiattle, Pu-yallup, Squaxin Island, Makah, Muckle-‘shoot, Upper Skagit, Nooksack, Nisqually, Skokomish, Port Gamble S’Klallam, Lower Elwha Klallam, Jamestown SKIallam, and Suquamish Tribes, the Lummi Nation, and the Swinomish Indian Tribal Community (collectively hereinafter “Tribes”) and any other tribe that may be added by agreement or by subsequent order of this Court. The Tribes are parties to the following treaties: Treaty of Medicine Creek, December 26, 1854 (10 Stat. 1132); Treaty of Point Elliott, January 26, 1855 (12 Stat. 927); Treaty of Point No Point, January 26, 1855 (12 Stat. 933); Treaty with the Makah, January 31, 1855 (12 Stat. 939) (hereafter “the treaties”).
2. CONTINGENT NATURE OF THIS AGREEMENT.
This Consent Decree and Settlement Agreement is contingent upon the successful fulfillment of all contingencies stated in Section 9A of the Shellfish Settlement Agreement between the Tribes, the Growers, the State of Washington and the United States Department of the Interior regarding the Tribes’ claims of rights to take shellfish from tidelands covered by that Settlement Agreement. In the event that any contingency stated in Section 9A of that Settlement Agreement fails to be fulfilled this Consent Decree and Settlement Agreement shall be null and void without further action by the Parties or Order of the Court. In the event that this Consent Decree and Settlement Agreement becomes null and void the parties shall comply with the existing order regarding the trial schedule for this subproceeding.
This Consent Decree and Settlement Agreement shall not be filed with the Court for approval unless and until all aforementioned contingencies stated in Section 9A of the Shellfish Settlement Agreement are fulfilled. Once all contingencies stated in Section 9A of the Shellfish Settlement Agreement are fulfilled, *884and the Court has approved this Consent Decree and Settlement Agreement, this Consent Decree and Settlement Agreement shall become final and binding as of the date of the Court’s approval.
3.DURATION OF THIS AGREEMENT.
The minimum densities established in sections 6 and 7 of this Consent Decree and Settlement Agreement, and the other provisions of this Consent Decree and Settlement Agreement that provide for the application of those density levels to new aquaculture activities, shall apply as of August 28, 1995, and continue from that date forward until 25 years from the effective date of this Consent Decree and Settlement Agreement, unless extended by mutual agreement of the parties or by the terms of this section. At the expiration of 25 years this Consent Decree and Settlement Agreement shall continue in effect unless and until (a) a party gives at least one year’s notice of intent to terminate this Consent Decree and Settlement Agreement with respect to one or more species covered by this Consent Decree and Settlement Agreement, and (b) initiates litigation to establish different minimum densities for that or those species. In the event that a party gives notice of intent to terminate this Consent Decree and Settlement Agreement, and if no new agreement is reached by the date specified in the notice to terminate, this Consent Decree and Settlement Agreement will continue in force until the Court issues a decision establishing new minimum densities. If litigation is initiated to change the minimum density with respect to only some species or some regions, this Consent Decree and Settlement Agreement shall continue in force and effect with respect to all species and all areas not subject to the litigation initiated to establish new minimum densities.
4. NATURAL BED STATUS TO BE DETERMINED BY DENSITY.
The existence of a natural bed of manila clams, native littleneck clams, or pacific oysters, for purposes of Exhibit A and section 6 of the Revised Shellfish Implementation Plan, will be decided on the basis of whether it meets or exceeds the minimum density specified in this Consent Decree and Settlement Agreement, without regard to how long it may take a particular bed to return to a minimum density after harvest. However, the determination of whether a natural bed exists is subject to whether or not the bed is of sufficient size or has a sufficient number of shellfish to constitute a natural bed. Whether a bed of a particular size or containing a particular quantity of shellfish is or is not a natural bed remains an open issue to be resolved through agreement or by dispute resolution on a bed-by-bed basis.
5. DEFINITION OF AREAS.
In lieu of the geographic areas specified in Exhibit A to the Revised Shellfish Implementation Plan, the following areas, as defined below, shall control for purposes of this Consent Decree and Settlement Agreement:
a. Area 1 is defined as all waters west of a line from Johnson Point to Devils Head.
b. Area 2 is defined as all waters south of the Tacoma Narrows Bridge to the Johnson Point/Devils Head line.
c. Area 3 is defined as all waters of Hood Canal south of the Hood Canal Bridge.
d. Area 4 is defined as all remaining waters east of the west end of the' *885Strait of Juan de Fuca not included within Areas f, 2 or 3.
6. MINIMUM DENSITIES FOR MANILA CLAMS AND NATIVE LITT-LENECK CLAMS.
For each year during which this Consent Decree and Settlement Agreement is in effect, the minimum density for both mature, marketable manila clams and mature, marketable native littleneck clams is as follows:
a. For Area 1, 0.14 pounds per square foot.
b. For Area 2, 0.10 pounds per square foot.
c. For Area 3, 0.11 pounds per square foot.
d. For Area 4, 0.07 pounds per square foot.
While the minimum density is the same for both manila and native littleneck clams, each species is to be measured separately.
7. MINIMUM DENSITY FOR PACIFIC OYSTERS.
For each year during which this Consent Decree and Settlement Agreement is in effect, the minimum density for pacific oysters is 0.33 mature, marketable pacific oysters per square foot. This minimum density applies only in Hood Canal, defined for purposes of this section as the waters south of a line from Olele Point to Foulweather Bluff. If a Tribe contends that sustainable natural production of oysters occurs outside of Hood Canal, a Tribe that is party to this Agreement may, pursuant to the terms of Section 11 below, seek application of the minimum density set forth in this Section for those areas.
8. NATURAL PRODUCTION.
Where a natural bed on a Grower’s property has been established by the existence of a density equal to or greater than the minimum density specified for that species in sections 4, 5, 6 and/or 7 above, the natural production of that bed shall be shared with Tribes according to the relevant allocation period as specified below in section 9 or 10. The natural production to be shared shall be the quantity of the mature, marketable shellfish of the relevant species determined to be present on the bed for purposes of the measurement of density used to determine the existence of the natural bed.
9. ALLOCATION PERIOD FOR MANILA CLAMS AND NATIVE LITT-LENECK CLAMS.
The allocation period for manila clams and native littleneck clams is three years. In other words, where a natural bed of manila clams or native littleneck clams exists on a Grower’s property,'the Tribes will be entitled to either one-third of 50% of the natural production of mature harvesta-ble manila or littleneck clams each year, or the entire 50% of the natural production once every three years, at the Grower’s option, or such other equivalent arrangement as the parties may agree, provided that the Tribes shall be permitted to harvest manila clams and native littleneck clams within one year of the initial determination that a natural bed exists, unless the parties agree otherwise. The grower shall elect the allocation arrangement within the first year after the determination that a natural bed exists and that arrangement shall control future harvest allocation and timing unless the parties agree otherwise.
*88610. ALLOCATION PERIOD FOR PACIFIC OYSTERS.
The allocation period for pacific oysters is four years. In other words, where a natural bed of pacific oysters exists on a Grower’s property, the Tribes’ will be entitled to either one-fourth of 50% of the natural production of mature harvestable pacific oysters each year, or the entire 50% of the natural production once every four years, at the Grower’s option, or such other equivalent arrangement as the parties may agree, provided that the Tribes shall be permitted to harvest pacific oysters within one year of the initial determination that a natural bed exists, unless the parties agree otherwise. The grower shall elect the allocation arrangement within the first year after the determination that a natural bed exists and that arrangement shall control future harvest allocation and timing unless the parties agree otherwise.
11. MODIFICATION OF ALLOCATION PERIODS.
The allocation periods established by sections 9 and 10 above, and the amount of the natural production to be allocated, shall continue in force for the term of this Consent Decree and Settlement Agreement, unless either a Grower or a Tribe shows that natural production has changed pursuant to section 6.1.4 of the Revised Shellfish Implementation Plan.
Respectfully submitted this 29th day of June, 2007.
PLAINTIFF INDIAN TRIBES,
By: s/ PHILLIP E. KATZEN
Phillip E. Katzen, WSBA # 7835
Cory J. Abright, WSBA # 31493
KANJI & KATZEN, PLLC
100 S. King Street, Suite 560
Seattle, WA 98104
Counsel for the Suquamish, Jamestown S’Klallam, Lower Elwha Klallam, Port Gamble S’Klallam, Nisqually, Sauk-Suiat-tle, Skokomish, Squaxin Island, and Stil-laguarnish Tribes
By: s/ MASON D. MORISSET
Mason D. Morisset, WSBA # 273
MORISSET, SCHLOSSER, et al.
801 Second Ave., Suite 1115
Seattle, WA 98104
Counsel for the Tulalip Tribes
By: s/ LORI E. NIES
Lori E. Nies, WSBA # 26652
SKOKOMISH INDIAN TRIBE
North 80 Tribal Center Rd.
Skokomish Nation, WA 98584
Co-Counsel for the Skokomish Indian Nation
By: s/ALIX FOSTER
Alix Foster, WSBA # 4943
SWINOMISH INDIAN TRIBAL COMMUNITY
PO Box 817
LaConner, WA 98257
Counsel for the Swinomish Indian Tribal Community
By: s/ KEVIN R. LYON
Kevin R. Lyon, WSBA # 15076
SQUAXIN ISLAND LEGAL DEPARTMENT
SE 3711 Old Olympic Hwy.
Shelton, WA 98584
Co-Counsel for the Squaxin Island Tribe
By: s/MICHELLE HANSEN
Michelle Hansen, WSBA # 14051
SUQUAMISH TRIBE LEGAL DEPARTMENT
PO Box 498
*887Suquamish, WA 98392
Co-Counsel for the Suquamish Tribe
By: s/ REGINA E. HOVET
Regina E. Hovet, WSBA # 33654
SAUK-SUIATTLE INDIAN TRIBE
5318 Chief Brown Lane
Darrington, WA 98241
Co-Counsel for the Sauk-Suiattle Tribe
By: s/LORI E. NIES
Lori E. Nies, WSBA # 26652
SKOKOMISH INDIAN TRIBE
North 80 Tribal Center Rd.
Skokomish Nation, WA 98584
Co-Counsel for the Skokomish Indian Nation
By: s/ALIX FOSTER
Alix Foster, WSBA # 4943
SWINOMISH INDIAN TRIBAL COMMUNITY
PO Box 817
LaConner, WA 98257
Counsel for the Swinomish Indian Tribal Community
By: s/KEVIN R. LYON
Kevin R. Lyon, WSBA # 15076
SQUAXIN ISLAND LEGAL DEPARTMENT
SE 3711 Old Olympic Hwy.
Shelton, WA 98584
Co-Counsel for the Squaxin Island Tribe
By: s/MICHELLE HANSEN
Michelle Hansen, WSBA # 14051
SUQUAMISH TRIBE LEGAL DEPARTMENT
PO Box 498
Suquamish, WA 98392
Co-Counsel for the Suquamish Tribe
By: s/REGINA E. HOVET
Regina E. Hovet, WSBA # 33654
SAUK-SUIATTLE INDIAN TRIBE
5318 Chief Brown Lane
Darrington, WA 98241
Co-Counsel for the Sauk-Suiattle Tribe
By: s/SAM STILTNER
Sam Stiltner, WSBA # 7765
LAW OFFICE, PUYALLUP TRIBE
3009 Portland Ave.
Tacoma, WA 98404
Counsel for the Puyallup Tribe
By: s/MARBY M. NEIL
Daniel A. Raas, WSBA # 4970
Harry L. Johnsen, WSBA # 4955
Mary M. Neil, WSBA # 34348
RAAS, JOHNSEN & STUEN, P.S.
1503 E Street
PO Box 5746
Bellingham, WA 98227
Counsel for the Lummi Indian Nation
By: s/BILL TOBIN
Bill Tobin, WSBA # 4397
LAW OFFICE OF BILL TOBIN
PO Box 1425
Vashon, WA 98070
Co-Counsel for the Nisqually Indian Tribe
By: s/ALAN C. STAY
Robert L. Otsea, Jr., WSBA # 9367
Alan C. Stay, WSBA # 4569
Richard Reich, WSBA # 8178
OFFICE OF THE TRIBAL ATTORNEY
39015 172nd Ave., S.E.
Auburn, WA 98002
Counsel for the Muckleshoot Tribe
*888By: s/LAUREN P. RASMUSSEN
Lauren P. Rasmussen, WSBA # 33256
GENDLER & MANN, LLP
1424 4th Ave., Suite 1015
Seattle, WA 98101
Co-Counsel for the Port Gamble and Jamestown S’Klallam Indian Tribes
By: s/RICHARD BERLEY
Marc Slonim, WSBA # 11181
John Arum, WSBA # 19813
Richard Berley, WSBA # 9209
Brian Gruber, WSBA # 32210
ZIONTZ CHESTNUT, et al.
2101 Fourth Ave., Suite 1230
Seattle, WA 98121
Counsel for the Makah Tribe
By: s/EDWARD J. WURTZ
Edward J. Wurtz, General Counsel, WSBA # 24741
NOOKSACK INDIAN TRIBE
5048 Mt. Baker Highway
PO Box 157
Deming, WA 98244 •
Counsel for the Nooksack Tribe
By: s/HAROLD CHESNIN
Harold Chesnin, WSBA # 398
David Hawkins, WSBA # 35370
UPPER SKAGIT INDIAN TRIBE
25944 Community Plaza Way
Sedro Woolley, WA 98284
Counsel for the Upper Skagit Tribe
THE UNITED STATES OF AMERICA, Plaintiff
By: s/PETER C. MONSON
Peter C. Monson
United States Department of Justice
Environment and Natural Resources Division
Indian Resources Section
1961 Stout Street, 8th Floor
Denver, CO 80294
THE STATE OF WASHINGTON, Defendant
Rob McKenna
Attorney General of Washington
By: s/MICHAEL S. GROSSMANN
Michael S. Grossmann, WSBA # 15293
Senior Counsel
By: s/JOSEPH V. PANESKO
Joseph y. Panesko
Assistant Attorney General, WSBA# 25289
Intervenor-Defendant PUGET SOUND SHELLFISH GROWERS,
By: s/MICHAEL HIMES
Michael Himes, WSBA # 19423
Charles C. Sipos, WSBA # 32825
Perkins Coie LLP
THE HONORABLE RICARDO S. MARTINEZ
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE
UNITED STATES OF AMERICA, et al., Plaintiffs,
v.
STATE OF WASHINGTON, et al., Defendants.
NO. C70-9213
Subproceeding No. 89-3-01 (Shellfish Minimum Density)
*889[PROPOSED] ORDER APPROVING CONSENT DECREE AND SETTLEMENT AGREEMENT RE MANILA CLAMS, NATIVE LITTLENECK CLAMS AND PACIFIC OYSTERS
IT IS HEREBY ORDERED:
The Court, having considered the Joint Motion For Order Approving Consent Decree and Settlement Agreement, which addresses the geoduck portion of this minimum density dispute resolution proceeding, finds that the Consent Decree and Settlement Agreement is fair and reasonable, both procedurally and substantively, consistent with applicable law, in good faith, and in the public interest. The Consent Decree and Settlement Agreement is hereby entered and approved.
DONE this _ day of _, 2007.
Honorable Ricardo S. Martinez
United States Judge, U.S. District Court
Western District of Washington
ORDER APPROVING CONSENT DECREE AND SETTLEMENT AGREEMENT
Subproceeding No. 89-3-01 (Shellfish Minimum Density)
(July 11, 2007)
IT IS HEREBY ORDERED:
The Court, having considered the Joint Motion For Order Approving Consent Decree and Settlement Agreement, which addresses the geoduck portion of this minimum density dispute resolution proceeding, finds that the Consent Decree and Settlement Agreement is fair and reasonable, both procedurally and substantively, consistent with applicable law, in good faith, and in the public interest. The Consent Decree and Settlement Agreement is hereby entered and approved.
ORDER APPROVING CONSENT DECREE AND SETTLEMENT AGREEMENT RE MANILA CLAMS, NATIVE LITTLENECK CLAMS AND PACIFIC OYSTERS
Subproceeding No. 89-3-01 (Shellfish Minimum Density)
(July 11, 2007)
IT IS HEREBY ORDERED:
The Court, having considered the Joint Motion For Order Approving Consent Decree and Settlement Agreement Re Manila Clams, Native Littleneck Clams and Pacific Oysters, finds that the Consent Decree and Settlement Agreement is fair and reasonable, both procedurally and substantively, consistent with applicable law, in good faith, and in the public interest. The Consent Decree and Settlement Agreement is hereby entered and approved.
ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT
Subproceeding No. 01-1
(August 22, 2007)
This matter was initiated by a Request for Determination (“Request”) filed in 2001 by plaintiffs Suquamish Indian Tribe, Jamestown S’Klallam, Lower Elwha Band of Klallam, Port Gamble Clallam, Nisqually Indian Tribe, Nooksack Tribe, Sauk-Suiattle Tribe, Skokomish Indian Tribe, Squaxin Island Tribe, Stillaguamish Tribe, Upper Skagit Tribe, Tulalip Tribe, Lummi Indian Nation, Quinault Indian Nation, Pu-yallup Tribe, Hoh Tribe, Confederated Bands and Tribes of the Yakama Indian Nation, Quileute Indian Tribe, Makah Nation, Swinomish Tribal Community, and *890Muckleshoot Indian Tribe (hereafter, “the Tribes”). It is now before the Court for consideration of cross-motions for summary judgment filed by defendant State of Washington (“State”) and by the plaintiff Tribes.1 Dkt. ##287, 295. Oral argument was heard on the motions on February 1, 2007. The parties were then referred to the Honorable J. Kelley Arnold, United Magistrate Judge, for a settlement conference. The Court was advised on May 10, 2007 that the mediation was unsuccessful, and the matter was ripe for issuance of a decision on the summary judgment motions. The matter is set for trial on September 24, 2007.
The memoranda, exhibits, and arguments of the parties have been fully considered by the Court, as has the prior case history. For the reasons set forth below, the Court shall grant the Tribes’ motion for partial summary judgment, and shall deny the summary judgment motion filed by the State of Washington.
BACKGROUND
This is a designated subproceeding of United States, et al. v. State of Washington, et al., C709213. The United States, in conjunction with the Tribes, initiated this sub-proceeding in early 2001, seeking to compel the State of Washington to repair or replace any culverts that are impeding salmon migration to or from the spawning grounds. The Request for Determination, filed pursuant to the permanent injunction in this ease, maintains that the State has a treaty-based duty to preserve fish runs so that the Tribes can earn a “moderate living”. The State’s original Answer asserted cross- and counter-Requests for Determination, claiming injunc-tive and declaratory relief against the United States for placing a disproportionate burden of meeting the treaty-based duty (if any) on the State. The State also asserted that the United States has managed its own lands in such a way as to create a nuisance that unfairly burdens the State.
In 2001, the United States moved to dismiss the counterclaims, contending that it has not waived sovereign immunity with respect to these claims, and that the State lacks standing to assert tribal rights derived from the Treaties. The Court originally denied the motion to dismiss, but upon reconsideration the motion to dismiss the counterclaims was granted. The Court found that it lacked jurisdiction over the State’s counterclaims because sovereign immunity has not been waived. A subsequent motion by the State for leave to file an amended Answer asserting counter-claims was denied. These cross-motions for summary judgment followed.
The parties have cooperated fully with one another throughout these proceedings, including discovery and settlement negotiations. They agree that material facts are not in dispute. Nevertheless, they have been unable to arrive at a settlement, and now ask the Court to resolve the legal issues presented.
DISCUSSION
This subproceeding arises from the language in Article III of the 1855 Treaty of Point Elliott (“Stevens Treaties”) in which the Tribes were promised that “[t]he right of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians, in common with all citizens of the Territory ...” Dkt. # 287-2. The *891Tribes, in their Request for Determination, state that they brought this action
to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat so that adult fish production is reduced, which in turn reduces the number of fish available for harvest by the Tribes. In part due to the reduction of harvestable fish caused by those actions of the State, the ability of the Tribes to achieve a moderate living from their Treaty fisheries has been impaired.
Request for Determination, Dkt. # 1, p. 1.
The Tribes requested mandatory relief “requiring Washington to identify and then to open culverts under state roads and highways that obstruct fish passage, for fish runs returning to or passing through the usual and accustomed grounds and stations of the plaintiff tribes.”2 Id. Specifically, they request a declaratory judgment, establishing that (1) the right of taking fish secured by the Treaties imposes a duty upon the State of Washington to refrain from diminishing the number of fish passing through, or to or from, the Tribes’ usual and accustomed fishing grounds by improperly constructing or maintaining culverts under State-owned roads and highways; and that (2) the State has violated, and continues to violate, the duty owed the Tribes under the Stevens Treaties. Further, the Tribes request .a prohibitory injunction, prohibiting the State of Washington and its agencies from constructing or maintaining any culverts that reduce the number of fish that would otherwise return to or pass through the usual and accustomed fishing grounds of the Tribes. Finally, they request a mandatory injunction, requiring the State to (1) identify, within eighteen months, the location of all culverts constructed or maintained by State agencies, that diminish the number of fish in the manner set forth above, and (2) fix, within five years after judgment, and thereafter maintain all culverts built or maintained by any State agency, so that they do not diminish the number of fish as set forth above. Id., pp. 6-7.
The State has moved for summary judgment as to all aspects of the Request. The Tribes have moved for partial summary judgment as to the declaratory judgment portion of their Request. Shortly before the February 1, 2007 hearing, the parties stipulated to define the scope of this sub-proceeding to include “only those culverts that block fish passage under State-owned roads.” Dkt. # 341. Therefore, culverts that do not actually block fish passage, as well as tidegates, are not within the scope of this subproceeding. Id. ,
The Tribes, in their Request, assert that between 1974, the year that this case was originally decided, and 1986, Tribal harvests of anadromous fish (salmon and steelhead) rose dramatically, eventually reaching some 5 million fish. Then harvests declined, so that by 1999 harvests were back down to the 1974 levels.3 The *892Tribes contend that “[a] significant reason for the decline of harvestable fish has been the destruction and modification of habitat needed for their survival.” Request for Determination, Dkt. # 1, ¶¶ 2.5, 2.6, 2.7.
The Request addresses one specific type of habitat modification: the placement of culverts rather than bridges where roadways cross rivers and streams. The Tribes allege that when such culverts are improperly built or maintained, they block fish passage up or down the stream, “thereby preventing out-migration of juvenile fish to rearing areas or the salt water, or the return of adult fish to spawning beds, or both.” Id., ¶ 3.1. According to the Tribes, culverts under State-owned or maintained roads block fish access to at least 249 linear miles of stream, thus closing off more than 400,000 square meters of productive spawning habitat, and more than 1.5 million square meters of productive rearing habitat for juvenile fish. Id., ¶ 3.7. The Tribes state that, by the State’s own estimates, removal of the obstacles presented by blocked culverts would result in an annual increase in production of 200,-000 fish, many of which would be available for Tribal harvest. Id., ¶ 3.8.
The State does not dispute the fact that a certain number of culverts under State-owned roads present barriers to fish migration. The State notes that 18% of the culverts on land managed by the Department of Natural Resources (“DNR”) were identified as barriers in a 2000 inventory. Washington State Parks (“WDP”) have identified 120 culverts as fish passage barriers. And of the thousands of culverts passing under roads maintained by the Washington State Department of Transportation (“WSDOT”), the State asserts that “most”, but not all, allow free passage of migrating fish — meaning that many do not.4 Motion for Summary Judgment, pp. 8-11.
The State argues that the Tribes have produced no evidence that the blocked culverts “affirmatively diminish[ ] the number of fish available for harvest”. State’s Reply, Dkt. #319, p. 2. The Tribes have, however, produced evidence of greatly diminished fish runs. While there may be other contributing causes for this, the conclusion is inescapable that if culverts block fish passage so that they cannot swim upstream to spawn, -or downstream to reach the ocean, those blocked culverts are responsible for some portion of the dimin-ishment. It is not necessary for the Tribes to exactly quantify the numbers of “missing” fish to proceed in this matter.
The issue then becomes a purely, legal one: whether the Tribes’ treaty-based right of taking fish imposes upon the State a duty to refrain from diminishing fish runs by constructing or maintaining culverts that block fish passage. The State asserts that this question has already been answered, and the Tribes’ position reject*893ed, by the Ninth Circuit Court of Appeals. However, that is not a correct characterization of the appellate court’s prior rulings in this matter.
In 1976, after the Tribes won recognition of their treaty-based right to a fair and equitable share of harvestable fish in Phase I of this case, this Court turned to address environmental issues raised earlier. One of two questions addressed by the Court in Phase II was “whether the right of taking fish incorporates the right to have treaty fish protected from environmental degradation.” United States v. Washington, 506 F.Supp. 187, 190 (1980). The district court held that “implicitly incorporated in the treaties’ fishing clause is the right to have the fishery habitat protected from man-made despoilation.” Id. at 203. The Court then assigned to the State a burden “to demonstrate that any environmental degradation of the fish habitat proximately caused by the State’s actions (including the authorization of third parties’ activities) will not impair the tribes’ ability to satisfy their moderate living needs.” Id. at 207.
The Ninth Circuit Court of Appeals reversed this portion of the district court’s order, but not as conclusively as the State suggests.
Let us repeat the essence of our interpretation of the treaty. Although we reject the environmental servitude created by the district court, we do not hold that the State of Washington and the Indians have no obligations to respect the other’s rights in the resource Instead, ... we find on the environmental issue that the State and the Tribes must each take reasonable steps commensurate with the resources and abilities of each to preserve and enhance the fishery when their projects threaten then-existing levels.
United States v. Washington, 694 F.2d 1374, 1389 (9th Cir.1982).
Upon request for rehearing en banc, the three-judge panel’s opinion was vacated. United States v. Washington, 759 F.2d 1353, 1354 (9th Cir.1985). A highly divided eleven — member court issued a per cu-riam decision vacating the district court’s declaratory judgment on the environmental issue. The court’s order did not contain broad and conclusive language necessary to reject the idea of a treaty — based duty in theory as well as in practice. Instead, the Court found that the declaratory judgment on environmental issues was imprecise and lacking in a sufficient factual basis.
We choose to rest our decision in this case on the proposition that issuance of the declaratory judgment on the environmental issue is contrary to the exercise of sound judicial discretion. The legal standards that will govern the State’s precise obligations and duties under the treaty with respect to the myriad State actions that may affect the environment of the treaty area will depend for their definition and articulation upon concrete facts which underlie a dispute in a particular case. Legal rules of general applicability are announced when their consequences are known and understood in the case before the court, not when the subject parties and the court giving judgment are left to guess at their meaning. It serves neither the needs of the parties, nor the jurisprudence of the court, nor the interests of the public for the judiciary to employ the declaratory judgment procedure to announce legal rules imprecise in definition and uncertain in dimension. Precise resolution, not general admonition, is the function of declaratory relief. These necessary predicates for a declaratory judgment have *894not been met with respect to the environmental issues in this case.
The State of Washington is bound by the treaty. If the State acts for the primary purpose or object of affecting or regulating the fish supply or catch in noncompliance with the treaty as interpreted by past decisions, it will be subject to immediate correction and remedial action by the courts. In other instances, the measure of the State’s obligation will depend for its precise legal formulation on all of the facts presented by a particular dispute.
Id. at 1357 (emphasis added).
The appellate court’s ruling, then, cannot be read as rejecting the concept of a treaty-based duty to avoid specific actions which impair the salmon runs. The court did not find fault with the district court’s analysis on treaty-based obligations, but rather vacated the declaratory judgment as too broad, and lacking a factual basis at that time.5 The court’s language, however, clearly presumes some obligation on the part of the State; not a broad “general admonition” as originally imposed by the district court, but a duty which could be defined by concrete facts presented in a particular dispute. This dispute, limited as it is to “only those culverts that block fish passage under State-owned roads”, is capable of resolution through the declaratory relief requested by the tribes. The Tribes have presented sufficient facts, in the form of fish harvest data and numbers of blocked culverts, to meet the appellate court’s stated requirements for issuance of a declaratory judgment. A narrowly-crafted declaratory judgment such as the one requested here does not raise the specter of a broad “environmental servitude” so feared by the State.
In moving for summary judgment, the State also asserts that “[n]o treaty language supports ‘moderate living’ as the measure of any servitude”. Motion for Summary Judgment, p. 16. The State argues that the Tribes have proposed that the State has a duty to avoid impairing their ability to earn a “moderate living”, but no tribal member can define the term “moderate living”. The State further asserts that the term “moderate living” does not appear in the treaty, and that since the treaty is a contract, its provisions must be definite in order to be enforceable. According to the State, “the term is inherently ambiguous.” Motion for Summary Judgment, p. 17.
The term “moderate living” was coined by the courts, not the parties. It is thus indeed not a part of the treaty “contract”; *895it is an interpretation that has been applied by the courts. In State of Washington, et al. v. Washington State Commercial Passenger Fishing Vessel Association, et al., 443 U.S. 658, 99 S.Ct. 3055, 61 L.Ed.2d 823 (1979), the Supreme Court stated,
We also agree with the Government that an equitable measure of the common right should initially divide the harvesta-ble portion of each run that passes through a “usual and accustomed” place into approximately equal treaty and non-treaty shares, and should then reduce the treaty share if tribal needs may be satisfied by a lesser amount....
The division arrived at by the District Court is also consistent with our earlier decisions concerning Indian treaty rights to scarce natural resources. In those cases, after determining that at the time of the treaties the resource involved was necessary to the Indians’ welfare, the Court typically ordered a trial judge or special master, in his discretion, to devise some apportionment that assured that the Indians’ reasonable livelihood needs would be met. Arizona v. California, 373 U.S. [546] at 600, 83 S.Ct. 1468[, 10 L.Ed.2d 542 (1963)]....
Thus, [the district court] first concluded that at the time the treaties were signed, the Indians, who comprised three-fourths of the territorial population, depended heavily on anadromous fish as a source of food, commerce, and cultural cohesion. Indeed, it found that the non-Indian population depended on Indians to catch the fish that the former consumed. Only then did it determine that the Indians’ present-day subsistence and commercial needs should be met, subject, or course, to the 50% ceiling.
.... As in Arizona v. California and its predecessor cases, the central principal here must be that Indian treaty rights to a natural resource that once was thoroughly and exclusively exploited by the Indians secures so much as, but no more than, is necessary to provide the Indians with a livelihood — that is to say, a moderate living.
Id. at 686, 99 S.Ct. 3055 (citations omitted) (emphasis added).
The State’s argument that the term “moderate living” is ambiguous and unenforceable in contract terms is thus without merit. It is neither a “missing term” in the contract, nor a meaningless provision; it is a measure created by the Court. To the extent that it needs definition, it would be for the Court, not the Tribes, to define it. No party has yet asked that the Court do so, and the Court finds it unnecessary at this time. The Tribes’ showing that fish harvests have been substantially diminished, together with the logical inference that a significant portion of this diminishment is due to the blocked culverts which cut off access to spawning grounds and rearing areas, is sufficient to support a declaration regarding the culverts’ impairment of treaty rights.
In finding a duty on the part of the State to refrain from blocking fish access to spawning grounds and rearing habitat, the Court has been guided by well-established principles of treaty construction. These were set forth as they applied to the treaties at issue here by the Supreme Court in State of Washington v. Washington State Commercial Passenger Fishing Vessel Association.
[I]t is the intention of the parties, and not solely that of the superior side, that must control any attempt to interpret the treaties. When Indians are involved, this Court has long given special meaning to this rule. It has held that *896the United States, as the party with the presumptively superior negotiating skills and superior knowledge of the language in which the treaty is recorded, has a •responsibility to avoid taking advantage of the other side. “[T]he treaty must therefore be construed, not according to the technical meaning of its words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.” This rule, in fact, has thrice been explicitly relied on by the Court in broadly interpreting these very treaties in the Indians’ favor.
Governor Stevens and his associates were well aware of the “sense” in which the Indians were likely to view assurances regarding their fishing rights. During the negotiations, the vital importance of the fish to the Indians was repeatedly emphasized by both' sides, and the Governor’s promises that the treaties would protect that source of food and commerce were crucial in obtaining the Indians’ assent. It is absolutely clear, as Governor Stevens himself said, that neither he nor the Indians intended that the latter “should be excluded from their ancient fisheries”, see n. 9, supra, and it is accordingly inconceivable that either party deliberately agreed to authorize future settlers to crowd the Indians out of any meaningful use of their accustomed places to fish. That each individual Indian would share an “equal opportunity” with thousands of newly arrived individual settlers is totally foreign to the spirit of the negotiations. Such a “right”, along with the $207,500 paid the Indians, would hardly have been sufficient to compensate them for the millions of acres they ceded to the Territory. Moreover, in light of the far superior numbers, capital resources, and technology of the non-Indians, the concept of the Indians’ “equal opportunity ” to take advantage of a scarce resource is likely in practice to mean that the Indians’ “right of taking fish” will net them virtually no catch at all....
Id. at 675-677, 99 S.Ct. 3055 (citations omitted; emphasis in bold added, emphasis in italics in original).
After rejecting the State’s “equal opportunity” theory, the Court went on to discuss the meaning of “in common with” as used in the treaties.
But we think greater importance should be given to the Indians’ likely understanding of the other words in the treaties and especially the reference to the “right of taking fish” — a right that had no special meaning at common law but that must have had obvious significance to the tribes relinquishing a portion of their pre-existing rights to the United States in return for this promise. This language is particularly meaningful in the context of anadromous fisheries— which were not the focus of the common law — because of the relative predictability of the “harvest”. In this context, it makes sense to say that a party has a right to “take” — rather than merely the “opportunity” to try to catch — some of the large quantities of fish that will almost certainly be available at a given time.
This interpretation is confirmed by additional language in the treaties. The fishing clause speaks of “securing” certain fishing rights, a term the Court has previously interpreted as synonymous with “reserving” rights previously exercised. Because the Indians had always exercised the right to meet their subsistence and commercial needs by taking fish from treaty area waters, they would be unlikely to perceive a “reservation” of that right as merely the chance, shared *897with millions of other citizens, occasionally to dip their nets in to the territorial waters.
Id. at 678-680, 99 S.Ct. 3055 (citations omitted; emphasis in italics in original).
It was thus the right to take fish, not just the right to fish, that was secured by the treaties. The significance of this right to the Tribes, its function as an incentive for the Indians to sign the treaties, and the Tribes’ reliance on the unchanging nature of that right, have been set forth in expert declarations provided by the' Tribes. Historian Richard White, Ph.D., who has researched the history of the Stevens Treaties, including the intentions, expectations, and understandings of the negotiators on both sides, states that
[o]ne vital part of the relations that Stevens sought to perpetuate was Indian fishing, both for subsistence and for trade. Stevens and the other treaty negotiators knew well that Puget Sound Indians relied heavily on their fisheries....
The Indians themselves expressed the importance of fishing to their way of life, and Stevens and the other negotiators assured them of their continued access to the fisheries. Treaty minutes record that at Point-No-Point, One-lun-teh-tat, an “Old Sko-komish Indian” worried how they were to feed themselves once they ceded so much land to the whites, while Hool-hole-tan-akim also wanted to retain half the land. <rWhy,” he asked, “should we sell? We may become destitute. Why not let us live together with you?” In the face of such objections, Benjamin F. Shaw, the interpreter, reassured the Indians that they were “not called upon to give up their old modes of living as places of seeking food, but only to confine their houses to one spot.” And Michael Simmons, the special Indi-
an agent for Puget Sound, explained that if they retained a large amount of land they would be confined to it, but that “when a small tract alone was left, the privilege was given of going wherever they pleased to fish and work for the whites.” In negotiations at Neah Bay, the Makah raised questions about the role that the fisheries were to play in their future. Stevens replied that “far from wishing to stop their fisheries, he intended to send them oil, kettles and fishing apparatus.” What Stevens and his negotiators explicitly promised in response to Indian objections was access to the usual places for procuring food and continued economic exchange with the whites.
Stevens also sought to preserve Indian fishing rights to reduce the cost of implementing the treaties. In his instructions to Stevens, Mix had emphasized that whatever the form of the treaties, they should incur minimal expenses for the government.... As the Treaty Commissioners noted in their meeting of December 26, 1854, “it was necessary to allow them to fish at all accustomed places” because this “was necessary for the Indians to obtain subsistence.” And securing the Indians a subsistence was critical if Stevens was to follow his very clear instructions to keep the cost of the treaty down. By guaranteeing the Indians a right to their share of the bounty of the land, rivers, and Sound, the treaties would enable them to feed themselves at little cost to the government.
Declaration of Richard White, Dkt. # 296, ¶¶ 8, 9,11.
It was thus the government’s intent, and the Tribes’ understanding, that they would be able to meet their own subsistence needs forever, and not become a burden on the treasury.
*898Stevens and the other negotiators believed that the abundant fisheries they had observed in Puget Sound would continue unabated forever. Early white accounts of these fisheries breathlessly reported that they were inexhaustible.... It was not until the 1890’s that scientists began to caution that salmon and other stocks might not remain abundant forever.
Stevens and the other negotiators anticipated that Indians would continue to fish the inexhaustible stocks in the future, just as they had in the past. Stevens specifically assured the Indians that they would have access to their normal food supplies now and in the future. At the Point Elliott Treaty, Stevens began by speaking of subsistence. “[A]s for food, you yourselves now, as in time past, can take care of yourselves.” The question, however, was not whether they could now feed themselves, but rather whether in the future after the huge cessions that the treaties proposed the Indians would still be able to feed themselves. Stevens assured them that he intended that the treaty guarantee them that they could. “I want that you shall not have simply food and drink now but that you may have them forever.” The' negotiators uniformly agreed on the abundance of the fisheries, the dependence of the Indians upon them, their commercial possibilities, and their future “inexhaustibility.” Stevens and Gibbs could both foresee and promote the commercial development of the territory, the creation of a commercial fishery by whites, and the continuation of an Indian fishery. They did not see any contradiction between them.
Id. at ¶¶ 13,14 (emphasis added).
Thus, the Tribes were persuaded to cede huge tracts of land — described by the Supreme Court as “millions of acres” — by the promise that they-would forever have access to this resource, which was thought to be inexhaustible. It was not deemed necessary to write any protection for the resource into the treaty because nothing in any of the parties’ experience gave them reason to believe that would be necessary. According to historian Joseph E. Taylor II, Ph.D.,
[d]uring 1854-1855, white settlement had not yet damaged Puget Sound fisheries. During those years, Indians continued to harvest fish for subsistence and trade as they had in the past. Given the slow pace of white settlement and its limited and localized environmental impact, Indians had no reason to believe during the period of treaty negotiations that white settlers would interfere, either directly through their own harvest or indirectly through their environmental impacts, with Indian fisheries in the future. During treaty negotiations, Indians, like whites, assumed that their cherished fisheries would remain robust forever.
Declaration of Joseph Taylor III, Dkt. # 297, ¶ 7.
As Professor White stated, the representatives of the Tribes were personally assured during the negotiations that they could safely give up vast quantities of land and yet be certain that their right to take fish was secure. These assurances would only be meaningful if they carried the implied promise that neither the negotiators nor their successors would take actions that would significantly degrade the resource. Such resource-degrading activities as the building of stream-blocking culverts could not have been anticipated by the Tribes, who themselves had cultural practices that mitigated negative impacts of their fishing on the salmon stocks. Declaration of Robert Thomas Boyd, Dkt. # 298, ¶ 6.
*899In light of these affirmative assurances given the Tribes as an inducement to sign the Treaties, together with the Tribes’ understanding of the reach of those assurances, as set forth by the Supreme Court in the language quoted above, this Court finds that the Treaties do impose a duty upon the State to refrain from building or maintaining culverts in such a manner as to block the passage of fish upstream or down, to or from the Tribes’ usual and accustomed fishing places. This is not a broad “environmental servitude” or the imposition of an affirmative duty to take all possible steps to protect fish runs as the State protests, but rather a narrow directive to refrain from impeding fish runs in one specific manner. The Tribes have presented sufficient facts regarding the number of blocked culverts to justify a declaratory judgment regarding the State’s duty to refrain from such activity. This duty arises directly from the right of taking fish that was assured to the Tribes in the Treaties, and is necessary to fulfill the promises made to the Tribes regarding the extent of that right.
CONCLUSION
Accordingly, the State’s motion for summary judgment is DENIED. The Tribes’ cross-motion for partial summary judgment is GRANTED. The Court hereby declares that the right of taking fish, secured to the Tribes in the Stevens Treaties, imposes a duty upon the State to refrain from building or operating culverts under State-maintained roads that hinder fish passage and thereby diminish the number of fish that would otherwise be available for Tribal harvest. The Court further declares that the State of Washington currently owns and operates culverts that violate this duty.
This matter is currently set for trial on September 24, 2007. In light of this ruling, a full trial on the merits is no longer necessary. However, further proceedings are needed to determine an appropriate remedy in this matter, so the September 24 date shall remain on the calendar for such proceedings. Counsel shall appear for a status conference on Wednesday, August 29, 2007 at 1:30 p.m. to discuss further proceedings.
. The Upper Skagit originally defined the case area as Saratoga Passage, from the Green-bank Line north to the Snatelum Point Line, and Skagit Bay. The Swinomish cross-request defines the case area for their purposes as Catch Reporting Area 24C. The case area, then, encompasses that portion of Saratoga Passage within Catch Reporting Area 24C, plus Skagit Bay (Catch Reporting Area 24A). For convenience, this case area will simply be referred to interchangeably as Saratoga Passage and Skagit Bay, or as the "subproceed-ing area.”
. The Court has ruled previously that this subproceeding will not address the western boundary of the Suquamish U & A, and therefore quotes these various definitions without making any finding as to whether the Strait of Juan de Fuca is included within "Puget Sound” as that term was used by Judge Boldt in the Suquamish U & A. However, the Ninth Circuit Court of Appeals has ruled previously, with respect to the Lummi U & A, that "[i]t is clear that Judge Boldt viewed Puget Sound and the Strait of Juan de Fuca as two distinct regions, with the Strait lying to the west of the Sound.” U.S. v. Lummi Indian Tribe, 235 F.3d 443, 451-52 (9th Cir.2000).
. In viewing maps and charts presented in this subproceeding, the Court finds maps to be an imprecise indicator of the boundaries of water areas. When bays and inlets are labeled on the map, it cannot be determined whether they are designated as parts of a greater whole (Puget Sound), or as separate areas which are not part of the whole. A written description with set boundaries is more informative on the question of the boundaries of a body of water.
. Plaintiff United States of America has substantially joined in the Tribes’ opposition to the State’s motion. Dkt. #313.
. According to testimony and exhibits provided by the Tribes, culverts may become impassable to fish either because they are blocked by silt or debris, or because they are “perched” — that is, the outfall of the culvert is several feet or more above the level of the stream into which it flows. Salmon migrating upstream to spawn are stopped by a perched culvert and cannot reach their spawning grounds.
. These figures are supported by the Declaration of Keith Lutz, a fisheries biologist with the Northwest Indian Fisheries Commission, filed in support of the .Tribes’ motion for partial summary judgment. The table presented by Mr. Lutz indicates that harvest levels in 1974 and 1975 were 860,537 and 1,001,041 fish respectively. The number of fish harvested rose steadily to 5,494,973 in 1985. Numbers of fish harvested then fluctuated between *892approximately three and four million fish for the next several years, higher in the odd-numbered years when large numbers of pink salmon were harvested. After 1991, harvests of four million fish were not seen again, and after the 1993 harvest of 3,497,537 fish the numbers declined dramatically, dipping as low as 575,958 in 1999. While post-1999 harvest numbers have risen somewhat, .to 2,148,802 fish taken in 2003, the Tribal harvest through 2004 (the last year reported in this exhibit) remained less than half that of the years 1985 to 1991. Declaration of Kieth Lutz, Dkt. # 299.
. Although the State’s motion did not set the number, an expert declaration filed in support of the Tribe’s motion found 1,113 barrier culverts in the combined jurisdiction of the WSDOT and the Washington Department of Fish and Wildlife ("WDFW"), in addition to those included in the WDP and DNR culvert counts. Declaration of Ronald McFarlane, Dkt. # 300, ¶ 8.
. Neither the majority opinion, nor any of the dissenting or concurring opinions rejected the district court’s analysis on treaty-based obligations. Indeed, three of the dissenting judges would have affirmed the district court’s declaratory judgment on environmental issues. Judge Nelson flatly stated, "I agree with the district court that the Tribes have an implicit treaty right to a sufficient quantity of fish to provide them with a moderate living, and the related right not to have the fishery habitat degraded to the extent that the minimum standard cannot be met. I also agree that the State has a correlative duty to refrain from degrading or authorizing others to degrade the fish habitat in such a manner.” Id. at 1367 (emphasis added). Judge Skopil joined in this dissent. Id. Judge Norris dissented "for the reasons articulated in Judge Nelson's dissenting opinion.” Id. at 1368. Judges Sneed and Anderson, who sat on the original three-judge panel and formulated the "reasonable steps” standard set forth above, concurred in the opinion in the interests of collegiality, but did not retreat from the position they took in hearing the case originally. Id. at 1360. Judges who concurred in the opinion did so because of the absence or a case or controversy (Judges Ferguson and Schroeder), or because the declaratory judgment was deemed not an ap-pealable decision (Judge Sneed). And nowhere in the majority opinion did the court state that no duty arises from the treaties. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218007/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 8th day of April, two thousand and three.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Bartram Yihni Dabney, a prison inmate, appeals from a Federal Rule of Civil Procedure 56 judgment dismissing his civil rights complaint against defendants, who are correctional officers and supervising officers employed by the New York State Department of Corrections.
Dabney complains that defendant Bolak, a hearing officer, denied Dabney due process during an administrative hearing held to determine whether Dabney was guilty of having a beard in excess of one inch, failing to produce an ID card on demand, verbally abusing staff, assault on staff, violation of frisk procedures, and failure to obey a direct order. Bolak’s finding of guilty on all counts resulted in Dabney’s confinement in the Special Housing Unit (“SHU”) for 365 days.
The hearing stemmed from charges against Dabney by two corrections offi*255cers. Corrections Officer Hafner charged that while he was on duty in the prison barber shop, he noticed that Dabney had a beard with an approximate seven-inch braid. Dabney refused to have his beard cut and did not produce an ID card when asked. According to Hafner, Dabney also was verbally abusive. As a result, Hafner ordered Dabney to return to his cell. Corrections Officer Dickson attempted to escort Dabney. Because Dabney had a pen in his hand, Dickson ordered Dabney to place his hands on the wall and to move his feet away from the wall. In his misbehavior report, Dickson alleged that Dabney did not move his feet and that when Dickson used his foot to move Dabney’s left foot, Dabney hit Dickson three times.
The due process violations Dabney alleges are hearing officer bias, refusal to call pertinent witnesses, truncation of the questions the hearing officer would ask witnesses on Dabney’s behalf, and refusal to obtain relevant documents. Although Bolak allowed testimony from Hafner and ■Dickson as well as from an inmate who witnessed the events in the barbershop and from the corrections officer who came to Dickson’s assistance and who, Dabney claimed, actually struck Dickson, Bolak refused to allow Dabney to call his iman or a medical assistant. Dabney explained that he wanted the iman, who had seen Dabney within twenty-four hours of the incident, to testify to the length of his beard. Dabney apparently wanted the medical assistant to testify to Dickson’s condition after the incident.
Bolak also refused to obtain ambulance or paramedic reports for Dabney’s hearing.
The district court dismissed Dabney’s complaint on a summary judgment motion, finding that New York’s regulations created no liberty interest in freedom from confinement in the SHU. On appeal, Dabney principally contends that the court erred (1) by refusing to assign counsel, (2) by not requiring defendants to turn over documentary records including the ambulance report; and (3) by finding no liberty interest.
The district court erred when it found no liberty interest. It is well established that New York’s regulations create a liberty interest in freedom from punitive confinement. Welch v. Bartlett, 196 F.3d 389, 394 n. 4 (2d Cir.1999). Moreover, confinement in the SHU for 365 days is an atypical and significant hardship within the meaning of Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). Colon v. Howard, 215 F.3d 227, 231 (2d Cir.2000). Thus, defendants deprived Dabney of a liberty interest. See id. Because we may affirm the district court’s judgment on any ground that fairly appears in the record below-including issues not addressed by the district eourt>we consider whether there is sufficient proof in the record to establish a due process violation. See, e.g., Citrus Mktg. Bd. of Israel v. J. Lauritzen A/S, 943 F.2d 220, 223 (2d Cir.1991).
N othing in the hearing transcript or in Dabney’s submissions suggests that Bolak was biased against Dabney. In addition, Bolak’s refusal to pose certain questions to witnesses was justified by the irrelevance of these questions. Nor was Bolak’s refusal to call the iman and the medical assistant a due process violation. Because neither witnessed the incidents in question, their testimony would have had very limited probative value. See Kalwasinski v. Morse, 201 F.3d 103, 109 (2d Cir.1999) (holding that a hearing officer does not violate due process by excluding *256irrelevant or unnecessary evidence). The documents that Dabney sought-an ambulance report and paramedic reports-were duplicative of other documentation of Dickson’s condition and only tangentially relevant because the central issue was whether Dabney hit Dickson and not how badly he hurt him. See id.
Dabney also argues that the district court’s judgment should be overturned because the court refused to appoint counsel for him and did not compel defendants to turn over the ambulance report before granting summary judgment. Both of these arguments lack merit. Because the hearing officer did not commit a due process violation by refusing to admit the ambulance report, its production on the motion would mot have allowed Dabney to avoid summary judgment. The judge did not abuse his discretion by refusing to appoint counsel for Dabney because (1) the pertinent issues-liberty interest and procedural violations-can be resolved on the administrative hearing transcript and do not require investigation; (2) the legal issues were not complex; (3) Dabney capably represented himself; and (4) the case was resolved without any necessity for cross-examination. See Terminate Control Corp. v. Horowitz, 28 F.3d 1335, 1341 (2d Cir. 1994). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218008/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 17th day of April, two thousand and three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
Plaintiff Gregory Hogan alleges that the defendants State of Connecticut Judicial Branch, William Carbone, Thomas White, and Joseph H. Pellegrino terminated his employment at the New Haven Juvenile Detention Center for racially discriminatory reasons, violating equal protection, due process, and Title VII of the Civil Rights Act of 1964. The district court granted the defendants’ motion for summary judgment. On appeal, Hogan, an African *258American man, argues that the defendants’ legitimate, non-discriminatory reason for his dismissal (physical abuse or neglect of a juvenile detainee) was pretextual, because the defendants did not dismiss “similarly situated” Caucasian employees, who had verbally abused juvenile detainees. We presume familiarity with the facts of the case from the district court opinion.
Summary judgment should be granted only if there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). To be “similarly situated” for the purposes of Title VII, the individuals with whom plaintiff compares himself “must be similarly situated in all material respects.” Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir.1997). The plaintiff must establish “a reasonably close resemblance of the facts and circumstances of plaintiffs and comparator’s cases, rather than a showing that both cases are identical,” and their acts must be “of comparable seriousness.” Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir.2000).
We agree with the district court that, even in a light most favorable to Hogan, Hogan’s acts were significantly more serious than the other employees’ acts. There is overwhelming credible evidence in official reports and statements, including a report by the Department of Children and Families, that Hogan physically abused and neglected juvenile detainees. H 2-3, RB 13 Hogan offers evidence that the other employees verbally abused juvenile detainees, but he does not allege any physical abuse. BB 4-5, 16-20 In other Title VII cases, we have held that' physical abuse is significantly more serious than verbal abuse. See Richardson v. New York State Dep’t of Corr. Serv., 180 F.3d 426, 437 (2d Cir.1999); Tomka v. Seiler Corp., 66 F.3d 1295, 1305 (2d Cir. 1995); see also Oltarzewski v. Ruggiero, 830 F.2d 136, 139 (9th Cir.1987) (stating that “[v]erbal harassment or abuse [of a prisoner] ... is not sufficient to state a constitutional deprivation under 42 U.S.C. § 1983”) (citations omitted). Thus, Hogan cannot demonstrate that he and his white comparators are similarly situated in all material respects.
Hogan’s comparison of himself with Joseph Mirto is also not probative of discrimination. Mirto, a white juvenile detention officer, was terminated following an incident of physical abuse, but, following a favorable ruling in post-termination proceedings, an arbitrator ordered that he be restored to his job. H 13. Hogan submitted his case to arbitration, but the arbitrator found that Hogan had been terminated for just cause. H 4 We recently held that “a decision by an independent tribunal [such as an arbitrator] that is not itself subject to a claim of bias will attenuate a plaintiffs proof of the requisite causal link” of illegal discrimination. Collins v. New York City Transit Auth., 305 F.3d 113, 119 (2d Cir.2002). Hogan does not allege that the arbitrator was biased, and the discrepancy between Hogan’s termination and Mirto’s reinstatement was the result of the arbitrator’s decision, not the defendants’ actions.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218009/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 17th day of April, two thousand and three.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
In 1999, David J. Joseph Company (“Plaintiff-Appellee”) purchased approximately 66,000 metric tons of hot briquette iron from Mitsui & Company (“Mitsui”). Plaintiff-Appellee contracted with SMT Shipmanagement & Transport Limited (“SMT”) and Bana Shipping Corporation (collectively, “Defendants-Appellants”) to transport the iron from Venezuela to the United States in three shipments. The parties entered into a charter, dated April 12, 1999, pursuant to which the M/V Arwa (“the Arwa”) would transport the first shipment. The parties also agreed that Defendants-Appellants would transport the two other shipments under the same terms as the Arwa charter.
When the Arwa arrived at the loading terminal in Venezuela, the water was not deep .enough to allow the parties to load *261the full cargo onto the vessel while it was docked. Accordingly, Defendants-Appellants agreed to hire barges to ferry the remaining cargo to the Arwa while it was anchored in a deeper section of the river. In confirmation of the agreement, Defendants-Appellants sent an email to the charter broker stating in relevant part:
We herewith confirm that barges used to top-off mv Arwa will be for Owners account/risk/time etc. gross negligence excepted. Barges can be loaded without any operational difficulty or safety problems. Capacity of barges are abt. 5000 mt. but reverting with dimensions of barges in due course.
The Arwa was loaded without incident, and the parties employed the same procedure with the second ship, the MTV Baltic (“the Baltic”). On February 5, 2000, one of the barges carrying cargo to the Baltic sank.
On August 4, 2000, Defendants-Appellants filed an action against Marítima Ordaz, C.A. (“Marítima”), which had provided the tug boat and barges, alleging that Marítima breached the terms of the agreement “by failing to provide a seaworthy barge.” On August 24, 2000, PlaintiffAppellee filed the instant action against Defendants-Appellants. Defendants-Appellants cross-moved to consolidate their suit against Marítima with the instant action, and Plaintiff-Appellee subsequently filed a separate complaint against Marítima. Prior to deciding whether to consolidate the three actions, the district court granted summary judgment in the instant case to Plaintiff-Appellee on the issue of liability. Defendants-Appellants now appeal that judgment.
At the outset, Defendants-Appellants argue that the district court erred by holding that the agreements to load the Arwa and the Baltic off-shore were mere clarifications of the parties’ prior charter, which incorporated the Carriage of Goods by Sea Act, 46 U.S.C.App. § 1300 et seq. (“COGSA”). Defendants-Appellants argue that the loading agreements constituted separate contracts that were not subject to COGSA. In support of their argument, Defendants-Appellants cite only Mark Rensen’s declaration, which asserts that “SMT’s agreement to arrange for the barges was not part of the charter party contract, but a separate and distinct agreement which was outlined in my e-mail message to the charter broker ... dated January 17, 2000.” However, Rensen’s declaration does not provide adequate foundation to infer SMT’s intent to form a distinct contract, as it does not state that he negotiated and executed the barging agreement on behalf of his company. Moreover, the declaration proffers no facts from which the trier of fact may determine the parties’ intentions in forming the barging agreement. See Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990) (recognizing that conclusory allegations are insufficient to create a triable issue). In the absence of admissible extrinsic evidence concerning the parties’ intentions, resolving ambiguity over the construction of a contract is a question of law. Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 429 (2d Cir.1992) (citing Antilles Steamship Co., Ltd. v. Member of the American Hull Ins. Syndicate, 733 F.2d 195, 202 (2d Cir.1984) (Newman, J., concurring)).
Defendants-Appellants argue that the district court mischaracterized the email by finding that it “is best read as a clarification of the Charter Party, in light of apparently unforeseen circumstances, to provide a means of performing [Defendants-Appellants’] obligations under the Charter Party.” Defendants-Appellants argue that the district court erred because Plaintiff-Appellee, and not Defendants-Appellants, had the obligation to provide a *262safe berth for the vessel. However, the district court’s conclusion does not reference the obligation to provide a safe berth. Rather, the district court’s conclusion references the carrier’s responsibility to “accept! ] all of the agreed cargo.” The shipping agreement provided that Defendants-Appellants would receive the cargo at Pabia, and the district court correctly concluded that the email clarified this obligation.
Defendants-Appellants also argue that the email creates a genuine issue of material fact, even if it does not constitute a separate contract. Although Defendants-Appellants concede that they “agreed to accept the risk of loss of time involved in the topping-off operation as well as the risk of loss of cargo from the barges,” they argue that they refused to accept the risk associated with any “gross negligence” on the part of the barge operator or loader, because they had no control over the operation of the barges. Accordingly, Defendants-Appellants argue that the email is ambiguous in its definition of “gross negligence” and that the email creates a triable issue whether they are hable, as the barge may have sunk due to the gross negligence of the operator or loader. However, neither of these arguments is relevant, as the district court correctly concluded that COGSA supersedes the disclaimer of liability in the event of “gross negligence.”
In the instant case, the parties’ shipping agreement provided that it would be “subject to the provisions of the Carriage of Goods by Sea Act of the United States.” COGSA provides that a carrier of goods in international commerce “shall properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried.” 46 U.S.C. § 1308(2). Moreover, COGSA imposed a duty of care upon Defendants-Appellants when they accepted the goods for transportation and thereafter exercised control over them. See Mackey v. United States, 197 F.2d 241, 243-44 (2d Cir.1952) (Swan, C.J.). In Mackey, the shipper instructed longshoremen to load the cargo onto the ship from lighters that were moored alongside the vessel. A storm ensued, destroying some of the cargo, and the Court held that the shipper was hable because “[w]hen the lighters' were moored alongside according to instructions issued by the ship and loading was commenced, the cargo was accepted for transportation and was thereafter subject to the ship’s control.... ” Id. at 243.
Defendants-Appellants accepted most of the Baltic’s cargo after it was loaded upon the vessel from the dock. Defendants-Appellants accepted the remaining cargo bound for the Baltic, including the portion of the shipment that was lost, once it was loaded upon the barges. Thus, Defendants-Appellants were bound by the duty of care imposed by COGSA because “the shipment ha[d] been delivered and accepted by the carrier.” Id. “Here, by undertaking to provide barges to transport the cargo to the BALTIC, at its risk and expense, [Defendants-Appehants] unquestionably accepted the shipment when the cargo was delivered to the barge.” District Court’s Order at 12. The mere fact that there was no bill of lading for the lost cargo is not relevant because “[w]hile the giving of such documents is important evidence that the custody of the goods has been taken by the carrier, it is neither essential nor conclusive, provided in fact the shipment has been delivered and accepted by the carrier.” Mackey, 197 F.2d at 243. Defendants-Appellants attempt to argue that “the obligation to get the cargo onto the vessel was on [Plaintiff-Appellee].” However, Defendants-Appellants expressly assumed this obligation, along *263with the accompanying risk, when they accepted delivery of the goods.
Defendants-Appellants argue that, pursuant to Plaintiff-Appellee’s agreement with Mitsui, Plaintiff-Appellee never assumed the risk of the cargo’s loss, because the lost cargo had not yet been loaded on board the Baltic. However, Defendants-Appellants misconstrue the “free on board” provision of Plaintiff-Appellee’s agreement with Mitsui. “F.O.B. or Free on Board means that title to the property passes from the seller to buyer at the designated FOB point.” Berisford, Metals Corp. v. S/S Salvador, 779 F.2d 841, 843 n. 2 (2d Cir.1985). Contrary to Defendants-Appellants’ argument, the vessel itself was not designated as the “FOB point,” in which case “title to the goods [would have] pass[ed] when the goods were loaded on board the ship.” Id. Rather, the parties’ email confirmation of their agreement provided that the goods would be “FOB Venezuela.” Accordingly, Plaintiff-Appellee became responsible for the cargo once Defendants-Appellants accepted delivery in Venezuela. See U.C.C. § 2-503 (2002).
Upon concluding that COGSA applied to the shipping agreement and governed Defendants-Appellants’ duty of care upon receiving the cargo, the district court correctly concluded that the clause of the email exempting Defendants-Appellants from liability in the event of “gross negligence” in connection with the barges was not binding. This Court has held that where COGSA has been incorporated into a contract, its provisions “supersede any conflicting provisions” in the parties’ agreement. Binladen BSB Landscaping v. M/V Nedlloyd Rotterdam, 759 F.2d 1006, 1017 n. 12 (2d Cir.1985). Moreover, this Court has held that parties cannot by private agreement circumvent the terms or legislative purpose of COGSA. Associated Metals & Minerals Corp. v. M/V Arktis Sky, 978 F.2d 47, 49-52 (2d Cir.1992). “[T]he purpose of COGSA is to place primary responsibility for the safety of the cargo upon the vessel, its operators and owners.” Id. at 52. Specifically, “[a]ny clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods arising from negligence, fault, or failure in the duties and obligations in [COGSA], or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect.” 46 U.S.C.App. § 1303(8). Accordingly, the district court properly disregarded the “gross negligence” clause at issue.
Finally, Defendants-Appellants argue that the district court overlooked the safe berth clause and improperly found that they had been negligent. However, there is no evidence that Plaintiff-Appellee breached its obligation to provide a safe berth. Moreover, contrary to Defendants-Appellants’ allegation, the district court did not affirmatively find that Defendants-Appellants were negligent in hiring the barge that ultimately sank. Rather, the district court concluded that since Defendants-Appellants had an obligation “to assure the seaworthiness of the barges [they] supplied,” any negligence alleged by Defendants-Appellants against Marítima in providing an unseaworthy barge would, in fact, be attributable to Defendants-Appellants themselves.
Based upon the foregoing, the judgment of the United States District Court for the Southern District of New York is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218014/ | SUMMARY ORDER
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Donna Losurdo-Santiago appeals from a judgment, entered after a jury verdict, that dismissed her claims against L3 Satellite Networks (“L3”) for violation of the federal Equal Pay Act, 29 U.S.C. § 206(d), and its state analog, N.Y. Labor L. § 194.
Losurdo-Santiago worked for many years for LNR Communications, Inc. (“LNR”). Her duties included all tasks related to ensuring that a product ordered by a customer was manufactured, inspected, and tested in a timely fashion. Three other employees, all of whom were women, also performed this function for LNR.
In January 2000, L3 purchased LNR. Some months thereafter, L3 merged its Sat Net division with LNR. Because LNR and Sat Net used different job titles, L3 reclassified Losurdo-Santiago and the three other women who had performed the product scheduling function at LNR as “planners.” There were no Sat Net em*280ployees in the “planner” position at the time of the merger. However, two male Sat Net employees-and no female employees-held the title “senior planner.” Because the “senior planner” title carried a higher salary range, Losurdo-Santiago and the other female planners received a lower salary than the male senior planners.
In response to Losurdo-Santiago’s lawsuit, L3 attempted to justify the unequal pay on several bases, one of which was the need for reclassification created by the merger. The jury found that LosurdoSantiago performed work similar to at least one of the senior planners and that she worked under substantially similar conditions. However, the jury found in favor of L3 on its affirmative defense of a “factor other than sex,” 29 U.S.C. § 206(d)(1), namely the merger of LNR and L3. Because the jury also found that Losurdo-Santiago failed to satisfy her burden of demonstrating pretext, judgment was entered in L3’s favor.
On appeal, Losurdo-Santiago argues that the district court erred by refusing to (1) enter judgment as a matter of law in her favor; (2) charge the jury that L3’s burden to prove its affirmative defense was “heavy”; (3) charge the jury that L3’s affirmative defense would be negated by a showing that the asserted policy had a negative impact on women; (4) insert an additional word in the verdict sheet question on L3’s merger defense.
Losurdo-Santiago prematurely moved for judgment as a matter of law at the end of her case and renewed that motion at the end of the defendant’s ease, but she did not renew her motion after the verdict as Federal Rule of Civil Procedure 50(b) requires. Therefore, we lack power to direct the district court to enter a judgment contrary to the one it entered. Varda, Inc. v. Insurance Co. of N.A., 45 F.3d 634, 638 (2d Cir.1995). Although we have power to order a new trial “to prevent a manifest injustice in cases where a jury’s verdict is wholly without legal support,” plaintiff has neither asked for a new trial nor shown that the jury’s verdict is without legal support. Id. (internal quotation marks omitted).
The two charge issues lack merit. First, the defendant bears no heightened burden before the jury as to its affirmative defense. The decision cited by the plaintiff, Ryduchowski v. Port Authority of New York and New Jersey, 203 F.3d 135 (2d Cir.2000), used the “heavy burden phrase in the context of determining that a defendant had failed to meet its burden of persuading the district court that a jury’s finding was not supported by sufficient evidence.” Id. at 143-44. Ryduchowski has been correctly understood as relating to that context, see Tesser v. Board of Educ., 190 F.Supp.2d 430, 436 (E.D.N.Y. 2002), not to an instruction to a jury. Second, the plaintiffs requested charge concerning a discriminatory effect related to an affirmative defense that the jury rejected. The omission of the requested charge language, which was doubtful in any event, see Kouba v. Allstate Ins. Co., 691 F.2d 873 (9th Cir.1982), was therefore of no consequence.
Lastly, Losurdo-Santiago requested that the court modify its question on the merger as a sexually neutral factor. This question asked the jury, “[d]id the defendant prove that it paid the plaintiff Donna Losurdo-Santiago less than [her male comparators] because of a valid classification as a result of the physical merger of LNR and Sat Net?” Plaintiff asked that the court insert the word “solely” immediately before “as a result of.” The court correctly declined this request because it was not the law and because it rendered *281the pretext question superfluous. See Ryduchowski, 203 F.3d at 142 (describing shifting burdens in an Equal Pay Act case). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218015/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 25th day of April, two thousand and three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that petitioner’s appeal is DISMISSED for lack of jurisdiction. Petitioner’s motion for permission to file a successive habeas corpus petition is DENIED.
Petitioner-appellant Billy Santiago appeals from a judgment of the District Court entered March 11, 2002 denying his 28 U.S.C. ,§ 2255 petition for a writ of habeas corpus, as part of a motion to reconsider the District Court’s September 5, 2000 judgment denying that petition. We dismiss the appeal for lack of appellate jurisdiction over two of petitioner’s claims, and for lack of subject matter jurisdiction *283over the third of his claims. We deny Santiago’s motion for permission to file a successive habeas corpus petition.
I. Facts and Procedural History
On April 13, 1992, Santiago discharged a firearm during the attempted robbery of an armored car on a crowded street in Brooklyn, New York. When one of the security guards protecting the car shot back at Santiago and his co-conspirators, Santiago was hit, collapsed to the ground, and was quickly taken into custody by police. Two innocent bystanders were wounded in the crossfire.
Santiago pleaded guilty in January 1993 to conspiring to obstruct commerce by robbery, in violation of 18 U.S.C. § 1951; attempting to obstruct commerce by robbery, in violation of 18 U.S.C. § 1951; and using a firearm during the commission of a crime of violence, in violation of 18 U.S.C. § 924(c)(1). At that time, § 924(c)(1) provided that:
Whoever, during and in relation to any crime of violence ... for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence ... be sentenced to imprisonment for five years, ... and if the firearm is a machinegun, ... to imprisonment for thirty years.
18 U.S.C. § 924(c)(1) (1994). With respect to Santiago’s plea on the § 924(c)(1) charge, the parties agreed under the terms of the plea agreement that the sentencing judge would determine whether Santiago’s weapon was a machine gun and, accordingly, whether his sentence for that crime would be for five or 30 years.
After a hearing on September 30, 1993, at which both parties presented witnesses, Judge Weinstein-presumably operating under a preponderance-of-the-evidence standard, see United States v. Merritt, 988 F.2d 1298, 1313 (2d Cir.1993)-determined that “[t]he evidence is overwhelming that at the time that this defendant was using the weapon, it was fully automatic and it was being used in that way.” Santiago was thus faced with a 30-year sentence for his firearms offense and 97 to 121 months in prison on the two robbery counts. The Court downwardly departed on the two robbery counts and sentenced Santiago to a four-year prison term for those crimes, sentencing petitioner to a total of 408 months (34 years) in prison.
We affirmed Santiago’s conviction in a summary order dated March 30, 1994, rejecting as frivolous his claim that the evidence was insufficient to show that his weapon was a machine gun and summarily disposing of his Eighth Amendment claim. United States v. Santiago, No. 93-1663, 1994 WL 126492 (2d Cir. March 30, 1994) (unpublished summary order). We held that his claim that he did not know the weapon was a machine gun was not properly before the Court because it was not raised during the proceedings in the District Court. Id.
II. Habeas Proceedings in the District Court
Santiago filed a pro se petition for a writ of habeas corpus on June 23,1997. Santiago asserted: (1) that he was not carrying a machine gun at the time of the crime, (2) it was not proven that he had “used” and “carried” the same weapon; (3) that he had no knowledge that the firearm was a machine gun; and (4) that he was deprived the effective assistance of counsel. The District Court appointed counsel for the habeas proceeding, and counsel submitted a supplemental brief on April 5, 1999. In a judgment entered September 5, 2000, the District Court rejected each of petitioner’s *284claims on the merits,1 and issued a certificate of appealability “on the questions of whether the petitioner knew the gun was a machine gun, and the competence of counsel.” Santiago did not appeal the judgment.
On February 6; 2001, Santiago’s counsel filed a motion under Fed.R.Civ.P. 60(b), which provides that a party may move to vacate a final judgment of the District Court under certain circumstances, seeking reconsideration of the District Court’s September 5, 2000 judgment. In that motion, counsel raised only the entirely new claim that the 25-year sentencing enhancement that he received for carrying a machine gun (rather than an ordinary firearm), was an element of the crime that had to be proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) (holding that factors that increase the maximum penalty permissible by statute must be determined by a jury beyond a reasonable doubt); Castillo v. United States, 530 U.S. 120, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (holding that the machine gun enhancement in § 924(c)(1) constitutes an element of a greater offense). After a hearing on July 25, 2001, the District Court granted Santiago’s motion for reconsideration under Rule 60(b), but denied petitioner’s new claim on the merits in a judgment entered March 11, 2002. As part of its judgment entered March 11, 2002, the Court again granted a certificate of appealability on whether petitioner knew the gun was a machine gun and on the effectiveness of counsel, but it declined to issue a certificate of appealability on the Apprendi-Castillo claim.
Petitioner appeals on the basis of the two claims that are the subject of the certificate of appealability, and also on the basis of his Apprendi-Castillo claim. Petitioner has moved in this Court for a certificate of appealablity on the Apprendi-Castillo claim. Petitioner has also moved for permission to file a successive habeas petition on his Apprendi-Castillo claim, in the event that we do not consider his claim to have been properly raised.
III. Discussion
A. Appellate Jurisdiction Over Petitioner’s First Two Claims
We dismiss petitioner’s ineffective assistance of counsel and lack-of-knowledge claims because petitioner did not file a timely notice of appeal with respect to those claims, and we thus lack appellate jurisdiction to consider them. See United States v. Outen, 286 F.3d 622, 630 (2d Cir.2002) (holding that we have no jurisdiction to consider an appeal that is not timely filed.).
Petitioner’s first two claims were raised only in his initial § 2255 habeas petition, which the District Court rejected in a judgment entered on September 5, 2000. Under Fed. R.App. P. 4(a)(1)(B), “[w]hen the United States or its officer or agency is a party,” a notice of appeal must be filed *285“within 60 days after the judgment or order appealed from is entered.” Id.; see Williams v. United States, 984 F.2d 28, 30 (2d Cir.1993). Petitioner did not file a notice of appeal of the rejection of his initial habeas petition until March 18, 2002, more than one year after the court’s judgment of September 5, 2000. Petitioner’s appeal of the September 5, 2000 judgment was thus not timely under Fed. R.App. P. 4(a)(1)(B).
Federal Rule of Appellate Procedural 4(a)(4)(A)(vi), however, is a special provision for the appeal of judgments that have been subject to a motion for reconsideration under Rule 60(b). That rule states that if a party timely files a Rule 60(b) motion in the District Court, “the time to file an appeal runs for all parties from the entry of the order disposing of the last such remaining motion.” Fed. R.App. P. 4(a)(4)(A); see United States ex rel. McAllan v. City of New York, 248 F.3d 48, 51-52 (2d Cir.2001). However, the rule only applies to “relief under Rule 60 if the motion is filed no later than 10 days after the judgment is entered.” Fed. R.App. P. 4(a)(4)(A)(vi); see Phillips v. Corbin, 132 F.3d 867, 868 (2d Cir.1998). In this case, petitioner’s Rule 60(b) motion was filed on February 6, 2001, well beyond the 10-day period following the District Court’s September 5, 2000 entry of judgment. Thus, petitioner’s untimely appeal of the September 5, 2000 judgment on March 18, 2002 was not rescued by Fed. R.App. P. 4(a)(4)(A)(vi).
Accordingly, with respect to the first two claims asserted by petitioner, we do not have appellate jurisdiction to consider the judgment entered by the District Court on September 5, 2000 because no timely notice of appeal was filed, and any appeal of the District Court’s reconsidered judgment of March 11, 2002-even if timely-does not bear upon plaintiffs first two claims, because the Rule 60(b) motion for reconsideration concerned only the ApprendilCastillo issue and did not include any reference to the first two claims.
B. Appellate Jurisdiction Over Petitioner’s Apprendi!Castillo Claim
Petioner’s Apprendi/Castillo claim, unlike his first two claims, was raised in his motion for reconsideration. With respect to that claim, his March 18, 2002 notice of appeal was filed less than 60 days after the District Court’s March 5, 2002 entry of judgment rejecting his motion for reconsideration, thus making it timely. See United States v. Clark, 984 F.2d 31, 34-35 (2d Cir.1993) (holding that a Rule 60(b) motion filed more than 10 days after an initial judgment did not extend the 60-day period in which to appeal the initial judgment, but that a notice of appeal filed within 60 days of the reconsidered judgment was nonetheless timely with respect to an appeal regarding the motion for reconsideration). Accordingly, we have appellate jurisdiction to consider the Apprendi/Castillo claim asserted by petitioner in his February 6, 2001 motion for reconsideration, which was the only subject before the District Court.
Nonetheless, the Government argues that we lack jurisdiction to consider the claim because the District Court did not issue a certificate of appealability on his Apprendi/Castillo claim. See Smaldone v. Senkowski, 273 F.3d 133, 139 (2d Cir.2001) (holding that the certificate of appealability requirement under 28 U.S.C. § 2253 is a jurisdictional bar to appellate review of issues outside the certificate of appealability). However, petitioner has made a motion for a certificate of appealability in this court, which would allow us to consider the issue. See El Rhagi v. Artuz, 309 F.3d 103, 106 (2d Cir.2002) (“[E]ven where the District Court has declined to *286issue a COA, this Court may nonetheless issue a COA if petitioner can make the necessary showing ‘that jurists of reason would find it debatable whether the district court was correct ... Because petitioner in this case has raised a non-frivolous Apprendi/Castillo claim, the merits of which we believe are subject to debate among jurists of reason, see Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000), we grant a certificate of appealability on the question of whether petitioner’s sentence violated the principles set forth in Apprendi and Castillo.
C. Subject Matter Jurisdiction Over Petitioner’s Apprendi/Castillo Claim
Having granted a certificate of appealability with respect to petitioner’s Apprendi/Castillo claim, and having concluded that we have appellate jurisdiction to consider that claim only, we nonetheless decline to reach the merits of the claim because we hold that the District Court was without subject matter jurisdiction to consider the claim in the first place.
Santiago’s Apprendi/Castillodsám was first raised in the District Court as part of his Rule 60(b) motion for reconsideration. However, in Gitten v. United States, 311 F.3d 529 (2d Cir.2002), we distinguished between Rule 60(b) claims that “present[ ] new grounds for a collateral attack,” and those that merely seek to challenge the proceedings in the District Court that led to the denial of a collateral attack. Id. at 532. We concluded that while the latter are not to be considered successive habeas petitions, a Rule 60(b) motion that raises entirely new grounds for a collateral attack is indeed a successive habeas petition that requires leave to file from the Court of Appeals. See 28 U.S.C. §§ 2244, 2255;2 Gitten, 311 F.3d at 532. Because no such leave was ever obtained, the District Court should have treated petitioner’s ApprendiCastillo claim as a successive habeas petition that the District Court had no jurisdiction to consider, and then transferred the claim to this Court pursuant to 28 U.S.C. § 1631, which authorizes such a transfer to cure jurisdictional defects. See Torres v. Senkowski, 316 F.3d 147, 152 (2d Cir.2003) (holding that “[f]rom the district court’s perspective, [the requirement that permission to file a successive habeas be granted by the court of appeals] is an allocation of subject-matter jurisdiction to the court of appeals,” and stating that “[a] second or successive collateral attack may no more begin in the district court than a criminal prosecution may commence in the court of appeals” (internal quotation marks and citation omitted)).
Having determined that the District Court had no subject matter jurisdiction to consider petitioner’s Apprendi/Castillo claim, and that we have no appellate jurisdiction over petitioner’s other two claims, we dismiss petitioner’s appeal in its entirety.3
*287
D. Petitioner’s Motion to File a Successive Habeas Petition
Although we would ordinarily construe Santiago’s problematic appeal as a motion in this Court seeking permission to file a successive habeas corpus petition raising his Apprendi/Castillo claim, see Corrao v. United States, 152 F.3d 188, 191 (2d Cir.1998), Santiago has already filed such a motion, to which we now turn. For the reasons set forth below, Santiago’s motion for permission to file a successive habeas petition on his Apprendi-Castillo claim is denied.
Under 28 U.S.C. § 2255, before a petitioner may file a successive habeas petition, the Court of Appeals must first determine that the petition relies, in relevant part, on:
a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255; see note 2, ante. We decline to make such a determination in this case because it is settled law in this Circuit that the rule announced in Apprendi has not been “made retroactive to cases on collateral review by the Supreme Court,” and that Apprendi thus cannot be the basis for the filing of a successive habeas petition. See Forbes v. United States, 262 F.3d 143 (2d Cir.2001). Regardless of whether Apprendi should be applied retroactively based on the standards set forth in Teague v. Lane, 489 U.S. 288, 305-11, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)-as petitioner’s counsel argued orally before this Court-it is clear that “[ijnasmuch as no pronouncement has yet been made by the Supreme Court on the retroactivity of Apprendi, petitioner is presently unable to meet the pertinent requirement of § 2255.” Forbes, 262 F.3d at 146 (emphasis added). Whatever the arguable or potential merits of petitioner’s Apprendi claim if the Supreme Court were to apply Apprendi retroactively in habeas cases, he may not at this time bring such a claim in a successive habeas petition, and accordingly his motion to file such a petition must be denied. As in Forbes, our denial of this petition on this ground “is without prejudice to renewal in the event that the Supreme Court hereafter makes a retroactivity determination.” Forbes, 262 F.3d at 146.
^ íJí % ‡
We have considered all of the petitioner’s arguments. Petitioner’s appeal is hereby DISMISSED for lack of jurisdiction. Petitioner’s motion for permission to file a successive habeas corpus petition is DENIED.
. At a hearing held on September 27, 1998, the government pointed out that Santiago’s petition was time-barred because it was filed more than one year after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214, 1220. See Ross v. Artuz, 150 F.3d 97 (2d Cir.1998); Mickens v. United States, 148 F.3d 145, 146 (2d Cir.1998). However, the District Court deemed a December 2, 1996 informational letter that Santiago had sent to the Court to be a timely petition, and thus considered petitioner’s claims on the merits. The Court deemed the petition timely even though Santiago’s counsel conceded that the letter "is not a petition,” and even though the trial judge conceded that "I believe that on appeal, were I to sit on an appeal, I would reverse on [the timeliness] ground and dismiss for that reason.”
. 28 U.S.C. § 2255 states, in relevant part, as follows:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
(2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.
28 U.S.C. § 2255.
. Because we have determined that we do not have jurisdiction to consider any of appellants three claims in his habeas petition, it is unnecessary to consider-and, indeed, we have *287no jurisdiction to consider-whether the claims are also time-barred under AEDPA. See Smith v. McGinnis, 208 F.3d 13, 17 (2d Cir.2000) (holding that AEDPA's one-year filing limitation is a statute-of-limitation, rather than a jurisdictional bar). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218016/ | *289SUMMARY ORDER
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED as modified.
Plaintiff Steven J. Hoffenberg filed the instant action against his former criminal defense attorney, Daniel Meyers. In 1995, Hoffenberg pled guilty to various federal charges pertaining to securities fraud and tax evasion. See United States v. Hoffenberg, Nos. 94-cr-213, 95-cr-321, 1997 WL 96563, at *6 (S.D.N.Y. March 5, 1997). Hoffenberg was sentenced to twenty years imprisonment and ordered to pay restitution in the amount of $475, 157, 340. Id. at *15. Meyers represented him throughout the criminal proceedings.
In his complaint, Hoffenberg claims that his conviction was the result of Meyers’ failure to devote the proper time to Hoffenberg’s case, his lack of understanding of the legal issues, and his withholding evidence. The complaint asserts four claims: (1) legal malpractice, (2) “gross negligence,” (3) “damages,” and (4) “punitive damages.” On June 5, 2001, Meyers moved for summary judgment, and on January 17, 2002, the District Court granted his motion. Judgment was entered on January 25, 2002, and Hoffenberg timely filed a notice of appeal on January 31, 2002.
We conclude that the District Court properly granted Meyers’ motion for summary judgment. First, Hoffenberg has failed to state a claim for legal malpractice because, under New York law, a plaintiff cannot state a malpractice claim against his criminal defense attorney if his conviction “remains undisturbed.” Britt v. Legal Aid Soc., Inc., 95 N.Y.2d 443, 446, 718 N.Y.S.2d 264, 741 N.E.2d 109 (2000); Carmel v. Lunney, 70 N.Y.2d 169; 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126 (1987). It is undisputed that Hoffenberg’s conviction “remains undisturbed” at this point. Accordingly, the District Court properly dismissed his malpractice claim. Because it is possible that Hoffenberg’s conviction could be overturned in the future, however, the District Court should have dismissed this claim without prejudice so that Hoffenberg might be able to renew it if and when his conviction is vacated. We hereby modify the District Court’s judgment so that Hoffenberg’s legal malpractice claim is dismissed without prejudice.
The District Court also properly dismissed Hoffenberg’s claim for gross negligence as redundant of his legal malpractice claim. See, e.g., Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 753 N.Y.S.2d 482, 487 (1st Dep’t 2003).
Finally, Hoffenberg’s claims for damages and punitive damages are not viable absent their attachment to the malpractice and gross negligence causes of action. See Rocanova v. Equitable Life Assurance Soc. of the United States, 83 N.Y.2d 603, 612 N.Y.S.2d 339, 344, 634 N.E.2d 940 (1994); Probst v. Cacoulidis, 295 A.D.2d 331, 743 N.Y.S.2d 509, 511 (2d Dep’t 2002). Accordingly, these claims were also properly dismissed.
For the foregoing reasons, the District Court’s orders are hereby AFFIRMED as modified. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218017/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED.
Defendant James Woodard (‘Woodard”) appeals from a final judgment, entered after a jury trial in the United States District Court for the Eastern District of New York (Block, J.), convicting him of one count of conspiracy to commit robbery and one count of robbery, both in violation of 18 U.S.C. § 1951, and sentencing him to (inter alia) concurrent terms of 187 months in prison. On appeal, Woodard raises a number of contentions.
Woodard complains that it was reversible error to allow the co-conspirator to identify him at trial without a formal lineup procedure. “A defendant does not have a constitutional right to a line-up; his request is addressed to the trial court’s sound discretion.” United States v. Brown, 699 F.2d 585, 593 (2d Cir.1983). In fact, “an in-court identification without [any] prior line-up or hearing [does not] necessarily violate a defendant’s rights.” Id. at 593-94. As long as any “identification procedures used prior to trial were not unduly suggestive, questions as to the reliability of a[n] in-court identification affect only the identification’s weight, not its admissibility.” United States v. Matthews, 20 F.3d 538, 547 (2d Cir.1994).
Here, suggestiveness was adequately minimized by an identification procedure conducted outside the jury’s presence whereby the defendant and a number of other African-American males were dispersed throughout the audience section of the courtroom; only after the defendant was identified in this way was the witness allowed to identify Woodard in front of the jury. This procedure was adequate. See Matthews, 20 F.3d at 547 (stating that proper procedures include seating defendant in courtroom but not at defense counsel’s table during witness’s identification testimony). A formal lineup procedure is unnecessary where “relatively minor steps [are taken] to ensure that the identification [i]s not unfair.” United States v. Archibald, 734 F.2d 938, 942 (2d Cir.1984). See Brown, 699 F.2d at 594 (stating that ideal practice involves use of either a line-up “or an appropriate protective procedure”).
Woodard claims that the district court erroneously enhanced his sentence on the ground that the use of firearms by co-conspirators was foreseeable to him. Woodard relies on (1) testimony that he did not take an active role in planning the robbery, and (2) the jury’s finding that the government failed to prove beyond a reasonable doubt that he was guilty of either possessing a weapon or of being part of a conspiracy to possess a weapon. This reliance is misplaced.
*292At the sentencing of a defendant convicted of a conspiracy charge, relevant conduct includes (inter alia) “all reasonably foreseeable acts” of co-conspirators performed “in furtherance of’ the conspiracy. See United States Sentencing Guidelines Manual (“U.S.S.G.” or the “Guidelines”) § 1B1.3(a)(l)(A) and (B) (2002). We accept the district court’s factual findings as to sentencing factors unless clearly erroneous, and give due deference to the application of those facts to the Guidelines. 18 U.S.C. § 3742(e)(4); see also United States v. Medina, 74 F.3d 413, 417 (2d Cir.1996) (“The factual findings of a sentencing court that bear upon reasonable foreseeability are reviewed by this Court for clear error.”).
There was ample evidence to support the finding that the use of firearms was foreseeable to Woodard, including (1) the violent nature of the planned robbery itself (which entañed a group of ski-masked robbers entering a jewelry store, smashing display cases and snatching jewelry while store employees and security were present), see Medina, 74 F.3d at 417 (“[I]t is hard to imagine that [the robbery] plan called for the ski-masked co-conspirators to burst into the construction company’s offices and shout, ‘Give me your money or ... I wñl think ül of you!’ ”); and (2) co-conspirators’ testimony as to prior use of guns and the visibility of guns prior to the start of the robbery. The jury verdict under the “reasonable doubt” standard does not necessarily undermine the district court’s finding as to the “preponderance of the evidence.” See United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997).
Woodard’s next argument is that the district court erred in not granting a downward adjustment by reason of his minor role in the offense. Woodard was required to show by a preponderance of the evidence that he was “less culpable than most other participants” in the crime of conviction, U.S.S.G. § 3B1.2(b), with culpability “gauged relative to the elements of the offense of conviction, not simply relative to co-perpetrators,” United States v. Ajmal, 67 F.3d 12, 18 (2d Cir.1995) (quoting United States v. Pena, 33 F.3d 2, 3 (2d Cir.1994)). The evidence reflects that Woodard entered the jewelry store with his co-conspirators, destroyed jewelry cases, stole property, and transported at least one co-conspirator to and from the robbery. This evidence is sufficient to support the district court’s ruling.
Woodard’s final claim is that the district court erred in assigning criminal history points for a state sentence (for possession of stolen property) that was imposed after conviction, but prior to sentencing, for the instant offense. U.S.S.G. § 4A1.2 provides which “prior sentences of imprisonment” can be used in calculating a defendant’s criminal history category. U.S.S.G. 4A1.2(e). This provision “is not directed at the chronology of the conduct, but the chronology of the sentencing.” United States v. Espinal, 981 F.2d 664, 668 (2d Cir.1992). Thus, a district court may “count[ ] a prior sentence imposed for conduct that occurred after the conduct for the instant offense had commenced,” id. at 668, as long as the prior sentence (1) “was for conduct other than conduct that was part of the instant offense,” and (2) was imposed “prior to sentencing on the instant offense,” U.S.S.G. § 4A1.2 cmt. n. 1 (emphasis added).
It is undisputed that Woodard’s state sentence for possession of stolen property was unrelated to the instant offense, and that this state sentence was imposed prior to the instant sentencing. It was therefore not error to count the state sentence toward Woodard’s criminal history in the instant case.
*293Woodard’s pro se brief raises no meritorious issue.
For the reasons set forth above, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218018/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 12th day of May, two thousand and three.
UPON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
Plaintiff Toby Pilman appeals from judgments of the United States District Court for the Southern District of New York dismissing her claims against her former employer, the New York City Housing Authority (“Authority”) and against the New York City Department of Personnel (“DOP”) and the New York City Civil Service Commission (“CSC”).
In 1990 Pilman filed a complaint with the New York State Human Rights Division (“HRD”) and the Equal Employment Opportunity Commission (“EEOC”) against the Authority, alleging discrimination on the basis of race and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1981. The complaint maintained that Pilman was disciplined for yelling in the office and that this discipline was a result of the fact that she was Caucasian. It asserted that her black colleagues were not disciplined as severely for similar conduct. The HRD dismissed her complaint in February 1994, and in May 1994 the EEOC issued a right-to-sue letter on the ground that, in investigating Pilman’s complaint, it found no Title VII violations. On October 20, 1994, Pilman filed a complaint in the United States District Court for the Southern District of New York raising these same allegations against the Authority-
In October 1995, Pilman filed another EEOC charge against the Authority, alleging that she was discriminated against on the basis of a perceived disability in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.1 Accordingly to Pilman, during the fíve-andone-half years she worked for the Authority, she was repeatedly disciplined, referred to substance abuse counseling, reported to the police, and ultimately terminated by her employer as a result of her disability. The Authority submitted evidence demonstrating that Pilman had repeated outbursts and that she was eventually placed on a leave of absence and then terminated. *295Prior to her termination, a hearing was held before an administrative law judge, who determined that Pilman was mentally unfit to perform the essential functions of her job. This determination was based in large part on the report of a psychiatrist that concluded that Pilman suffered from paranoid personality disorder and that this disorder prevented her from performing her job duties. The Authority adopted the administrative law judge’s report and placed Pilman on administrative leave effective September 1, 1993. In a letter dated September 2, 1994, the Authority informed Pilman that she had been terminated, effective September 1, 1994.2 Her condition was reevaluated in February 1995 to determine whether she might be able to be reinstated, but the administrative law judge and the Authority again concluded that she was unable to perform the essential functions of her prior job.
The EEOC issued a right-to-sue letter on Pilmaris ADA claim in March 1996, and Pilman filed another complaint in the Southern District of New York on May 23, 1996, alleging that the Authority, the DOP,' and the CSC violated Title VII and the ADA in terminating her from her position and failing to provide for her reinstatement. Although it appears that Pilmaris two complaints were never technically consolidated, the District Court consistently treated them as a unified action.
On November 14, 1996, the District Court (Sidney H. Stein, Judge) granted a motion to dismiss the claims against the DOP and the CSC on the ground that they did not have control over the terms and conditions of Pilmaris employment. See Pilman v. New York Housing Authority, No. 94 Civ. 3893, 1996 WL 665856 (S.D.N.Y. Nov.14, 1996).
In August 1998 the Authority filed a motion for summary judgment. On February 25, 2002, Magistrate Judge Sharon E. Grubin filed a Report and Recommendation that recommended granting the Authority’s motion for summary judgment with respect to Pilmaris Title VII and retaliation claims, but not with respect to her claims for disability discrimination. See Pilman v. New York Housing Authority, No. 94 Civ. 7655, 2000 WL 236322 (S.D.N.Y. Feb 25, 2000). The Report concluded that Pilman had failed to make out a prima facie case pursuant to Title VII because she had not identified non-white individuals who displayed the types of behavioral problems for which Pilman was punished and, therefore, she had failed to demonstrate that she was treated differently from “similarly situated” non-whites. Magistrate Judge Grubin also determined that Pilmaris retaliation claim must fail because Pilman had submitted no evidence that her complaints were causally related to the disciplinary measures taken against her. With respect to the disability discrimination claim, Magistrate Judge Grubin concluded that material issues of fact remained regarding whether the Authority provided a reasonable accommodation for Pilmaris disability.
On September 26, 2000, the District Court (Richard M. Berman, Judge) adopted Magistrate Judge Grubin’s Report and Recommendation. With respect to the disability discrimination claim, the Court determined that material issues of fact remained regarding (1) whether the Authority viewed Pilman as someone with a disability and (2) whether Pilman could have performed her job with the accommodation of counseling sessions to help control her behavioral problems. On September 29, 2000, the District Court entered *296“partial judgment” in favor of the Authority, dismissing only the Title VII and retaliation claims.
On March 29, 2001, the Authority moved to dismiss Pilman’s disability claim on the ground that it was time-barred because she had not filed an EEOC complaint with respect to this claim until October 1995, more than 300 days after her termination in September 1994. See 42 U.S.C. § 2000e-5(e)(l) (stating that a Title VII claim must be filed with the EEOC within 300 days of the discriminatory act); 42 U.S.C. § 12117(a) (incorporating 42 U.S.C. § 2000e-5(e) into the ADA). On July 26, 2001 Magistrate- Judge Ronald L. Ellis filed a Report and Recommendation that recommended granting the Authority’s motion to dismiss, and the District Court (Richard M. Berman, Judge) adopted the Report and Recommendation on February 25, 2002. See Pilman v. New York Housing Authority, 214 F.Supp.2d 325 (S.D.N.Y.2002). Final judgment was entered on March 1, 2002. On March 11, 2002, Pilman filed a notice of appeal.
We hold that the District Court properly granted summary judgment on Pilman’s Title VII and retaliation claims. Pilman failed to allege or present evidence that any non-white employees engaged in a prolonged pattern of yelling and fighting in the workplace similar to that for which she was disciplined and ultimately discharged. Accordingly, Pilman has failed to make out a prima facie case of discrimination under Title VII. See, e.g., Graham v. Long Island RR, 230 F.3d 34, 39 (2d Cir.2000) (holding that, in order to make out a prima facie case of discrimination under Title VII, a plaintiff alleging disparate treatment must show that “she was similarly situated in all material respects to the individuals with whom she seeks to compare herself’ (internal quotation marks omitted)). For substantially the reasons set forth by the District Court, we also agree that summary judgment was appropriate with respect to Pilman’s retaliation claims. See Pilman v. New York Housing Authority, No. 94 Civ. 7655, at 13-15 (S.D.N.Y. Sept. 26, 2000).
Finally, the District Court properly dismissed Pilman’s disability discrimination claim as time-barred. Under both Title VII and the ADA, a claimant may bring suit in federal court only if she has filed a timely complaint with the EEOC and obtained a right-to-sue letter. See 42 U.S.C. § 2000e-5(e) and (f); 42 U.S.C. § 12117(a). A complaint is timely filed with the EEOC if it is filed within 300 days of the allegedly discriminatory act. See, e.g., Harris v. City of New York, 186 F.3d 243, 247 (2d Cir.1999) (citing 42 U.S.C. § 2000e-5(e), as incorporated into the ADA by reference in 42 U.S.C. § 12117(a), for the proposition that an ADA claim must be filed with the EEOC within 300 days of the discriminatory act).
We have repeatedly held that actions for discriminatory discharge accrue when the employee receives “definite notice of the termination.” Miller v. Int’l Tel. & Tel. Corp., 755 F.2d 20, 23 (2d Cir.1985); see also Smith v. U.P.S. of America, Inc., 65 F.3d 266, 268 (2d Cir.1995). In this case, Pilman was notified of her discharge in September 1994. Although Pilman filed a complaint with the EEOC pertaining to her discharge and her disability discrimination claims in January 1994, that complaint was withdrawn in September 1994, before the EEOC had an opportunity to rule on it. Pilman did not refile her complaint with the EEOC until October 1995-more than 300 days after her termination. Accordingly, Pilman’s disability discrimination claim is barred by 42 U.S.C. § 2000e-5(e) and (f) and 42 U.S.C. § 12117(a).
*297We have considered all of Pilman’s remaining arguments and have found them to be without merit.
For the foregoing reasons, the District Court’s orders are hereby AFFIRMED.
. Pilman initially filed a complaint with the EEOC pertaining to her disability discrimination claim in January 1994, but that complaint was withdrawn in September 1994, before the EEOC had an opportunity to rule on it.
. Pursuant to New York Civil Service Law § 73, an employee who has been unable to perform her job duties for one year or more due to a disability may be terminated. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218019/ | SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is hereby AFFIRMED.
Defendant-appellant Fousseyini Doumbia appeals from a judgment of conviction entered December 26, 2001 by the District Court after defendant pleaded guilty, sentencing him principally to seventy months of imprisonment for conspiracy to commit bank fraud in violation of 18 U.S.C. § 371, and for substantive bank fraud offenses in violation of 18 U.S.C. § 1344. Defendant admitted during his plea allocution that he was involved in a scheme to steal the identity of Marc Segalman and to steal more than three hundred thousand dollars from Segalman’s Citibank bank account. The District Court found that Doumbia played a key role in the conspiracy and, both directly and through others, recruited co-conspirators into the scheme and offered them money either to open new bank accounts or to use existing bank accounts for Doumbia to deposit stolen, fraudulent Citibank checks from Segalman’s account, for eventual withdrawal of the money. The Court granted the government’s requests for two upward departures: (1) a four-level enhancement to Doumbia’s sentencing range under the United States Sentencing Guidelines (the “Guidelines”) based on the recommendation of defendant’s presentence investigative report (“PSR”) because defendant was an organizer of a scheme that involved five or more participants and was otherwise extensive pursuant to U.S.S.G. § 3Bl.l(a); (2) a two-level upward departure pursuant to Application Note 16 to U.S.S.G. § 2F1.1, because of the substantial harm to Segalman. The Court held that “the government has established by a preponderance of the evidence that the defendant is the organizer or head of this conspiracy.”
On appeal, defendant challenges the District Court’s application of a four-level enhancement for defendant’s key role and argues that he was not a leader or organizer of this conspiracy, but rather, that he was following the directions of an individual identified by defendant as Mr. Baffo, who was not charged in connection with this case. Defendant also argues that the District Court committed clear error when it found that the government had proven by a preponderance of the evidence that defendant was a leader or organizer. Instead, defendant argues that the government had to prove his leadership role beyond a reasonable doubt. Defendant argues that pursuant to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), the government was required to prove beyond a reasonable doubt that he was guilty of every element of the crimes charged-including factual findings that effected the determination of defendant’s sentencing range under the Guidelines (e.g., the Court’s finding that defendant was a leader or organizer of the conspiracy).
This timely appeal followed.
*299A.
Defendant argues that the four-level enhancement for his role in the conspiracy was improper. See U.S.S.G. § SBl.l(a).1 “The sentencing court’s findings as to the defendant’s role in the offense will be overturned only if they are clearly erroneous.” United States v. Farah, 991 F.2d 1065, 1068 (2d Cir.1993). Contrary to defendant’s contention, he is subject to the enhancement even if he managed only one other participant, not five. See U.S.S.G. § 3B1.1, Application Note 2 (“To qualify for an adjustment under this section, the defendant must have been the organizer [or] leader ... of one or more other participants”); United States v. Payne, 63 F.3d 1200, 1212 (2d Cir.1995). As to defendant, the District Court adopted the factual findings of the PSR, which provided an ample basis to support the enhancements. See, e.g., United States v. Zichettello, 208 F.3d 72, 107 (2d Cir.2000); United States v. Escotto, 121 F.3d 81, 85-86 (2d Cir.1997).
At sentencing the District Court is entitled to rely on evidence which would otherwise be inadmissible. See, e.g., United States v. Reese, 33 F.3d 166, 174 (2d Cir.1994) (“[W]hen determining sentence, a sentencing court is free to consider hearsay evidence, evidence of uncharged crimes, dropped counts of an indictment and criminal activity resulting in acquittal.”). Determinations of disputed facts, including unconvicted conduct, relevant to sentencing under the Guidelines, need be established only by a preponderance of the evidence. See, e.g., United States v. Cusimano, 123 F.3d 83, 90 (2d Cir.1997) (citation and internal quotation marks omitted). Defendant’s argument that Apprendi applies is without merit. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We have held that where a sentence does not exceed the statutory maximum, Apprendi does not apply, see United States v. Garcia, 240 F.3d 180, 183-84 (2d Cir.2001); here defendant’s sentence was below the statutory maximum, even with the sentence enhancement, and therefore, Apprendi does not apply. See also Harris v. United States, 536 U.S. 545, 556 & 560, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (holding that factors extending the mandatory minimum penalty are sentencing considerations properly left to the court alone to decide).
Defendant challenges the adequacy of the Court’s factual findings to support the imposition of a four-point sentencing enhancement under U.S.S.G. § 3Bl.l(a). A district court satisfies its obligation to make the requisite factual findings when it indicates in its written judgment that it is adopting the findings set forth in the PSR. See Zichettello, 208 F.3d at 107; United States v. Martin, 157 F.3d 46, 50 (2d Cir. 1998). The Court may also satisfy its obligation to make factual findings that support the sentence enhancement pursuant to the Guidelines by expressly adopting the position set forth by the government during a sentencing hearing. See United States v. Eyman, 313 F.3d 741, 744 (2d Cir.2002) (per curiam).
The District Court explicitly relied on the PSR and the government’s position during the sentencing hearing for its factual findings that defendant was a leader or organizer of a conspiracy to defraud that involved five or more participants. During defendant’s plea allocution, he admitted that more than five people were involved *300in the conspiracy and that it spanned two to three months, and he also outlined his own involvement. Defendant admitted that he identified people who were willing to permit deposits of the fraudulent checks into their bank accounts, and his co-defendants’ uncontroverted testimony established that defendant controlled the ATM cards for several of the accounts he induced the co-defendants to open. The government stated during the plea allocution that defendant was believed to be “at the very top of this conspiracy, that he is the individual who recruited the other co-conspirators whose bank accounts were used. He is the individual who placed the order for the electronics equipment which he posed as the account holder, and he ... was the person who organized [ ] and ran [the conspiracy].” App. 51.
During sentencing, the District Court asked counsel what factual disputes remained and was told by the prosecutor that none existed. The Court then asked whether a Fatico hearing was needed, and the prosecutor said no. See United States v. Fatico, 579 F.2d 707, 713 n. 14 (2d Cir.1978). Counsel for defendant did not contest either of these representations by the prosecutor. The District Court’s agreement with the representations of the government that defendant was the leader or organizer of the conspiracy was based on defendant’s plea allocution, trial testimony from co-defendants Kesha Lawson and Shawn Jones, and the plea allocutions of Moustaphe Bailo and Edison Seabrook. The District Court determined that defendant recruited other individuals into the scheme; that he supervised them; that they complied with his directions; that he exercised control over them; and that he expected to receive the majority of the proceeds from the fraud. The District Court did not credit defendant’s argument that another individual was actually the leader or organizer. Indeed, the Court rejected defendant’s arguments to the contrary and held that “all the evidence that is known and established is reasonably consistent with [defendant’s] being the organizer of this conspiracy and that the evidence that someone else was is both doubtful on its face, improbable ..., and ... uncorroborated. So I think the government has established by a preponderance of the evidence that defendant is the organizer or head of this conspiracy, and I will add 4 points.” App. at 87.
The District Court finding, by a preponderance of the evidence, that defendant was a leader was not clearly erroneous and its application of the four-level enhancement conformed to the requirements of U.S.S.G. § 3Bl.l(a). See Zichettello, 208 F.3d at 107; U.S.S.G. § 3B1.1, cmt. (n.2). The Court held that defendant managed the activities of more than one other participant, and that more than five other co-defendants participated in the conspiracy. In reviewing the findings of the District Court with regard to the imposition of the four-level enhancement pursuant to U.S.S.G. § 3Bl.l(a), we find no error, much less clear error.
Substantially for the reasons stated by the District Court, in open court, we hereby AFFIRM the judgment of the District Court.
. The pertinent provision reads as follows:
Based on the defendant’s role in the offense, increase the offense level as follows:
(a) If the defendant was an organizer or leader of a criminal activity that involved five or more participants or was otherwise extensive, increase by 4 levels. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218020/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, *302BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 19th day of May, two thousand and three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.
Plaintiff-Appellant Neil Braun appeals from a judgment of the United States District Court for the Southern District of New York (Pauley, J.), granting summary judgment to Defendants-Appellees CMGI, Inc. (“CMGI”) and iCAST Corp. (“iCAST”) on Braun’s breach of contract and promissory estoppel claims.
I.
At a January 31, 1999 meeting in Boca Raton, Florida, David Wetherell, the Chairman and Chief Executive Officer of CMGI, discussed with Braun the prospect that Braun would become President and CEO of a new internet-broadcasting company (later known as iCAST) to be formed and funded by CMGI. Wetherell and Braun discussed Braun’s potential compensation, and agreed that stock options in CMGI and iCAST would be included as part of the package. According to Braun, Wetherell promised that all of Braun’s stock options would immediately vest if Braun were ever terminated without “cause.”
Braun began working for Wetherell on February 10, 1999, but the employment relationship soured over the ensuing months and ended with Braun’s termination on November 12, 1999. On December 22, 1999, Braun filed claims for breach of contract, promissory estoppel, and quantum meruit against CMGI, iCAST, and Wetherell. Braun alleged that he had been terminated without cause, and therefore he was entitled to exercise the promised stock options (which were then purportedly worth $46 million), but the defendants disagreed.
By order dated August 15, 2001, Judge Pauley granted CMGI’s and iCAST’s motion for summary judgment on Braun’s claim for breach of contract, concluding as a matter of law that the parties never intended to be bound by their oral agreement at the January 31, 1999 meeting absent a signed writing. At a February 6, 2002 hearing, Judge Pauley granted summary judgment to defendants on Braun’s promissory estoppel claim, concluding that (i) the alleged promise that the stock options would immediately vest upon termination without “cause” was insufficiently definite prior to a March 1999 meeting at which the parties agreed on a definition of “cause,” and (ii) Braun could not establish detrimental reliance after the March 1999 meeting by his continued service at CMGI. Braun’s claim for quantum meruit proceeded to trial, and a jury awarded him $113,482.24.1
II.
We review the district court’s grant of summary judgment de novo. See Young v. *303County of Fulton, 160 F.3d 899, 902 (2d Cir.1998). In doing so, we construe the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Maguire v. Citicorp Retail Servs., Inc., 147 F.3d 232, 235 (2d Cir.1998). Summary judgment is appropriate only where “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c).
Braun’s principal argument on appeal with respect to his breach of contract claim is that there is a genuine issue of material fact as to whether the parties intended their January 31, 1999 oral agreement to be binding despite the absence of a writing.
As Judge Pauley recognized, a contract can be formed under New York law without the execution of a written document, see Mun. Consultants & Publishers v. Town of Ramapo, 47 N.Y.2d 144, 148-49, 417 N.Y.S.2d 218, 390 N.E.2d 1143 (1979), and the binding nature of an oral agreement depends on (1) whether a party has made an “explicit statement that it reserves the right to be bound only when a written agreement is signed,” (2) “whether one party has partially performed,” (3) “whether there was literally nothing left to negotiate or settle, so that all that remained to be done was to sign what had already been fully agreed to,” and (4) “whether the agreement concerns those complex and substantial business matters where requirements that contracts be in writing are the norm rather than the exception.” R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 75-76 (2d Cir.1984) (reciting New York law).
Braun’s own testimony at depositions, as follows, establishes that the parties did not intend their oral understanding to be binding in the absence of a writing: Wetherell told Braun at the January 31, 1999 meeting that CMGI required a written offer letter reflecting the terms of employment; and Wetherell promised to send, and Braun expected to receive, a written offer letter setting forth the terms of employment discussed at the January 31, 1999 meeting (base compensation, quarterly performance bonuses, and stock options). Although Braun testified that he called Wetherell in early February to orally accept the offer, this “acceptance” did not vitiate CMGI’s requirement of a writing. Moreover, Braun’s oral “acceptance” is incompatible with Braun’s contemporaneous written correspondence to Wetherell expecting and seeking a written offer letter; thus Braun sent Wetherell a February 5 email saying that he was “[pjoised and ready. When should I expect [the] document?” Braun received a draft offer letter the following day, however Braun did not sign an offer letter until after his termination in November 1999. Together, these facts (and others not recited herein) demonstrate an express reservation by CMGI to be bound only by a writing.
The second factor—partial performance—tilts in Braun’s favor; but we agree with Judge Pauley’s conclusion that the third and fourth factors militate the other way. The fourth factor—whether the agreement is the type typically committed to writing—is especially telling. A sophisticated party such as Braun could not reasonably have believed that an options package, which both parties hoped would become very valuable, would be fixed and made enforceable in a conversation.
We see no error in the district court’s grant of summary judgment in favor of CMGI and iCAST on Braun’s breach of contract claim, notwithstanding the undis*304puted evidence of Braun’s partial performance. See Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir. 1989) (affirming summary judgment notwithstanding partial performance by one party, finding intent readily determinable from exchanged documents or proposals).
III.
Under New York law, the elements of promissory estoppel are (i) a clear and unambiguous promise by the promisor; (n) reasonable and foreseeable reliance by the promisee; and (iii) an injury to the promisee. Reprosystem, B.V. v. SCM Corp., 727 F.2d 257, 264 (2d Cir.1984). Judge Pauley concluded that (i) before a March 1999 meeting at which the parties agreed on a definition of “cause,” there was no clear and ambiguous promise, and (n) Braun could not establish detrimental reliance after the March 1999 meeting by the mere fact that he remained at CMGI. For substantially the reasons stated by Judge Pauley at the February 6, 2002 hearing, we agree that CMGI and iCAST were entitled to summary judgment on Braun’s claim for promissory estoppel.
IV.
We have reviewed all of Braun’s remaining contentions, and conclude that they lack merit.
For the reasons set forth above, the judgment of the district court is hereby AFFIRMED.
. Wetherell won summary judgment as to all claims against him, and that ruling has not been appealed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218022/ | SUMMARY ORDER
ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.
Defendant Lama appeals from the judgment entered in the United States District Court for the Eastern District of New *309York (Raggi, J.) following his guilty plea. Defendant pled guilty to conspiracy to distribute and possess with intent to distribute heroin, in violation of 21 U.S.C. §§ 841(b)(1)(A), 846, and importation of heroin, in violation of 21 U.S.C. §§ 952(a), 960(a)(1). Although defendant’s Guidelines’ range was seventy to eighty-seven months, he was sentenced to the statutory mandatory minimum of 120 months incarceration on each count, to run concurrently, five years supervised release, and the mandatory $200 special assessment. On appeal, defendant asserts that the District Court erred in denying him safety valve credit at sentencing.
“In reviewing a district court’s imposition of sentence, we review factual findings for clear error and the court’s interpretation of the Sentencing Guidelines de novo. ” United States v. Jeffers, 329 F.3d 94, 97-99, at *3 (2d Cir.2003). The safety valve statute permits a sentencing court to impose a sentence below the normal statutory mandatory minimum when certain criteria are met. See 18 U.S.C. § 3553(f) (2000); see also U.S. Sentencing Guidelines Manual § 5C1.2 (2002) (incorporating the statutory criteria). As defendant concedes, he bore the burden of demonstrating by a preponderance of the evidence that he satisfied the five criteria set forth in the statute in order to receive safety valve relief. See United States v. Conde, 178 F.3d 616, 621 (2d Cir.1999).
At issue here is the fifth of these criteria, which requires, in pertinent part, that “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan.” 18 U.S.C. § 3553(f)(5). In United States v. Schreiber, 191 F.3d 103, 107-08 (2d Cir.1999), we held that under the plain terms of the statute and Guidelines, a defendant can “come clean” any time before the commencement of his sentencing hearing and still satisfy the fifth prong of the test. However, while earlier lies do not of themselves preclude safety valve eligibility, they may be relevant to the district court’s assessment of the credibility of the later, supposedly truthful statements. As we have noted, “[t]he fact that appellant repeatedly lied and obstructed justice prior to allegedly telling the complete truth will be useful in evaluating whether appellant’s final proffers were complete and truthful.” Schreiber, 191 F.3d at 109. Cf. Jeffers, 329 F.3d at 99 (observing that “prior perjurious acts may affect the defendant’s credibility and his corresponding ability to satisfy the safety valve’s truthful disclosure requirement”). Thus, “[a] court may, of course, consider the relevance of the prior perjury or other obstructive behavior in making a factual finding as to whether the defendant has made a complete and truthful proffer in compliance with § 3553(f)(5).” Id. at 99-100. See also Schreiber, 191 F.3d at 107 (noting that “as a practical matter, a defendant who changes his or her story to match the government’s evolving knowledge of the events risks irrevocably undermining his or her credibility”).
Upon review of the record, we find that the District Court correctly applied controlling law. The District Court specifically stated that, regardless whether the defendant had lied to the government at any of his initial three proffer sessions, if he had “told a credible version at the last [proffer session], had the government been convinced that at least [he was] telling the truth, [it] would have given [him] the safety valve consideration.” But after listening to defendant’s testimony and observing his deportment at the sentencing hearing, the District Court concluded that the defendant had willfully perjured himself at the sentencing hearing, providing “yet an*310other account, some ways consistent with any of the number of versions [he’d] told but in some ways not,” which the District Court found was not credible. We find that the District Court did not clearly err in so concluding, as there was more than ample evidence in the record to support its factual findings.
We have considered all of defendant’s arguments and find them to be without merit.
The judgment of the District Court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218023/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 22nd day of May, two thousand and three.
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be and it hereby is AFFIRMED.
Plaintiffs Bronx Legal Services and Queens Legal Services Corp. (“BLS/ QLS”) appeal from the district court’s judgment entered August 19, 2002 granting summary judgment to defendants and dismissing plaintiffs’ claims for declaratory judgment and injunctive relief. BLS/QLS argue that the district court erred because (1) Public Law No. 104-134, § 509(h), 110 Stat 1321 (1996) (“ § 509(h)”) does not require disclosure of client names when such disclosure might reveal client secrets, (2) § 509(h) is unconstitutional if it does require such disclosure, and (3) Legal Services For New York City’s (“LSNY”) and the Legal Services Corporation’s (“LSC”) request for information was not “reasonable and necessary” as required by BLS/ QLS’s contracts with LSNY and thus BLS/QLS was not required to respond. We disagree.
We review a grant of summary judgment de novo. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 285-86 (2d Cir.2002). Summary judgment is appropriate only if there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(c).
In this case, we find that summary judgment was appropriate because (1) providing client names would not present a conflict with New York State Codes, Rules and Regulations § 1200.19 and (2) under BLS/QLS’s contracts with LSNY, BLS/ QLS are obligated to provide the names.
As an initial matter, we address whether § 1200.19 applies because it is possible that our interpretation of the contract between BLS/QLS and LSNY would be influenced by a finding that the requested disclosure of client names would violate a disciplinary rule. In this case, however, there would be no violation.
Section 1200.19 bars attorneys from revealing client confidences or secrets except when, among other reasons, disclosure is “required by law or court order.” 22 N.Y.C.R.R. § 1200.19(c)(2). In this case, BLS/QLS is required by law to provide the names. Section 509(h) requires that recipients of LSC funds provide “time records, retainer agreements, ... and client names ... except for reports or records subject to the attorney-client privilege.” The pertinent regulation, which was in place when Congress passed § 509(h), requires that retainer agreements “clearly identify ... *312the matter in which representation is sought [and] the nature of the legal services to be provided.” 45 C.F.R. § 1611.8(a). Thus, when Congress passed § 509(h), requiring that grantees provide both “retainer agreements ... and client names,” it “required by law” the disclosure of any client secrets that might be revealed if a client name were connected to information on the nature of the representation. Our conclusion is consistent with that reached by the D.C. Circuit in United States v. Legal Services for New York City. 249 F.3d 1077, 1083 (D.C.Cir.2001).
The contract between BLS/QLS and LSNY unambiguously requires that BLS/ QLS provide LSNY “time records, retainer agreements, ... and client names.” Contract For Provision of Legal Assistance § 3.2(c). The contract thus plainly requires that BLS/QLS provide their clients’ names as well as the information contained in its attorney time records and retainer agreements, which generally include the nature of the legal issue for which representation is sought.
Finally, BLS/QLS argue that under Condition 10 of the contract, they are obligated to respond to only “reasonable and necessary” information requests. This claim is meritless because Condition 9, which requires that BLS/QLS provide “time records, retainer agreements ... and client names,” expressly overrides Condition 10.
Because there are no genuine issues of fact concerning BLS/QLS’s duties under the contract and because the contracts plainly demonstrate that defendants are entitled to judgment as a matter of law on BLS/QLS’s claims, summary judgment is appropriate. We therefore need not consider either plaintiffs’ constitutional claims, which in any event, we would find to be without merit, or the Inspector General’s claim to sovereign immunity.
Accordingly, for the reasons set forth above, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218024/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 23rd day of May, Two thousand and three.
Darrell Conerly, pro se, appeals from the May 16, 2002 order of the United States District Court for the District of Connecticut (Charles L. Brieant, Jr., J.), denying his post-judgment motion for an extension of time to appeal pursuant to Fed. RApp. P. 4(a)(5).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED, and that appellant’s other pending motions are DENIED.
This appeal comes before us after we have twice remanded the ease to the district court for determinations on Conerly’s requests for relief under Fed. RApp. P. 4(a)(5) and (6). Conerly originally brought this civil action against defendants-appellees, International Business Machines Corp. (“IBM”), alleging employment discrimination and tortious conduct, and the district court granted IBM’s summary judgment motion. We dismissed Conerly’s first appeal for lack of jurisdiction based on the untimely notice of appeal, but remanded for consideration of Conerly’s motion for an extension of time to file a notice of appeal under Fed. R.App. P. 4(a)(6). On this first remand, the district court denied Conerly’s Fed. RApp. P. 4(a)(6) motion, and, on appeal, we affirmed. However, based on a motion for an extension of time that Conerly had filed in the district court within the 30-day grace period under Fed. RApp. P. 4(a)(5), but that apparently had not been docketed in the district court, we again remanded.
*314At the hearing on his Rule 4(a)(5) motion before the district court on this second remand, Conerly argued that his late notice of appeal should be excused because he was a pro se litigant out of the country on a mission when the district court dismissed his case. By order entered May 16, 2002, the district court denied the Rule 4(a)(5) motion, and Conerly filed a timely notice of appeal.
We review for abuse of discretion a district court’s denial of a motion for an extension of time to file an appeal. See United States v. Carson, 52 F.3d 1173, 1180 (2d Cir.1995). Rule 4(a)(5) gives the district court discretion to permit a party to file a late notice of appeal upon a showing of excusable neglect or good cause. Fed. R.App. P. 4(a)(5). In determining whether the failure to file a timely notice of appeal is excusable, the district court’s decision is “an equitable one” and is to take into account “all relevant circumstances surrounding the party’s omission.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993). See Weinstock v. Cleary, Gottlieb, Steen & Hamilton, 16 F.3d 501, 503 (2d Cir.1994). The district court considered the relevant circumstances in its order, and its denial of Conerly’s Rule 4(a)(5) motion was within its discretion.
The district court also held that service of Conerly’s Rule 4(a)(5) motion was defective because Conerly did not serve the motion on the defendants’ counsel, as required under Fed.R.Civ.P. 5, but rather served the motion only on the defendant. See Fed.R.Civ.P. 5(b) (“Service [ ] on a party represented by an attorney is made on the attorney unless the court orders service on the party.”); Avolio v. County of Suffolk, 29 F.3d 50, 53 (2d Cir.1994). We also affirm the district court’s ruling on defective service.
For the above-stated reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218025/ | SUMMARY ORDER
UPON DUE CONSIDERATION of this appeal from a judgment of the United States District Court for the District of Vermont (William K. Sessions, Judge), it is hereby ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED.
Defendan1>-Appe]lant Wesley Alexander appeals the decision of the District Court of Vermont (Sessions, J. ) denying his motion to file a late notice of appeal of his criminal conviction pursuant to Fed. R.App. P. 4(b)(4). We review the district court’s ruling for abuse of discretion. United States v. Koziel, 954 F.2d 831, 834 (2d Cir.1992). Any factual findings made by the district court are reviewed for clear error. United States v. Mendez, 315 F.3d 132, 135 (2d Cir.2002).
Rule 4(b) of the Federal Rules of Appellate Procedure provides that the district court may extend the time for filing a notice of appeal “[u]pon a finding of excusable neglect” if a motion for extension is filed within thirty days of the original deadline, as is the case here. Excusable neglect may include “inadvertence, mistake, or carelessness, as well as ... intervening circumstances beyond the party’s control.” United States v. Hooper, 9 F.3d 257, 259 (2d Cir.1993) (quoting Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
Alexander asserts that his alleged pro se status, incarceration, and reduced mental capacity demonstrate excusable neglect sufficient to require the district court to grant his motion for an extension of time to file his notice of appeal. Initially, in an affidavit submitted to the district court with his original motion, Alexander asserted that he was unable to contact his attorney of record, Paul Volk, during the 10-day window in which to file his notice of appeal.
The district court held a hearing to determine why Alexander delayed in filing his notice of appeal. Volk testified that directly after Alexander’s sentencing hearing, he and Alexander spoke about the possibility of an appeal and its potential for success. According to Volk, Alexander af*316firmatively decided not to appeal the district court’s decision. Alexander submitted a second affidavit contradicting Volk’s testimony, which stated that Alexander had spoken to Volk after his sentencing, asked to appeal his sentence, and that Volk had refused to represent him on the appeal. The district court found that Alexander did not adequately explain the contradictions in his two affidavits, and found the latter affidavit unreliable. Based on the evidence at the hearing, the district court found that Volk had informed Alexander of his right to appeal and Alexander had affirmatively waived this right.
We find no clear error in the district court’s factual findings and uphold the district court’s determination that Alexander knew of his right to appeal and affirmatively chose not to exercise it. See Mendez, 315 F.3d at 135 (‘Where the district court’s factual findings are premised upon credibility determinations, we grant particularly strong deference to those findings.”). Because affirmatively foregoing appeal does not constitute excusable neglect, we uphold the district court’s denial of Alexander’s motion for an extension of time to file a notice of appeal.
For the reasons set forth above, the judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218026/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 23rd day of May, two thousand three.
UPON DUE CONSIDERATION of this appeal from a judgment of the United States District Court for the Western District of New York (William M. Skretny, Judge), it is hereby
ORDERED, ADJUDGED AND DECREED that the judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED for further proceedings.
Plaintiffs-appellants Rand and Clare Schuster appeal the jury verdict and subsequent denial of their motion for a new trial. Appellant Rand Schuster brought suit against appellees alleging that he sustained significant injuries when he slipped and fell on an icy patch in a parking lot owned by the appellees-defendants, The Brimstone Hill Corporation, Chalet Susse International, and Susse Chalet Motor Lodge. Appellant Clare Schuster brought a loss of consortium claim against appellees. The jury found that appellees were liable for 50% of Rand Schuster’s injuries but awarded zero damages on his claim; it found the appellees were not liable on the loss of consortium claim. Appellants do not contest the verdict with respect to the loss of consortium claim, and we affirm this portion of the judgment in favor of appellees.
Appellants make several arguments why they are entitled to a new trial on Rand Schuster’s personal injury claim. We need only address one: that they are entitled to a new trial on damages as a matter of law because they provided indisputable, objective evidence of the damages Rand Schuster suffered as a result of his fall. Because we agree with appellants that no *318reasonable jury could find that Rand Schuster’s injuries required no compensation, we vacate the judgment of the district court as to Rand Schuster’s claim and remand for a new trial on damages.
After a six day trial, the jury returned a verdict in which it found “that the injury to the plaintiff resulted in whole or in part from the negligence of the defendant.” At trial, appellees’ expert conceded that the surgery Rand Schuster required for a torn rotator cuff was causally related to his fall on appellees’ property. The uncontested evidence from both parties’ experts showed that this surgery included inserting metal fasteners into Rand Schuster’s shoulder bone, attaching the torn rotator cuff to his shoulder bone using the fasteners, and shaving off some of his shoulder bone to allow greater movement. These facts suffice to demonstrate, as a matter of law, that defendants were liable for damage related to Rand Schuster’s surgery. Rand Schuster’s injuries simply could not result in no compensable pain and suffering. Cf. Gomes v. Roy, 99 N.H. 233, 108 A.2d 552, 553 (N.H.1954) (holding that where a plaintiff suffered uncontroverted physical injury and scarring, it was not reasonable for the jury to “assume that [the injuries] were accompanied by no pain, or suffering, and that no disfigurement resulted, however paltry the jury may have considered them to be in terms of dollars and cents.”). Given appellees’ concession at trial and the jury’s determination that appellees’ negligence caused Rand Schuster’s injury, the district court erred in ruling that a reasonable jury could find no compensable damages in this case.
In addition, appellants argue that they were entitled to a jury instruction on the “eggshell plaintiff’ doctrine, which states that a “plaintiff [may] recover to the extent that the accident aggravated [a] pre-existing condition.” Valliere v. Filfalt, 110 N.H. 331, 266 A.2d 843, 844-45 (N.H.1970). Because we are remanding for a new trial, we need not, and do not, reach this issue. We note, however, that a party is entitled to an instruction on any theory supported by evidence adduced at trial and brought to the attention of the court. See Carvel Corp. v. Diversified Mgmt. Group, Inc., 930 F.2d 228, 230 (2d Cir.1991). “It does not matter that the evidence was minimal or was presented in a piecemeal fashion. All that is necessary is that there be some evidence supporting a party’s theory of the case.” Hilord Chem. Corp. v. Ricoh Elecs., Inc., 875 F.2d 32, 38 (2d Cir.1989). Depending on the specific evidence presented at retrial, such as expert testimony that Rand Schuster’s rotator cuff was friable and more susceptible to injury, an “eggshell plaintiff’ charge may be required.
For the reasons set forth above, the judgment of the district court is AFFIRMED with respect to appellant Clare Schuster’s loss of consortium claim and VACATED and REMANDED for a new trial on the issue of damages with respect to appellant Rand Schuster’s personal injury claim. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218027/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, Foley Square, in the City of New York, on the 27th day of May, two thousand three.
*320ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the District Court is AFFIRMED.
This is an appeal and cross-appeal from a judgment entered on April 9, 2002, in the District Court for the District of Connecticut (Warren W. Eginton, District Judge) after a bench trial. Norwalk Cove Marina, Inc. (“Norwalk Cove”) brought the action to recover its costs to repair and retrofit a ninety-foot sailboat, S/V Odysseus. The Defendants are Emerald Lady Inc.; its principal, Dennis Mehiel; and the Odysseus, which is owned by the corporate and individual defendants. Asserting admiralty and diversity jurisdiction, the Plaintiffs alleged claims for “Breach of Contract” and “Quantum Meruit/Unjust Enrichment/Restitution.” The Defendants counterclaimed, alleging fraud, breach of contract, and violations of the Connecticut Unfair Trade Practices Act (“CUTPA”), Conn. GemStat. Secs. 42-110a et seq.
After a six-day trial, the District Court ruled that the parties had not entered into a contract, thereby rejecting the breach of contract claims in both the complaint and the counterclaims. The Court dismissed the Defendants’ fraud counterclaim for lack of clear and convincing evidence of fraudulent misrepresentations. The Court also ruled that Norwalk Cove was owed $186,227.04 as the reasonable value of the services it had rendered to the Defendants. However, the Court also ruled that this sum should be “offset” by the sum of $187,150, representing the cost to the Defendants of repairing Norwalk Cove’s faulty workmanship. The Court entered judgment for the Defendants for the difference between the two sums, $922.96. The Court dismissed the Defendants’ CUTPA claim, concluding that this state law claim for punitive damages and attorney’s fees was preempted by admiralty law.
The Plaintiff contends on appeal primarily that, for various reasons, the amount determined by the District Court as the cost to the Defendants of making repairs required by the Plaintiffs faulty workmanship is too high. The Defendants urge that the District Court’s determination of their cost of repairs is correct and further contend that the District Court’s determination of the amount due the Plaintiff on a quantum meruit1 theory lacks sufficient evidentiary support. The Defendants’ cross-appeal challenges the dismissal of their CUTPA counterclaim, which sought punitive damages and attorney’s fees.
At the outset, we affirm the District Court’s rejection of the CUTPA counterclaim for punitive damages and attorney’s fees as preempted. See American National Fire Insurance Co. v. Kenealy, 72 F.3d 264, 270-71 (2d Cir.1995) (attorney’s fees); Ingersoll Milling Machine Co. v. M/V Bodena, 829 F.2d 293, 309 (2d Cir.1987) (same); cf. Miles v. Melrose, 882 F.2d 976/989 (5th Cir.1989) (punitive damages).
With respect to the parties’ conflicting contentions concerning damage calculations, we first reject the Plaintiffs challenge to the calculation of the cost of repairs incurred by the Defendants because we conclude that the factual findings supporting this calculation are not clearly erroneous and that the Plaintiffs legal objec*321tions to the Defendants’ entitlement to an offset for the cost of repairs are without merit.
However, the Plaintiff is correct in one respect: the Defendants are entitled only to offset the sums due the Plaintiff with the sums due the Defendants, but are not entitled to any net recovery in the Defendants’ favor. The Defendants lost their opportunity for any net recovery in their favor when the District Court correctly dismissed their three counterclaims and, after the close of evidence at trial, refused permission to add a fourth counterclaim for negligence. The Defendants have not challenged this refusal on appeal. Left only with the defense of setoff, the Defendants can do no more than assert their costs of repairs as a reduction of the amount they would otherwise have to pay for the reasonable value of the services rendered by the Plaintiff. By definition, a setoff is a reduction from an amount otherwise owed, see Black’s Law Dictionary 1376 (7th ed. 1999) (“A debtor’s right to reduce the amount of a debt by any sum the creditor owes the debtor.”), and cannot result in a net recovery in favor of the party asserting the defense of setoff; cf. Inter-State National Bank v. Luther, 221 F.2d 382, 390 (10th Cir.1955) (in banc) (“Counterclaim under Rule 13, F.R.C.P., includes both setoff and recoupment, and is broader than either in that it includes other claims and may be used as a basis for affirmative relief.”).
Turning to the Defendants’ objections to the calculation of the Plaintiffs quantum meruit award, we reject the Defendants’ contention that there is a complete absence of evidence to support at least some award for the reasonable value of the services rendered by the Plaintiff. We need not adjudicate the Defendants’ objections to specific aspects of the District Court’s calculation of the amount of the quantum meruit award, because even if the amount of that award were somewhat reduced, the reduction would not benefit the Defendants. Rather it would pro tanto reduce the amount of the Defendants’ offset for the cost of repairs, but, as noted above, not entitle the Defendants to any net recovery in the absence of a counterclaim.
The Defendants endeavor to support their net recovery by describing the District Court’s ruling as an award of $187,150 on the Defendants’ counterclaims, against which Norwalk Cove was given a setoff of $186,227.04. See Brief for Appellees at 2. That is not what happened. The District Court’s opinion clearly states that “the amount of $186,227.04 should be offset by $187,150.” As noted, after the District Court’s preliminary rulings, no counterclaim of the Defendants remained in the case.
We have considered the parties’ remaining contentions and conclude that they lack merit. We therefore modify the judgment to delete the net recovery of $922.96 in favor of the Defendants, and affirm the judgment as modified. The result is no recovery in favor of any of the parties. Under the circumstances, we decline to award any appellate costs.
. The District Court characterized the theory using the broader term "unjust enrichment,” but we think that the claim for the reasonable value of goods and services rendered is appropriately described as "quantum meruit.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218028/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 28th day of May, two thousand and three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
In May 2001, Plaintiff-Appellant Nehemiah Rolle filed a pro se §§ 1983 and 1985 complaint against Maureen Cassidy, a probation officer' from the Nassau County Probation Department. Rolle alleged that Cassidy’s preparation of his Pre-Sentence Report (“PSR”) violated his federal constitutional and state rights. The suit sought $16 million in compensatory and punitive damages. The district court dismissed the complaint, without prejudice to Rolle’s filing an amended complaint within thirty days, on the ground that the complaint failed to state a claim upon which relief could be granted, and that it sought monetary relief against a defendant who is immune from such relief.
Rohe filed an amended complaint, which again sought monetary damages, but also sought unspecified declaratory, injunctive, and other equitable relief. The district court dismissed the amended complaint as weh, concluding that it failed to cure the defects warranting dismissal of the original complaint. Specifically, the district court noted that this court has held that probation department employees are entitled to absolute immunity from suits for damages for their activities in connection with the preparation and submission of a *323Pre-Sentence Report. See Hili v. Sciarrotta, 140 F.3d 210, 213 (2d Cir.1998). The district court also construed the amended complaint as seeking a) a declaration that Cassidy had violated Rolle’s constitutional rights and b) an injunction preventing her from doing it again or in any way using the PSR. The court dismissed these claims because there was no showing of any likelihood of future harm that Rolle would suffer in the absence of such an injunction or declaration. The district court dismissed the federal claims with prejudice and the state claims without prejudice to Rolle’s refiling them in state court.
The district court subsequently denied Rolle’s request that it alter or amend both the order dismissing the amended complaint and the amended judgment. The court noted that the motion, made pursuant to Fed.R.Civ.P. 59(e), was untimely, because it was filed more than ten days after the judgment was entered. The court then construed the motion as one filed pursuant to Rule 60(b), see Branum v. Clark, 927 F.2d 698, 704 (2d Cir.1991) (“If a motion to modify or set aside the judgment ... is served more than 10 days after entry of the judgment, it is properly considered a motion under Fed.R.Civ.P. 60(b), not one under Rule 59(e).”), and denied it on the merits. The district court noted that the motion articulated the specific declaratory, injunctive, and equitable relief that Rolle sought, including a declaration that Cassidy had violated Rolle’s constitutional rights, an injunction preventing Cassidy from using the PSR, an order that he receive a copy of the PSR, and a declaration and equitable relief stating that Rolle was innocent of the state criminal offense to which he had pleaded guilty. Notwithstanding these more specific claims for non-monetary relief, the court concluded that Rolle’s motion and the materials filed in support of it failed to articulate any plausible likelihood that Rolle would suffer ongoing or threatened future harm in the absence of such relief.
Regardless of whether Rolle’s motion is viewed as timely filed under Fed.R.Civ.P. 59(e),1 or as a Rule 60(b) motion, the district court’s discussion of the merits of Rolle’s claims is determinative. Accordingly, we affirm the district court’s judgment for substantially the reason it gave. We have considered all of Mr. Rolle’s other claims and find them meritless.
The judgment of the district court is AFFIRMED.
. To be timely as a Rule 59 motion, the motion would have had to have been filed by August 21, 2001. Although Rolle’s motion was dated August 19, it was postmarked August 28, and stamped by the Clerk of Court as filed on August 28. It would be timely, then, only if the "mailbox rule" of Fed. R.App. P. 25(a)(2)(C) applied. The district court, noting that this court has not expressly applied the mailbox rule to Rule 59 motions, concluded that it was without power to do so. In Noble v. Kelly, we held that the rationale for the mailbox rule for notices of appeal applied with equal force to a prisoner’s petition for a writ of habeas corpus, and therefore that the district court did not err in extending the rule to such petitions. 246 F.3d 93, 97 (2d Cir.2001) (per curiam). In doing so, we cited favorably a Third Circuit decision applying the mailbox rule to motions under Rule 59. Id. (citing Smith v. Evans, 853 F.2d 155, 161 (3d Cir.1988)). Because the district court in the instant case construed the request as a Rule 60(b) motion and decided it on the merits, we need not consider whether the court erred in declining to extend the mailbox rule to Rolle’s Rule 59 motion. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218029/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 28th day of May, two thousand and three.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court be and it hereby is AFFIRMED.
In May 2001, Plaintiff-Appellant Nehemiah Rolle filed a pro se §§ 1983 and 1985 complaint in the United States District Court for the Eastern District of New York (Hurley, J.) against Alan L. Honorof, a Nassau County Court of Claims Judge who presided in criminal court proceedings as Acting Supreme Court Justice in Nassau County, and Michael John Meenan, Rolle’s court-appointed Legal Aid attorney in those proceedings. The complaint alleged, inter alia, that Meenan coerced Rolle into pleading guilty and into referring private, paid criminal cases to Meenan, and that Judge Honorof conspired with Meenan to deprive Rolle of his constitutional right tó represent himself. Rolle sought declaratory, injunctive, and other equitable relief preventing Judge Honorof from presiding over criminal cases in Nassau County, as well as $16 million in compensatory damages, and $4 million in punitive damages, from Meenan. In July 2001, the district court dismissed the complaint for failure to state a claim on which relief may be granted, without prejudice to Rolle’s filing an amended complaint within *325thirty days. The order stated that Rolle’s failure to file an amended complaint within thirty days would result in dismissal of the original complaint with prejudice.
Rolle did not file an amended complaint in that action. Instead, in October 2001, he began a new §§ 1983 and 1985 action against Honorof and Meenan. The October complaint raised nearly identical claims, and sought nearly identical relief, as the previously dismissed May 2001 complaint. The district court dismissed the October complaint on two grounds. First, the court reasoned that, because Rolle failed to file an amended complaint within thirty days of the order dismissing the May complaint, that action was deemed dismissed with prejudice, and therefore the October complaint was barred by res judicata. Second, it held that the October complaint failed on the merits. Specifically, the court held (1) that the claims against Meenan failed because court-appointed attorneys are not state actors for purposes of § 1983, see Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir.1997); (2) that Rolle lacks standing to challenge the validity of Judge Honoroffs appointment to the Nassau County Supreme Court, see O’Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974); and (3) that the conclusory allegations of conspiracy in Rolle’s complaint were insufficient to meet the requirements of § 1985.
The district court erred in holding that the October complaint was barred by res judicata. Although the order dismissing the May complaint asserted that Rolle’s failure to replead within thirty days would result in dismissal of the complaint with prejudice, the court did not enter a Rule 58 judgment following the expiration of the thirty-day period, and so the conditional order, dismissing the suit with prejudice, was never final. See In re Litas Int’l v. Shapiro, 316 F.3d 113, 119-20 (2d Cir.2003). Therefore, as the original complaint was dismissed without prejudice, res judicata does not apply. See Elfenbein v. Gulf & Western Industries, Inc., 590 F.2d 445, 449 (2d Cir.1978) (per curiam) (“[A] dismissal without prejudice permits a new action (assuming the statute of limitations has not run) without regard to Res judicata principles.”).
Notwithstanding its conclusion that the complaint was barred by res judicata, however, the district court did consider the merits of the complaint, and dismissed it on its merits. On that basis, we affirm the district court’s judgment dismissing the complaint on the merits for substantially the reason it gave. We have considered all of Mr. Rolle’s other claims1 and find them meritless.
The judgment of the district court is AFFIRMED.
. Rolle asserts that this six-month pre-trial detention was illegal and unconstitutional. Because this issue was raised for the first time on appeal, and because consideration of it is not necessary to avoid manifest injustice, we will not exercise our discretion to consider it. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); Thomas E. Hoar, Inc. v. Sara Lee Corp., 900 F.2d 522, 527 (2d Cir.1990). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218030/ | SUMMARY ORDER
THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL REPORTER AND MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY TO THIS OR ANY OTHER COURT, BUT MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the United States Courthouse, Foley Square, in the City of New York, on the 29th day of May, two thousand and three.
AFTER ARGUMENT AND UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the order of the District Court is AFFIRMED.
Plaintiff-appellant Farida Burtis, pro se, appeals from an order of the United States District Court for the Southern District of New York (Jed Rakoff, Judge), denying her post-judgment motion for recusal of Judge Rakoff and Magistrate Judge Henry Pitman from any further involvement in her employment discrimination action against several United Nations (“U.N.”) officials.
The present appeal represents Burtis’s fourth attempt to appeal in this Court from the District Court’s dismissal of her employment discrimination action; this Court has previously affirmed that order of dismissal, as well as orders denying Burtis’s motion for reconsideration and her motion for entry of a default judgment against the defendants. See Burtis v. Annan, 7 Fed.Appx. 104 (2d Cir.2001). In affirming the District Court’s dismissal, this Court held that dismissal was proper for lack of jurisdiction. Id. In July 2001, after this Court had already affirmed the District Court’s entry of judgment against her, Burtis filed her recusal motion in the District Court. The District Court denied Burtis’s recusal motion, citing this court’s affirmance of its prior orders in Burtis’s case.
In this appeal, Burtis reasserts her claims of bias against Judge Rakoff and *327Magistrate Judge Pitman. Specifically, she cites Judge Rakoffs denial of her motion for reconsideration of his sua sponte dismissal of her case, in which he mistakenly referred to the prior dismissal of Burtis’s case as a grant of “defendants’ motion for summary judgment,” when in fact no such motion was made; Burtis views this error as evidence of judicial bias. As well, Burtis claims that both Judge Rakoff and Magistrate Judge Pitman evinced bias by fading to address her assertion that not all of the named defendants were entitled to U.N. immunity.
However, after our affirmance of the District Court’s entry judgment for lack of jurisdiction, the District Court had no jurisdiction to entertain plaintiffs motion. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (“Without jurisdiction the court cannot -proceed at all in any cause.” (quotation and citation omitted)).
Accordingly, the order of the District Court denying plaintiffs post-judgment motion for recusal is hereby AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218033/ | OPINION OF THE COURT
PER CURIAM:
Ramsing Pratapsig Bihola, a citizen of India, entered the United States in New York on a non-immigrant visitor visa. He was authorized to remain in the United States on business until July 12, 1994. On May 24, 1994, Bihola filed an application with the Immigration and Naturalization Service (INS) for political asylum because of his association with the Bharatia Janata Party (BJP). Two years later, the INS conducted an asylum application interview. The case was referred to the immigration court in Philadelphia, Pennsylvania, for deportation proceedings where Bihola could renew his application for asylum before the immigration judge (IJ). Bihola, who does not speak English, was personally served on April 22, 1996 with a Form I-221 notice to appear for a deportation hearing on October 31, 1996. The form was written in English and Spanish, as required by § 242B(a)(3) of the Immigration and Naturalization Act (INA), 8 U.S.C. § 1252b(a)(3). When he did not appear at his hearing, the IJ ordered him deported in absentia.
Bihola, now assisted by counsel, filed a timely motion to reopen on January 27, 1997. He claimed that he had missed his hearing because he did not understand English and because he had relied on an English-speaking friend, Dilip Shah, who had promised to assist him at the hearing, but miscalendared his hearing date. The motion included an unsworn statement from Shah, explaining his role and stating that Shah had noted the wrong hearing date, and a copy of the asylum application Bihola had filed with the INS.
*332The IJ, after a hearing, denied the motion. To prevail on a motion to reopen an in absentia order, 8 C.F.R. § 103.5(a) requires that the moving party state new facts that were not available at the time of the hearing and include supporting affidavits and other evidence. The IJ found that Bihola failed to comply with the regulation because he stated no new facts that were not available at the time of the hearing and failed to make a prima facie showing that he was eligible for asylum. The IJ also held that Bihola’s explanation for failing to appear did not establish exceptional circumstances which would have excused his appearance under INA § 242(B)(f)(2).
Bihola appealed the denial of the motion to reopen to the Board of Immigration Appeals (“BIA”). The BIA noted that the IJ should not have considered whether prima facie eligibility for relief from deportation was established but only whether Bihola had received proper notice of his hearing, and whether he presented “exceptional circumstances” excusing his failure to appear. To correct this error, the BIA conducted an independent review of the record. The BIA found that Bihola was properly personally served with the notice to appear and of the hearing and that the notice was not required to be in his native language. The BIA also found that there was not sufficient evidence to establish that Bihola’s absence was “due to circumstances beyond his control” within the meaning of INA § 242B(f)(2). The BIA noted that Bihola’s motion was not supported by his own affidavit or sworn statement, depriving the Board of Bihola’s own version of the events, which information “would be essential before we could reopen this case.” Shah’s unsworn statement lacked important details, including whether Shah ever told Bihola what the correct hearing date was, and did not absolve Bihola from responsibility for his failure to appear. On December 30, 1998, the BIA dismissed the appeal for insufficient evidence. This constituted a final order of deportation under 8 C.F.R. § 243.1. Bihola did not petition for judicial review of this decision.
Instead, on January 29, 1999, Bihola filed with the BIA a motion to reconsider, supported by detailed affidavits from Shah and himself. On May 2, 2002, the BIA denied the motion on two grounds. First, treating the motion as one for reconsideration, it failed to comply with 8 C.F.R. § 3.2(b)(1) because it alleged no error of fact or law in the original order. Second, treating the motion as one to reopen based on new evidence relating to his failure to appear at his hearing, it was barred because Bihola failed to seek judicial review of . the BIA’s December 30, 1998, order denying the initial motion to reopen, and because it was filed after the statutory 180-day limit for filing a motion to reopen based on exceptional circumstances under INA § 242B(c)(3)(A). Bihola filed the instant petition for review of the BIA’s May 2, 2002, order denying his motion.
We review the BIA’s denial of Bihola’s motion for abuse of discretion. INS v. Doherty, 502 U.S. 314, 324, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Nocon v. INS, 789 F.2d 1028 (3d Cir.1986). We find that the BIA did not abuse its discretion in denying the motion as one to reopen. To rescind an in absentia order of deportation, the alien must timely file a motion to reopen with the IJ demonstrating, inter alia, that “exceptional circumstances” prevented him from appearing at his hearing through no fault of his own. INA § 242B(c)(3), 8 U.S.C. § 1252b(c)(3). Bihola failed to file within the 180-day period and, because he faded to seek judicial review of the order, the order had become final. ■
*333The BIA did not abuse its discretion in denying the motion as a motion to reconsider because Bihola did not allege any errors of fact or law, as required by 8 C.F.R. § 3.2(b)(1).
For the foregoing reasons, we DENY the petition for review. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218034/ | OPINION OF THE COURT
SLOVITER, Circuit Judge.
I.
Appellant Keystone Outdoor Advertising Company, Inc. appeals to this court alleg*334ing that the District Court erred when it granted summary judgment to Appellees West Whiteland Township (“Township”) and Jerry Poletto, Diane Snyder, and George D’Ambrosio, Township supervisors, in their official capacities. Because we conclude that the District Court did not err in granting summary judgment to Appellees, we will affirm.
II.
Inasmuch as the parties are familiar with the factual and procedural background of this case, we refer only to those facts as are pertinent to the issue under consideration.
In 1997, Keystone, an outdoor advertising company, leased a tract of land on which it planned to erect a free-standing billboard. However, the sign was in violation of the Township’s zoning ordinance that prohibited billboards that were not accessory to on-site users and it also exceeded the size limitations of a Township zoning ordinance. Keystone applied for a variance to allow it to erect the sign despite the ordinance and, alternatively, it argued that the ordinance prohibiting non-accessory billboards was unconstitutional. Lengthy hearings as to Keystone’s application ensued but prior to a final resolution by the Zoning Board, the Township’s supervisors adopted a resolution to condemn the property for use as a public park.
Pursuant to Pennsylvania’s Eminent Domain Code, 26 P.S. § 1—406 (2002), Keystone filed prehminary objections to the Township’s declaration of the taking in the Court of Common Pleas of Chester County. That court overruled Keystone’s objections, finding that the condemnation was a legitimate exercise of the sovereign power of eminent domain. Keystone appealed to the Commonwealth Court of Pennsylvania and that court affirmed after the parties submitted their briefs in this court. In re: Condemnation of Lands of Laughlin, 814 A.2d 872 (2003).
While the state proceedings were pending, Keystone filed an action pursuant to 42 U.S.C. § 1983 in the United States District Court for the Eastern District of Pennsylvania alleging that the Township violated its constitutional rights because the condemnation was not for a public purpose and was implemented arbitrarily and in bad faith.
The District Court granted summary judgment to the Township. This appeal followed.
III.
We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1291. The standard of review applicable to an order granting summary judgment is plenary. See Witkowski v. Welch, 173 F.3d 192, 198 (3d Cir.1999).
Viewing the evidence in the light most favorable to Keystone, the District Court nonetheless found that the property in question was condemned for a legitimate public purpose, i.e., that of building a park. Keystone Outdoor Advertising Co. v. West Whiteland Twp., 2002 U.S. Dist. LEXIS 14114, at*5 (2002). It noted that after condemning the property, the Township proceeded with its plans to plant trees and install park benches. Id. Furthermore, the District Court found no evidence that the Township’s supervisors had improper motives in condemning the property. Id.
On appeal, Keystone argues that summary judgment was improper due to the existence of a disputed fact, namely whether the Township abused its power by condemning the property in violation of Keystone’s substantive due process rights. To support its argument, Keystone relies on our decision in Bello v. Walker, 840 F.2d 1124 (3d Cir.1988), where we held that a *335plaintiff alleging that a municipal land-use decision violated substantive due process need only show that the municipal officials acted with an “improper motive.”
Keystone contends that it presented evidence that the Township condemned the property to protect an unconstitutional ordinance. This, it claims, is an improper motive which, if accepted by the jury, would support its substantive due process claim. Keystone further argues that the District Court should have imposed on it a “preponderance of evidence” rather than a “clear and convincing” burden of proof. Appellant’s Br. at 18.
We note as a preliminary matter that the standard enunciated under Bello is no longer good law. A majority of a panel of this court recently held that the standard to be applied in a substantive due process claim arising from a land use decision is no longer that of “improper motive” but instead whether the government’s actions “shock the conscience.” UA Theatre Circuit, Inc. v. Twp. of Warrington, 316 F.3d 392 (3d Cir.2003) (noting that Bello and its progeny are no longer good law in light of the Supreme Court’s decision in Sacramento v. Lewis, 523 U.S. 833, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)).
In this case, the parties are in agreement as to the material facts notwithstanding Keystone’s contention to the contrary. Instead, Keystone draws a different legal conclusion than does the Township and did the District Court. Specifically, Keystone argues that the facts show that the Township had “improper motives” when condemning the property and that a jury must make such a determination.
We agree with the District Court that there is “no hint of private gain or any other suspect motivation” on the part of the Township. 2002 U.S. Dist. LEXIS 14114, at *5 (2002). Accordingly, Keystone fails to meet even the less stringent standard of showing “improper motives” on the part of the Township, let alone demonstrating actions that would “shock the conscience.”
IV.
The District Court properly granted summary judgment to the Township. For the reasons set forth, we will affirm. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218037/ | PER CURIAM:
Pedro Martinez-Patricio seeks to appeal the district court’s order adopting the magistrate judge’s report and recommendation and denying relief on his motion filed under 28 U.S.C. § 2255 (2000). We have independently reviewed the record and conclude that Martinez-Patricio has not made a substantial showing of the denial of a constitutional right. See Miller-El v. Cockrell, 537 U.S. 322, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). Accordingly, we deny a certificate of appealability and dismiss the appeal. See 28 U.S.C. § 2253(c) (2000). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218069/ | OPINION
ALAN E. NORRIS, Circuit Judge.
Invacare Corporation appeals a jury verdict in favor of Isaiah Taylor for violations of the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq. Taylor, an employee of Invacare, was dismissed after a number of absences from work. He alleged that some of the absences for which he was dismissed were protected leave under the FMLA. The jury found for Taylor and awarded back pay. The district court remitted a portion of the award based on Taylor’s inability to work due to illness.
I
Taylor, who had worked in Invacare’s shipping department since the early 1980s, was fired for cause in February 1998. Taylor testified that he had a “stress attack” on March 24, 1997, and spent the night in the emergency room. When he returned to work, Taylor said that he gave a doctor’s excuse to his supervisor and was advised to take a week’s vacation, which he did. He then received an “occurrence” for March 24, and it was counted against Taylor as an absence under Invacare’s “no fault” attendance policy.
Taylor testified that in May 1997 he requested time off to care for his wife, who *518was having back surgery. Taylor took paid vacation time (the FMLA only grants unpaid leave), for which he was not penalized. He testified that in June he orally requested two days off (June 13th and 14th) from a supervisor so he could take his wife to the doctor. Taylor said that he was denied the time off, but took it anyway. He then received another “occurrence.”
Taylor had compiled six and one-half unexcused absences in a twelve-month period under Invacare’s attendance policy when he was warned about his attendance problems in July 1997. At the time he was terminated in February 1998, it appears that Taylor had been absent, using Invacare’s attendance policy, roughly ten days in that twelve-month period. The only other performance issue Invacare pointed to was an incident on July 15, 1997, in which Taylor took an extended break.
Taylor testified that he had never seen a poster explaining his rights under the FMLA on poster boards in the company’s cafeteria or work area, and another witness also testified that no such poster was in place. An Invacare human resources employee testified that, as required by 29 C.F.R. § 825.300, a poster explaining the FMLA had been in place in the cafeteria.
The jury found for Taylor and awarded $92,056.86 in back pay. The district court also found that liquidated damages were appropriate. The court next held a hearing to determine whether Taylor was entitled to front pay or reinstatement. Taylor testified at this hearing that because he had cancer he had been unable to work for a portion of the time for which he was awarded back pay. Based in part upon Taylor’s current inability to work, the district court decided that reinstatement and front pay were both inappropriate. The district court also ordered a new trial on damages if Taylor did not move for remittitur in the amount of $16,727 to account for the portion of time that he would not have been able to work due to illness. Taylor moved for this remittitur. After the back pay was partially remitted, total back pay and pre-judgment interest awarded was $85,732.28. Because liquidated damages are limited to back pay and pre-judgment interest, the total award was $171,464.56.
The district court denied Invacare’s request for judgment as a matter of law, a new trial, and remittitur. Invacare appeals these decisions. Taylor cross-appeals the district court’s denial of front pay.1 We affirm the judgment of the district court in all respects.
II
The FMLA grants employees of covered firms up to twelve weeks of unpaid medical leave in a number of circumstances that includes the care for the “serious health condition” of one’s self' or a spouse. 29 U.S.C. § 2612(a)(1). For an employee to be protected by the FMLA when leave is foreseeable, he must provide notice to his employer within thirty days of the leave or as soon as practicable. 29 U.S.C. § 2612(e). When leave is not foreseeable, as in the case of an emergency room visit, applicable regulations provide that the employee need not invoke the FMLA explicitly, but must notify his employer that leave is required. It is then up to the employer to investigate the matter further.2 29 C.F.R. § 825.303.
*519A. Judgment as a Matter of Law
We review the denial of a motion for judgment as a matter of law de novo. McCurdy v. Montgomery County, 240 F.3d 512, 517 (6th Cir.2001). However, this court “must view the evidence in the light most favorable to the opposing party, drawing all reasonable inferences in his favor.” Meyers v. Wal-Mart Stores, East, Inc., 257 F.3d 625, 629 (6th Cir.2001). We do not weigh the evidence or discuss the credibility of witnesses. Id.
Invacare argues that Taylor, by his own admission, never informed Invacare of his need for leave under the FMLA. However, Taylor testified that he notified his supervisors after he sought emergency room treatment for his stress attack and that he notified his employer that he needed to take his wife to the doctor following her back surgery. Taylor did not have to provide advance notice or invoke the FMLA in any formal way following his stress attack because the leave required was unforeseeable.3 Defendant does not dispute that the emergency room visit was for a “serious health condition.”4
However, if the leave is reasonably foreseeable, as it may have been in the case of Taylor’s wife’s June visit to the doctor, then written advance notice must be given. Viewing the evidence most favorably to Taylor, it appears that he did not provide written advance notice. However, under 29 C.F.R. § 825.300(b), an employer who does not post the required notice concerning an employee’s rights under the FMLA “cannot take any adverse *520action against an employee, including denying FMLA leave, for failing to furnish the employer with advance notice of a need to take FMLA leave.” As the district court noted, there was testimony from Taylor and another employee that the required FMLA notice was not posted.5 Although witnesses from Invaeare’s human resources department disputed this, we must resolve the factual dispute in favor of Taylor. Therefore, Taylor was not required to provide notice.
Invacare also argues that in light of Taylor’s other absences and performance issues, the jury could not conclude that his dismissal was caused by his protected absences. In support, it cites Bailey v. Amsted Industries 172 F.3d 1041 (8th Cir.1999). There, the eighth circuit held that, in view of seventy-two absences in a four-year period for which only three were arguably protected by the FMLA, the plaintiff could not show that he was dismissed because of his FMLA-protected leave. Id. at 1044-45. In addition, the plaintiff there had not satisfied the notice requirements of the FMLA. Id. at 1046. Here, using Invaeare’s counting system, Taylor had roughly ten absences in a year, and evidence existed that two of these were protected by the FMLA. Taylor had also either satisfied or was not required to satisfy the notice requirements, and Taylor’s emergency medical treatment for his stress attack was undoubtedly covered by the FMLA. Finally, we note that 29 C.F.R. § 825.220, relied upon by the district court, prohibits FMLA absences from counting under “no fault” attendance policies, similar to the one in place here.6
The jury was instructed by the district court that in order to hold Invacare liable it must find that Invacare fired Taylor as a result of an FMLA-protected absence. Construing the facts most favorably to Taylor, we believe that a reasonable jury could have so concluded.7
Invacare also argues that Taylor presented no medical evidence of an entitlement to FMLA leave, no medical documentation, and no testimony from experts. However, Taylor testified as to the dates and times of his and his wife’s medical treatment and the name of his physician. Had Invacare wished to challenge this testimony, it could have done so, and it has cited no relevant law on this subject.
In sum, given the evidence available that leave normally protected under the FMLA counted against Taylor when he was fired as well as the evidence that the Invacare did not post the requisite notice of rights under the FMLA, the district court did not err in denying judgment as a matter of law.
*521B. Liquidated Damages
We review a district court’s award of liquidated damages under the FMLA for abuse of discretion. Chandler v. Specialty Tires of America (Tennessee), Inc., 283 F.3d 818, 827 (6th Cir.2002). The FMLA provides for liquidated damages equal to back pay and interest. 29 U.S.C. § 2617(a)(l)(A)(iii). The employer can avoid liquidated damages if it “proves to the satisfaction of the court” that the violation of the statute was in “good faith and that the employer had reasonable grounds for believing that the act or omission was not a violation.” Id. Upon such a showing, the court may, at its discretion, reduce the liquidated damages.
The district court held that Invacare did not act in bad faith. “Rather, it appears to the Court that Invacare believed it was firing Mr. Taylor because of attendance and performance problems unrelated to his FMLA-protected absences.” Memorandum and Order, Jan. 31, 2001 at 2 (Ruling on Damages). However, the district court held that Invacare did not act reasonably:
Despite Invacare’s innocent motives, however, the company committed just the kind of violation of the FMLA that 29 C.F.R. § 825.220(c) was meant to proscribe. That regulation, promulgated by the Department of Labor, provides that FMLA leave cannot be counted under a “no fault” attendance policy such as the policy used by Invacare. The purpose of this regulation is to prevent an employer from considering a FMLA-protected absence in any way as a factor in a firing decision. That is, the regulation forbids employers to first count an absence as an occurrence under their policies and then to say that it was not that absence, but the “totality of the circumstances” that led to the firing .... [t]he Court believes that the evidence adduced at trial clearly supports the view that Invacare did impermissibly count a protected absence as an occurrence. The Court also finds that the evidence from two witnesses that Invacare had not posted notice to employees of their rights under the Act was credible. Such a failure is a clear violation of 29 C.F.R. § 825.300(a).
Id. at 2-3.
Defendant argues that, because the court specifically held that it acted in good faith, the court essentially applied a strict liability standard when it awarded liquidated damages. To reduce liquidated damages, however, the district court must not only find that Invacare acted in good faith, but also that its actions were reasonable. Chandler at 827 (“The employer must ... show both good faith and reasonable grounds for the act or omission.”).
The statute clearly puts the burden of proof on Invacare to show that its behavior was reasonable. The district court found that at least one protected absence was impermissibly counted against Taylor even though Invacare knew that Taylor had missed the day due to an emergency room visit. This finding has clear support in the record. Therefore, the district court did not abuse its discretion in holding that Invacare had acted unreasonably and in awarding liquidated damages.
C. Expert Testimony Regarding Back Wages
Michael Stoller, an economist, testified at trial as an expert regarding the back pay owed to Taylor. On cross-examination, Stoller admitted that he did not receive any information directly from Taylor. Apparently he relied upon a pay stub given to him by Taylor’s wife as well as a discussion with her concerning her husband’s benefits and latest salary increases. *522Invacare raised timely objections on hearsay grounds each time Stoller testified that he was relying on what Mrs. Taylor had told him and generally objected to the whole line of testimony. We review a decision under Fed.R.Evid. 703 for an abuse of discretion.8 Trepel v. Roadway Exp., Inc., 194 F.3d 708, 716-17 (6th Cir.1999).
At the close of Stoller’s direct examination, the court instructed the jury as follows:
As you’re beginning to understand, hearsay evidence is generally not allowed. In other words, you can’t take as a fact in this case something testified to by this witness where he’s telling you that Mrs. Taylor told him something or Mr. Taylor told him something. That’s hearsay evidence, and you can’t take it as fact. But, under Rule 703, it is allowed for an expert witness to base his calculations on.... Should you decide that Mr. Taylor prevails and gets any damages, you can use it for that, but you can’t use hearsay statements for other pieces of this jigsaw you’re putting together. Okay?
Joint App. at 133-34.
In reviewing the testimony on Invaeare’s motion for a new trial, the district court held as follows:
In this Court’s view, it is reasonable for an economist calculating damages to rely upon a plaintiffs statement of his earnings; if the plaintiff misstates his own earnings, the defendant can easily call the error to the jury’s attention on cross-examination. Moreover, in this particular case, the court heard testimony from both Mr. Taylor and Mrs. Taylor. It is evident to the Court, based on its observation of the Taylors’ respective demeanors, that Mrs. Taylor has a much better grasp of details and is much more articulate than her husband. Therefore, it would not be unreasonable for an economist in this case to rely on Mrs. Taylor’s statements concerning her husband’s salary and benefits.
Memorandum and Order, Jan. 31, 2001 at 5 (Ruling on Motion for Judgment as a Matter of Law).
Invacare argues that the expert did not review any of Taylor’s tax returns for 1999, any financial information for the year 2000, or take any information regarding plaintiffs mitigation of damages through his own auto repair shop business or the monies that plaintiff received from unemployment. On cross-examination, Stoller stated that Taylor’s 1998 tax return did not show any income, so he did not have to take account of this. In addition, he argued that he completed his report in 1999 and therefore could not consider income tax returns for 1999 or 2000. Defendant raised these contentions during cross-examination. We note that although Stoller testified that Taylor was owed approximately $120,000 in back pay, the jury awarded roughly $92,000.
The district court did not abuse its discretion in admitting Stoller’s testimony. *523He relied on pay stubs (which were attached to his report) and statements of Mrs. Taylor, who the district court believed to be reliable regarding her husband’s salary and benefits. In addition, as the district court noted, Invacare could have easily countered any inaccurate testimony concerning pay and benefits.
D. Denial of Remittitur for Failure to Mitigate
We review a district court’s denial of a motion for remittitur for abuse of discretion. Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 433, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001).
Invacare argues that Taylor failed to look for work after August 1998 and that all back pay after that month should be remitted. Taylor, however, testified that he looked for work until his unemployment compensation ran out, after which he was self-employed as a mechanic and tower. He testified that he was trying to build it up to a full-time job.
The burden of showing lack of mitigation is on the defendant. See Rasimas v. Michigan Dept. of Mental Health, 714 F.2d 614, 623 (6th Cir.1983) (“Once a claimant establishes a prima facie case and presents evidence on the issue of damages, the burden of producing sufficient evidence to establish the amount of interim earnings or lack of diligence shifts to the defendant.”) The defendant must show that substantially equivalent positions were available and the plaintiff failed to use reasonable diligence in seeking them out. Id. at 624. The district court correctly instructed the jury that the burden of proof on mitigation lay with Invacare.
Invacare does not cite to any evidence it presented regarding mitigation of damages, but only to Stoller’s answer on cross-examination that unemployment was low and jobs were plentiful. Invacare cites to no evidence that jobs were plentiful for men of Taylor’s age, skill, and experience. It also did not offer evidence that it was unreasonable for Taylor to start his own business.9 Because defendant did not meet its burden, the district court did not abuse its discretion when it declined to remit the award for failure to mitigate.
E. Cross-Appeal of Denial of Front Pay
The appropriateness of reinstatement and front pay, as equitable remedies, are within the discretion of the district court. Schwartz v. Gregori, 45 F.3d 1017, 1023 (6th Cir.1995). Both parties agreed at a post-trial hearing that reinstatement (the generally preferred remedy) was not appropriate.
At the front-pay hearing, Taylor testified that he had been suffering from prostate cancer. The health problems caused by the cancer were obviously severe, as Taylor testified that he was still under a doctor’s care and could not lift more than five pounds. The district court was skeptical of whether front pay would be appro*524priate in such a situation and stated at the hearing:
I think you have to show us that it’s likely he would be able to work at the kind of job that he had before.
And you’re not-you can’t do that when you come in here and the only testimony he has is he’s going to see his doctor every four months for a year. It’s going to be a statistical situation on how many people have this surgery and be cancer-free and go back to work in how many years and all that.
But I don’t see anything to do here other than to just continue this trial until we get some evidence [on this]....
Hearing Transcript, Feb. 21, 2001 at 26.
On April 6, 2001, the district court issued an order requiring Taylor to brief his entitlement to front pay by April 20. No brief was filed, and the district court denied front pay in part based on Taylor’s ill health. It was not an abuse of discretion for the district court to require a briefing on the law and the presentation of more medical evidence from the plaintiff in order to make an accurate estimate of Taylor’s working life. See Bruso v. United Airlines, Inc., 239 F.3d 848, 862 (7th Cir. 2001) (“A plaintiff who seeks an award of front pay must provide the district court with the essential data necessary to calculate a reasonably certain front pay award.”) (internal quotation omitted). Thus, the district court, on the evidence before it and after having given plaintiff ample time to demonstrate that he deserved front pay, did not abuse its discretion in denying front pay.
Ill
The judgment of the district court is affirmed.
. Taylor also appeals the partial remittitur. However, because the remittitur was made at his own motion, he cannot appeal it. Donovan v. Penn Shipping Co., 429 U.S. 648, 650, 97 S.Ct. 835, 51 L.Ed.2d 112 (1977). We therefore do not address this issue further.
. 29 C.F.R. § 825.303(a) states:
*519When the approximate timing of the need for leave is not foreseeable, an employee should give notice to the employer of the need for FMLA leave as soon as practicable under the facts and circumstances of the particular case. It is expected that an employee will give notice to the employer within no more than one or two working days of learning of the need for leave, except in extraordinary circumstances where such notice is not feasible. In the case of a medical emergency requiring leave because of an employee’s own serious health condition or to care for a family member with a serious health condition, written advance notice pursuant to an employer’s internal rules and procedures may not be required when FMLA leave is involved.
. Of course, the employee must at least provide his employer with enough information for the employer to be put on notice that the FMLA is a consideration. Invacare cites to a fifth circuit case in support of its position that such notice was inadequate. In Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973 (5th Cir.1998), the fifth circuit held, in a case in which prior notice was not possible, that a note delivered to Wal-Mart was insufficient to inform it that the day missed was taken under the FMLA:
“While an employer’s duty to inquire may be predicated on statements made by the employee, the employer is not required to be clairvoyant.” Although Satterfield was able to telephone her doctor’s office on the afternoon of 16 June and schedule an appointment, she made no attempt to then contact Wal-Mart to advise of both the status of her condition and that appointment for the following Tuesday, 20 June. Indeed, she did not contact Wal-Mart until 28 June.
Id. at 980 (citation omitted). Here, however, we are faced with a situation in which Taylor returned to work after a brief hospital stay with a doctor’s note and then took paid vacation time to aid his recuperation. In addition, he testified that he told his supervisors that he needed time off in June due to his wife’s health condition, for which he had previously taken time off. Therefore, Satterfield is not applicable to the case at hand; Invacare was sufficiently informed of the situation to put it on notice that the leave may have been FMLA protected.
. As the district court held, “While his stress attack turned out not to be a heart attack, an inpatient admission for purposes of examination to determine whether a serious health condition exists is itself a serious health condition. 29 C.F.R. § 825.114(b).” Memorandum and Order Jan. 31, 2001 at 3 (Ruling on Motion for Judgment as a Matter of Law).
. The jury was instructed that it had to answer this question of fact in favor of Taylor before it could find Invacare liable for counting the June absence against him.
. The regulation states in part:
An employer is prohibited from discriminating against employees or prospective employees who have used FMLA leave. For example, if an employee on leave without pay would otherwise be entitled to full benefits (other than health benefits), the same benefits would be required to be provided to an employee on unpaid FMLA leave. By the same token, employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under "no fault” attendance policies.
29 C.F.R. § 825.220(c).
. Defendants have not provided us with greater detail as to Taylor’s attendance history and point to no other serious performance problems apart from his absenteeism. Chronic absenteeism over several years as in Bailey or other performance issues may well have prevented a reasonable jury from concluding that Taylor was fired due to his FMLA-protected absences.
. Federal Rule of Evidence 703 details the sources upon which experts may rely:
The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a 1ype reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert’s opinion substantially outweighs their prejudicial effect.
F.R.E. 703.
. An opinion from the second circuit has collected relevant cases regarding mitigation and self-employment and reached the correct conclusion:
Self-employment, if it is undertaken in good faith and is a reasonable alternative to seeking other comparable employment, may be considered permissible mitigation. See, e.g., Smith v. Great American Restaurants, Inc., 969 F.2d 430, 438 (7th Cir.1992) (jury could conclude that plaintiff’s opening of her own restaurant was a reasonable venture); Carden v. Westinghouse Electric Corp., 850 F.2d 996, 1005 (3d Cir.1988) ("[A] selfemployed person is ‘employed’ for the purposes of mitigating damages if establishing a business of his own was a reasonable alternative to finding other comparable employment.”).
Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 696 (2d Cir.1998). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218070/ | KRUPANSKY, Circuit Judge.
The plaintiff-appellant Paul Borman (“Borman”) has contested the district court’s dismissal, without prejudice, of his federal judicial complaint anchored in the Employee Retirement Income Security Act of 1974, as amended, 29 U.S.C. § 1001 et seq. (“ERISA”) against his employers, defendants-appellees Great Atlantic & Pacific Tea Company (“A&P”) and its subsidiary Borman’s Inc. (“BI”) (collectively “the defendants”), for failure to exhaust predicate corporate internal administrative remedies. See Fallick v. Nationwide Mutual Ins. Co., 162 F.3d 410, 418 & n. 4 (6th Cir.1998); Miller v. Metropolitan Life Ins. Co., 925 F.2d 979, 986 (6th Cir.1991). On review, Borman has mounted two principal arguments: (1) that the trial court erred by concluding that his complaint lacked legally sufficient allegations to support the requisite ERISA element of predicate administrative exhaustion; and (2) alternatively, that the district court allegedly abused its discretion by declining to excuse the plaintiff’s failure to exhaust administrative procedures, either because his pursuance of internal remedies purportedly would be futile, or because the defendants assertedly failed to seasonably inform him *526about those administrative claims procedures.
Borman had served as the President and Chief Executive Officer of BI until its 1988 purchase by, and merger with, A&P. On approximately December 23,1988, Borman and A&P executed two written instruments that would govern Borman’s future relationship with A&P and its new subsidiary BI. The “Employment Agreement” stipulated, among other things, that Borman would serve as Chairman of both BI and A&P’s Midwestern Division until January 31, 1999, in exchange for a $500,000 minimum annual salary plus “such other perquisites as befits a chief executive officer of a publicly traded company.” The “Consulting and Non-Competition Agreement” provided inter alia that, effective February 1, 1999, the defendants would furnish Borman, for the remainder of his life, with (1) a $150,000 annual salary, plus an additional $350,000 for each of that contract’s first five years if he refrained from any competitive employment; (2) “such other perquisites as befits a chief executive officer of a publicly traded company;” and (3) the identical “pension and medical insurance benefits generally available to salaried A&P employees.”
Via the plaintiffs January 22, 2001 four-count unverified complaint, which respectively stated three ERISA counts plus one pendent state law claim, he averred that the defendants failed to honor certain of those contractual obligations, by, among other things, allegedly excluding him from participation in certain pension or medical benefit plans available to other salaried A&P employees, and/or by failing to provide him with allegedly promised perquisites (including benefits distributed through ERISA plans) that purportedly befit his station as the CEO of a publicly traded corporation. The plaintiffs Prayer for Relief requested, among other things, “recovery by Plaintiff of all benefits due to him under all applicable benefit [sic—benefit plans?], including deferred compensation, stock options, and medical, life insurance and other health and welfare benefits due to him under all applicable benefit plans, with interest, pursuant to 29 U.S.C. § 1132(a)(1)(B).”1
On March 27, 2001, the defendants moved to dismiss Borman’s complaint, arguing, among other things, that the plaintiff had preliminarily failed to exhaust available internal benefit claim and review procedures created by A&P in conformity with ERISA requirements. See 29 U.S.C. § 1133; 29 C.F.R. § 2560.503-1. Via affidavit, A&P’s Director of Benefits William J. Eckert (“Eckert”) stated that, in accordance with established written company procedures, dissatisfied benefit claimants *527should initially submit their disputed claims to Eckert; those claims would ultimately be reviewed by A&P’s Pension Committee for final administrative resolution.2 Eckert’s affidavit further disclosed that, prior to Borman’s judicial action, the plaintiff had neglected to proffer any of his subject ERISA benefit claims to either Eckert or the Pension Committee. See 29 C.F.R. § 2560.503-l(e) (“[A] claim for benefits is a request for a plan benefit or benefits made by a claimant in accordance *528with a plan’s reasonable procedure for filing benefit claims.”). (Emphasis added).
Instead, Borman vaguely alleged in his complaint that he had engaged in a “lengthy period” of fruitless discussions concerning his benefit claims in controversy, and had filed some sort of unspecified claim, with unnamed officers of A&P. He has further asserted that the defendants had not timely informed him of the available internal claim and review procedures, nor had they referred him to the Pension Committee. However, in the trial court, Borman filed no affidavit nor produced any other evidence in opposition to the Eckert affidavit and the documents offered by the defendants in support of their motion to dismiss the complaint. Most importantly, Borman failed to evince, or even allege, that he had made any effort to adhere to A&P’s formal written internal benefit claim and review procedures, or had even inquired of any A&P agent about those procedures.
On July 9, 2001, the trial judge dismissed Borman’s entire complaint without prejudice on the basis that Borman had failed to exhaust his available administrative remedies.3 Nonetheless, when extraordinary circumstances are presented, the trial court may, in its sound discretion,4 excuse a plaintiffs failure to satisfy the administrative exhaustion requirement. Fallick v. Nationwide Mutual Ins. Co., 162 F.3d 410, 418-21 (6th Cir.1998); Costantino v. TRW, Inc., 13 F.3d 969, 974-75 (6th Cir.1994). Concordantly, as in the case sub judice, the presiding judge, in his or her sound discretion, may instead elect to dismiss the ERISA causes of action without prejudice because of the complainant’s failure to discharge procedural requisites,5 thereby allowing the plaintiff an opportunity to correct those procedural defects by invoking the available intracompany claim dispute resolution mechanism, which in turn will empower the employer’s administrative claim and review apparatus to potentially settle the conflict without recourse to the judicial system. See Ravencraft v. UNUM Life Ins. Co., 212 F.3d 341, 344 (6th Cir.2000).
This reviewing court has carefully and thoroughly studied the lower court’s *529decision, the record below, the briefs of counsel, and the controlling legal authorities. It concludes that no legal error infected the trial court’s ruling that Borman failed to adequately allege predicate exhaustion of available ERISA administrative remedies; and further, that no abuse of discretion sullied the lower bench’s resolution that Borman should first exhaust administrative remedies made available by A&P prior to suing it in federal court. The plaintiff has not proved that his future resort to A&P’s claim and review procedures would be futile. See Fallick, 162 F.3d at 419-21. Moreover, the congressionally embraced policy undergirding the ERISA system and its administrative exhaustion requirement, namely the facilitation of comparatively inexpensive and expeditious in-house resolution of employee benefit disputes, manifestly advances an important public interest. Perry v. Simplicity Engineering, 900 F.2d 963, 967 (6th Cir.1990). Thus, the attempted circumvention of those procedures by a litigant ordinarily should not be tolerated. See, e.g., Baldwin County Welcome Center v. Brown, 466 U.S. 147, 152, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam).
Accordingly, this court hereby adopts the district court’s July 9, 2001 opinion and order entered July 10, 2001. The dismissal of the plaintiffs complaint, without prejudice, is AFFIRMED.
. That section postulates: "A civil action may be brought by a participant or beneficiary to recover benefits due to him under the terms of his plan, to enforce his rights trader the terms of the plan, or to clarify his rights to future benefits under the terms of the plan.” 29 U.S.C. § 1132(a)(1)(B). Accordingly, contrary to the plaintiff's posture, a juridical action to resolve a plaintiff’s claimed entitlement to participation in an ERISA plan is subject to the identical predicate administrative claim and review exhaustion requirements, evolved herein, as a claim for unpaid ERISA benefits instituted by an undisputed participant in the plan. See Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 117-18, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989) (mandating that a claim of plan participant status is actionable under ERISA); 29 U.S.C. § 1002(7) (defining a plan "participant” to include any person "who is or may become eligible to receive a benefit of any type from an employee benefit plan.”); 29 C.F.R. § 2560.503-l(m)(4) (directing that an "adverse benefit determination” includes "a denial, reduction, or termination of, or a failure to provide or make payment (in whole or in part) for, a benefit, including any such denial, reduction, termination, or failure to provide or make payment that is based on a determination of a participant’s or beneficiary’s eligibility to participate in a plan.”).
. A&P’s written ERISA Claim and Appeal Procedures were substantially similar for each of its subject benefit plans, with one key variation. Whereas procedures for most plans administered by A&P, such as its Supplemental Executive Retirement Plan, mandated that the claimant should direct his or her initial benefit claim to the A&P Director of Benefits (Eckert), the procedures for at least one A&P benefit plan, which was administered by an insurance company, namely A&P’s Executive Medical Plan, required that the claimant submit his or her initial claim to the pertinent insurance carrier. However, in the Claim and Appeal Procedures for each of A&P’s benefit plans, similar provisions governed review of disputed claims, initially by the Director of Benefits and ultimately by the Pension Committee. By way of illustration, the Claim and Appeal Procedure for A&P’s Executive Medical Plan provided, in material part:
II. APPEALS TO DIRECTOR OF BENEFITS
A. The claimant or his authorized representative shall have 60 days after receipt of written notification of the denial [by the insurer] of a claim to request review of the denial by making written request to the Director of Benefits of The Great Atlantic & Pacific Tea Company (the "Director”) and may review pertinent documents and may submit issues and comments in writing.
B. Not later than 60 days from receipt of the appeal, the Director shall render and furnish to the claimant a written decision which shall include specific reasons for the decision, and shall make specific references to the pertinent Plan provisions on which it is based.
C. If special circumstances require an extension of time for processing, the decision shall be rendered as soon as possible, but not later than 120 days after receipt of the request for review (appeal), provided that written notice and explanation of the delay are given to the claimant prior to commencement of the extension.
D. Such decision by the Director shall be subject to further review by the Pension Committee if requested by the claimant. If a decision on review is not furnished to a claimant within the specified time period, the claim shall be deemed to have been denied on review.
III. APPEAL TO THE PENSION COMMITTEE
A. The claimant or his authorized representative shall have 60 days after receipt of written notification of the denial of a claim to request review of the denial by making written request to the Pension Committee and may review pertinent documents and submit issues and comments in writing within such 60 day period.
B. The Pension Committee shall have and shall exercise full discretionary authority to construe, interpret and apply all of the terms of the Plan, including all matters relating to eligibility for benefits, amount, time or form of benefits, and any disputed or allegedly doubtful terms. In exercising such discretion, the Pension Committee shall give controlling weight to the intent of the sponsor of the Plan.
C. Not later than 60 days from receipt of the appeal, the Pension Committee shall render and furnish to the claimant a written decision which shall include specific reasons for the decision, and shall make specific references to the pertinent Plan provisions on which it is based. If special circumstances require an extension of time for processing, the decision shall be rendered as soon as possible, but not later than 120 days after receipt of the appeal, provided that written notice and explanation of the delay are given to the claimant prior to commencement of the extension. If a decision on review is not furnished to a claimant within the specified time period, the claim shall be deemed to have been denied on review.
D. The decision of the Pension Committee shall be final and binding on the Plan, the plan sponsor and all participants and beneficiaries.
*528(Bracketed material added).
. The district court relied on the Eckert affidavit only to the extent that the affidavit’s exhibits disclosed the terms of the ERISA plans at issue. This reliance was proper under Rule 12 of the Federal Rules of Civil Procedure, and did not require the conversion of the defendants’ motion to dismiss into one for summary judgment, because the ERISA plans were central to Borman’s complaint. "[Djocuments that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to her claim.” Weiner v. Klais & Co., Inc. 108 F.3d 86, 89 (6th Cir.1997).
. Matters reserved to the district court’s sound discretion are reviewed for abuse. "Abuse of discretion is defined as a definite and firm conviction that the trial court committed a clear error of judgment.” Soberay Machine & Equipment Co. v. MRF Ltd., Inc., 181 F.3d 759, 770 (6th Cir.1999) (quoting Bowling v. Pfizer, Inc., 102 F.3d 777, 780 (6th Cir.1996)). Alternatively, an abuse of discretion by a district court will be found "when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard.” Graham-Humphreys v. Memphis Brooks Museum of Art, 209 F.3d 552, 560 (6th Cir.2000) (brackets omitted) (quoting Romstadt v. Allstate Ins. Co., 59 F.3d 608, 615 (6th Cir.1995)).
. Although Borman’s pleading defect at issue technically tainted only his three ERISA causes of action, the trial jurist, in her sound discretion, further elected to forego the exercise of continuing supplemental federal jurisdiction over the plaintiff’s pendent state law count four, in consideration of the absence of an independent basis for original federal jurisdiction over that cause. 28 U.S.C. § 1367(c)(3); Mays v. Buckeye Rural Elec. Coop., Inc., 277 F.3d 873, 881-82 (6th Cir.2002). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218071/ | ORDER
Darryl Little appeals a district court judgment that dismissed his petition for a writ of habeas corpus filed under 28 U.S.C. § 2241. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Following a jury trial in the district court in 1992, Little was convicted of two counts of conspiracy to possess with intent to distribute cocaine, aiding and abetting & possession with intent to distribute cocaine within 1000 feet of a school, aiding and abetting & using and carrying a firearm during and in relation to a drug trafficking crime, and possession of a firearm by a convicted felon. Little initially was *530sentenced to a cumulative term of 660 months of imprisonment. This court affirmed Little’s convictions on direct appeal, but vacated his sentence and remanded the case to the district court for resentencing because the district court erroneously believed that Little was subject to a mandatory minimum sentence of 30 years of imprisonment rather than 20 years of imprisonment for his possession with intent to distribute cocaine within 1000 feet of a school conviction. See United States v. Lloyd, 10 F.3d 1197, 1219 (6th Cir.1993). On remand, the sentence for this conviction was reduced, but Little’s cumulative sentence remained unchanged.
In 1996, Little filed a motion to vacate his sentence pursuant to 28 U.S.C. § 2255 in which he alleged that he received ineffective assistance of counsel and that his convictions for using and carrying a firearm during and in relation to a drug trafficking crime in violation of 18 U.S.C. § 924(c) should be vacated in light of the Supreme Court’s decision in Bailey v. United States, 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995). The district court vacated Little’s § 924(c) convictions and ultimately resentenced Little to 360 months of imprisonment. This court affirmed the district court’s judgment on appeal. United States v. Little, No. 98-1164, 1999 WL 426883 (6th Cir. June 15, 1999). In 2000, this court denied Little’s motion to authorize the district court to consider a second or successive § 2255 motion to vacate sentence.
Next, Little filed the instant § 2241 petition in the district court alleging as grounds for relief: (1) that he is entitled to have his sentence vacated in light of the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) the prosecution withheld evidence favorable to the defense; and (3) that his conviction as a felon in possession of a firearm was improper because he was not a convicted felon at the time of trial. The government moved to strike the petition, and Little responded in opposition. The magistrate judge recommended that the petition be dismissed as meritless, and Little filed objections. The district court adopted the magistrate judge’s recommendation and dismissed the petition. Little filed a timely notice of appeal.
On appeal, Little contends that his claims are cognizable in a habeas corpus petition filed under 28 U.S.C. § 2241 because he is actually innocent and because a gross miscarriage of justice otherwise will occur. The government responds that the district court properly dismissed Little’s petition. Upon de novo review, see Charles v. Chandler, 180 F.3d 753, 755 (6th Cir.1999), we will affirm the judgment for the reasons stated in the magistrate judge’s report and recommendation filed January 24, 2002, and adopted by the district court by its order filed February 22, 2002. Essentially, Little’s claims are not cognizable in a petition filed under 28 U.S.C. § 2241. See Charles, 180 F.3d at 755-56.
For the foregoing reasons, the district court’s judgment is affirmed. See Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224424/ | AMENDED * ORDER
RICHARD A. JONES, District Judge.
I. INTRODUCTION
This matter comes before the court on cross-motions for summary judgment filed by plaintiff Terhune Homes, Inc. (“Ter-hune” or “plaintiff’) and defendant Nationwide Mutual Insurance Company (“Nationwide” or “defendant”). Dkt. ## 15, 19. Terhune argues that it is entitled to summary judgment because defendant unreasonably and in bad faith breached its duty to defend it as an additional insured under the Artwall Designs and Construction Company Inc. (“Artwall”) insurance policy. Dkt. # 19 at 1. Nationwide argues that it is entitled to summary judgment on all claims related to the insurance policy to Ruslan Yefimchuk (“Ruslan”) because Ter-hune was not an additional insured under *1077that policy. Dkt. # 15 at 2. Nationwide also argues that it is entitled to summary judgment on all claims related to the Art-wall policy because Terhune failed to provide timely notice to Nationwide, which caused it prejudice, and that its claim decision and handling were reasonable under the circumstances. Id. at 2. With respect to the Ruslan policy, there is no evidence before the court that Terhune was an additional insured under that policy. Accordingly, Nationwide is entitled to summary judgment as to all claims under the Ruslan Policy.
Having reviewed the motions, exhibits, and the record herein, the court GRANTS in part and DENIES in part Nationwide’s motion for summary judgment, and DENIES plaintiffs motion for summary judgment.
II. BACKGROUND
In 2005, Terhune contracted with Richard and Mary Weglin (“Weglins”) for the construction and improvement of the Weg-lins’ real property. Dkt. # 16-5 at 3 (Ex. 5 to Halstead Deck, Findings of Fact & Conclusions of Law ¶¶ 4-5). In April 2005, Terhune began construction. Id. (¶ 6). At some point, a dispute arose with respect to the construction, and the Weg-lins did not pay all amounts owed. Id. at 3-4 (¶¶ 7-12). On August 21, 2006, Ter-hune recorded a Claim of Lien against the property for the amount owed. Id. at 4 (¶ 13). In April 2007, Terhune filed an action against the Weglins for breach of contract and to foreclose the claim of lien. Id. (¶ 15); Dkt. # 16-3 (Ex. 3 to Halstead Deck). In June 2007, the Weglins filed a counterclaim for breach of contract. Dkt. # 16^1 (Ex. 4 to Halstead Deck). In May 2010, the Honorable Timothy Bradshaw entered findings of fact and conclusions of law. Dkt. # 16-5 (Ex. 5 to Halstead Deck). In November 2010, the trial court entered an corrected judgment. Dkt. # 15-6 (Ex. 6 to Halstead Deck).
In July 2012, Terhune sent a “tender of dfefense” as an additional insured under the Artwall policy to the insurance agency that had issued the Artwall policy. Dkt. # 21-3 (Ex. C to Beecher Deck). Nationwide contends that it did not receive the July 2012 tender until November 2012 when the Office of Insurance Commissioner sent it to Nationwide. See Dkt. # 16-8 at 2 (Ex. 8 to Halstead Deck). In December 2012, Nationwide denied the “tender of defense,” which it viewed as a request for reimbursement for past defense costs. Id. Terhune filed this action in April 2013 in King County Superior Court, and defendant removed the case to this court. Dkt. #1.
III. ANALYSIS
A. Legal Standard
Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively demonstrate that no reasonable trier of fact could find other than for the moving party. Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007). On an issue where the nonmoving party will bear the burden of proof at trial, the moving party can prevail merely by pointing out to the district court that there is an absence of evidence to support the non-moving party’s case. Celotex Corp., 477 U.S. at 325, 106 S.Ct. 2548. If the moving party meets the initial burden, the opposing party must set forth specific facts *1078showing that there is a genuine issue of fact for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The court must view the evidence in the light most favorable to the nonmov-ing party and draw all reasonable inferences in that party’s favor. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150-51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
B. Evidentiary Analysis
In resolving a motion for summary judgment, the court may only consider admissible evidence. Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir.2002). However, at the summary judgment stage, a court focuses on the admissibility of the evidence’s content, not on the admissibility of the evidence’s form. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir.2003).
Terhune moves to strike an offer of settlement made by Terhune “to show that part of Terhune’s demand was based on coverage fees” based on Federal Rule of Evidence 408. Dkt. # 22 (Plf.’s Opp’n) at 12; Dkt. # 16-11 at 2-3 (Ex. 11 to Hal-stead Deck). Rule 408 prohibits the admissibility of offers of compromise “to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contradiction!.]” Fed.R.Evid. 408(a). However, offers of compromise may be admitted “for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.” Id. 408(b). Nationwide argues that it provides the offer of settlement, not to prove or disprove the validity or amount of the claim or to impeach, but to demonstrate prejudice to Nationwide. Dkt. #24 (Def.’s Reply) at 3. The court agrees that the offer of compromise is offered to demonstrate prejudice to Nationwide that Terhune attempted to be reimbursed for coverage fees incurred when it was not notified until after coverage counsel had been engaged to pursue claims against another insurer.
The court also notes that the two declarations submitted by Terhune are not admissible. Dkt. ##20, 21. Ms. Evans’s declaration does not swear that her statements are true and correct, and therefore, does not comply with 28 U.S.C. § 1746. Mr. Beecher’s declaration is not signed. Accordingly, the court has not considered these declarations. Nevertheless, since Ms. Evans and Mr. Beecher could properly authenticate the documents attached, the court will consider the exhibits attached to their declarations.
C. Duty to Defend
“Both courts and the legislature have recognized that insurance contracts are imbued with public policy concerns.” Nat’l Surety Corp. v. Immunex Corp. (“Immunex”), 176 Wash.2d 872, 878, 297 P.3d 688 (Wash.2013). “An insured does not enter an insurance contract seeking profit, but instead seeks security and peace of mind through protection against calamity. The bargained-for peace of mind comes from the assurance that the insured will receive prompt payment of money in times of need.” Id. (quotations and citations omitted). “Because security and peace of mind are principal benefits of insurance, insurers must fulfill their contractual obligations in good faith, ‘giving equal consideration in all matters to the insured’s interests.’ ” Id. (emphasis omitted).
“The insurer’s duty to defend is separate from, and substantially broader than, its duty to indemnify.” Id. “The duty to indemnify applies to claims that are actually covered, while the duty to *1079defend arises when a complaint against the insured, construed liberally, alleged facts which could, if proven, impose liability upon the insured within the policy’s coverage.” Id. at 879, 297 P.3d 688 (internal quotations and emphasis omitted). “ ‘[I]f there is any reasonable interpretation of the facts or the law that could result in coverage, the insurer must defend.’ ” Id. “Facts that are extrinsic to the pleadings, but readily available to the insurer, may give rise to the duty.” Id. “Although this duty to defend is broad, it is not triggered by claims that clearly fall outside the policy.” Id. The duty to defend does not become a legal obligation until a claim for defense is tendered. Mut. of Enumclaw Ins. Co. v. USF Ins. Co. (“USF”), 164 Wash.2d 411, 421, 191 P.3d 866 (Wash.2008). Additionally, Washington State recognizes the “late-tender” rule, which “provides that even where an insured fails to give an insurer timely notice of a claim, the insurer is not relieved of its obligation to perform on the policy unless it can show that the late notice actually and substantially prejudiced it.” Id. at 425, 191 P.3d 866.
Typically, an insurer is notified of a lawsuit and has the opportunity to decide whether to defend before any judicial determination of coverage. That was not the case here. Rather, the underlying counterclaim was filed in June 2007 (Dkt. # 16-4 (Ex. 4 to Halstead Decl.), and the underlying lawsuit was tried to judgment in May 2010, and the corrected judgment was entered in November 2010. Dkt. # 16-5 (Ex. 5 to Halstead Decl.); Dkt. # 16-6 (Ex. 6 to Halstead Decl.). According to Nationwide, it was not notified of the underlying suit until November 2012, and it replied in December 2012 by denying the tender.1 See Dkt. # 16-8 at 2 (Ex. 8 to Halstead Decl.).
Thus, the court must first determine whether Nationwide had a “duty to defend”2 under the Artwall policy, and if so, whether Nationwide was prejudiced by the late-tender.
The Artwall policy defines “you” and “your” to “refer to the Named Insured,” Artwall. Dkt. # 16-1 at 7 (Ex. 1 to Hal-stead Decl.). The additional insured endorsement amended the policy to include Terhune as an individual insured with respect to liability for property damage caused, in whole or in part, by:
1. Your acts or omissions; or
2. The acts or omissions of those acting on your behalf;
in the performance of your ongoing operations for the additional insured(s) at the location(s) designated above.
Id. at 22 (§ A). The parties agree that Artwall was Terhune’s painting subcon*1080tractor, and performed no other work for Terhune. Thus, the Artwall policy only provided coverage for property damage caused by acts or omissions by Artwall and its employees in performing its painting obligations for Terhune.
Additionally, the policy defines “property damage” to mean “[pjhysical injury to tangible property, including all resulting loss of use of that property” or “[l]oss of use of tangible property that is not physically injured.” Dkt. # 16-1 at 20-21 (Ex. 1 to Halstead Deck, § V.17.a). The vast majority of the Weglins’ counterclaims allege facts relating to breach of the construction contract with respect to construction and design flaws and defects. Dkt. # 16-4 (Ex. 4 to Halstead Deck, ¶¶ 17-20, 22-27, A, B. 1-2 & 4, C-D). However, the Weglins also alleged that “[njumerous cosmetic defects in workmanship, together with damage caused by Plaintiffs crews, remain uncorrected despite Defendants’ demands.” Dkt. # 16-4 at 4 (Ex. 4 to Halstead Deck, ¶ 21). In their prayer for relief, the Weglins asked for a decree of specific performance directing Terhune to, among other things, “[cjorrect and repair all cosmetic deficiencies and damage to the premises and contents caused by Plaintiff and Plaintiffs crews[.]” Id. at 5 (1B.3). These two allegations in the complaint referring to damage caused by plaintiffs crews, construed liberally, could result in coverage by Nationwide where Artwall was one of the “crews” on site as the painting subcontractor. The interrogatory responses, by the Weglins confirm that at least some of the damages alleged could have included damages caused to the hardwood floors by the painter. Dkt. # 21-3 at 28-29 (Ex. C to Beecher Deck, Interrog. 1 Resp.).
Accordingly, the court finds that Nationwide had a duty to defend against these allegations.3
Nevertheless, Terhune did not notify Nationwide about the lawsuit until nearly five years after the Weglins filed the counterclaim, and two years after the trial court entered judgment.4 ‘Whether or not late notice prejudiced an insurer is a question of fact, and it will seldom be decided as a matter of law.” USF, 164 Wash.2d at 427, 191 P.3d 866. “The insurer has the burden of proving actual and substantial prejudice from the breach.” Id. The Washington Supreme Court “has not defined the precise set of circumstances under which an insured’s breach of a notice provision constitutes prejudice as a matter of law.” Id. However, the “insurer must prove that an insured’s breach of a notice provision had an identifiable and material detrimental effect on its ability to defend its interests.” Id. at 430, 191 P.3d 866.
Nationwide argues that that the “timing of Terhune’s notice, the fact that the underlying lawsuit was complete, and the fact [that] Terhune had already hired coverage counsel and incurred coverage expenses make Terhune’s untimely notice an extreme case under which prejudice should be presumed as a matter of law.” Dkt. # 15 at 10. Nationwide also argues that had it been timely notified, (1) it could have retained defense counsel whose ex*1081penses would have been separate and apart from those incurred in the prosecution of Terhune’s claims against the Weg-lins as well as $30,000 in coverage fees, (2) it could have had its coverage obligations determined in a declaratory judgment action, (3) it had no opportunity to minimize or control defense costs by settling the Weglins’ claims. Id. at 10-12.
The court disagrees that prejudice should be presumed as a matter of law under the circumstances because the Washington Supreme Court was presented with similar factual circumstances as to timing, and concluded that prejudice had not been demonstrated as a matter of law.
In USF, homeowners sued the general contractor, Dally, for construction defects to a condominium project in the spring of 2000. 164 Wash.2d at 416, 191 P.3d 866. Dally tendered the claim to two insurers, but not USF, which issued a general insurance policy, because it believed that tender was improper under the USF policy. Id. In January 2002, Dally and the two insurers entered into a settlement agreement, and Dally assigned its rights to the two insurers. Id. The two insurers then instituted contribution litigation against all of Daily’s other known insurers, but they were unaware of the USF policy until the litigation was complete. Id. at 416-17, 191 P.3d 866. In February 2004, the two insurers filed a subrogation5 and contribution claim against USF demanding partial reimbursement of their indemnity and defense costs. Id. at 417, 191 P.3d 866. The court found that USF had shown “that it did not have notice of the claim against Dally until 2004, nearly four years after the initial complaint, two years after Daily’s settlement with [the two insurers], and some time after [the] contribution litigation with the other insurers was complete.” Id. at 431, 191 P.3d 866. However, USF had “not shown how that delay specifically deprived it of the ability to put forth defenses to coverage or to contest the value of the damages[.]” Id.
Here, it is undisputed that Nationwide did not have notice of the underlying claim until five years after the counterclaim, and two years after judgment. However, Nationwide has not presented any evidence with respect to how that delay specifically deprived it of the ability to have its coverage obligations determined in a declaratory judgment or to minimize or control defense costs by settling the Weglins’ claim. Indeed, Nationwide could have accepted Terhune’s late-tender with a reservation of rights and filed a declaratory action to determine its coverage obligation as to the defense costs that Terhune is seeking. Nor has Nationwide presented any evidence supporting its argument that it could have retained separate defense counsel whose expenses would have been separate and apart from those incurred. The court notes that Nationwide’s Claims Manager has speculated that she believes that Nationwide would have denied the tender even if it had been timely submitted. Dkt. # 21-7 (Ex. G to Beecher Deck).
Nevertheless, Nationwide has presented evidence that indicates that Ter-hune sought the entire cost of legal fees, regardless of whether they were incurred in defense of the Welgins’ counterclaims. Dkt. # 17-3 at 2-92 (Ex. C to Anders Deck) (billing records indicating $289,509.80 incurred from date Terhune *1082filed the complaint to May 6, 2011, and not segregating defense costs separately); Dkt. # 16-11 (Ex. 11 to Halstead Deck) (March 2013 letter from Terhune to Nationwide indicating total defense fees and costs over $311,000, in addition to coverage fees of $29,856). Additionally, as previously indicated, the Artwall policy only provided coverage for property damage caused by Artwall employees relating to its painting obligation. The only evidence before the court regarding alleged property damage related to painting is damage to the hardwood floors caused by one of the painters.6 Dkt. # 21-3 at 28-29 (Ex. C to Beecher Deck). To the extent that Ter-hune seeks legal fees and costs that appear to be substantially in excess of the potential fees incurred in defense of the covered claim under the Artwall policy, the court finds that the question of whether Nationwide was prejudiced as a result of the late notice presents a material question of fact.
Thus, summary judgment is not appropriate on the breach of the duty to defend/bad faith claim because, if a trier of fact finds that Nationwide was prejudiced as a result of the untimely notice, Nationwide would be released from its obligations under the policy, and it likely would have acted reasonably in denying the tender. Such a result would likely absolve Nationwide of liability as to all of plaintiffs claims. In contrast, if a trier of fact finds that Nationwide has not demonstrated prejudice, then Nationwide would not be released from its obligations under the policy, and it likely would not have acted reasonably.7 Similarly, resolving the question of prejudice will mostly resolve the question of whether allocation is permitted for defense costs. See Waite, 77 Wash.2d at 856, 467 P.2d 847 (“where an insurer wrongfully refuses to defend, it will be required to pay the judgment or settlement to the extent of its policy limits and also to reimburse the insured for his costs reasonably incurred in defense of the action.”); Prudential Prop. & Cas. Ins. Co. v. Lawrence, 45 Wash.App. 111, 121, 724 P.2d 418 (Wash.App.1986) (“when an insurer wrongfully refuses to defend and there is no reasonable means of prorating the costs of defense between those items that are covered and those that are not covered, the insurer is liable for the entire cost of the defense.”). One question that would likely remain, which the parties have not addressed, would be whether there is a reasonable means of prorating covered and non-covered defense expenses.8
D. Olympic Steamship Fees
Defendant moves the court for an order that Terhune is not entitled to recov*1083er attorney’s fees under Olympic Steamship because it failed to provide timely notice to Nationwide. Dkt. # 15 at 17.
“Generally attorney fees are not recoverable in the absence of a contract term or statute allowing for their recovery.” Public Utility Dist. No. 1 of Klickitat Cnty. (“PUD”) v. Int’l Ins. Co., 124 Wash.2d 789, 814, 881 P.2d 1020 (Wash.1994). However, in the insurance context, an “insured who is compelled to assume the burden of legal action to obtain the benefit of its insurance contract is entitled to attorney fees, whether or not the insurance policy contains a provision for such fees.” Id. at 815, 881 P.2d 1020 (internal quotations omitted) (citing Olympic Steamship Co. v. Centennial Ins. Co., 117 Wash.2d 37, 54, 811 P.2d 673 (1991)). Washington courts will not authorize the imposition of attorney’s fees “when an insured has undisputedly failed to comply with the express coverage terms, and the noncompliance may extinguish the insurer’s liability under the policy.” Id. (emphasis added).
In PUD, the Court held that it could not justify an attorney’s fees award under Olympic Steamship because the insured failed to comply with the express coverage terms and that noncompliance may extinguish the insurer’s liability under the policy. 124 Wash.2d at 815, 881 P.2d 1020. In so holding, the Court acknowledged that this result was not altered by the fact that it had found that the insured was entitled to insurance proceeds because the insurers were not actually prejudiced by the insured’s noncompliance with the coverage provision for settling the claim without the insurer’s consent. Id. Thus, PUD seems to support defendant’s proposition that noncompliance with the insurance policy, regardless of prejudice to the insurer, forecloses Olympic Steamship fees.
In Liberty Mutual Insurance Company v. Tripp, the Washington Supreme Court noted that if Liberty established that it was prejudiced by the insured’s failure to comply with the notice of settlement provision, the insured would not be entitled to an award of attorney’s fees under Olympic Steamship. 144 Wash.2d 1, 20, 25 P.3d 997 (2001). It then opined that “the result should be the same even if Liberty fails to establish prejudice because it was the [insured’s] failure to comply with the express terms of the insurance contract, not Liberty’s conduct, that precipitated th[e] action.” Id. The Court then held that the Court of Appeals erred in awarding fees. Id. Accordingly, Liberty Mutual also seems to support defendant’s proposition that noncompliance with the insurance policy, regardless of prejudice to the insurer, forecloses Olympic Steamship fees.
In a more recent decision, the Washington Supreme Court held that the trial court properly awarded Olympic Steamship attorney’s fees where the insured was “compelled to assume the burden of legal action to obtain the benefit of its insurance contract.” Mut. of Enumclaw Ins. Co. v. T & G Constr., Inc., 165 Wash.2d 255, 273-74, 199 P.3d 376 (2008). However, the circumstances in that case involved an insured that had violated the insurance policy by failing to obtain consent of the insurer before it settled, and where the insurer did not demonstrate prejudice. Id. at 268-69, 199 P.3d 376. This most recent Washington Supreme Court case seems to indicate that noncompliance with a coverage provision, by itself, does not foreclose Olympic Steamship fees where the insurer had not been prejudiced. Thus, it appears that the Washington Supreme Court may be moving away from the practical results of PUD and Liberty Mutual that may result in a windfall to an insurer who denies a tender where it has a duty to defend, forces the insured to file a law suit *1084to obtain coverage, and then forecloses the insured’s ability to recover Olympic Steamship attorney’s fees where the insured did not comply with notice provisions regardless of prejudice to the insurer.
Although the Court in Mutual of Enum-claw cited to PUD for the proposition that an insured’s noncompliance with a cooperation clause releases the insurer from its responsibilities only if the insurer was actually prejudiced, it did not reference PUD or Liberty Mutual in its attorney’s fees analysis. Id. at 269, 273-74, 199 P.3d 376. Nevertheless, the court relies on the most recent Washington Supreme Court decision in finding that it cannot rule as a matter of law whether Terhune is entitled to Olympic Steamship fees where defendant has not demonstrated prejudice, where Terhune was compelled to file this case to obtain the benefit of its insurance contract, and where defendant has not demonstrated that plaintiffs noncompliance with the notice provision may extinguish its liability under the policy.
IV. CONCLUSION
For all the foregoing reasons, the court GRANTS defendant’s motion with respect to the Ruslan policy, and DENIES it in all other respects. The court also DENIES plaintiffs motion for summary judgment.
This order AMENDS and REPLACES Dkt. #26. Due to a clerical error, the court omitted its analysis regarding attorney’s fees under the Olympic Steamship doctrine. This Amended Order includes that analysis. Accordingly, defendant’s motion for reconsideration is MOOT. Dkt. # 30.
. According to Terhune, it sent the “tender of defense” in July 2012. Dkt. #21-3 (Ex. C to Beecher Deck).
. Practically speaking, there was nothing to "defend” after judgment was already entered when Nationwide received notice. Thus, Ter-hune’s tender is more appropriately seeking reimbursement for fees and costs incurred, rather than "defense” of a claim. See Waite v. Aetna Cas. & Sur. Co., 77 Wash.2d 850, 858, 467 P.2d 847 (Wash.1970) ("The fact that in some cases the insurer is not in a position to conduct a proper defense for the insured does not mean that it cannot discharge its duty under the policy provisions. The duty to defend can be enforced by requiring the insurer to reimburse the insured for its costs in defending against the claim, which, if proven, would be within the coverage of the policy.”). Washington courts have referred to these situations as a "late-tender” for reimbursement of indemnity and/or defense costs under the insurance policy. See USF, 164 Wash.2d at 422-426, 191 P.3d 866 (discussing late-tender rule in context of contribution and subrogation claims between insurers).
. The parties do not dispute that the Artwall policy did not provide coverage for any of the construction-related damages alleged by the Weglins. Thus, the duty to defend was not triggered by the vast majority of the construction-related allegations that clearly fall outside the policy.
. Terhune does not dispute that it failed to notify Nationwide until five years after the counterclaim and two years after the trial court entered judgment. Accordingly, the court finds that Terhune breached the notice provisions of the policy.
. Subrogation is the "principle under which an insurer that has paid a loss under an insurance policy is entitled to all the rights and remedies belonging to the insured against a third parly with respect to any loss covered by the policy.” Id. at 423, 191 P.3d 866. "An insurer entitled to subrogation 'stands in the shoes' of the insured and is entitled to the same rights and subject to the same defenses as the insured.” Id.
.In theory, had Nationwide been provided with proper notice, and it defended under a reservation of rights, it likely could have avoided being strapped with the collective legal costs. Unfortunately for Nationwide, the Washington Supreme Court has made it clear that the insurer must provide evidence supporting its arguments of prejudice. USF, 164 Wash.2d at 430, 191 P.3d 866 ("it has not shown how the delay specifically deprived it of the ability to put forth defenses to coverage or to contest the value of the damages, etc. It may well do so successfully at trial, but on the record before us we cannot say that USF has proved prejudice as a matter of law.”). Nationwide has only provided argument and speculation, not evidence, regarding actions it could have taken.
. Nationwide's reliance on the Findings of Fact and Conclusions of Law is misplaced. The trial court’s judgment is dispositive on the question of the duty to indemnify, not the duty to defend, which must be viewed based on the allegations of the complaint, not the actual liability adjudicated.
. As indicated above, the Artwall policy only covers lawsuits alleging claims of property damage caused by Artwall employees related to painting as the subcontractor on Terhune’s construction project. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7224425/ | ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ RENEWED MOTION TO DISMISS
William J. Martinez United States District Judge
Plaintiff Delbert E. Maxfield (“Plaintiff’) has brought this civil action under 42 U.S.C. § 1983 against Defendants Dave Bressler and the Board of County Commissioners of Weld County, Colorado (“Board of Commissioners”) (collectively “Defendants”), alleging violations of the First Amendment and wrongful discharge in violation of public policy. (Am. Compl. (ECF No. 22.)) This matter is before the Court on Defendants’ Renewed Motion to Dismiss the Amended Complaint (“Motion”). (ECF No. 30.) For the reasons set forth below, Defendants’ Motion is granted as to the Board of Commissioners and denied as to Bressler.
I. BACKGROUND
The relevant facts, as pleaded in the Amended Complaint, are as follows. This case arises out of a meeting Plaintiff held with Weld County Commissioner William Garcia on August 26, 2011. (Am. Compl. *1087¶ 5.) At the time, Plaintiff was employed as a Program Coordinator for the Weld County Paramedic Services (“WCPS”), Defendant Dave Bressler was the Director of WCPS, and Commissioner Garcia was a member of the Board of Commissioners designated as the coordinator of WCPS with direct supervisory authority. (Id. ¶¶ 2, 6-10.) At the meeting, Plaintiff and Commissioner Garcia discussed numerous issues pertaining to WCPS operations, including the expenditure of WCPS funds outside the areas of Plaintiffs job duties. (Id. ¶¶ 7, 9-12.)
On August 30, 2011, Commissioner Garcia met with Defendant Bressler and informed him of the WCPS operational issues that Plaintiff had raised. (Id. ¶ 15.) On September 2, 2011, Bressler met with Plaintiff and asked him for information about Plaintiffs meeting with Commissioner Garcia. (Id. ¶ 17-19.) Bressler attempted to attribute false statements to Plaintiff, and pressured Plaintiff to admit that he had made the statements in his meeting with Commissioner Garcia. (Id.) Bressler was visibly angry, and made repeated attempts to elicit information about Plaintiffs meeting with Commissioner Garcia. (Id. ¶¶ 18-20.) However, Plaintiff refused to disclose what had been discussed, stating that it was a private meeting with his elected official. (Id. ¶¶ 19, 21.) As a result, Bressler placed Plaintiff on a paid leave of absence and informed Plaintiff that he would be sent to a pre-dismissal hearing. (Id. ¶ 20-21.)
On September 6, 2011, Plaintiff received a letter from Bressler which stated the reasons for his possible dismissal and informed him of his right to rebut those reasons at his pre-dismissal hearing. (Id. ¶¶ 22-23; ECF No. 22-1.) The reasons listed in the pre-dismissal letter included Plaintiffs failure to meet performance standards because the meeting with Commissioner Garcia did not follow the chain of command, dishonesty due to false information conveyed to Commissioner Garcia, insubordination, and engaging in conduct likely to have an adverse effect upon Weld County government. (ECF No. 22-1.) Plaintiff alleges that these were false accusations made by Bressler to cause Plaintiff distress and hardship. (Am. Compl. ¶ 24.)
At the pre-dismissal hearing on September 7, 2011, Plaintiff again refused to disclose the contents of his meeting with Commissioner Garcia, stating that it was a private meeting with his elected official. (Id. ¶ 25.) Commissioner Garcia appeared at the hearing as a witness. (Id. ¶¶40, 52.) At the conclusion of the hearing, Plaintiff was terminated from employment with WCPS. (Id. ¶ 26.)
On November 13, 2012, Plaintiff filed this action against Bressler and Weld County, alleging that they had discharged him in retaliation for exercising his First Amendment rights and refusing to disclose the specifics of his speech, that Defendants were motivated by Plaintiffs protected speech in discharging him, and that Defendants therefore violated the Free Speech and Right to Petition clauses of the First Amendment. (ECF No. 1 at ¶¶ 23^10.) The Complaint also alleged that Defendants violated Colorado state law by wrongfully discharging him in violation of public policy. (Id. ¶¶ 41-49.)
On June 12, 2013, the Court granted Defendants’ Motion to Dismiss the Complaint based upon Plaintiffs failure to sufficiently allege his First Amendment claims, and declined supplemental jurisdiction over Plaintiffs state claim. (ECF No. 21.) With leave of Court, Plaintiff filed an Amended Complaint,, on July 5, 2013, supplementing his allegations and replacing former Defendant Weld County with a new Defendant, the Board of Commissioners. (Am. Compl. ¶ 3.)
*1088On July 25, 2013, Defendants filed the instant Renewed Motion to Dismiss. (ECF No. 30.) Plaintiff filed a Response (ECF No. 33), and Defendants a Reply (ECF No. 35). On the same day that the instant Motion was filed, Defendants filed an unopposed motion to stay the case-pending resolution of the Motion. (ECF No. 31.) The Court granted the stay on August 19, 2013. (ECF No. 19.)
II. LEGAL STANDARD1
The purpose of a motion to dismiss pursuant to Rule 12(b)(6) is to test “the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). To survive a Rule 12(b)(6) motion, “[t]he complaint must plead sufficient facts, taken as true, to provide ‘plausible grounds’ that discovery will reveal evidence to support the plaintiffs allegations.” Shero v. City of Grove, 510 F.3d 1196, 1200 (10th Cir.2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The “allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.” Robbins v. Oklahoma, 519 F.3d 1242, 1247-48 (10th Cir.2008). This requirement of plausibility “serves not only to weed out claims that do not have a reasonable prospect of success, [but also to] provide fair notice to defendants of the actual grounds of the claim against them.” Id.
“The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiffs complaint alone is legally sufficient to state a claim for which relief may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999) (citation omitted).
III. ANALYSIS
Defendants raise several arguments that the Amended Complaint should be dismissed, as follows: (1) although Plaintiff states a claim for a First Amendment violation,2 Defendant Bressler is entitled to qualified immunity because that violation was not clearly established; (2) the Board of Commissioners should be dismissed because Plaintiff fails to allege facts establishing municipal liability; (3) Plaintiffs wrongful discharge claim against Defendant Bressler3 is barred by the Colorado Governmental Immunity Act (“CGIA”); and (4) Plaintiff fails to allege the requisite facts to state a claim for wrongful discharge in violation of public policy. (ECF No. 30 at 14-23.) The Court will discuss each argument in turn.
A. First Amendment Claims
Plaintiff brings claims for violations of both the free speech clause and the right to petition clause of the First *1089Amendment, arguing that he was terminated from his employment at WCPS in retaliation for conduct protected under the First Amendment. (Am. Compl. ¶¶34-57.) A claim for retaliatory discharge by a public employee under the First Amendment is evaluated under the five factors of the Garcetti/Pickering test:
(1) whether the speech was made pursuant to an employee’s official duties; (2) whether the speech was on a matter of public concern; (3) whether the government’s interests, as employer, in .promoting the efficiency of the public service are sufficient to outweigh the plaintiff’s free speech interests; (4) whether the protected speech was a motivating factor in the adverse employment action; and (5) whether the defendant would have reached the same employment decision in the absence of the protected conduct.
Dixon v. Kirkpatrick, 553 F.3d 1294, 1302 (10th Cir.2009) (citing Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006); Pickering v. Bd. of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). Courts evaluating retaliatory discharge cases apply the same test for claims under both the right to speech and the right to petition clauses of the First Amendment. Borough of Duryea v. Guarnieri, — U.S. -, 131 S.Ct. 2488, 2494-95, 180 L.Ed.2d 408 (2011) (quoting Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430 (1945)).
1. Defendant Bressler
In the Motion, Defendants argue that Plaintiffs claims against Defendant Bres-sler should be dismissed because he is entitled to qualified immunity. (ECF No. 35 at 2 — 4.).
“The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quotation omitted). To resolve qualified immunity claims, a court must consider two elements: (1) whether a constitutional violation occurred, and (2) whether the violated right was “clearly established” at the time of the violation. Id. at 230-31, 129 S.Ct. 808. “Qualified immunity is applicable unless the plaintiff can satisfy both prongs of the inquiry.” Herrera v. City of Albuquerque, 589 F.3d 1064, 1070 (10th Cir.2009). Defendants do not contest that Plaintiff has sufficiently alleged a constitutional violation. . However, they assert that Bresslér is entitled to qualified immunity from suit because the violated right was not clearly established law.
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Zia Trust Co. ex rel. Causey v. Montoya, 597 F.3d 1150, 1155 (10th Cir.2010) (quotation omitted). However, Plaintiff need not show that the precise issue in question was previously decided in his favor. Rather, the Supreme Court has held that “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.” Hope v. Pelzer, 536 U.S. 730, 741, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (quotations and alteration omitted). This holding “shifted the qualified immunity analysis from a scavenger hunt for prior cases with precisely the same facts toward the more relevant inquiry of whether the law put officials on fair notice that the *1090described conduct was unconstitutional.” Casey v. City of Fed. Heights, 509 F.3d 1278, 1284 (10th Cir.2007) (quotations omitted). Thus, the question before the Court is whether the state of the law was such that Bressler should have been on fair notice that his conduct, as Plaintiff has alleged it, violated the First Amendment.
Defendants do not dispute that it was clearly established that Plaintiffs alleged conduct was protected by the First Amendment, satisfying the “ first two prongs of the Garcetti/Pickering test. Instead, Defendants appear to focus their argument on the third prong of the test. Defendants contend that the pre-termi-nation letter appended to the Amended Complaint establishes Bressler’s belief that Plaintiff made false statements to Commissioner Garcia, that those statements and the meeting itself were disruptive to government functioning, and that Plaintiffs failure to follow the chain of command to bring his concerns to his immediate supervisor was insubordinate and fell short of performance standards. (ECF No. 35 at 3.) Given the facts in Bressler’s knowledge as laid out in the pre-termination letter, Defendants argue that it was reasonable for Bressler to believe that the government’s interest in protecting itself from false statements, disruption, and insubordination outweighed Plaintiffs First Amendment interest in being permitted to make unapproved false statements. (Id.) Accordingly, from Bressler’s perspective, the balancing test was in the government’s favor, and thus there was no reason for him to know that Plaintiffs termination violated the First Amendment. See Dixon, 553 F.3d at 1302.
In so arguing, however, Defendants ignore the Court’s obligation to accept as true all plausible facts pleaded by Plaintiff. Shero, 510 F.3d at 1200. In the Amended Complaint, Plaintiff contends that Bres-sler’s reasons for his termination articulated in the pre-dismissal letter were not his true beliefs about Plaintiffs actions, but in fact were “trumped-up” and “false charges” brought for the malicious purpose of causing Plaintiff emotional distress and hardship in finding replacement employment. (Am. Compl. ¶24.) Plaintiff also states that Bressler “attempted to attribute false statements” to him, that he “pressured” Plaintiff to admit that the false statements were made, and that he grew angry when Plaintiff refused. (Id. ¶¶ 17-20.) From Plaintiffs factual allegations, it is reasonable to infer that Plaintiff believed the statements he made to Commissioner Garcia were not false, and that Bressler simply invented the reasons given for his termination in the pre-dismissal letter because he was angry that Plaintiff raised sensitive issues with Commissioner Garcia.
If, as Plaintiff alleges, Bressler fabricated accusations of false statements and disruption in order to penalize Plaintiff for speaking with Commissioner Garcia and disclosing unfavorable information about WCPS, Bressler should have known that terminating Plaintiff based upon those accusations was unlawful. The Tenth Circuit has made clear with respect to the third prong of the test that “unless the government employer can show that the termination was based on legitimate reasons grounded in the efficient conduct of public business, there is no need to proceed to balancing, and the First Amendment interest of the plaintiff prevails.” Dixon, 553 F.3d at 1304 (citing Brammer-Hoelter v. Twin Peaks Charter Acad., 492 F.3d 1192, 1207 (10th Cir.2007); Gardetto v. Mason, 100 F.3d 803, 815 (10th Cir.1996)). Fabricated grounds for termination cannot be “legitimate reasons”. Thus, given the facts as pleaded in the Amended Complaint, it was clearly established that ter*1091minating Plaintiff under these conditions would violate the First Amendment. Accordingly, Bressler is not entitled to qualified immunity.
2. Defendant Board of Commissioners
Defendants next argue that Plaintiff has failed to state a claim against the Board of Commissioners because he has not alleged facts from which municipal liability can be established. (ECF No. 30 at 15-19.) Because the Board of Commissioners is a political subdivision, Defendants argue that Plaintiff must demonstrate that his injury was caused by some action by the Board as a whole in order to hold it liable, and that he has failed to do so. (Id. at 17-19.)
Where municipal liability for a constitutional violation is at issue, the plaintiff must demonstrate that some official policy is responsible for the violation. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Even where that policy is not embodied in an official enactment, it may be reflected in “governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decision-making channels.” Id. at 691, 98 S.Ct. 2018. The Tenth Circuit has set forth a three-part test for determining when a governmental entity is liable for an unofficial custom, which requires a plaintiff to prove: (1) a “continuing, persistent and widespread practice of unconstitutional misconduct”; (2) “[deliberate indifference or tacit approval” of such misconduct; and (3) “[t]hat the plaintiff was injured by virtue of the unconstitutional acts pursuant to the board’s custom and that the custom was the moving force behind the unconstitutional acts.” Gates v. Unified Sch. Dist. No. 449, 996 F.2d 1035, 1041 (10th Cir.1993).
Here, Plaintiff has not alleged that any official enactment by the Board of Commissioners violated his First Amendment rights. Instead, he alleges that Commissioner Garcia’s involvement and complicity in Plaintiffs termination, in conjunction with Garcia’s status as an attorney and his position as the Commissioner in charge of oversight of WCPS, “evincefs] that his actions constitute a custom of Weld [County] and necessitate^] that his actions be attributed to the Commissioners as a whole and thus Weld as a body politic.” (Am. Compl. ¶¶41, 53.) Plaintiff alleges no other basis for holding the Board of Commissioners liable for the constitutional violation.
Plaintiffs allegations fall far short of establishing an unofficial custom. Even taking as true Plaintiffs conclusory allegation that the Board of Commissioners’ failure to contest Plaintiffs termination constitutes tacit approval of the constitutional violation, Plaintiff has not alleged any facts showing that that violation resulted from a “continuing, persistent and widespread practice” that could be considered a custom. (See Am. Compl. ¶¶ 41, 53.) In his Response to the Motion, Plaintiff argues that Defendants “do not consider the possibility that the collective Board of County Commissioners were involved.” (ECF No. 33 at 16.) However, Plaintiff has made no factual allegations that support such a possibility,4 nor does a mere “possibility” suf*1092fice to establish a plausible factual allegation that the Court may take as true when considering a motion to dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (“The plausibility standard ... asks for more than a sheer possibility that a defendant has acted unlawfully.”).
Furthermore, even if Plaintiff successfully alleged an unofficial custom of disregarding First Amendment rights, the Amended Complaint contains no facts to suggest that the Board of Commissioners’ alleged custom was the “moving force” behind the constitutional violation. See Gates, 996 F.2d at 1041. Instead, as Plaintiff alleges, Plaintiffs termination was caused by Bressler willfully and maliciously inventing false charges against Plaintiff in retaliation for Plaintiffs protected conduct. (See Am. Compl. ¶¶ 17-26.) At best, the Amended Complaint alleges that Commissioner Garcia supported Bressler’s unconstitutional decision, and that the Board of Commissioners validated the constitutional violation after the fact. These allegations are insufficient to support municipal liability. See Monell, 436 U.S. at 690, 98 S.Ct. 2018; Gates, 996 F.2d at 1041.
Accordingly, the Court finds that Plaintiff has failed to state a First Amendment claim against the Board of Commissioners. As Plaintiffs First Amendment claims are the only claims brought against that Defendant, the Motion is granted with respect to the Board of Commissioners.
B. Wrongful Discharge Claim
With respect to Plaintiffs state claim against Defendant Bressler for wrongful discharge in violation of public policy, Defendants first argue that the claim is barred by the CGIA, and second that Plaintiff fails to allege the requisite elements of the claim. (ECF No. 30 at 20-23.)
1. CGIA
The CGIA codifies governmental immunity from suit in tort cases brought against Colorado public entities and public employees. Colo.Rev.Stat. §§ 24-10-101 et seq. Because Bressler was employed by WCPS, a public entity, when the events at issue occurred, Plaintiffs state law claim is subject to the CGIA. (See Am. Compl. ¶ 2.)
“A public employee is immune from liability on tort claims arising out of an act or omission of the employee during the performance of his or her duties and within the scope of his or her employment, unless the act or omission causing such injury was willful and wanton.” Carothers v. Archuleta Cty. Sheriff, 159 P.3d 647, 650 (Colo.App.2006) (citing Colo.Rev.Stat. § 24-10-118). Colorado courts have adopted the definition of “willful and wanton conduct” from Colorado’s exemplary damages statute, which defines it as “conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly,.without regard to the consequences, or the rights and safety of others, particularly the plaintiff.” Colo.Rev.Stat. § 13—21—102(1)(b); see Drake v. City & Cnty. of Denver, 953 F.Supp. 1150, 1160 (D.Colo.1997); Moody v. Ungerer, 885 P.2d 200, 205 (Colo.1994) (citing Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038, 1042 (Colo.1954)).
As with Defendants’ qualified immunity argument, Defendants again argue that the decision to terminate Plaintiff was reasonable based on Bressler’s belief that *1093Plaintiff made false statements and was disruptive to WCPS operations. (ECF No. 30 at 21-22; ECF No. 35 at 6-7.) However, as discussed above, Plaintiffs Amended Complaint alleges that Bressler fabricated those reasons for terminating Plaintiff, and did so maliciously and in an attempt to penalize Plaintiff for exercising his free speech and petition rights. The Court finds that these allegations are sufficient to establish a claim that Bressler’s conduct was purposefully and recklessly committed to cause Plaintiff injury, and in disregard of Plaintiffs constitutional rights. Because Bressler’s alleged actions constitute willful and wanton conduct under Colorado law, Plaintiffs wrongful discharge claim against Defendant Bressler is not barred by the CGIA.
2. Wrongful Discharge Claim
Finally, Defendants argue that Plaintiff has failed to allege the requisite elements of a claim for wrongful discharge in violation of public policy. (ECF No. 30 at 22-23.)
Absent an express contract providing otherwise, Colorado law presumes that an employment relationship is terminable at will by either party. Cont’l Air Lines, Inc. v. Keenan, 731 P.2d 708 (Colo.1987). A common law exception to this presumption establishes that an employer may not terminate an employee in violation of public policy. Crawford Rehab. Servs., Inc. v. Weissman, 938 P.2d 540 (Colo.1997). In order to state a claim for wrongful termination in violation of public policy, a plaintiff must show the following:
[ 1] the employer directed the employee to perform an illegal act or prohibited the employee from performing a public duty or exercising an important job-related right or privilege;
[ 2] the action directed by the employer would violate a specific statute relating to the public health, safety, or welfare, or would undermine a clearly expressed public policy relating to the employee’s basic responsibility as a citizen or the employee’s rights or privileges as a worker;
[ 3] the employee was terminated as a result of refusing to perform the act directed by the employer; and
[ 4] the employer was aware, or reasonably should have been aware, that the employee’s refusal to comply with the order was based on the employee’s reasonable belief that the action ordered by the employer was illegal, contrary to clearly expressed statutory policy relating to the employee’s duty as a citizen, or violative of the employee’s legal rights or privileges as a worker.
Jaynes v. Centura Health Corp., 148 P.3d 241, 243 (Colo.App.2006) (citing Martin Marietta Corp. v. Lorenz, 823 P.2d 100 (Colo.1992)).
Here, Defendants argue that Plaintiff has failed to allege facts satisfying these factors. (ECF No. 30 at 22-23.) However, while the specific language of the Colorado cases setting forth these elements may not apply precisely to Plaintiffs case, the Court finds that Plaintiffs allegations satisfy the elements of a claim for wrongful discharge in violation of public policy. First, although Plaintiff did not refuse to perform an illegal act, the Amended Complaint alleges that he was prohibited, through retaliatory termination from his employment, from exercising his free speech and petition rights in attempting to bring concerns regarding the expenditure of public funds to an elected official. This sufficiently'demonstrates that his employer prohibited him from performing a public duty. Second, as Defendants concede, Bressler’s actions in prohibiting Plaintiffs speech as pleaded in the Amended Complaint violate the individual rights *1094established in the First Amendment, which undermines “a clearly expressed public policy relating to [his] basic responsibility as a citizen.” Jaynes, 148 P.3d at 243. Third, it is undisputed that Plaintiff was terminated as a result of his conduct. Fourth, as discussed above with respect to qualified immunity, the Court finds that Bressler reasonably should have been aware that terminating Plaintiff because of his attempt to petition Commissioner Garcia and exercise his First Amendment rights was a violation of Plaintiffs legal rights.
Therefore, the Court finds that Plaintiff has successfully stated a claim for wrongful discharge in violation of public policy against Defendant Bressler.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. Defendants’ Motion is GRANTED with respect to the Board of Commissioners, and all claims against the Board are DISMISSED with prejudice;
2. Defendant Board of Commissioners is hereby TERMINATED as a party to this action;
3. Defendants’ Motion is DENIED with respect to Defendant Bressler; and
4. The stay of discovery and pretrial disclosures is hereby LIFTED, and Plaintiff shall file a status report on or before November 28, 2013 in accordance with the August 19, 2013 Order of Magistrate Judge Boyd N. Boland (ECF No. 34).
. Although Defendants'1 Motion is filed pursuant to both Rules 12(b)(1) and 12(b)(6), the Court addresses herein only Rule 12(b)(6) because it is dispositive of the Motion.
. Defendants’ Motion initially argued, as in their original Motion to Dismiss, that Plaintiff still failed to allege sufficient facts to state claims under the First Amendment. (ECF No. 30 at 7-14.) However, after reviewing Plaintiff's Response, Defendants conceded in their Reply that Plaintiff’s Amended Complaint no longer fails to state a claim for First Amendment violations. (ECF No. 35 at 1-2.) Accordingly, the Court accepts Defendants’ concession and will discuss only Defendants’ remaining arguments.
.As Defendants indicate in their Motion, Plaintiff has agreed to dismiss the Board of Commissioners from his wrongful discharge claim. (See ECF No. 30 at 1-2, Ex. 1.) Thus, Plaintiff’s state claim is brought only against Defendant Bressler.
. Plaintiff further states that he has had no opportunity to conduct discovery in order to establish unlawful customs of the Board of Commissioners, and that if the Court is inclined to dismiss his claims against the Board, Plaintiff should be entitled to discovery to demonstrate the Board's liability. (ECF No. 33 at 16-17.) In addition to the fact that Plaintiff's belated request for discovery is contained within his Response (in violation of the Local Rules and this Court's Practice Standards, see D.C.COLO.LCivR. 7.1(c), *1092and WJM Revised Practice Standard III.B), Plaintiff's requested discovery appears to be a fishing expedition for evidence to support factual allegations he has not even made. Accordingly, the Court declines to consider this request. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218039/ | PER CURIAM:
George Henson, Jr., appeals the district court’s order accepting the recommendation of the magistrate judge affirming the Social Security Commissioner’s denial of disability benefits for a period from 1998 to 1998. We have reviewed the record and find no reversible error. Accordingly, we affirm on the reasoning of the district court. See Henson v. Commissioner of the Social Sec. Admin., No. CA-99-524 (E.D.Va. Jan. 9, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218040/ | PER CURIAM':
Elliott R. Brown appeals from the district court’s denial his motions to reconsider the district court’s December 13, 2001 order dismissing his state law claims for declaratory relief, accounting, and restitution. We affirmed the district court’s December 13, 2001 order on appeal. See Brown v. Circuit Court of Fairfax County, 42 Fed.Appx. 590 (4th Cir.2002) (unpublished) (per curiam). Because we have already affirmed the district court’s disposition of his case, Brown’s further attacks on that order are barred by principles of res judicata. Accordingly, we affirm the district court’s orders. We dispense with oral argument, because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218041/ | PER CURIAM:
Juventino Correa appeals the district court’s order granting summary judgment in favor of Roadway Express in Correa’s employment discrimination action. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Correa v. Roadway Express, No. CA-00-587-1, 2003 WL 42143 (M.D.N.C. Jan. 2, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218042/ | PER CURIAM:
Richard Charles Norton appeals the district court’s order denying is motion for an evidentiary hearing and a subsequent order entering a stay of judgment pending appeal. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. Norton, No. 99-78 (W.D.Va. Jan. 31, 2003 & Mar. 21, 2003). We dispense with oral argument because the facts and legal contentions are adequately presented in the ma*412terials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218043/ | ORDER
Flem Calhoun, II, a California litigant proceeding pro se, appeals a district court judgment dismissing his wrongful death action brought under the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. § 51 et seq. Additionally, Calhoun has filed a motion for miscellaneous relief. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
Calhoun brought this action for the wrongful death of his grandfather, Flem Calhoun, who apparently died in 1948. The decedent was apparently employed by defendant Frisco Railroad (“Frisco”), which Calhoun alleges was an extension of the defendant Illinois Central Railroad. Around the time of the decedent’s planned retirement in 1948, he was apparently informed by Frisco management that, because they believed him to be black, they did not have to pay him a pension based on his thirty years of service but, instead, his pension benefit would be calculated as if he had started working for Frisco in 1945. Because the decedent could not afford to retire under those circumstances, he returned to his job with Frisco, where he *421allegedly got into a heated argument with a Frisco official, suffered a cerebral hemorrhage, and died. Calhoun alleges that his grandmother was never able to recover death or retirement benefits from Frisco.
The wrongful death complaint was filed on June 10, 2002. Calhoun alleges that the defendants fraudulently concealed the cause of the decedent’s death. He also claims that the defendants conspired with each other to withhold the decedent’s retirement benefits. Lastly, Calhoun claims that the “defendants” committed arson at some unspecified time in order to destroy the records relating to his grandfather’s employment. Calhoun seeks monetary relief. The district court summarily dismissed Calhoun’s complaint for frivolity and failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii). Calhoun has filed a timely appeal.
We review de novo a judgment dismissing a suit as frivolous and for failure to state a claim upon which relief may be granted under § 1915(e)(2). See Brown v. Bargery, 207 F.3d 863, 867 (6th Cir.2000); McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). A complaint “is frivolous where it lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). “Dismissal of a complaint for the failure to state a claim on which relief may be granted is appropriate only if it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief.” Brown, 207 F.3d at 867.
Upon review, we conclude that the district court properly dismissed Calhoun’s complaint because it is frivolous and fails to state a claim for relief. The Federal Employers’ Liability Act, is a “ ‘remedial and humanitarian statute ... enacted by Congress to afford relief to employees from injury incurred in the railway industry.’ ” Aparicio v. Norfolk & W. Ry. Co., 84 F.3d 803, 807 (6th Cir.1996) (quoting Edsall v. Penn Cent. Transp. Co., 479 F.2d 33, 35 (6th Cir.1973)). The statute provides that a proper plaintiff, in the case of death of railroad employee, is “his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee’s parents; and, if none, then of the next of kin dependent upon such employee.” 45 U.S.C. § 51. Calhoun alleges that, at the time of the decedent’s death, he lived with, and was supported by, his grandfather. He further submits his mother’s death certificate. Thus, Calhoun has standing to bring this lawsuit.
Despite its broad remedial and humanitarian purpose, FELA limits the commencement of actions by injured railway workers with a three-year statute of limitations. See 45 U.S.C. § 56 (“No action shall be commenced within three years from the day the cause of action accrued”). This uniform rule is mitigated by the application of the “discovery rule.” See Aparicio, 84 F.3d at 814. The discovery rule applies where “the injured person sustains an injury which cannot itself reasonably be discovered, or the cause of which cannot reasonably be discovered, until some time following the tortious event and the running of the statute of limitations.” Hicks v. Hines, Inc., 826 F.2d 1543, 1544 (6th Cir.1987). When such a circumstance arises, the statute of limitations is tolled until “the date by which the plaintiff reasonably should have discovered both cause and injury.” Hicks, 826 F.2d at 1544. The discovery rule imposes upon an injured railway employee the duty to exercise due diligence; thus, once an injured worker has reason to suspect that his injury is work-related, he must take action to *422determine whether that is, in fact, the case. See Aparicio, 84 F.3d at 815.
While Calhoun claims that his claim accrued in 1985, when he learned the facts concerning his grandfather’s death, the statute of limitations expired more than ten years ago. Therefore, his claim is time-barred.
Accordingly, the motion for miscellaneous relief is denied, and the district court’s judgment is affirmed. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218045/ | ORDER
Robert Louis Brown, a pro se Tennessee resident, appeals a district court order dismissing his civil rights action filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a).
Seeking monetary relief, Brown sued the Tennessee Department of Labor, its Workers’ Compensation Department, and the Attorney General of Tennessee. The action arose from the dismissal of a state court action where Brown sought workers’ compensation benefits. The state trial court dismissed the suit for lack of subject matter jurisdiction and the Tennessee Court of Appeals affirmed. The district court dismissed the case as frivolous.
In his timely appeal, Brown’s brief is construed as arguing that Tennessee has waived its Eleventh Amendment immunity; that a state employee committed fraud in his workers’ compensation case; and that this court should review the decision of the Tennessee Court of Appeals.
The district court’s order is reviewed de novo. See McGore v. Wrigglesworth, 114 F.3d 601, 604 (6th Cir.1997). A case is frivolous if it lacks an arguable basis in law or in fact. See Neitzke v. Williams, 490 *426U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).
The district court properly dismissed Brown’s complaint. Contrary to Brown’s arguments, Tennessee and its agencies are immune from liability for monetary damages under the Eleventh Amendment. See Welch v. Texas Dep’t of Highways & Pub. Transp., 483 U.S. 468, 472-73, 107 S.Ct. 2941, 97 L.Ed.2d 389 (1987); Papasan v. Allain, 478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986); Berndt v. Tenn., 796 F.2d 879, 881 (6th Cir.1986).
Brown complains of the Attorney General’s representation of the state’s interest in Brown’s state court proceedings. Specifically, Brown contends that the Attorney General filed documents stating that the state could not be sued and that his workers’ compensation claim was filed in the wrong court. The state trial court agreed with the Attorney General’s position. As the Attorney General was an “advocate” for the state by defending the state in Brown’s civil action in state court, the Attorney General’s actions were “intimately associated with the judicial phase” of the civil process. Thus, the Attorney General is entitled to absolute immunity in Brown’s civil rights action. See Prince v. Hicks, 198 F.3d 607, 611 (6th Cir.1999). Therefore, Brown’s claims against the Attorney General are meritless.
Finally, Brown contends that this court should review the decision of the Tennessee Court of Appeals. This court’s responsibility is to review the decision of the federal district court in Tennessee. It is not this court’s responsibility to review the decision of the Tennessee Court of Appeals. That responsibility lies with the Supreme Court of Tennessee.
Accordingly, we affirm the district court’s order. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218046/ | PER CURIAM.
In this case a general contractor, J.A. Jones Environmental Services, Co. (“Jones”), brought an action for breach of contract against its subcontractor, Horizontal Technologies, Inc. (“HTI”), and the latter’s bonding company, North American Specialty Insurance Company (“NAS”), which provided a payment and a performance bond for HTI, protecting Jones from a default by the subcontractor. The jury decided for Jones in a general verdict. NAS appeals, asserting that it was entitled to a judgment as a matter of law inasmuch as Jones presented insufficient evidence to support a jury verdict on any of Jones’s legal theories. We disagree and affirm.
Jones entered into a contract in August 1995 with Ford Motor Land Development Company pursuant to which Jones was to provide construction work at a stamping plant in Monroe. Michigan. Jones was responsible for enclosing the landfill, and HTI was responsible for installing a leach-ate (contaminated water) collection system that included an underground piping system to transport the leachate to a treatment center. Jones required that HTI provide a performance and a payment bond.
As we have observed, NAS provided a performance and a payment bond for HTI. After installation, Jones determined that portions of the piping system were damaged. Jones paid for the repairs and for work on other portions of the landfill affected by the pipe repairs. When payment was not forthcoming from HTI, Jones sued both HTI and NAS for breach of the subcontract and the performance bond.
At trial, NAS argued that Jones failed to provide it with notice of HTI’s default. NAS argued that a May 4, 1998 letter1 from Jones to HTI was not a proper declaration of default, and that NAS had been deprived of its options under the bond because of the late notice of HTI’s default. The jury also heard arguments from Jones that NAS waived its right to claim it received late notice because it did not raise *428this affirmative defense in a timely manner.2
Trial began on March 7, 2001 and concluded on March 15, 2001. The jury was asked to determine whether HTI breached its subcontract with Jones and whether NAS breached its performance bond with Jones. The jury found that there had been a breach of the subcontract and the bond and awarded all of the damages claimed by Jones. Jones stipulated that the maximum judgment, exclusive of interest, against NAS was limited to the penal sum of the bond. The court rejected the motion of NAS for a directed verdict during trial as well as a post-trial motion for judgment of dismissal. NAS appeals the final judgment, asserting lack of evidence to support the verdict of the jury.
We must accord substantial deference to jury verdicts, and we may not “weigh the evidence, pass on the credibility of the witnesses, nor substitute our judgment for that of the jury.” Jewell v. CSX Transp., Inc., 135 F.3d 361, 366 (6th Cir.1998) (quoting Davis v. Mutual Life Ins. Co., 6 F.3d 367, 374 (6th Cir.1993)).
In support of its contention that the jury verdict was not supported by substantial evidence, NAS makes several arguments. Most significantly, NAS argues that May 4, 1998 cannot be the date of the default notice because Jones did not discover the damaged pipe until late July 1998. All of the damages claimed by Jones arose out of the damaged pipe and there would be no dispute without it. According to NAS. the three items listed in the May 4 letter (unpaid suppliers, unsatisfactory current progress, and failure to provide adequate supervision) played no role in damaging the pipe.3
We are mindful of the fact that NAS made these and other arguments to the jury. NAS did not object to the verdict form, nor did it request specific interrogatories. Therefore, we must assume that the jury’s general verdict implicitly rejected NAS’s arguments. Furthermore, drawing all reasonable inferences in favor of the jury verdict, there exists sufficient evidence that the jury could have concluded that the notice on May 4, 1998 covered the continuing defaults of the subcontractor.
The evidence permitted the jury to infer a link between the three items listed in the May 4 default letter and the problems with the pipe. For instance, the jury could have concluded that HTI’s construction delays led to the pipe’s damage.4 The jury also could have credited Jones’s project manager’s testimony that HTI never cured the May 4 defaults and Jones considered HTI to be in continuous default. There is also sufficient evidence for the jury to have concluded that by waiting to raise its affirmative defense until January 19, 2001, NAS waived any right to assert the defense. The trial court specifically instructed the jury about NAS’s affirmative defense and that this defense could be *429waived if the jury found that NAS failed to timely raise the defense or object to Jones’s declaration of default.
Accordingly, we affirm the judgment of the district court.
. Jones’s project manager, Don Curtis, was not satisfied with portions of HTI’s performance. By letter dated May 4, 1998, he informed HTI that it was not in compliance with the subcontract for three specific reasons: (1) unpaid suppliers; (2) unsatisfactory current progress; and (3) failure to provide adequate supervision. Jones sent a copy of this letter to American Phoenix Corporation, NAS’s agent, who then forwarded a copy to NAS. Jones directed HTI to inform it within forty-eight hours of receiving the notice about how HTI intended to remedy its default. On or about May 6, 1998, HTI responded to Jones’s letter and addressed each of Curtis's three concerns. Curtis testified that he did not respond to HTI’s May 6 letter.
. NAS first raised its affirmative defense of lack of default notice on January 19, 2001.
. NAS also argues that there was no default on May 4 because after HTI's May 6 letter to Jones, it was "business as usual” between HTI and Jones. HTI proceeded with its work, received a punch list on June 30, 1998, and completed the work by July 1998. Up until August 28, 1998, HTI was still receiving payments from Jones.
. On May 4, 1998, the same day it sent the default letter, Jones directed HTI to test the underground piping system to verify that it had been installed and was functioning properly. HTI did not perform any testing. The damaged pipe was revealed when pipe verification tests were made at a later time. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218049/ | OPINION
COLE, Circuit Judge.
Plaintiff-Appellant Dr. Martin L. Trepel appeals the denial of his motion for attorneys’ fees and other taxable costs incurred during trial. Trepel argues that, due to the peculiar procedural history of this case, most of the issues involved in the present appeal, such as the award of attorneys’ fees and travel costs for expert witnesses, have already been decided by this Court, and are therefore governed by the doctrine of the “law of the case.” In addition, Trepel argues that the district court, improperly relying on an incorrect date for the mandate issued by this Court, erred in denying his motion to tax the costs of the transcript from a prior proceeding in this case. Defendant-Appellee Roadway Express, Inc. (“Roadway Express”) argues that Trepel has waived his claim to attorneys’ fees, that only certain issues regarding taxable costs should be remanded to the district court, and that this Court should remand the issue of taxing the transcript costs.
For the reasons that follow, we VACATE the decision of the district court and REMAND this case for further proceedings.
I. BACKGROUND
The history of this litigation is protracted and somewhat complex, as this is the fifth appeal before this Court stemming from the same litigation. The factual history of this case is adequately chronicled in our three previous opinions, and we therefore find it unnecessary to delve too deeply into the background of this case for purposes of the present appeal. See Trepel v. Roadway Express, Inc., 40 Fed.Appx. 104, 2002 WL 1402211 (6th Cir. June 27, 2002) (unpublished) (hereinafter “Trepel TV”); Trepel v. Roadway Express, Inc., 266 F.3d 418 (6th Cir.2001) (hereinafter “Trepel III”); Trepel v. Roadway Express, Inc., 194 F.3d 708 (6th Cir.1999) (hereinafter “Trepel I & II”).
In 1993, Trepel purchased an African tribal carving, known as the “Baga serpent,” in New York City for the price of $15,000, and then arranged to have Roadway Express transport the object to Phoenix, Arizona. The serpent was broken *441during transport, and Trepel filed a claim with Roadway Express for damages. When Roadway Express failed to initiate dispute resolution proceedings, Trepel filed suit in federal court.
A jury trial was conducted in 1997 before District Judge Bell, during which Trepel called numerous expert witnesses. At the end of this first trial, the jury awarded damages to Trepel in the amount of $80,000. Trepel appealed this jury verdict, and this Court awarded him a new trial on the issue of damages only on the ground that the district court abused its discretion by not allowing Trepel’s experts to testify regarding the basis for their opinions as to the Baga serpent’s value. Trepel I & II, 194 F.3d at 719. Roadway Express’s cross-appeal, in which it argued that the district court erred in denying its motion for judgment notwithstanding the verdict, was denied. Id.
Additionally, Trepel filed a post-judgment motion for attorneys’ fees with the trial court, which was subsequently denied by District Judge Polster on the ground that such fees were not recoverable for cases involving “objects of art” pursuant to the Household Goods Transportation Act (“HGTA”), 49 U.S.C. § 11711(d) (1993) (repealed 1995). The district court also awarded Trepel only a portion of the costs he sought. Trepel then appealed this denial of attorneys’ fees and costs.
While the appeal of the denial of attorneys’ fees and costs was pending, District Judge Gwin conducted a new jury trial on the issue of damages, pursuant to the remand order of this Court. At the conclusion of this second trial, the jury awarded damages to Trepel in the amount of $155,000. Due to an apparent clerical error, the district court entered judgment on February 18, 2000, in favor of Trepel for the amount of $150,000. On March 3, 2000, Trepel again moved for attorneys’ fees. On March 6, 2000, Trepel moved under Federal Rule of Civil Procedure 60(a) to correct the February 18 judgment to reflect the proper amount of damages awarded by the jury. An amended judgment in the amount of $155,000 was entered by the district court on March 27, 2000. Trepel’s motion for a new trial was denied, and he filed an appeal of this second verdict with this Court on July 6, 2000.
The district court referred the issue of attorneys’ fees and costs after the second trial to Magistrate Judge Gallas, the same magistrate judge who had provided a report and recommendation concerning attorneys’ fees and costs from the first trial. This second report and recommendation again found that Trepel was not entitled to attorneys’ fees, reincorporating the prior report and recommendation on this subject. Magistrate Judge Gallas acknowledged that this ruling was contingent because no decision had yet been issued from the appeal of the prior order.
According to Magistrate Judge Gallas’s second report and recommendation, in addition to attorneys’ fees, Trepel sought: (1) the costs of witness fees at the statutory rate in accordance with 28 U.S.C. § 1821(b); (2) travel expenses for those witnesses in accordance with 28 U.S.C. §§ 1821(c) and 1920(3); (3) subsistence allowances for the witnesses as set forth under 28 U.S.C. § 1821(d); (4) expert witness fees for deposition and time spent in preparation for deposition; (5) costs of stenographic transcripts assessable under 28 U.S.C. § 1920(2); (6) costs for the trial transcript from the first trial; and (7) compensation for interpreters assessable under 28 U.S.C. § 1920(6).
Roadway Express did not object to the amount sought for witness fees, subsistence allowance, or interpreter expenses, and Magistrate Judge Gallas therefore recommended that Trepel be awarded the *442sum of $1,580.00 for these costs. Roadway-Express did file objections to the remaining costs sought by Trepel.
Despite Roadway Express’s objections that Trepel did not provide proper documentation, Magistrate Judge Gallas awarded $2,241.45 to Trepel for taxable stenographic transcripts. Trepel’s request for $2000 for the time spent by Francine Ndiaye, former curator of African Art at the Musee de FHomme in Paris, in preparation for and during her deposition was disallowed because Trepel failed to move separately for this cost under Federal Rule of Civil Procedure 26, and because Trepel lacked documentation to support this charge. With regard to travel expenses, Magistrate Judge Gallas approved a total of $1,047.40, which included 32.5 cents per mile for each expert witness for up to 200 miles round-trip per person. Trepel had sought $10,546.61 in travel expenses, and filed an additional supplement increasing these costs. Finally, the report and recommendation suggested disallowing the claim of $4,626 for the cost of the transcript from the first trial under Federal Rule of Appellate Procedure 39(e), finding that the request was not submitted within a reasonable time after the receipt of the order of remand from this Court.
Thus, the total taxable costs recommended by the magistrate judge amounted to $4,868.85, distributed as follows:
(1) witness fees $ 320.00
(2) travel expenses $1,047.40
(3) subsistence allowances $1,060.00
(4) expert witness fees $ 0
(5) stenographic transcript costs $2,241.45
(6) transcript from first trial $ 0
(7) interpreter compensation $ 200.00.
The district court adopted in full the magistrate judge’s report and recommendation on March 21, 2001. It is this order from which Trepel now appeals.
After the district court adopted the magistrate judge’s report and recommendation, but before the parties filed their
briefs on appeal, this Court issued an opinion in connection with Trepel’s appeal of the denial of attorneys’ fees and costs resulting from the first trial. See Trepel III, 266 F.3d 418. In the opinion, this Court held that the HGTA did subject Roadway Express to the fee-shifting provisions contained therein, that the HGTA did cover the shipment of the Baga serpent, thus subjecting Roadway Express to liability for attorneys’ fees, and that the district court improperly limited recovery of costs associated with Trepel’s expert witnesses. Id. This Court therefore vacated the district court’s decision regarding attorneys’ fees, and vacated the district court’s decision regarding the taxation of witness travel expenses and the taxation of expert witness deposition fees. Id. at 419.
This Court also recognized that Roadway Express had argued before the magistrate judge that even if Trepel were entitled to attorneys’ fees under the HGTA, he had waived his right to those fees by failing to claim them in his complaint and failing to file a motion for attorneys’ fees within fourteen days of the entry of judgment. Id. at 424. However, because the magistrate judge denied attorneys’ fees on the ground that Trepel was not entitled to them under the HGTA, the issue of waiver was not reached. Id. Accordingly, this Court remanded the case to the district court to determine whether Trepel.waived his right to attorneys’ fees. Id.
In an order dated November 15, 2001, Judge Polster responded to this Court’s remand order on the issue of attorneys’ fees and costs from the first trial by denying as moot Trepel’s motion for attorneys’ fees and bill of costs. In so doing, Judge Polster concluded that a decision regarding fees and costs as to the first trial was mooted by the subsequent trial and second decision regarding fees and costs, and stat*443ed that any decision he could render would be unable to resolve the issue of fees and costs in its entirety.
At the time the present appeal was initiated, and at the time the briefs were filed by the parties, this Court had yet to rule on Trepel’s appeal from the second jury verdict. In the interim, we affirmed the judgment of the district court in that matter. Trepel TV, 40 Fed.Appx. 104.
Thus, this Court is now presented with Trepel’s appeal from the denial of his motion for attorneys’ fees and the disposition of his bill of costs after the second jury verdict.
II. ANALYSIS
1. Attorneys’Fees
Under the doctrine of the law of the case, the decision of an appellate court in a given case is the law of that case and no question therein decided will be considered in a subsequent appeal in that case. United States v. Campbell, 168 F.3d 263, 265 (6th Cir.1999); United States v. Moored, 38 F.3d 1419, 1421 (6th Cir.1994). In the present case, this Court has already held, in contrast to the ruling of the district court, that the HGTA provides a statutory basis for the award of attorneys’ fees from Roadway Express to Trepel. Trepel III, 266 F.3d at 424.
Roadway Express, acknowledging that it can no longer contend that the HGTA does not provide a basis for Trepel to recover attorneys’ fees, argues that Trepel has waived his claim to attorneys’ fees because: (1) Trepel did not plead attorneys’ fees in his complaint; and (2) Trepel failed to comply with Federal Rule of Civil Procedure 54(d)(2)(b), which requires him to file a motion for attorneys’ fees no later than fourteen days after entry of judgment, specifying the judgment entitling him to the award.
We do not find either of these rationales presented by Roadway Express to be persuasive. First, while it is true that Trepel did not specifically plead attorneys’ fees in his original complaint, this failure does not necessarily mean that his claim to attorneys’ fees has been waived. In cases such as this, where the applicable statute provides an attorney-fee provision, the specific pleading of such fees in a complaint is not required. See Ams. United for Separation of Church & State v. Sch. Dist. of Grand Rapids. 835 F.2d 627, 631 (6th Cir.1987) (holding that plaintiffs had not waived attorneys’ fees pursuant to 42 U.S.C. § 1988. which permits an award of attorneys’ fees to a prevailing party in a 42 U.S.C. § 1983 action, even though the plaintiffs’ complaint did not refer § 1983). Because the HGTA contains an attorney-fee provision, which this Court held in Trepel III to be applicable to the present set of circumstances, a separate request for attorneys’ fees in the pleading is not necessary.
Second, we find no merit to the claim that Trepel failed to comply with Rule 54 by filing his notice of appeal with this Court prior to the entry of the amended judgment. We read the district court’s amended judgment, correcting the improper award of damages originally recorded, as being a nunc pro tunc order, thereby having retroactive legal effect. Accordingly, it was not necessary for Trepel to wait until after the amended judgment was entered to file his appeal.
Because we are unpersuaded by the arguments asserted by Roadway Express, because we view the record before us as being sufficiently developed to rule on this issue, and because we believe that Roadway Express was given adequate notice that attorneys’ fees could be requested, we hold that Trepel’s claims for attorneys’ *444fees have not been waived. The issue of attorneys’ fees shall therefore be remanded to the district court for the calculation of appropriate fees.
2. Travel Expenses
A Restricting travel expenses to 100 miles each way
This issue was squarely addressed in Trepel III. This Court has held that, “[i]n considering whether to allow expenses for traveling in excess of 100 miles, the court should consider the length of the journey, the necessity of the testimony, and the possibility of averting the travel expense.” Soberay Mach. & Equip. Co. v. MRF Ltd., Inc., 181 F.3d 759, 771 (6th Cir.1999) (citation omitted). Citing Sober-ay, this Court remanded the case in Trepel III so that the district court could “specify the reasons why it exercised its discretion to deny travel expenses outside of the 100 mile radius for all [] of Trepel’s witnesses.” 266 F.3d at 426. In light of Trepel III, we remand the issue of restricting travel to 100 miles each way per witness to the district court so that it may reconsider these expenses and explicitly apply the relevant Soberay factors.
B. Taxing Dr. Koestler’s charter flight
Trepel included in his bill of costs a travel expense for Dr. Koestler, an expert on biodeterioration testifying for Trepel, in the amount of $5,501.00. The bulk of this expense, Trepel contends, is due to the fact that, in mid-trial, an unanticipated need for rebuttal testimony arose, and he therefore requested leave to recall Dr. Koestler to present this important testimony, which was granted. Trepel argues that Dr. Koestler was therefore required to travel from New York City to Akron, Ohio overnight, and the only way that this was possible was to charter a plane, which Trepel did, at the cost of $4,250.00.
Title 28 U.S.C. § 1821(c)(1) states, “A witness who travels by common carrier shall be paid for the actual expenses of his travel.... Such a witness shall utilize a common carrier at the most economical rate reasonably available.” The magistrate judge’s report and recommendation notes that there is “no emergency exception to the limitations prescribed under § 1821.” Trepel, however, maintains that, given the critical circumstances, the charter flight was in fact the “most economical rate reasonably available.”
In Trepel III, this Court noted that it was unable to review the district court’s decision to limit travel expenses to a 100-mile radius because the district court did not provide an adequate explanation for its reasons for this limitation. 266 F.3d at 426. The same problem arises here. While the district court was correct in asserting that there is no explicit “emergency exception” to § 1821, in granting travel expenses at the most economical rater reasonably available, the language of the'statute does appear to implicitly allow for emergencies. Given the circumstances surrounding this testimony, it appears that this charter flight may have been the most economical rate reasonably available. Thus, this issue is also remanded with instructions for the district court to provide a fuller explanation, sufficient for meaningful review, as to why this charter flight was not the most economical rate reasonably available, or, should the district court find that the charter flight was the most economical rate reasonably available, to award Trepel this expense.
C. Miscellaneous Costs
The district court denied costs to Trepel for parking, rental car usage, and gratuities. Trepel does not appeal the district court’s ruling on any of these specific *445costs, and the denial of these costs to Trepel is therefore affirmed.
3. Expert Witness Deposition Fees
The district court denied Trepel’s request for the cost of Ndiaye’s preparation for deposition and time spent during deposition. This request was denied on the grounds that: (1) Trepel’s Rule 54 motion does not permit such relief, and he failed to move separately under Rule 26; and (2) Trepel failed to provide adequate documentation supporting the charges. This Court addressed the issue of deposition fees in Trepel III, and found that, while Trepel was clearly barred from recovery under Rule 54, Rule 26 provides an independent statutory basis for recovery of expert fees. 266 F.3d at 427. We therefore remanded the case to the district court to determine the deposition costs to which Trepel was entitled under Rule 26. Id. Thus, being bound by the doctrine of the law of the case, we likewise remand the present issue for a determination of costs due under Rule 26.
As to the district court’s second rationale for denying these fees, that Trepel failed to provide adequate documentation, Magistrate Judge Gallas’s report and recommendation stated only that “[b]oth of Roadway’s reasons are valid.” On remand, should the district court elect not to award deposition fees under Rule 26 on this ground, the district court should provide a fuller explanation, as to why the accompanying affidavit was not adequate.
Roadway Express concedes that remand is appropriate here to determine the fees applicable under Rule 26. Roadway Express also argues, however, that this Court should affirm the decision of the district court to refuse to award fees for time Ndiaye spent in preparation for deposition, rather than in deposition itself. However, the district court did not distinguish between fees associated with preparation and fees associated with conducting the deposition. There is no apparent decision by the district court in this regard for this Court to affirm. Moreover, to the extent that Roadway Express is correct in arguing that fees for time spent preparing for deposition are not recoverable under Rule 26, it can be assumed that the district court is competent to apply Rule 26 in a manner consistent with the law on remand.
J. Taxation of the Cost of the Transcript from the First Trial
In denying Trepel the cost of the transcript from the first trial, the district court adopted the magistrate judge’s position that the time limit for securing this cost “would be a reasonable time following receipt of the order of remand from the district court.” The magistrate judge went on to assert that, in this instance, “a reasonable time would have been during November or December 1999 or at least by January 2000.” Trepel moved for the transcript cost as part of his taxed bill of costs filed March 3, 2000. However, the magistrate judge, and therefore the district court as well, erred in this calculation. Trepel asserts that the magistrate judge erroneously believed the date that this Court’s remand order issued to be when Trepel I & II was filed, in October of 1999. Following this Court’s opinion in Trepel I & II, however, Roadway Express moved for rehearing and rehearing en banc, thereby delaying the issuance of the remand mandate from this Court. Thus, the mandate from this Court issued on December 20, 1999, was filed in the district court on December 22, 1999, and was reassigned to Judge Gwin in the first week of January, 2000. Accordingly, the district court clearly erred in determining the reasonable time frame for Trepel to file this request, as most of the period in which the *446magistrate judge suggested that the motion could have been filed was prior to the issuance of the mandate from this Court.
Recognizing this, Roadway Express concedes that remand is necessary now for the district court to determine whether, given the proper date of the mandate from this Court, Trepel requested this cost within a reasonable period of time.
In contrast, Trepel urges this Court to find, as a matter of law, that the delay was not unreasonable. Trepel contends that the seventy-two day period between the issuance of the mandate and the filing of his bill of costs, given the high level of activity that was occurring in this litigation during that period, is not excessive.
Because of the error by the district court with regard to the date this mandate issued, the district court has yet to rule on the issue of whether the time period between the issuance of the mandate and Trepel’s request for transcript costs was reasonable. It is appropriate for the district court to address this question in the first instance. Therefore, we remand to the district court the question of whether Trepel requested the cost of the trial transcript within a reasonable period of time following the actual date upon which the mandate issued.
III. CONCLUSION
For the foregoing reasons, we VACATE the district court’s decision denying attorneys’ fees to Trepel and REMAND the issue to the district court with instructions to award attorneys’ fees; VACATE the district court’s determination of travel expenses and REMAND with instructions to reconsider the 100-mile limitation and the denial of the charter flight expenses in light of this Court’s disposition here and the opinion in Trepel III; VACATE the denial of deposition fees and REMAND with instructions to determine what fees Trepel is due under Federal Rule of Civil Procedure 26; and VACATE the district court’s denial of Trepel’s request for the cost of the trial transcript and REMAND with instructions to decide this issue after determining whether the time between Trepel’s request and the actual issuance date of this Court’s mandate order was reasonable. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218051/ | GIBBONS, Circuit Judge.
Petitioner Fred Harry Rogers Jr. was convicted of first degree murder in Michigan state court. Rogers filed this petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254. Rogers challenges his conviction on the following grounds: that he was denied his Sixth Amendment *452right to be present during trial when the trial court allowed the jury to view the scene of the homicide in his absence; that he was deprived of due process by alleged errors in the trial court’s jury instruction on first degree murder; that he was deprived of due process by the alleged failure of the trial court to instruct the jury on the elements of attempted robbery; that he was deprived of due process as a result of the trial court’s instruction on reasonable doubt; and that he was deprived of due process as a result of the failure of the trial judge to conduct an evidentiary hearing following outbursts made by a spectator outside the courtroom. For the reasons set forth below we affirm the district court’s decision to deny petitioner’s request to grant habeas corpus relief.
I.
On June 24, 1965, Rogers was convicted in the Wayne County Circuit Court of first degree murder arising out of an armed robbery of a drugstore. Rogers was sentenced to life in prison without parole. In 1965, Rogers dismissed his appellate counsel and failed to take a timely appeal. After filing two unsuccessful motions for relief from judgment in the trial court, in 1994 Rogers filed this petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254.
The district court dismissed the petition on the basis of procedural default, but we reversed and remanded. Rogers v. Howes, 144 F.3d 990 (6th Cir.1998). On remand, the district court referred Rogers’ habeas petition to the magistrate judge for a report and recommendation. On March 7, 2001, the district court adopted the magistrate judge’s report and recommendation and denied Rogers’ request for a writ of habeas corpus. Rogers then timely filed this appeal.
II.
A district court’s legal decisions in habeas corpus actions are reviewed de novo, and its factual findings are normally reviewed for clear error. See Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir.2000). However, when the district court’s decision in a habeas case is based on a transcript from the petitioner’s state court trial and the district court thus makes “no credibility determination or other apparent finding of fact,” the district court’s factual findings are reviewed de novo. Id. (quoting Moore v. Carlton, 74 F.3d 689, 694 (6th Cir.1996)). In reviewing habeas petitions, a state court’s factual determinations are afforded a presumption of correctness. 28 U.S.C. § 2254(e)(1) (providing that “[i]n a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct”).
Trial court errors in matters of state law do not rise to the level of federal constitutional claims warranting relief in a habeas action unless the error renders the trial so fundamentally unfair as to deprive the petitioner of due process under the Fourteenth Amendment. Estelle v. McGuire, 502 U.S. 62, 67, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). With regard to jury instructions, the burden on the petitioner is particularly heavy. “In a habeas proceeding, allegedly improper jury instructions must be shown to have infected the accused’s trial to such a degree as to constitute a clear violation of due process. The petitioner must show more than that the instructions are undesirable, erroneous, or universally condemned.” Wood v. Marshall, 790 F.2d 548, 551 (6th Cir.1986); see also Coe v. Bell. 161 F.3d 320, 329 (6th Cir.1998).
*453A.
During the trial, defense counsel requested that the jury visit the scene of the crime. The trial judge expressed the following concerns about conducting a jury view:
The Court: I’m a little bit in a quand[a]ry, Mr. Ferris. We were going to go out to the scene tomorrow. I made arrangements for a bus. Counsel have indicated, but not on the record, that they will waive the three defendants going along. I’m not positive they can waive it. I’m not sure, and if they can’t I will not go to the scene. So will you, Mr. Groat, and you, Mr. Ferris, give me an answer to that in about ten minutes? There is some late case, I remember reading it. I think it is in Oregon where the defendants have to be with the jury every minute of the time. I’m not absolutely sure and for personal security reasons, if for no other reasons, I’m not going to take the defendants out to the scene. That is, if I think we cannot waive it. Right now, I think we cannot. We are not going out there. We will try to make some drawing or take a photo or do something else. So will you please give me an answer about four o’clock?
Later that same day, the trial judge and petitioner had the following exchange on the record:
The Court: All right, Mr. Rogers-
Defendant Rogers: Yes, your Honor, I waive.
The Court: I understand the lawthe way I comprehend it, it is a rather old easel think there is one in 178 Michigan. The attorneys can’t very well waive, but you can. If you want to go, you have got a right, but I don’t know if I’ll go. Do you understand that?
Defendant Rogers: Yes, sir.
The Court: Do you waive that right?
Defendant Rogers: Yes, your Honor.
The Court: You have talked it over with your counsel, Mr. Khoury? You have talked it over with Mr. Khoury?
Defendant Rogers: Yes, sir. I have.
Although petitioner did not attend the jury view that followed, defense counsel was present. Petitioner now contends that “the confrontation clause of the Sixth Amendment to the U.S. Constitution guarantees a criminal defendant the right to be present during a jury’s visit to a crime scene.” Petitioner further asserts that “he did not voluntarily waive his right to visit the scene of the alleged crime, and only waived that right after the trial court made it clear that it, along with the jury, would not visit the scene if he exercised his right to go.”
The Constitution does not guarantee a criminal defendant the absolute right to be present at a jury view. In Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (overruled in part on other grounds), the Supreme Court held that the Due Process Clause of the Fourteenth Amendment was not violated by excluding a defendant from an on-site inspection by a jury where the defendant’s attorney was present and participated, along with the prosecutor, in directing the jury’s attention to various aspects of the location under inspection by the jury. The Court explained that “the presence of the defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.” Id. at 107-08, 54 S.Ct. 330. The Court also emphasized that the defendant’s presence at a jury view is not among those constitutional rights “conferred so explicitly as to leave no room for an inquiry whether prejudice to a defendant has been wrought through their deni*454al.” Id. at 116, 54 S.Ct. 330; cf. United States v. Walls, 443 F.2d 1220, 1223 (6th Cir.1971) (finding “reversible error for the court to deny appellant and his attorney the opportunity to attend the view to insure against the intrusion of prejudicial error” (emphasis added), but basing its decision upon its supervisory authority over the administration of criminal justice in the district courts and not the Constitution).
Here, petitioner has failed to establish prejudice. Petitioner merely asserts that “had he been allowed to accompany the court on its visit to the crime scene, he would have been present to observe any prejudicial influences on the jury” and that “he would have been present to observe differences in the layout of the crime scene from that described by witnesses and the prosecution.” Petitioner has not shown the existence of any prejudicial occurrences at the jury view. Moreover, defense counsel was present at the jury view. As the Supreme Court noted in Snyder, the presence of defense counsel “supplies an additional assurance that nothing helpful to either side will be overlooked upon the view.” 291 U.S. at 113, 54 S.Ct. 330. Excluding petitioner from the jury view thus did not constitute a denial of due process.
B.
Petitioner claims that he was deprived of due process because the jurors were instructed that a conviction for first degree murder could be based upon a finding of either felony murder or premeditated murder but were not instructed that their verdict must be unanimous as to at least one of these two theories. Petitioner asserts that “it is very likely the conviction rested on both theories and that there was insufficient evidence to sustain a guilty verdict on a theory of premeditated murder.”
In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), the Supreme Court held that a conviction under an instruction that did not require the jury to unanimously agree upon one of the alternative theories of premeditated murder and felony murder did not constitute a denial of due process. The Court explained that it had “never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission.” Id. at 631, 111 S.Ct. 2491. Citing McKoy v. North Carolina, 494 U.S. 433, 449, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (Blackmun, J., concurring), petitioner himself acknowledges that juries are not required to agree on the theory of guilt. As Justice Blackmun observed in McKoy: “Juries are typically called upon to render unanimous verdicts on the ultimate issues of a given case. But it is understood that different jurors may be persuaded by different pieces of evidence, even when they agree upon the bottom fine. Plainly there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” 494 U.S. at 449, 110 S.Ct. 1227.
Despite his acknowledgment that juries typically need not agree on a theory of guilt, petitioner asserts that the failure to give an instruction requiring unanimity of theory in his case violated due process because the evidence on the premeditated murder theory was insufficient. Petitioner, however, has offered no support for his contention that “there was insufficient evidence to sustain a guilty verdict on a theory of premeditated murder.” Rule 28(a)(9) of the Federal Rules of Appellate Procedure requires that a party’s brief include “the contentions of the appellant on the issues presented, and the reasons therefor, with citations to the authorities, statutes, and parts of the record relied on.” Peti*455tioner has made no attempt to elaborate upon this argument. “It is a ‘settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.’ ” United States v. Elder, 90 F.3d 1110, 1118 (6th Cir.1996) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990)). The mere assertion by the petitioner that “there was insufficient evidence,” without more, cannot support a finding of deprivation of due process.
C.
Petitioner claims that the trial court failed to instruct the jury on the elements of attempted robbery. Specifically, petitioner asserts that “[t]he trial judge merely stated in passing that Petitioner could be convicted even if the robbery was not completed” and argues that “[a] conviction based upon such a faulty, vague instruction cannot stand” As the district court observed, petitioner’s characterization of the trial judge’s instruction fails to withstand close scrutiny. The challenged instruction reads as follows:
Robbery has been defined to be a felonious taking of money or goods of any value from the person of another in his or her presence against his will by violence or putting in fear ...
I have said by force or violence or by putting in fear. It isn’t necessary that the robbery be completed or consummated. There may be under the statute here only an attempt. That is an act which if not frustrated would have resulted in a crime.
To be guilty of robbery, a robber may be armed or unarmed, and either type if a killing results, while perpetrated or in an attempt to perpetrate, it would be murder in the first degree.
(emphasis added). As the foregoing passage indicates, the trial judge did in fact offer a correct definition of attempt. Moreover, as previously noted, federal habeas relief on the basis of a flawed jury instruction is granted only if the instruction is so erroneous as to have rendered the entire trial fundamentally unfair. “If an instruction is ambiguous and not necessarily erroneous, it violates the Constitution only if there is a reasonable likelihood that the jury has applied the instruction improperly.” Austin v. Bell, 126 F.3d 843, 846 (6th Cir.1997) (citing Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991)). Here, assuming some ambiguity in the instruction, petitioner has not pointed to any evidence in the record which suggests that the jury improperly applied the challenged instruction. As a result, petitioner has failed to establish that he was deprived of due process with respect to the instruction on attempt.
D.
At the conclusion of the trial, the state trial judge gave the following instruction on “reasonable doubt” to the jury:
Now I will tell you what in law we consider reasonable doubt. In reality, it means just what the word says. It means an honest doubt. It is sometimes defined as reasonable doubt, that a reasonable doubt is not a vain, a capricious, an imaginary or possible doubt, but fair doubt, a doubt based on reason and common sense. It is a doubt which grows with evidence or lack of evidence in the case, and it is such a doubt that you cannot say, after you have heard all the competent testimony that you have an abiding conviction to a moral certainty of the defendant’s guilt. If you have such a doubt, it is your duty to acquit the defendants. That means to find them not guilty. If you have no *456such doubt, it is equally your duty to convict the defendants, and that means to find them guilty of murder in the first degree.
(emphasis added). Petitioner argues that the reasonable doubt instruction was improper because the phrase “moral certainty” “emphasizes a sense of morality over a certainty that is firmly based upon the evidence presented at trial.” Petitioner also claims that the use of the phrases “honest doubt” and “fair doubt” have “the potential to mislead.”
We have held that “[t]he Due Process Clause requires only that the instruction not lead the jury to convict on a lesser showing than ‘reasonable doubt’ and, when taken as a whole, adequately conveys the ‘concept’ of reasonable doubt.” Binder v. Stegall, 198 F.3d 177, 179 (6th Cir.1999). The challenged instruction satisfies this standard. In Victor v. Nebraska, 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994), the Supreme Court held that the use of the term “moral certainty” does not necessarily render a reasonable doubt instruction unconstitutional. Rather, the Court found that the phrase “moral certainty” is constitutionally permissible where the rest of the instruction “lends content to the phrase.” Id. at 14, 114 S.Ct. 1239. The jury instruction at issue in Victor stated:
Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge.
Id. at 7, 114 S.Ct. 1239 (emphasis added). The Court explained that “[instructing the jurors that they must have an abiding conviction of the defendant’s guilt does much to alleviate any concerns that the phrase ‘moral certainty5 might be misunderstood in the abstract.” Id. at 21, 114 S.Ct. 1239. In this case, the phrase “moral certainty” is used in almost the identical context as in Victor, with the “abiding conviction” language lending content to the phrase “moral certainty.” Consequently, the use of the phrase was not improper.
Petitioner’s objections to the phrases “honest doubt” and “fair doubt” are also unavailing. In Binder, we examined the following instruction on reasonable doubt:
A reasonable doubt is a fair, honest doubt growing out of the evidence or lack of evidence. It is not merely an imaginary doubt or possible doubt, but a doubt based upon reason and common sense. A reasonable doubt is just that a doubt that is reasonable, after a careful and considered examination of the facts and circumstances of this case.
198 F.3d at 178 (emphasis added). The habeas petitioner in Binder argued that “comparing a reasonable doubt to a ‘fair, honest doubt’ lowered the government’s burden of proof.” Id. at 179. Rejecting this argument, we concluded that “[tjaken as a whole the instruction informed the jury that it could convict only if the prosecution established guilt beyond a reasonable doubt and that the decision had to be based on a careful examination of the evidence.” Id. Similarly, in this case the burden of proof was not lowered by the use of the phrases “fair doubt” and “honest doubt.” The instruction on “reasonable doubt.” taken as a whole, adequately conveyed the concept to the jury and did not constitute a denial of due process.
E.
According to the petitioner, during the trial “a spectator, in a voice loud enough to *457be heard by counsel and the defendants, repeatedly uttered the words ‘murderers and killers,’ apparently referring to the defendants.”1 Although petitioner acknowledges that the court “gave general admonitions to the jury to be fair to both sides and presume the defendants innocent until proven guilty,” petitioner argues that these measures were insufficient. Petitioner claims that the trial judge was required to “conduct a hearing to determine whether it had impacted the jury.”
We have upheld a trial court’s refusal to conduct an evidentiary hearing “[wjhere the communication is innocuous and initiated by a spectator in the form of an outburst.” White v. Smith, 984 F.2d 163, 166 (6th Cir.1993.) In White, the defendant’s mother said, “I will pray for you,” to the jury in the courtroom as the jury was retiring to deliberate. Noting that the trial judge had made “a statement to the jury, allaying any apprehensions,” we stated: “We cannot conclude ... that the Constitution requires a trial court to sua sponte conduct a full-blown evidentiary hearing every time a courtroom spectator makes a comment within the jury’s hearing.” Id. at 166-67.
In this case, although the outburst made by the spectator may not have been as innocuous as that made in White, the trial judge asked the jurors if there was any reason they could not render a fair and impartial verdict based on “the facts that come from the witness stand and the law as I give it to you, without bias, without sympathy, without fear, and without prejudice.” Every juror responded negatively. The failure to conduct a hearing thus does not violate due process.
III.
For the reasons set forth above, we affirm the district court’s decision to deny petitioner’s request to grant habeas corpus relief.
. Although the statement does not appear in the record, respondent concedes that "outbursts" were made by the victim’s wife during trial. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218052/ | OPINION
MCKEAGUE, District Judge.
Maurice Patterson and his mother, Beatrice Patterson, brought suit against Central Müls, Inc. (“Central Müls”), and Meijer, Inc. (“Meijer”), alleging they manufactured and sold a defective t-shirt that caused Maurice to sustain extensive burns. After an eight-day trial on plaintiffs’ breach of warranty and products liability claims, a jury returned a verdict in favor of defendants. The Pattersons appeal, arguing that the district court erred in several of its evidentiary rulings, that certain jury instructions were improper, and that the verdict was against the manifest weight of the evidence. For the reasons set forth below, we AFFIRM the judgment of the district court.
*460I. Background
A. Factual Background
In the fall of 1996, Beatrice Patterson bought a “Tasmanian Devil” t-shirt for her ten year-old son Maurice at a Meijer store in Maumee, Ohio. Meijer had purchased the shirt from Central Mills, which was in the business of buying blank t-shirts, screening various images on them, and distributing them for retail sale. Maurice’s shirt was an adult size and made of a 50/50 blend of cotton and polyester.
On January 26, 1997, Maurice was wearing this shirt and a pair of boxer shorts while watching the Super Bowl on television in the living room of his home. Beatrice Patterson was asleep in her bedroom and an adult step-brother was in another bedroom. At some point during the game, Maurice decided to cook some hot dogs for dinner. He went to the kitchen, took a package of hot dogs out of the refrigerator, placed them on the counter, then turned on the right front burner of the gas stove. After this, he climbed onto the counter in order the search the cabinets above for a bottle of ketchup.
As Maurice leaned over to search the cabinets above the stove, the bottom left edge of his shirt came into contact with the lit burner and caught fibre. When he realized the shirt was on fire, Maurice unsuccessfully attempted to put it out with his hands. He then jumped down from the counter and went over to the kitchen sink. By the time he reached the faucet, however, the flames were surrounding Maurice’s face and he ran from the kitchen yelling for his mother.
When Beatrice reached her son. she removed the few small pieces of the shirt that had not already burned. Maurice was then transported to the hospital for emergency care, after which he spent several weeks in a burn center to treat the second and third degree burns that covered 25 to 35 percent of his body. He has since undergone several surgeries and extensive physical therapy.
B. Procedural Background
The Pattersons filed this diversity action in the Lucas County (Ohio) Court of Common Pleas, from which it was properly removed to the United States District Court for the Northern District of Ohio.1 Prior to trial, Meijer and Central Mills filed two motions in limine at issue here. The first sought to exclude from evidence a video depicting Maurice Patterson’s therapy, special dressing requirements, and post-surgery condition. The district court granted this motion in part, finding portions of the tape cumulative, irrelevant, and more prejudicial than probative. Defendants’ second motion in limine sought to prohibit Gordon Damant, the Pattersons flammability expert, from testifying regarding flammability warnings on clothing. The district court granted this motion in its entirety after conducting a Daubert hearing.
The case then proceeded to trial, where the district court made several other evidentiary rulings at issue in this appeal. First, plaintiffs’ exhibits 8 and 9, consisting of advertisements for flame-retardant materials and samples of flammability warning labels, were excluded as hearsay. In addition, the district court ordered the Pattersons to redact portions of Consumer Products Safety Commission (CPSC) pub*461lications that contained statements by individual commissioners.
At the close of trial, the district court instructed the jury on the applicable law. Over plaintiffs’ objections, these included instructions on defendants’ affirmative defenses of misuse and assumption of the risk. Ultimately, the jury returned a verdict in favor of defendants, finding by special interrogatory that the Pattersons had failed to prove their case by a preponderance of the evidence. After the district court denied their motion for a new trial, plaintiffs’ filed this appeal.
II. ANALYSIS
A. Evidentiary Rulings
This Court reviews the district court’s decision to exclude evidence or expert testimony for an abuse of discretion. See Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); Trepel v. Roadway Exp., Inc., 194 F.3d 708, 716-17 (6th Cir.1999). An abuse of discretion occurs when the reviewing court is left with the “definite and firm conviction” that the district court “committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” United States v. Haywood, 280 F.3d 715, 720 (6th Cir.2002) (citation omitted).
1. Advertisements, Warning Labels, and Videotapes
First, plaintiffs challenge the exclusion on hearsay grounds of a series of 19708-era advertisements by manufacturers of flame-retardant materials. The Patter-sons contend that the advertisements were offered for the non-hearsay purpose of showing defendants’ knowledge of the availability of such materials. Since this argument was not raised before the district court, however, it is waived on appeal absent circumstances amounting to manifest injustice. See United States v. Midwest Fireworks Mfg. Co., Inc., 248 F.3d 563, 566 (6th Cir.2001); Brown v. Crowe, 963 F.2d 895, 897-98 (6th Cir.1992). No such circumstances are present in this case.
The Pattersons next argue that the district court erred in excluding as irrelevant several flammability warning labels found on children’s sleepwear. Relevant evidence is that “having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401; see also United States v. Carter, 969 F.2d 197, 200 (6th Cir.1992). Because relevancy determinations depend on the exercise of considerable judgment within the context of an entire trial, they will not be lightly overruled. United States v. Stull, 743 F.2d 439, 445 (6th Cir.1984).
Here, plaintiffs contend that the warning labels were relevant to demonstrate the foreseeability of children’s exposure to open flames. Since these labels were solely from children’s sleepwear, however, their bearing on the fire risk posed by an adult t-shirt such as that worn by Maurice Patterson is dubious at best. Indeed, the record reveals that no company attached warning labels to adult t-shirts at any time relevant to this case. Given this, the district court did not abuse its discretion in excluding the children’s sleepwear labels.
Third, plaintiffs argue that the district court erred in excluding portions of a videotape of Maurice Patterson. The district court determined that “much of the activity depicted on the tape (lifting weights, dressing, being salved) can be described in testimony,” making it cumulative, and, in any event more prejudicial than probative. Other activities, such as *462coughing and lying in a hospital bed, were ruled irrelevant. On review, we cannot say that these determinations were an abuse of discretion.
2. Expert Testimony of Gordon Damant
The district court also granted defendants’ motion in limine to limit the scope of testimony from Gordon Damant, plaintiffs’ flammability expert. In the exercise of their gatekeeping role under the Federal Rules of Evidence, district courts are responsible for determining the relevance and reliability of all expert testimony. See Fed.R.Evid. 702; Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Factors that may be taken into account in making this flexible determination include the proferred expert’s knowledge, experience, education, training, and peer review. See Daubert, 509 U.S. at 589, 593, 113 S.Ct. 2786.
Here, testimony at the Daubert hearing revealed that Damant had never written flammability warnings for clothing, had no specific education on warnings, had no specific training with respect to warnings on clothing, and had never had an article regarding clothing subjected to peer review. Indeed, Damant’s only experience with flammability warnings came with regard to those placed on mattresses and furniture. Given this, the district court did not abuse its discretion in preventing Damant from testifying on the issue of warnings on clothing.
3. CPSC Statements
The Pattersons further contend that the district court erred in excluding as hearsay portions of CPSC press releases and publications. Plaintiffs were ordered to redact portions of these publications containing “a statement of a member and [] not the statement of the agency or commission.” Such commissioner statements included: “[A]s a mother, I hope parents will wisely choose the safer alternative of tight-fitting cotton sleepwear” and “it is imperative that a visible point of purchase label of some type be on the garment or inside the garment wrapper.”
Federal Rule of Evidence 803(8)(C) provides that the following are not excluded by the hearsay rule:
Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth ... in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.
Fed.R.Evid. 803(8)(C). The Supreme Court has interpreted this “public records” exception to the hearsay rule broadly to include both conclusions and opinions of public offices and agencies. Beech Aerospace Services, Inc. v. Rainey, 488 U.S. 153, 162, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (“[Fjactually based conclusions or opinions are not on that account excluded from the scope of Rule 803(8)(C).”); see also Bank of Lexington & Trust Co. v. Vining-Sparks Securities, Inc., 959 F.2d 606, 616 (6th Cir.1992)(“Opinions, conclusions, and evaluations, as well as facts, fall within the Rule 803(8)(C) exception.”).
The public records exception, however, extends only to opinions of the agency or public office itself, not to those of its individual members contained within the records. See United States v. Midwest Fireworks Mfg. Co., Inc., 248 F.3d 563, 566 (6th Cir.2001)(allowing into evidence CPSC report including laboratory test results and data collected by CPSC scientists). Given *463this, the district court did not abuse its discretion by ordering plaintiffs to redact from official publications the statements of individual commissioners contained therein.2
B. Jury Instructions
Jury instructions are reviewed “as a whole to determine whether they adequately inform the jury of relevant considerations and provide a basis in law for the jury to reach its decision.” Beard v. Norwegian Caribbean Lines, 900 F.2d 71, 72 (6th Cir.1990). The district court may only be reversed if the instructions were confusing, misleading, or prejudicial. See id.
In this case the district court’s “misuse” instruction stated in part: “If you find that Maurice Patterson misused the T-shirt in a way that defendants could not have foreseen, and that such misuse was a proximate cause of his injuries, then you will find in favor of the defendants.” As to assumption of the risk, the district court instructed: “If you find by a preponderance of the evidence that plaintiff impliedly assumed the risk of injury, then you will find in favor of defendants.”3 The Patter-sons argue that the these instructions were confusing, misleading, and prejudicial because they were not supported by the evidence introduced at trial.
This argument must be rejected. As to misuse, Maurice Patterson wore the shirt while leaning over a lit stove to retrieve a bottle of ketchup. The jury certainly could have found that this use was not foreseeable to defendants, and that it was a proximate cause of the burns Maurice sustained. As to assumption of the risk. Maurice admitted at trial that he knew clothing would burn if exposed to open flames.
The Pattersons have failed to offer any other support for the argument that the *464challenged instructions were confusing, misleading, or prejudicial. Even if the instructions were confusing or misleading, however, any error was harmless since the verdict was based on liability rather than affirmative defenses. See Wallace v. Ener, 521 F.2d 215 (5th Cir.1975)(any error in damages instructions was harmless in light of jury’s verdict for defendants on issue of liability).
C. Manifest Weight of the Evidence
Finally, the Pattersons contend that the district court erred in denying their motion for a new trial, which argued that the verdict was against the manifest weight of the evidence. This Court reviews a district court’s denial of a motion for a new trial for an abuse of discretion. See Barnes v. Owens-Coming Fiberglas Corp., 201 F.3d 815, 820 (6th Cir.2000). A new trial should not be granted if a reasonable juror could reach the challenged verdict. See id. at 820-21. Moreover, the court “is not free to reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable.” Id.
In this case, the verdict is amply supported by the evidence. According to both experts testifying at trial, the Tasmanian Devil t-shirt reacted as would any other shirt of similar composition under similar circumstances. In addition, defendants’ expert offered uncontroverted testimony that the shirt was not defective, was safe for its intended purposes, and met all government burn rate standards. Finally, the evidence revealed that, while generally a very safe consumer product, over ninety percent of clothing burns readily when exposed to flame. Based on this evidence, a reasonable juror certainly could have found that Maurice’s shirt was not defective and that it was no more dangerous than an ordinary consumer would expect when used in a reasonably foreseeable manner. Given this, the district court did not abuse its discretion in denying the Pattersons motion for a new trial.
III. CONCLUSION
For the reasons set forth above, we AFFIRM the judgment of the district court.
. Plaintiffs' second amended complaint named as defendants Meijer, Central Mills, Warner Brothers, The Screen Place, and Fruit of the Loom/Union Underwear. Plaintiffs voluntarily dismissed the latter two defendants, while the district court granted Warner Brothers' motion for summary judgment.
. The Pattersons further argue that, even if not admissible under 803(8)(C), these statements were admissible for a non-hearsay purpose. Since this argument was not raised before the district court, however, it is therefore waived on appeal. See Midwest Fireworks Mfg. Co., Inc., 248 F.3d at 566.
. The complete instructions read:
Should you find that plaintiffs have met their burden of proof on all elements of their implied warranty/strict products liability claims against either Central Mills or Meijer, or their statutory product liability claim against Central Miller, you must then consider the additional affirmative defenses raised by defendants.
First, defendants claim that Maurice Patterson misused the T-shirt in a way that the defendants could not have foreseen. The test for foreseeability is whether under all the circumstances, a reasonably cautious manufacturer or seller would have anticipated that a consumer of the product was likely to use the product in the same way that you find the plaintiff used the T-shirt. If you find by a preponderance of the evidence that Maurice Patterson misused the T-shirt in a way that the defendants could not have foreseen, and that such misuse was a proximate cause of his injuries, then you will find in favor of the defendants on both the implied warranty claim and the statutory product liability claim.
Second, defendants also claim that Maurice Patterson impliedly assumed the risk of injury. Plaintiff impliedly assumed the risk of injury if he had knowledge of a condition that was obviously dangerous to him and voluntarily exposed himself to that risk of injury. In considering whether Maurice Patterson assumed a known risk, you must ask whether the risks were so obvious that he must have known and appreciated the risk. In making this determination, you must ask yourself whether a child of similar age, education, and experience would or should have been aware of the risks associated with his action. If you find by a preponderance of the evidence that plaintiff impliedly assumed the risk of injury, then you will find in favor of defendants on both the implied warranty and the statutory product liability claims. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218055/ | ORDER
Joshua J. Roberts appeals the sentence imposed upon his convictions. The parties have expressly waived oral argument, and upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In the process of delivering Girl Scout cookies for his mentally-handicapped adult stepdaughter, Roberts acquired a savings account transfer slip and two blank starter checks from a 75 year-old woman with Alzheimer’s Disease. Roberts used these documents to defraud BancorpSouth Bank of $133,000.
On May 22, 2000, Roberts was charged by information with two counts of bank fraud in violation of 18 U.S.C. §§ 1344 and 2. He waived indictment by a grand jury and pleaded guilty to both counts on the following day, pursuant to a written plea agreement. The initial presentence investigation report (PSR) calculated Roberts’s guideline range for imprisonment as 33 to 41 months. When Roberts then failed to appear for sentencing, the government revoked its plea agreement. Roberts ultimately was apprehended in February of 2002, while driving a stolen car in Arkansas. A revised PSR was prepared, which deleted a previous reduction for acceptance of responsibility, added an enhancement for obstruction of justice, and calculated Roberts’s criminal history category as V. At sentencing, the district court departed upward to the next criminal history category, VI, because it concluded that Roberts’s criminal history category underrepresented the seriousness of his criminal history. The district court sentenced Roberts to 78 months in prison, 3 years of supervised release, a $200 special assessment, and $64,483 in restitution.
Roberts first argues that the facts of the case as a whole did not merit an upward departure, but instead merited a downward departure and adjustment for acceptance of responsibility. After Roberts absconded, counsel filed objections to the PSR, requesting the adjustment for acceptance of responsibility in spite of Roberts’s flight, opposing the upward departure recommended in the PSR, and noting that Roberts had been working on making restitution and was receiving prostate cancer treatment which caused mood alterations. At sentencing, counsel asked the court to consider Roberts’s age (now 67), his health, remorse, and desire to make restitution. The district court instead departed upward and stated that its reasons were Roberts’s remarkable number of past convictions which could not all be assessed criminal history points, an old unresolved probation violation, and the nature of this particular crime. On appeal, counsel again argues that the aforementioned factors merited a lighter sentence. Counsel relies on United States v. Bennett, 975 F.2d 305 (6th Cir.1992), to argue that the district court should not have based an upward departure on Roberts’s criminal acts which were outside the relevant time period.
This court reviews for an abuse of discretion a district court’s decision to depart upward from the applicable sentencing guideline range. See Koon v. United States, 518 U.S. 81, 82, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996); United States v. Barber, 200 F.3d 908, 912 (6th Cir.2000). A court may depart from the guideline range *475where “there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into consideration by the Sentencing Commission in formulating the guidelines.” 18 U.S.C. § 3553(b). A district court “is required to consider the particular factors of the case as a whole, and any combination thereof,” in determining whether a departure is warranted. United States v. Coleman, 188 F.3d 354, 362 (6th Cir.1999). The guidelines encourage departure in certain cases, such as where the “criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes.” USSG § 4A1.3; see also Barber, 200 F.3d at 912. But “upward departures ... for reasons of recidivism should be rare events.” Bennett, 975 F.2d at 309.
The district court did not abuse its discretion by departing upward to criminal history category VI. The PSR listed convictions occurring approximately every few years starting in 1951 and continuing until the present. There were numerous convictions for forgery as well as other crimes such as theft, escape, burglary, false pretenses, and fraudulent use of a credit card. Many of these convictions were not factored into Roberts’s criminal history score because of their age. For this reason, Roberts was not assessed points for a 1989 conviction even though Tennessee considered Roberts to still be on probation as he had absconded in 1991. The guidelines also did not permit assessing points for Roberts’s plethora of arrests for similar crimes which did not result in known convictions, or for a 1993 criminal complaint stating that Roberts was suspected of scamming at least four people who were in their seventies. Thus, the seriousness of Roberts’s criminal past and the likelihood of recidivism were not adequately reflected in his criminal history category, and the extensiveness of Roberts’s criminal history is sufficiently atypical to justify the upward departure. In contrast, no downward departure was justified as defense counsel did not present any argument as to why Roberts’s age merited a lesser sentence and as counsel also failed to present sufficient evidence to convince the district court that Roberts in fact had prostate cancer. Accordingly, the district court did not err by implicitly concluding that the totality of the circumstances merited an upward, rather than a downward, departure. See United States v. Aymelek, 926 F.2d 64, 70 (1st Cir.1991). Additionally, no reduction for acceptance of responsibility was warranted in light of the obstruction of justice enhancement and lack of extraordinary circumstances. See USSG § 3E1.1, comment, (n.4).
Roberts next argues that the district court judge exhibited personal bias and should have sua sponte recused himself pursuant to 28 U.S.C. § 455. Roberts contends that the judge exhibited bias at sentencing by commenting, for example, that Roberts was a “con man” and “I have seen armed robbers who were less cruel.” Roberts asserts that the comments show bias in favor of Girl Scouts, mentally handicapped adults, and elderly ladies. Counsel did not object to the comments at sentencing.
Where a party fails to object to the trial court’s allegedly prejudicial conduct at sentencing, this court reviews for plain error. United States v. Middleton, 246 F.3d 825, 849 (6th Cir.2001).
Section 455(a) provides that “[a]ny justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” A conviction will be reversed on the basis of judicial bias “only if the record discloses that the *476judge was actually biased or the judge’s remarks projected the appearance of advocacy or partiality.” Mitchell v. Kirk, 20 F.3d 936, 937 (8th Cir.1994). Furthermore,
opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.
Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). A judge is not recusable for bias merely because he is exceedingly ill disposed to a defendant who has been shown at trial to be a thoroughly reprehensible person. Id. at 560-61.
No error occurred. The district court judge’s remarks would not have led a reasonable, objective person to question the judge’s impartiality as the remarks did not display a deep-seated antagonism rendering a fair judgment impossible. At most, the remarks indicated that the judge was ill disposed to a defendant who had been shown during criminal proceedings to be a thoroughly reprehensible person.
Accordingly, the district court’s judgment is affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218056/ | SARGUS, District Judge.
Petitioner—Appellant, Werthan Packaging, Inc. [“Appellant” or “Werthan”], seeks review of a decision of the Respondent— Appellee, National Labor Relations Board [“NLRB” or “the Board”] entered on May 17, 2001, certifying the Paperworkers, Allied-Industrial, Chemical and Energy Workers International Union [“PACE” or “the Union”] as the representative of Appellant’s production and manufacturing employees working in Appellant’s Nash*479ville, Tennessee plant. Appellant’s Petition for Review, pursuant to 29 U.S.C. §§ 160(e) and (f), was filed on June 16, 2001.1 Appellee, the Board, filed a cross-application for enforcement of the NLRB’s decision on August 1, 2001. PACE has intervened on behalf of the NLRB.
For the reasons that follow, the Board’s application for enforcement of its August 1, 2001 order is GRANTED and the petition of Werthan seeking to vacate the Board’s order is DENIED.
I.
Appellant, Werthan Packaging, Inc., located in Nashville, Tennessee, is engaged in the manufacture of paper packaging, in particular, bags for pet food. On September 24, 1998, PACE filed a petition with the NLRB seeking to represent Werthan’s production and maintenance employees at the Nashville plant. (J.A. at 494). Werthan objected to the proposed composition of the unit, asserting that it should also include human resources assistants, customer service representatives, sales representatives, a marketing manager, graphics coordinator and process planner. (J.A. at 497). The Board overruled the objections and the Regional Director directed an election, which took place on December 2, 1998. (J.A. at 504, 507). The results were 120 votes for union representation and 153 votes against. (Id.).
The Union filed objections to the election on the basis of company misconduct. A hearing was held and the NLRB determined that Werthan improperly solicited grievances from employees, promised employees increased benefits and wages for opposing unionization and improperly interrogated an employee. (J.A. at 514-24). The Hearing Officer recommended setting aside the election and holding a second election. Werthan filed objections to the decision, which were overruled by the Board. (J.A. at 527-30).
The second election took place on July 29, 1999. The results were 114 votes for unionization, 139 votes against and 51 challenged ballots which were of sufficient number to determine the outcome. (J.A. at 532). PACE filed objections to the election and a hearing was held to resolve the ballot challenges and objections. After seven days of testimony, a report and recommendation was issued. As to the challenged ballots, the Hearing Officer overruled 10 challenges, sustained 40 challenges, and deferred decision on one pending a determination on the individual’s claim that he was discharged from employment unlawfully. In addition, the Hearing Officer sustained two of the Union’s objections: first, that Werthan had solicited employees to report to management any evidence of purported union harassment; and second, that Werthan unlawfully attempted to pack the voter eligibility list with ineligible, anti-union employees. (J.A. at 571-72; 576^85). The Hearing Officer recommended that the election be set aside and a new election ordered. Werthan objected to the recommendation, but it was sustained on appeal. (J.A. at 592-97).
A third election was held on April 13, 2000. The results were 130 votes for unionization and 115 votes against. There were 14 challenged ballots, which were too few in number to be determinative. (J.A. at 599-600). Werthan filed objections alleg*480ing that the union “unlawfully bribed and induced, and effectively bought the support and votes of Werthan employees.” (J.A. at 610). A one-day hearing was held. The Hearing Officer recommended overruling Werthan’s objection on the basis that the alleged bribery occurred well before the “critical period” of the election. (J.A. at 646-47). The Hearing Officer rejected Werthan’s claim that the union improperly reimbursed several employees for lost wages while testifying on behalf of the union at the hearing following the second election. (J.A. at 647-50). The Hearing Officer recommended that the NLRB certify PACE as the exclusive bargaining representative. (J.A. at 650).
Werthan objected to the Hearing Officer’s recommendation and filed a motion to reopen the record and submit additional evidence. On January 31, 2001, the Board overruled the objections and adopted the Hearing Officer’s findings and recommendations. (J.A. at 690-92). The motion to reopen was denied. (J.A. at 691). The Board certified PACE as the exclusive bargaining representative of the Appellant’s production and manufacturing employees.
On February 5, 2001, PACE requested that Appellant bargain with it as the representative of the certified unit. (J.A. at 717). Werthan refused the request. (Id.). PACE then filed a charge with the Board, whose general counsel subsequently filed a complaint based on the charge. Werthan conceded its refusal to bargain, but took issue with the Board’s decision to certify the union. (J.A. at 695-97; 699-701). On December 11, 2001, general counsel filed a motion for summary judgment to which Werthan failed to respond despite the issuance of a show cause order. (J.A. at 715-16).
On May 17, 2001, a decision and order was rendered, granting the motion for summary judgment on the basis that Werthan’s refusal to bargain with the Union violated Section 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5) and (1). The Order of the NLRB requires Werthan to bargain with PACE upon request. (J.A. at 717). Werthan now appeals from the Order of the NLRB.
II.
Werthan raises four issues on appeal: First, it contends that the NLRB abused its discretion in determining the appropriate bargaining unit. Second, Werthan asserts that the NLRB abused its discretion in setting aside the first and second elections. Third, it submits that the NLRB abused its discretion in failing to set aside the third election. Finally, Werthan argues that the NLRB abused its discretion in refusing to reopen the record and consider newly submitted evidence.
III.
Standard of Review
This Court reviews the NLRB’s legal conclusions de novo and its factual findings under a “substantial evidence” standard. Harborside Healthcare Inc. v. NLRB, 230 F.3d 206, 208 (6th Cir.2000) (citations omitted). The latter standard has been explained as follows:
The Board’s findings of fact are conclusive if supported by substantial evidence. Evidence is substantial when it is “adequate, in a reasonable mind, to uphold the [Board’s] decision.” We must • consider the record as a whole, including evidence that runs contrary to the Board’s findings. Deference to the Board’s factual findings is particularly appropriate where conflicting testimony requires the Board to make credibility determinations. The Board’s applica*481tion of law to facts is also reviewed under the substantial evidence standard and “the Board’s reasonable inferences may not be displaced on review even though the court might justifiably have reached a different conclusion had the matter been before it de novo. ”
Id., quoting NLRB v. St. Francis Healthcare Centre, 212 F.Sd 945, 952 (6th Cir.2000).
This Court has further held that:
A party who seeks to overturn the results of a representation election bears the burden of demonstrating that the election was conducted unfairly. To meet this burden, “the objecting party must demonstrate that ‘unlawful conduct’ occurred which interfered with the employees’ exercise of free choice to such an extent that it materially affected the result of the election.’ ”
Id. at 951 (citation omitted).
The ultimate decision of the NLRB is reviewed for abuse of discretion. Harborside Healthcare, 230 F.3d at 208. With this standard in mind, the Court considers the issues raised by Appellant Werthan.
1. NLRB’s decisions on the controlling unit
Under 29 U.S.C. § 159(b), the Board must determine whether “in order to assure to employees the fullest freedom in exercising the rights guaranteed by [the] Act, the unit appropriate for the purpose of collective bargaining shall be the employer unit, craft unit or subdivision thereof.” In evaluating the appropriateness of a unit determination, the “community of interest” test is applied. Armco, Inc. v. NLRB, 832 F.2d 357, 362 (6th Cir.1987). Under this test, a number of factors are considered, including: “(1) similarity in skills, interests, duties, and working conditions; (2) functional integration of the plant, including interchange and contact among the employees; (3) the employer’s organizational and supervisory structure; (4) the bargaining history; and (5) the extent of union organization among the employees.” Id.
In reviewing the NLRB’s determination, this Court need only decide whether the chosen bargaining unit shares a “sufficient” community of interest. If so, then there can be no abuse of discretion on the part of the NLRB. Bry-Fern Care Center, Inc. v. NLRB, 21 F.3d 706, 709 (6th Cir.1994).
Werthan first argues that customer service representatives should have been included in the bargaining unit because they are integral to the bag-manufacturing process and are supervised by Operations Manager Don Belmont, who oversees all aspects of production. Appellant further contends that customer service representatives are subject to the same schedule and benefits as production employees. The Board argues that the customer service representatives are more akin to sales representatives than to production workers. According to Werthan Senior Vice President of Sales and Marketing, William Pinkleton, customer service representatives occasionally travel with sales representatives to customer facilities and often have more contact with customers than sales representatives. (J.A. at 17). The Board contends that Werthan customer service representatives play no role on the production floor other than pursuing customer orders and complaints. (Brief at 53 n. 32). Thus, the Board asserts that customer service representatives have a greater community of interest with sales representatives than they do with production employees.
In considering the above-mentioned factors, we agree with the Board that customer service representatives have a greater *482community of interest with sales representatives than with production employees. Thus, this Court finds no abuse of discretion on the part of the Board for excluding customer service representatives from the bargaining unit.
Appellant also contends that two plant clericals, Mark Lee Massa and Heather Fisher, should have been considered in the bargaining unit.2 As the Board points out, however, Massa, a “Process Planner,” spends no more than one hour per week on the production floor. Fisher, a “Credit Analyst,” holds a bachelor’s degree and has no contact with production employees. Fisher and Massa work in an office building separate from the production site. This Court finds no abuse of discretion in the exclusion of thesd individuals from the bargaining unit.
Appellant also contends that two Quality Assurance employees, Jacqueline Brown and George Lyon, should have been included in the unit. According to Appellant, Brown investigates customer complaints, examines defective bags, addresses quality issues and performs tests on bags. (J.A. at 558-59). Lyon and Brown work with production employees regarding quality assurance and they maintain a checklist which provides production employees with all necessary information to properly produce the bags. (J.A. at 322, 326-27). The Board points out, however, that both Brown and Lyon are salaried employees. Brown works closely with customers and sales representatives to resolve complaints regarding quality; she visits the production floor only sporadically. (J.A. at 558-59; 251-54). Lyon is a “Quality Engineer” and creates manuals for Werthan to use in the production process and also serves on numerous management committees to help develop an efficient production process. (J.A. at 559-60). In light of the evidence, this Court finds no abuse of discretion in the Board’s decision to exclude Brown and Lyon from the bargaining unit.
Appellant also contends that clerical purchasing employees, Gwen Patrick and Theresa Flemmings, should have been included in the unit. These employees purchase the paper and other materials necessary for the manufacturing process. They also maintain the inventory supply. (J.A. at 281, 284-86, 290, 296-301, 306-07). The Board points out that both these individuals are salaried employees. Patrick is a “Buyer” and Flemmings is an “Assistant Buyer.” Both work in Werthan’s business office and have only occasional contact with the bargaining unit. (J.A. at 275-83, 287-89, 553-54, 843-55). In light of this evidence, the Board did not abuse its discretion by excluding Patrick and Flemmings from the unit.
Finally, Appellant challenges the exclusion of John Waltz, “Technical Manager,” and, George Brown, “Process Technician,” from the unit. Waltz assists with the installation and maintenance of machinery to ensure that the production process runs smoothly. (J.A. at 343, 348-51). Waltz wears production-worker attire and reports to the production supervisor. (J.A. at 349, 351, 354). The Board points out that Waltz is a salaried employee with a bachelor of science degree and analyzes the machinery to develop new methods for increased production. Waltz does not himself operate or make adjustments to the machinery. (J.A. at 341-47, 544-45).
*483Brown, also a salaried employee, keeps records of maintenance work to machinery and works with the maintenance department to repair and upgrade equipment. He also develops plans for new machinery. (J.A. at 229-41, 543-44). In light of the evidence, this Court finds no abuse of discretion on the part of the Board for excluding Brown and Waltz from the unit.
2. NLRB’s decisions to set aside the first and second elections
Appellant argues that the Board abused its discretion in setting aside the first and second elections. This Court has observed:
Congress has vested the Board with considerable discretion in supervising and regulating representation elections. In order to assure employees the greatest freedom of choice in the selection of their representatives, the Board strives to conduct representation elections in an atmosphere in which employees are free from pressure, coercion and undue influence from either the employer or the union. These “laboratory conditions” are necessary to gauge the free, uninhibited choice of the employees. When a party’s preelection conduct unduly influences the result of an election, the Board has set aside such election and ordered a new one.
Comcast Cablevisiorir-Taylor v. N.L.R.B., 232 F.3d 490, 494 (6th Cir.2000) (internal citations omitted). A party seeking to overturn the results of a representation election bears the burden of demonstrating that the election was conducted unfairly. To meet this burden, the Appellant
must demonstrate that unlawful conduct occurred which interfered with employees’ exercise of free choice to such an extent that it materially affected the result of the election. While the Board strives to achieve laboratory conditions during representation elections ... this can be an elusive goal, and so elections are not automatically voided whenever they fall short of perfection.
St. Francis Healthcare Centre, 212 F.3d at 951 (citations omitted).
If there is substantial evidence in the record to support the Board’s conclusions, this Court should not disturb the matter on appeal. Comcast Cablevision-Taylor, 232 F.3d at 494.
The First Election
The Hearing Officer set aside the December 2, 1998 election upon a finding of misconduct on the part of Appellant Werthan. Specifically, the Hearing Officer concluded that Werthan improperly solicited grievances from employees, improperly interrogated an employee, and promised employees increased benefits and wages if they voted against unionization. (J.A. at 524). Appellant argues that this decision was an abuse of discretion.
First, Appellant contends that employee Martha Wolpink was not improperly interrogated. The record reveals that sometime in late November 1998, Werthan Vice President Don Belmont approached Wolpink on the job and asked her how people felt about the Union and what grievances they had. (J.A. at 517). In response, Wolpink stated that she could not speak for everyone but that she was concerned about the current retirement plan. (Id.). Belmont responded that the current pension formula which entitled employees to $4.00 per month for each year worked would be increased to $18.00 per month. (J.A. at 518). Belmont approached Wolpink a second time in late November 1998 and asked her if there were any questions he could answer. (Id.). Wolpink again expressed concern over pension and Belmont told her that the increase in retirement was in progress but that if the Union *484won the election everything would have to be bargained. (Id.).
Appellant contends that because the record fails to include any mention of Wolpink feeling coerced, threatened or uncomfortable about the conversation with Belmont, the decision that Wolpink was unlawfully interrogated is not supported by substantial evidence. Appellant’s argument is misplaced.
Section 8(a)(1) of the National Labor Relations Act prohibits an employer from soliciting grievances from employees when the solicitation “ ‘is accompanied by an express or implied promise of benefits specifically aimed at interfering with, restraining, and coercing employees in their organizational effort.’ ” NLRB v. V & S Schuler Engineering, Inc., 309 F.3d 362, 369 (6th Cir.2002), quoting ITT Telecom., 183 NLRB 1129, 1970 WL 26117 (1970). In view of the evidence that Belmont made representations to Wolpink regarding retirement benefits, there is substantial evidence to support the Hearing Officer’s conclusion that Werthan violated § 8(a)(1).
The record reveals further instances of Werthan’s solicitation of employee grievances. Senior Vice President Chris McCarthy approached employees and asked whether they were happy with everything and whether there were any changes the company needed to make. (J.A. at 58-59, 66-67). In addition, Belmont told at least two employees besides •Wolpink that pension and health benefits would be remedied. (J.A. at 521-22). Based on the evidence of record, the Hearing Officer’s determination that Werthan’s conduct interfered with the employees’ right to a free and untrammeled choice in the election is supported by substantial evidence.
Further, this Court should find that Werthan has failed to demonstrate that its presentation of increased benefits and wages was done for a lawful business reason. Werthan contends that an increase in pension benefits was put into motion as early as 1997—prior to any union campaign. Werthan contends that the increase was delayed due to poor financial forecasts. The Hearing Officer considered this argument, but concluded that the timing of the actions supported a desire to frustrate union activities. (J.A. at 521). This conclusion is supported by substantial evidence.
In sum, we conclude that the decision to set aside the first election was not an abuse of discretion.
The Second Election
The second election, conducted on July 29, 1999 was set aside by the ALJ for two reasons: first. Werthan attempted to pack the unit with anti-union employees and, second, Werthan appealed to unit members to report pro-union coworkers. Appellant contends that these findings are not supported by substantial evidence.
As to the first issue, under the authority of Excelsior Underwear, Inc., 156 NLRB 1236, 1966 WL 18282 (1966), Werthan was required to provide a list of voters’ names and addresses to the Board, to the Union and any other party to the election, within seven days of the Board’s order directing the election. As the Board explained the importance of such list in Excelsior, “by providing all parties with the names and addresses, we maximize the likelihood that all voters will be exposed to the arguments for, as well as against, union representation.” Id. at 1241. The list was to be comprised of unit employees, i.e., “production and maintenance employees, including group leaders, lead persons, truck drivers and plant clerical employees.” (J.A. at 495-96). According to the NLRB. Wer*485than placed numerous individuals on the list who were not included in the unit.
The Hearing Officer found that there were 14 individuals on the list who were supervisors within the meaning of Section 2(11) of the NLRA, 29 U.S.C. § 152(11), and thus, were not eligible to vote. (J.A. at 576). The Hearing Officer further found that there were an additional 23 individuals on the list who lacked a community of interest with the unit. (J.A. at 577). As a result, the Hearing Officer concluded that the number of voters was inflated by ten per cent. (Id.).
The Hearing Officer considered witness testimony on the issue. The Director of Human Resources, James Packer, who prepared the Excelsior list, testified that his assistant was largely responsible for the list and that he checked it to ensure that customer service representatives were not included. (J.A. at 578). The Director conceded, however, that he did not know if some employees on the list were supervisors. (J.A. at 579). In addition, former Human Resources Manager Terri Barry testified that Werthan’s CEO urged several employees, including herself, to vote despite the fact that they shared no community of interest with the unit. (J.A. at 579-80).
In light of the evidence presented, the Hearing Officer concluded that there was a “plan to pack the unit with ineligibles in order to dilute the union’s support.” (J.A. at 579).3
Appellant also challenges the Hearing Officer’s conclusion that a flyer posted by Werthan on employee bulletin boards improperly solicited employees to report pro-union co-workers to management. Appellant contends that the flyer was posted in response to complaints from employees that they were being threatened and harassed by PACE. (J.A. at 380-83, 428). The flyer, posted from July 13 to July 29, 1999, stated:
We understand that PACE has tried to reach some of you at home, and may have bothered your families and children. We apologize for any inconvenience that these outsiders may cause you.... If you feel that you are being harassed, please let us know and we will do everything within our power to assist you.
(J.A. at 428). The flyers were posted above the employees’ time clock, in their break room and above the water fountain.
The Hearing Officer rejected Appellant’s attempt to justify the flyer and found that “all unit employees were exposed to the Employer’s message that they should report being ‘bothered’ or ‘harassed’ by anyone related to PACE, and such a request by the Employer is not only an unfair labor practice, but also a basis to set aside the election conducted in this manner.” (J.A. at 572).
Appellant argues that this finding is not supported by substantial evidence because it was not clear that all employees were subjected to the flyer and because the flyer clearly and unambiguously referred to harassment by PACE officials rather *486than to harassment by pro-union co-workers. The NLRB points out that the Hearing Officer rejected these arguments, finding that “employees reading [Werthan’s] document reasonably could understand the language to be a request by [Werthan] to report incidents in which they felt that they were being ‘harassed’ by the campaign efforts of fellow employees as well as non-employee union agents.” (J.A. at 594-95).
It is clear that a request by an employer which encourages employees to report co-workers union activity is a violation of § 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1). This Court has observed that requests for employees to report claimed pressures fail to distinguish between coercive conduct and lawful organizing activity, thus inviting employees to report the names of any union organizers. An employer may prohibit union solicitation during working hours but may not do so during non-working time, absent special circumstances. Publishers Printing Co. v. NLRB, No. 95-6519, 96-5062, 1996 WL 742294 (6th Cir. Dec. 23, 1996). In view of this authority, the Board’s conclusion regarding the flyer is supported by substantial evidence. This Court concludes that the decision to set aside the second election was not an abuse of discretion.
3. NLRB’s Certification of the Union following the Third Election
Appellant challenges the decision of the NLRB to certify PACE after the third election, claiming that PACE unlawfully induced the support of Werthan employees and wrongfully paid employees to testify on behalf of the Union at a Board hearing after the second election. The third election was held on April 13, 2000 and resulted in 130 votes for unionization and 115 votes against unionization. There were also 14 nondeterminative challenged ballots. (J.A. at 599).
On April 19, 2000, Werthan filed an objection to the third election, claiming that PACE had unlawfully induced employee support by the giving of union jackets, professional football tickets, pizza and beer. (J.A. at 643). A hearing was held during which Appellant called two witnesses, both employees and agents of the union. (J.A. at 644).
The evidence revealed that during a one to two week period in late October to November 1998, prior to the first election, the union distributed embroidered union jackets to 6 or 7 employees; Jackets were also given to 5 or 6 additional employees who asked for them. (J.A. at 644). All jacket recipients were members of the union’s in-house organizing committee. (Id.). Second, two weeks prior to the first election, in late November 1998, the union held meetings as often as three times a day at a local motel. At some of the meetings, pizza and beer were provided. (J.A. at 644) . Third, in September or October 1998, prior to the first election, the union gave four tickets to a professional football game to one employee who was engaged in organizing activities. (J.A. at 645). The employee invited a co-worker to the game and sold the remaining two tickets to non-employees. (Id.). No football tickets were offered after the first election. (J.A. at 646). No jackets were distributed prior to the second and third elections. (J.A. at 645) . There were, however, some meetings prior to the second election in July 1999 during which refreshments were served to employees. (J.A. at 646).
The Hearing Officer concluded that the foregoing events were of no moment because they did not occur during the critical period preceding the third election. The Hearing Officer’s Report and Recommendation states:
*487It is well-settled that the critical period for a second (or third) election commences as of the date of the first (or second) election. Star Kist Caribe, Inc. 325 NLRB 304, 1998 WL 23246 (1998) (citations omitted).... [Assuming arguendo that the jackets, football tickets or beer and pizza would constitute objectionable conduct prior to the first or second elections, the remedy is a rerun election after a period during which laboratory conditions have been reestablished .... Since the jackets, football tickets and pizza and beer were distributed prior to the first and/or second election the remedy has already been imposed. Thus the third election remedied objection-able conduct which occurred prior to the second election just as the second election remedied conduct occurring prior to the first.
(J.A. at 647). This conclusion, adopted by the Board, is supported by substantial evidence and not an abuse of discretion.
Appellant also challenges the union’s payment of lost wages to employees summoned to testify at an NLRB hearing held on the following dates: September 14, 15, 16, 17, 22, 23 and 24, 1999. Appellant challenges the payment of one day’s wages to employees who testified for “only minutes.” (Appellant Brief at 56). Appellant concedes that the employees remained at the hearing for the remainder of the day, but nonetheless contends that they should not have been paid for time they were not testifying. (Id. at 61).
The Hearing Officer concluded that the payments were not objectionable. The Hearing Officer found that there was no evidence to demonstrate that the union paid any employee more than what was lost in wages. (J.A. at 649-50). This finding is supported by substantial evidence. Furthermore, as the NLRB points out, while this Court has concluded that over-payments to employees are suspect, Plastic Masters, Inc. v. NLRB, 512 F.2d 449 (6th Cir.1975), in this case, the employees received wages only for time lost from work.
This Court concludes that the Board did not abuse its discretion in certifying PACE after the third election.
4. NLRB’s decision to disregard certain evidence and refusal to reopen the record
Finally, Appellant challenges the Hearing Officer’s refusal to reopen the record after the hearing on August 29, 2000 regarding Appellant’s objections to the third election. Appellant sought to reopen the record to present evidence that it claims was only recently discovered as to the Union’s payment of lost wages to employees. (J.A. at 655). Specifically, Appellant sought to introduce a declaration of Werthan’s Senior Vice President and Chief Financial Officer, Chris McCarthy, averring that four employees who testified at the September 1999 hearing, following the second election, had been paid lost wages for their attendance on the days that they testified and were placed on unpaid jury duty leave for dates they attended the hearing but did not testify.
The foregoing was not offered as record evidence, but was proffered on brief to the Hearing Officer. The Hearing Officer concluded:
I reject the proffer. A brief is not an appropriate vehicle to offer new evidence. The reason for the rule is obvious; to admit evidence outside the hearing itself is to circumvent due process. The Employer had every opportunity during the hearing which adjourned after only an hour and a half to produce all evidence it deemed relevant in the forum where testimony is subject to cross-examination and where documents *488must withstand the tests of authentication and relevance. The testimony and documents and, indeed, the employees themselves were all available well before and throughout the hearing. The Employer could have submitted any or all of this material and presented any or all of the witnesses during the hearing.
(J.A. at 649).
Following the Hearing Officer’s decision, Appellant moved to re-open the record. (J.A. at 654-58). The motion was denied on the basis that Appellant “has not presented extraordinary circumstances- warranting the reopening of the record, nor is there evidence that the Employer seeks to introduce newly discovered or previously unavailable evidence.” (J.A. at 691). Appellant argues that these decisions were an abuse of discretion.
Under 29 C.F.R. § 102.48(d)(1), the Board may reopen the record to consider “newly discovered evidence.” Evidence is “newly discovered” if it was in existence at the time of the original hearing and the party excusably failed to adduce it. Seattle-First National Bank v. NLRB, 892 F.2d 792, 797 (9th Cir.1989). The decision as to whether the record should be reopened is reviewed for abuse of discretion. Dayton Hudson Dept. Store Co. v. NLRB, 987 F.2d 359 (6th Cir.1993).
Appellant offered no reason in its motion as to why the evidence could not have been presented at the hearing. Indeed, the basis for the hearing was to consider Appellant’s objection that employees had allegedly received excess payment by the Union in exchange for testifying at the September 1999 hearing. The evidence should have be presented to the Hearing Officer in August 2000.
The decision of the Board to disregard the evidence submitted on brief and to not reopen the record following the Hearing Officer’s Report and Recommendation was not an abuse of discretion.
y.
For the foregoing reasons, the Petition for Review filed by Werthan is DENIED. The Cross Petition of the Board seeking enforcement of its Orders certifying the Union as the collective bargaining representative of Werthan’s production and maintenance employees, together with its Order directing Werthan to bargain with the Union, is GRANTED.
. Also before this Court is a related issue concerning the Board's finding, also made on June 17, 2001, that the Appellant’s refusal to bargain with the Union constituted an unfair labor practice (''ULP”) in violation of 29 U.S.C. § 158(a)(5). Under 28 U.S.C. § 159(2), this Court also has jurisdiction over the appeal of the ULP, which is dependent on whether the order of certification was proper.
. Massa, a former machine operator, is responsible for physical inventory counts and works with production employees to resolve discrepancies in counts. Fisher is responsible for verifying content of shipments to customers, keeping track of customer returns and tracking inventory.
. The Board has also held that, given the importance of the Excelsior list, failure to comply with its requirements constitutes a basis for a new election. Excelsior at 1240. In this case, a list of employees was submitted by the employer to the union. The list, according to the hearing officer, deliberately included the names of employees ineligible to vote. Werthan argues, not without some force, that the election was not effected by the exchange of an incorrect list. If the Excelsior issue were the only basis for a new elections, this issue would be more difficult. Because of other improprieties on the part of Werthan, described infra, this Court need not find that the Excelsior issue alone required a new election. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218057/ | KENNEDY, Circuit Judge,
dissenting.
I would reverse the hearing officer’s decision to set aside the second election. First, I disagree with the majority and would find that the hearing officer’s decision that the flyer distributed by Werthan was unlawful was not supported by substantial evidence. The flyer states, in its entirety:
We understand that PACE has tried to reach some of you at home, and may have bothered your families and children. We apologize for any inconvenience that these outsiders may cause you. Remember that you do not have to speak to them, you do not have to take their literature, and you do not have to be bothered by them. If you feel that you are being harassed, please let us know and we will do everything in our power to assist you. If they have already bothered you with their tactics at this point, when they are trying to impress you and win you over, imagine how bad it will be if you become contractually obligated to pay them to be your representative, and they no longer have to impress you.
The NLRB hearing officer determined that the flyer’s language was ambiguous, and as such, was unlawful. He relied on cases in which an employers’ communica*489tions to employees discussed harassment of employees by co-workers who supported the union. The cases on which he relied are easily distinguished.
In Manno Electric, Inc., the notice prepared and displayed by the employer stated: “If you are harassed, or in any way overly bothered by Union organizers or co-employees trying to get you to sign cards or go to meetings, please contact me at once.” 321 NLRB 278, 286, 1996 WL 276357 (1996), aff'd without op., 127 F.3d 34, 1997 WL 589264 (5th Cir.1997) (emphasis added). Similarly, in Nashville Plastic Products, the employer “requested employees who were ‘bothered’ or ‘harassed’ by other employees advocating the Union to report it to management.” 313 NLRB 462, 462, 1993 WL 501806 (1993) (emphasis added). In Hawkins-Hawkins Co., the employer also told employees that if they felt harassed by supporters of the Union, they should inform management, who would then, take care of it.” 289 NLRB 1423, 1423, 1988 WL 213883 (1988) (emphasis added). The NLRB’s concern in cases where an employer warns employees about union activities, either verbally or by notice, is “the potential dual effect of encouraging employees to identify union supporters based on the employees’ subjective view of harassment and discouraging employees from engaging in protected activities.” Id.
The concern stated in Hawkins-Hawkins is not a concern in the present case. The flyer does not refer to co-workers or employees at all. Instead, the flyer refers to PACE and to activity that occurs off-site. The flyer is straightforward and is within the bounds of acceptable conduct. Accordingly, I would reverse the hearing officer’s decision to set aside the second election on this ground.
Second, I disagree with the majority and would find that the NLRB hearing officer’s decision to set aside the second election was not supported by substantial evidence with respect to his finding that Werthan’s preparation of the Excelsior list was unlawful. On review, the NLRB hearing officer found that fourteen employees who were included on the list were supervisors and should not have been on the list. The hearing officer notes that the NLRB order granting Werthan’s request for review provided that nine individuals, who had been found by the Regional Director to be supervisors, should vote subject to challenge. However, the hearing officer states that the order does not justify Werthan’s placing five additional supervisors on the list, nor does it relieve Werthan of the responsibility for placing twenty-three other ineligible employees on the list. Id. The hearing officer reached this conclusion after determining that James Packer, the Director of Human Resources, was not credible when he testified that the additional names were placed on the list for the following reasons: (1) he directed Sheila Lay, his assistant, to prepare the list pursuant to the NLRB order; (2) he verified that customer services employees were not on the list; (3) he believed that the NLRB order directing Werthan to place nine supervisors on the list, subject to challenge, meant that other supervisors should be placed on the list as well; and, (4) after receiving a letter from PACE’s Nashville Resident Officer, which named sixty individuals on the list who PACE intended to challenge, he did not review or amend the list because he did not know the list could be altered once it had been submitted to the NLRB.
The hearing officer also found the testimony of Terri Barry, Werthan’s Human Resources Manager, to be credible. The hearing officer stated he used this credibility finding to discredit Packer to the extent that his testimony conflicted with *490Barry’s. Specifically, Barry testified that, despite her stated position that she could not and would not vote, various Werthan managers, including Packer, told her to vote anyway. Consequently, the hearing officer found that Werthan “entered into a deliberate scheme to ‘pack the voting unit’ and to ‘pad the Excelsior list’ with the specific intention of diluting the Union’s strength.” Notably, however, Barry was not named on the Excelsior list, nor does her testimony contradict Packer’s stated reasons for placing the names on the list.
The hearing officer relied on Maxi Mart, 246 NLRB 1151 (1979) and Trend Construction Corporation, 263 NLRB 295, 1982 WL 23844 (1982), in support of his conclusion. In Maxi Mart, the NLRB found that the employer, a retail grocer, “packed the unit” with meat department employees “in an effort to expand the size of the voting unit in order to insure that the ballots of bona fide employees would be sufficiently diluted so their desire for union representation would be frustrated.” 246 NLRB at 1160. However, Maxi Mart does not involve a challenged Excelsior list, nor does it support the hearing officer’s conclusion in the case at bar that Werthan “packed the unit.” In this case, the NLRB ordered that nine supervisors should be placed on the list and should vote, subject to challenge. Werthan complied, but also included additional supervisors who it deemed were “production support” and had a community of interest with the unit. In Maxi Mart, the employer actually hired and moved employees into the meat department contrary to the needs of the department. There is no allegation in this case that Werthan hired employees or moved employees into different positions so as to increase the size of the voting unit and, thus, possibly dilute the voting strength of bona fide unit members. As a result, Maxi Mart is distinguishable and does not support the hearing officer’s conclusion.
The other case relied on by the hearing officer, Trend Construction, is similar to Maxi Mart, In Trend Construction, the NLRB found that the employer offered and paid new employees a special benefit to accept employment within the voting unit and employed them for the purpose of increasing the unit size and, thus, diluting the strength and frustrating the efforts of those employees who were in favor of union representation. 263 NRLB at 299. As with Maxi Mart, Trend Construction does not involve an Excelsior list, nor does it support the hearing officer’s conclusion that Werthan’s conduct in preparing the list violated §§ 8(a)(1) or (3) of the Act. Id.
In the present case, the hearing officer concluded that when legitimate voters appear at the polls only to see supervisors also in line to vote, the legitimate voters may conclude that selecting a collective bargaining representative is futile. This, he concludes, constitutes an unfair labor practice. His conclusion, while supported by some evidence, is not supported by substantial evidence. Nor is his conclusion supported by law relevant to the facts of this case.
An Excelsior list is a list of eligible voting employees that an employer must provide to the union, including the addresses and phone numbers for each eligible employee so that each may be contacted by the union. Excelsior Underwear, 156 NLRB 1236, 1239-40, 1966 WL 18282 (1966). The purpose of an Excelsior list is to provide employees “an effective opportunity to hear arguments concerning representation.” Id. at 1240. In Women in Crisis Counseling & Assistance, the NLRB discussed the purpose of an Excelsior list:
It is well settled that the Excelsior rule will not be applied mechanically. In determining whether an employer has substantially complied with the rule, the *491Board has consistently viewed the omission of names as more serious than inaccuracies in addresses. This distinction derives from a consideration of the policies underlying the Excelsior rule. The Board devised that rule for two basic purposes: (1) to insure an informed electorate by affording all parties an equal opportunity to communicate with eligible employees, and (2) to expedite the resolution of questions of representation by minimizing challenges based solely on lack of knowledge as to the voter’s identity.
312 NLRB 589, 589, 1993 WL 405066 (1993) (internal citations omitted).
In the present case, Werthan included employees on the Excelsior list who were later challenged and excluded from the bargaining unit. Based on the record, the purposes of the list were not thwarted by Werthan’s overly-inclusive list. Only five additional supervisors were added, and they were undistinguishable from the nine authorized by the NLRB to vote. The remaining persons were clerical employees, some part of whose work interacted with unit employees.
Women in Crisis Counseling & Assistance also discussed the importance of ascertaining the employer’s intent in providing the union with an inaccurate list: “In addition, the Board may set aside an election because of an insubstantial failure to comply with the Excelsior rule if the employer has been grossly negligent or acted in bad faith in providing inaccurate addresses.” Id. In this case, the hearing officer found that Werthan provided its most accurate employee contact information to PACE, thus it had not been grossly negligent. The hearing officer, however, found that Werthan acted in bad faith by “enter[ing] into a deliberate scheme to ‘pack the voting unit’ and to ‘pad the Excelsior list’ with the specific intention of diluting the Union’s strength.”
Recently, the Sixth Circuit, in NLRB v. V & S Schuler Engineering, Inc., held that: “When preelection conduct is claimed to have made a representation election unfair, the party seeking to overturn the election must show that unlawful acts interfered with employees’ free choice and significantly affected the election results. The objector must show that the misconduct tended to prevent a fair election.” 309 F.3d 362, 368 (6th Cir.2002)(citing Harborside Healthcare, Inc. v. NLRB, 230 F.3d 206, 209 (6th Cir.2000)). In this case, PACE made no showing and the hearing officer made no finding that the overly-inclusive Excelsior list interfered with Werthan employees’ free choice and significantly affected the election votes. While Werthan employees voted against representation in the first two elections that were set aside, I cannot draw an inference that the voting was affected by the inclusion of employees on the list who were not eligible to vote or who voted subject to challenge. The nine supervisors that the NLRB ordered to vote subject to challenge were rightfully present to vote. Without testimony or other evidence that the presence of additional supervisors or other ineligible voters had a chilling effect on eligible voters or made them feel that seeking representation was futile, I cannot agree that there is evidence supporting the hearing officer’s conclusory finding.
Based on the foregoing analysis, the hearing officer’s determination that the second election should be set aside due to (1) an unlawful flyer and (2) an overly inclusive Excelsior list was not supported by substantial evidence and should be reversed. For these reasons, I respectfully dissent. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218058/ | ORDER
John W. Hauck, Jr., appeals a decision of the Tax Court in which it found that respondent may proceed with collection activities regarding assessments for the 1995 and 1996 tax years and imposed damages against Hauck pursuant to 26 U.S.C. § 6673 in the amount of $10,000. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In April 1998, the Internal Revenue Service (IRS) determined deficiencies and additions to tax totaling $210,851.44 for Hauck’s 1995 and 1996 tax years, years in which Hauck filed no tax returns. Hauck did not challenge the deficiencies within 90 days, and in September 1998, the IRS assessed the deficiencies and additions. See 26 U.S.C. § 6213(a). In June 1999, the IRS sent Hauck a notice of intent to levy and a notice of the right to a hearing, and Hauck requested a Collection Due Process Hearing to determine the validity of the assessment. Hauck requested that the hearing be conducted by telephone. Following the requested hearing, an ap*493peals officer determined that collection efforts could proceed.
Hauck next petitioned the Tax Court for review of the Commissioner’s determination pursuant to 26 U.S.C. § 6330(d). Following a trial, the Tax Court found that the Commissioner may proceed with collection and imposed damages against Hauck pursuant to 26 U.S.C. § 6673(a)(1). Hauck filed a timely notice of appeal. On appeal, Hauck contends that: (1) the hearing officer did not require a valid assessment document; (2) the hearing officer denied him the right to examine requested dochmentation; (3) the $10,000 penalty imposed was unjustified; and (4) his Collection Due Process hearing was inadequate.
Generally, this court reviews the Tax Court’s conclusions of law de novo and its findings of fact for clear error. See Zack v. Commissioner, 291 F.3d 407, 412 (6th Cir.2002); MTS Intern., Inc. v. Commissioner, 169 F.3d 1018, 1021 (6th Cir.1999). This court reviews for an abuse of discretion the Tax Court’s imposition of sanctions pursuant to 26 U.S.C. § 6673. Wolf v. Commissioner, 4 F.3d 709, 716 (9th Cir.1993). Here, the Tax Court properly determined that the Commissioner’s collection activities were proper and that Hauck’s petition was a frivolous attempt to delay the collection.
Before a levy may be made on the property of any taxpayer, the taxpayer must be notified of the right to request a pre-levy hearing. 26 U.S.C. § 6330(a). If a hearing is requested, it is conducted by the IRS Office of Appeals. 26 U.S.C. § 6330(b)(1). The taxpayer “may raise at the hearing any relevant issue relating to the unpaid tax or proposed levy.” 26 U.S.C. § 6330(c)(2)(A). A taxpayer may challenge “the existence or amount of the underlying tax liability for any tax period if the person did not receive any statutory notice of deficiency for such tax liability or did not otherwise have an opportunity to dispute such tax liability.” 26 U.S.C. § 6330(c)(2)(B). Upon receipt of the Office of Appeals’s notice of determination, the taxpayer may file an appeal with the Tax Court or an appropriate federal district court. 26 U.S.C. § 6330(d)(1).
Here, Hauck does not and cannot dispute the existence or amount of the underlying tax liabilities because he had notice and ' an opportunity to dispute the amounts, but did not do so. Rather, Hauck raises only meritless claims that his Collection Due Process Hearing was not properly conducted. Hauck contends that the hearing officer improperly relied on an automated IRS Summary Record of Assessments form or “RACS Report” in confirming the assessments at issue rather than a signed IRS Form 23C record of assessments. However, the record reflects that the computerized “RACS Report” has simply replaced the IRS Form 23C for assessments after 1984. See Perez v. United States, No. 3:00CCV00302, 2001 WL 1836185, at *3 (W.D.Tex. Octll, 2001). Hauck’s claim that the hearing officer prevented him from examining the records at issue is meritless because the record reflects that Hauck was in possession of copies of the pertinent documents, and the hearing was held by telephone at Hauck’s request. The Tax Court did not consider Hauck’s claims that he was denied a court reporter and the opportunity to present and cross-examine witnesses because he asserted the claims for the first time in his brief. Nonetheless, it is noted that the claims are meritless because Hauck cannot show any effect the claimed errors may have had.
Finally, Hauck’s contention that the Tax Court erred by imposing a sanction lacks merit. The conclusion that Hauck’s petition was a frivolous attempt to delay tax collection is supported by the record. Ac*494cordingly, the Tax Court did not abuse its discretion by imposing a sanction pursuant to 26 U.S.C. § 6673(a)(1).
For the foregoing reasons, the Tax Court’s decision is affirmed. See Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218061/ | ORDER
Wampler Brothers Coal Co. (Wampler), a coal mine operator, petitions through counsel for review of an en banc order of the Benefits Review Board which affirmed an administrative law judge’s decision awarding benefits to a former employee of Wampler under the Black Lung Benefits Act, 30 U.S.C. §§ 901-45. The parties have not requested oral argument, and this panel unanimously agrees that oral argument is not necessary in this case. Fed. R.App. P. 34(a).
Dudley Stewart, a former coal miner, applied for black lung benefits in 1973, while he was still working. In 1979, through an administrative processing error, he was erroneously informed that he had been found entitled to benefits. Stewart quit his job and collected benefits until 1982, when the error was discovered. Proceeding pro se, Stewart appealed the reversal of the award, but waived a hearing before an administrative law judge (ALJ). He also returned to coal mine employment with Wampler from 1986 to 1990. In 1990, the ALJ denied his claim, finding that Stewart had fifteen years of coal mine employment through 1979, but had not established either the existence of pneumoconiosis or that he was totally disabled.
Stewart filed a new claim for benefits in 1993. A hearing was held before an ALJ, who determined that Stewart had nearly four more years of coal mine employment which had not been presented in the record before the prior ALJ, and had established a material change in condition, in that the physicians’ opinions now showed that Stewart was suffering from pneumoconiosis. The ALJ found the other elements of entitlement established as well, and awarded benefits. Wampler appealed to the Benefits Review Board (BRB), which affirmed in part and vacated and remanded in part. On remand, the ALJ again awarded benefits. Wampler appealed to the BRB, which again affirmed in *498part and vacated and remanded in part. On the second remand, the ALJ again awarded benefits, and denied the motion for reconsideration filed by Wampler. Wampler again appealed to the BRB. Oral argument was heard before the en banc BRB, which issued an order affirming the award of benefits. Wampler’s motion for reconsideration was denied, and this petition for review followed. Wampler argues that, in order to establish a material change in condition, the new evidence has to be qualitatively different from the evidence submitted with the original claim. Wampler also argues that the ALJ in this case erroneously applied an automatic preference for the treating physician’s opinion, and that treating physicians’ opinions should never be entitled to greater weight.
This court reviews a decision of an ALJ in a black lung claim to determine whether it is supported by substantial evidence and in accordance with the applicable law. Y. & O. Coal Co. v. Webb, 49 F.3d 244, 246 (6th Cir.1995).
The regulations governing black lung claims at 20 C.F.R. § 725.309 provide relief from the ordinary principles of finality and res judicata to a miner whose physical condition deteriorates due to the progressive nature of black lung disease. Sharondale Corp. v. Ross, 42 F.3d 993, 997 (6th Cir.1994). Under this provision, a miner may file a new claim for benefits more than one year after an earlier claim was denied. As this court explained in Ross, in such a case the ALJ should examine the new evidence, and if it is determined that the new evidence proves one of the elements of entitlement that was previously adjudicated against the miner, a material change of condition is established, and the ALJ must then examine all of the evidence, submitted with the new claim and the earlier claim, to determine whether the miner is entitled to benefits. Id. at 997-98. If the new evidence does not establish one of the elements of entitlement previously adjudicated against the miner, the ALJ need not examine or discuss the evidence submitted with the earlier claim, but can deny the duplicate claim for failure to establish a material change in condition. In the instant case, the ALJ found that new evidence from the miner’s treating physician established that he had developed pneumoconiosis since the denial of the earlier claim. On the first remand, the ALJ then compared the new evidence of the treating physician’s opinion with that of the only physician who had failed to diagnose pneumoconiosis in the earlier claim. The ALJ found the new evidence of the treating physician’s opinion entitled to more weight than the earlier opinion, because the treating physician saw the miner every few months rather than for just one examination, and his treatment postdated the other physician’s examination by six years. He also found the treating physician’s opinion well-explained in his deposition, where he discussed the fact that the miner consistently has a respiratory rate at rest of twice normal, has a cough and wheezing, and cannot complete a pulmonary function test because he becomes dizzy from lack of oxygen. The treating physician also explained that no other basis for the miner’s respiratory disability was apparent, as he had no smoking history and no heart disease, but had a long history of very dusty coal mine employment. The treating physician also discussed his treatment, including breathing medication, inhalers, and a home nebulizer which the miner uses several times a day to force medicine into his lungs so that he will not have to go to the emergency room for shortness of breath.
Wampler relies on language in Ross at 999, where this court remanded the case for further discussion of the X-ray evi*499dence. In that case, the ALJ employed the former “true doubt” rule to find a material change of condition established by X-ray evidence of pneumoconiosis, although the new claim contained both positive and negative X-rays, as the earlier claim had done. The court found the discussion of the X-ray evidence in that case insufficient to establish the existence of pneumoconiosis, because the ALJ did not discuss how the new X-ray evidence was “qualitatively different.” On the contrary, in this case, on the first remand, the ALJ expressly compared the physician’s opinion evidence on which the finding of a material change in condition had been based with the physicians’ opinion evidence presented with the earlier claim, and gave proper reasons for affording the new evidence greater weight. This analysis is also in accordance with this court’s decision in Tenn. Consol. Coal Co. v. Kirk, 264 F.3d 602 (6th Cir.2001), cited by Wampler. This court held in that case that the ALJ must compare the old and new evidence to determine whether a worsening of the miner’s condition was established, prior to awarding benefits. Id. at 609. The ALJ in the instant case did perform this analysis. Thus, Wampler has not shown that the ALJ’s decision is not in accordance with the law.
Wampler’s second argument is that the ALJ erroneously applied an automatic presumption that a treating physician’s opinion is entitled to greater weight. Wampler argues that a treating physician’s opinion should categorically not be entitled to more weight than any other physician’s opinion. This court has previously rejected both of these positions. Wolf Creek Collieries v. Director, OWCP, 298 F.3d 511, 521-22 (6th Cir.2002). Wampler fails to show that an automatic presumption was applied in this case. The ALJ cited several reasons for finding the treating physician’s opinion persuasive and well-reasoned. Wampler’s disagreement with the proposition that a physician who sees a patient on a regular basis may have more insight into the patient’s condition than a physician who only examines the patient once is not persuasive, given this court’s holding to the contrary. Tussey v. Island Creek Coal Co., 982 F.2d 1036, 1042 (6th Cir.1993).
In summary, the ALJ’s decision in this case is supported by substantial evidence and in accordance with the applicable law. Therefore, the petition for review is denied. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218063/ | ORDER
Nick Starks appeals the sentence imposed upon his conviction for armed bank robbery, in violation of 18 U.S.C. §§ 2113(a), (d), and 2. The parties have expressly waived oral argument, and, upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
On November 14, 2000, a grand jury indicted Starks on one count of armed bank robbery and one count of using and carrying a firearm during and in relation to a crime of violence. Starks escaped from pre-trial detention on December 12, 2000, and was not apprehended until September 4, 2001. On January 3, 2002, *502Starks pleaded guilty to the bank robbery charge in exchange for the dismissal of the other count. At sentencing, the district court imposed a sentence enhancement for obstruction of justice due to the escape, denied a reduction in the offense level for acceptance of responsibility, and sentenced Starks to 121 months in prison, three years of supervised release, payment of $32,600 in restitution, and a $100 special assessment.
In his timely appeal, Starks argues that the district court erred by denying him a reduction for acceptance of responsibility. Starks contends that his situation presents an extraordinary case in which a reduction is appropriate despite the imposition of an enhancement for obstruction of justice. See USSG § 3E1.1, comment, (n.4). He argues that his situation is extraordinary because he accepted responsibility after he was apprehended. Because the facts are undisputed, the district court’s determination as to whether the case is extraordinary is subject to de novo review. See United States v. Harper, 246 F.3d 520, 525 (6th Cir.), cert. denied, 534 U.S. 896, 122 S.Ct. 219, 151 L.Ed.2d 156 (2001), overruled on other grounds, United States v. Leachman, 309 F.3d 377 (6th Cir.2002).
The Sentencing Guidelines provide for a reduction in offense level if the defendant “clearly demonstrates acceptance of responsibility for his offense.” USSG § 3El.l(a). To aid the district court in its determination, the commentary lists various factors to consider, including the defendant’s “voluntary termination or withdrawal from criminal conduct or associations” and “conduct of the defendant that is inconsistent with such acceptance of responsibility.” USSG § 3E1.1, comment. (nn.l(b) and 3). Additionally, a defendant who has received a USSG § 3C1.1 enhancement for obstruction of justice should not receive a reduction for acceptance of responsibility, absent extraordinary circumstances. See USSG § 3E1.1, comment, (n.4). To qualify as an extraordinary circumstance, a defendant must do something more than merely plead guilty following his obstruction of justice. Harper, 246 F.3d at 528.
The district court properly denied the reduction as no extraordinary circumstances are present. Starks merely pleaded guilty following his apprehension. Although he might possibly have qualified for a reduction for acceptance of responsibility if he had immediately turned himself in to authorities after escaping, this scenario is not before the court. See Harper, 246 F.3d at 528. Starks did not turn himself in to authorities, but was a fugitive from justice for nearly nine months until his apprehension.
Accordingly, the district court’s judgment is affirmed. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218064/ | ORDER
George Johnson, proceeding pro se, appeals a district court judgment denying his motion to vacate his sentence filed under 28 U.S.C. § 2255. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. RApp. P. 34(a).
In 1999, a jury convicted Johnson of possession with intent to distribute approximately 792 Tylox capsules in violation of 21 U.S.C. § 841(a)(1), but acquitted him of possessing a firearm during and in relation to a drug offense in violation of 18 U.S.C. § 924(c). The district court enhanced Johnson’s offense level by two points for possession of a firearm, and sentenced him to 78 months of imprisonment. A panel of this court affirmed Johnson’s conviction and sentence on appeal. United States v. Johnson, 8 Fed. Appx. 493, 2001 WL 493395 (6th Cir.2001) (Ryan, Batchelder, and Matia).
In his timely § 2255 motion, Johnson argued that: 1) trial counsel rendered ineffective assistance because he did not challenge the two-point enhancement at sentencing; 2) appellate counsel rendered ineffective assistance because he did not challenge the two-point enhancement on appeal; and 3) his sentence is in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because his offense level was enhanced based on conduct for which he was acquitted. Upon review, the magistrate judge concluded that Johnson’s claims lacked merit, and it recommended that the district court deny the § 2255 motion. However, the magistrate judge recommended that the district court grant Johnson a certificate of appealability (COA) as to whether his sentence implicates Apprendi. Over Johnson’s objections, the district court adopted the magistrate judge’s report, and denied the § 2255 motion. The court granted Johnson a COA as to whether his sentence implicates Apprendi.
In his appellate brief, Johnson reasserts his Apprendi claim. He also appears to reassert his Sixth Amendment claim.
Upon review, we conclude that the district court properly determined that Johnson was not entitled to relief on his Apprendi claim. However, we affirm the district court’s judgment for different reasons than those relied upon by the district court, see Holloway v. Brush, 220 F.3d 767, 772 (6th Cir.2000), because this court *504has now issued a published decision that joins the majority of other circuits in holding that the Supreme Court’s holding in Apprendi is not retroactively applicable, even to cases on initial collateral review. See Goode v. United States, 305 F.3d 378, 382 (6th Cir.), cert. denied, — U.S. —, 123 S.Ct. 711, 154 L.Ed.2d 647 (2002). Consequently, Johnson’s claim is unavailing because the holding in Apprendi is simply not retroactively applicable to the post-conviction action that he filed under 28 U.S.C. § 2255.
Moreover, even if the claim were reviewable, Johnson’s challenge to the district court’s determination of his offense level lacks merit because Apprendi does not apply to sentences that are calculated under the sentencing guidelines, unless the guidelines sentence exceeds the statutory maximum. See United States v. Garcia, 252 F.3d 838, 843 (6th Cir.2001). Here, there was no cognizable violation of Apprendi because the 87-month sentence that Johnson received fell below the maximum term of twenty-years to which he was exposed under 21 U.S.C. § 841(b)(1)(C). See, e.g., United States v. Cornado, 227 F.3d 528, 542 (6th Cir.2000) (holding Apprendi is not triggered when defendants were sentenced within the prescribed maximum terms before factoring in any enhancing provisions).
Finally, to the extent that Johnson reasserts his Sixth Amendment claim, we decline to address it because he was not granted a COA as to this claim. See Searcy v. Carter, 246 F.3d 515, 518 (6th Cir.), cert. denied, 534 U.S. 905, 122 S.Ct. 237, 151 L.Ed.2d 171 (2001).
Accordingly, we affirm the district court’s judgment. Rule 34(j)(2)(C), Rules of the Sixth Circuit. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218066/ | *509
ORDER
This pro se federal prisoner appeals a district court judgment denying his motion filed under Fed.R.Civ.P. 59(e) to alter or amend a district court judgment. This case has been referred to a panel of the court pursuant to Rule 34(j)(l), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R.App. P. 34(a).
In 1982, Frank Reynolds was convicted for activities related to a marijuana distribution scheme involving tons of marijuana and millions of dollars. Reynolds arranged for individuals to transport the marijuana from Florida and elsewhere to Michigan. He was convicted of operating a continuing criminal enterprise in violation of 21 U.S.C. § 848, convicted of conspiring to obstruct the Internal Revenue Service in violation of 18 U.S.C. § 371, and convicted of three counts of tax evasion in violation of 26 U.S.C. § 7201.
The district court sentenced Reynolds to ten years of imprisonment on the § 848 conviction and five years on each remaining count to be served concurrently. This court affirmed Reynolds’s judgment of conviction and sentence. United States v. Griffith, 756 F.2d 1244 (6th Cir.1985). Reynolds, however, failed to report for service of his sentence and was not arrested until November 2, 1987, whereupon he began serving his ten-year sentence. On January 19, 1988, he pleaded guilty to failure to report for sentencing and received a four-year sentence to be served consecutively to the ten-year sentence.
On May 30, 1995, Reynolds was paroled. On January 5, 1996, he was arrested and charged with conspiracy to distribute marijuana. He pleaded guilty and was sentenced to five years of imprisonment. On May 12, 2000, Reynolds was released to supervised release from the conspiracy to distribute offense but immediately began serving a sentence for violating his parole on the 1982/1988 convictions. On December 1, 2000, Reynolds was again released on parole for the 1982/1988 convictions with a parole termination date of October 13, 2006.
In his motion to vacate sentence, Reynolds claimed that his 1982 conviction on the 21 U.S.C. § 848 offense must be vacated in light of Richardson v. United States, 526 U.S. 813, 119 S.Ct. 1707, 143 L.Ed.2d 985 (1999) and Murr v. United States, 200 F.3d 895 (6th Cir.2000). The magistrate judge recommended denying Reynolds’s motion on the ground that Reynolds was not in custody relative to the offense being attacked. The district court adopted the magistrate judge’s report and recommendation over Reynolds’s objections. Thereafter, Reynolds moved the district court pursuant to Rule 59(e) to alter or amend its judgment. The district court denied that motion, and Reynolds appeals.
The district court issued a certificate of appealability with respect to the following issues; 1) whether the district court erred in denying Reynolds’s motion for the enlargement of time; 2) whether Reynolds was in custody at the time he filed his motion to vacate; and 3) whether the district court erred in denying Reynolds’s Rule 59(e) motion to alter or amend judgment.
On appeal, the government concedes that Reynolds was “in custody” as of the date of the filing of his motion to vacate sentence, asserts that the remaining issues are moot, and suggests that the case be remanded to the district court for a hearing and decision on the merits.
In light of the government’s unqualified concession that Reynolds was “in custody” as of the date of the filing of his motion to vacate sentence, the district court’s judgment is hereby vacated pursuant to Rule *51034(j)(2)(C), Rules of the Sixth Circuit, and the case remanded for a determination on the merits of the § 2255 motion. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218068/ | OPINION
MOORE, Circuit Judge.
The plaintiff, Rita Carlton, appeals the jury verdict against her in her suit against the defendant Postmaster General. After being accepted for a position with the defendant, Carlton was required to attend a physical screening demonstrating that she could adequately perform the job. After the screening revealed some potential concerns, Carlton was required to supply more medical information, and - according to the defendants - to come in for a physical examination. Although Carlton did supply more medical information, she did not come in for a physical examination. Her initial job offer was not held open for her. Carlton sued, claiming that she was discriminated against on the basis of her physical handicap in violation of the Rehabilitation Act, 29 U.S.C. § 794(a). After losing a jury verdict, Carlton filed a motion for a judgment notwithstanding the verdict, and alternatively, for a new trial. The district court denied these motions. Based on the facts of the case, and for the reasons set forth below, we AFFIRM the district court’s judgment.
I. BACKGROUND
After having several temporary stints with the Post Office, Rita Carlton took the United States Postal exam with the hopes of getting a career position there. She passed the exam in March of 1998. After a successful interview with the Taylor, Michigan office, Carlton was advised on October 9, 1998 that she needed only a physical and a urinalysis test before beginning training.
Pursuant to the defendant’s instructions, Carlton reported to the medical unit for a physical screening. Carlton filled out a routine questionnaire. Three of her answers were flagged as being potentially problematic, including the fact that she had previously had an MRI scan, a work-related injury, and a herniated disk. The nurse, Ceofas Añasco, stopped the examination and gave Carlton a medical-assessment-hold form, which stated that Carlton needed to submit additional medical documentation within fourteen days. The form stated that Carlton would then be notified “when the medical assessment has been completed or closed due to insufficient information.” J.A. at 129.
Carlton went that same day to her doctor, Dr. Chris Shaffrey, to have him fill out that paperwork. Shaffrey believed that Carlton had no physical limitations. He promptly filled out the forms while Carlton waited, and Carlton brought them back to what was supposed to be her orientation that afternoon. Carlton was told, however, that she could not proceed with the orientation until she had a physical. Carlton went back to the medical unit with the form from Shaffrey. Carlton was told by the medical unit that Dr. Nisha Parulekar needed to look at this information and that Carlton could contact her after 7:80 p.m. Carlton called Parulekar that night.
At this point, the parties’ accounts begin to differ. According to Parulekar, Parulekar told Carlton in the phone call that Carlton needed to make an appointment for a physical on or before October 24th. Parulekar also testified that she instructed a nurse to call Carlton to remind her to come in before the 24th for a physical exam. Carlton, however, claims that when *514she asked Parulekar when the physical would take place, Parulekar implied that a physical was unnecessary because it was clear that Carlton would be unable to perform her job duties. Carlton testified that when she told Parulekar that she had worked with the Post Office in the past, Parulekar laughed and did not believe her. Despite being led to believe that a physical was unnecessary, Carlton argues that she still called Parulekar’s office several times trying to set up a time for a physical and was rebuffed.1
The parties agree that Carlton did not show up on or before the 24th. There was undisputed testimony from Carolyn Robinson, a postal personnel specialist, that the Post Office removed from the hiring register candidates who did not show up for a physical appointment. On October 26, Parulekar wrote a medical assessment determination based on the information available to her. This determination went to the Postmaster’s personnel office. It stated that Carlton was a “moderate risk” and would not be able to lift over 35 pounds. J.A. at 133. Since a distribution clerk is required to be able to lift 70 pounds, this meant that Carlton was barred from the job. On October 30, Carlton received a rejection letter from Terrence Fedea, which stated that Carlton could make a request for reconsideration of this determination within 15 days, and that she could include additional medical information with that petition.
Carlton then wrote to Fedea seeking reconsideration and supplying more information. On November 18, 1998, John Piona, another administrator, wrote to Dr. Parulekar and asked for her decision on Carlton. Carlton had two physical examinations, one with Parulekar and one with Dr. Harvey Gass. Both Gass and Parulekar eventually reported Carlton as medically fit. Carlton was then placed on the postal hiring register for future vacant positions. No positions were available at that time.
Carlton complained to an Equal Employment Opportunity (EEO) counselor around November 9, 1998, while her file was being reconsidered. On or about January 29, 1999, she received a notice of right to file a complaint. She filed a complaint, and this case proceeded to trial on October 3, 2001. The case was submitted to the jury, who found that Carlton was perceived to be disabled but that the Postal Service did not intentionally discriminate against her for that reason. On October 10, 2001, the district court granted judgment for the defendant as a result of the jury verdict. On December 12, 2001, the district court denied Carlton’s motions for judgment notwithstanding the verdict and for a new trial. Carlton appealed the denial of those motions to this court.
II. ANALYSIS
A. Standards of Review
We review de novo a motion for a judgment as a matter of law.2 Pouillon v. City of Owosso, 206 F.3d 711, 719 (6th Cir.2000). When considering such a motion, *515“[w]e do not weigh the evidence, evaluate the credibility of the witnesses, or substitute our judgment for that of the jury. Instead, we must view the evidence in the light most favorable to the party against whom the motion is made, and give that party the benefit of all reasonable inferences.” Wehr v. Ryan’s Family Steak Houses, Inc., 49 F.3d 1150, 1152 (6th Cir.1995). We will reverse the denial of the motion “only if reasonable minds could not come to a conclusion other than one in favor of the movant.” Id.
We review a district court’s decision to deny a new trial for an abuse of discretion. Argentine v. United Steelworkers of Am., 287 F.3d 476, 484 (6th Cir.2002). In considering this claim based on the weight of the evidence, we “compare the opposing proofs, weigh the evidence, and set aside the verdict only if it ... is against the clear weight of the evidence.” United States v. L.E. Cooke Co., 991 F.2d 336, 343 (6th Cir.1993).
B. The Merit of Carlton’s Claim
Carlton only raises one claim which she argues entitles her either to a judgment as a matter of law or to a new trial. Carlton’s allegation is that no reasonable juror could have come to any other conclusion than that Carlton was intentionally discriminated against by the Post Office. As we find that such a conclusion was only one of several justifiable conclusions that a reasonable jury could have reached, we affirm the district court’s judgment.
Carlton argues that, given that the jury’s finding that the Post Office perceived her as disabled, the jury incontrovertibly should have found that the Postmaster intentionally discriminated against her - because all of the evidence, according to Carlton, supports the conclusion that this perceived disability was the basis for her not being hired. Carlton points to two pieces of evidence. Carlton’s first piece of evidence is the medical assessment determination, which states that she was a moderate risk and would not be able to lift over 35 pounds. Carlton also points to the defendant’s response to an interrogatory, which states that Dr. Parulekar was the one who made the decision that Carlton was medically unsuitable for the job. These documents, Carlton argues, support her claim that the Post Office did not hire her because of her perceived disability, not because she failed to have a timely physical.
Carlton, however, ignores the fact that the defendants put on significant contrary evidence suggesting that the Post Office failed to hire Carlton because she failed to come to the physical. Parulekar testified that she told Carlton that a physical must be performed by October 24th. Parulekar also testified that she instructed a nurse to call Carlton to remind her that a physical must be performed before that date. There was also uncontroverted testimony from Carolyn Robinson that those whose do not show up for physicals have their names taken off the hiring register.
In light of this evidence, we believe that a reasonable jury could have concluded that the Post Office failed to hire Carlton because she did not appear for a physical examination within the allotted time, rather than because the Post Office perceived her as having a disability. We therefore reject Carlton’s motions for judgment as a matter of law and for a new trial. See Pouillon, 206 F.3d at 719 (“Judgment as a matter of law is appropriate only when there is a complete absence of fact to support the verdict, so that no reasonable juror could have found for the nonmoving party.”) (quotation omitted); L.E. Cooke Co., 991 F.2d at 343 (“The motion [for a new trial] should be denied if the verdict is *516one which could reasonably have been reached”).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
. Carlton also attempted to prove to Parulekar that she had worked previously at a Post Office by obtaining her official postal file from the Post Offices where she had worked. Apparently, the official file was never delivered to Carlton.
. Although the parties and the district court referred to this motion as a motion for judgment notwithstanding the verdict, under the current version of Federal Rule of Civil Procedure 50 it is now called a motion for "judgment as a matter of law.” As the Advisory Committee has pointed out, this error is "merely formal” and has no legal consequence. Fed.R.Civ.P. 50 advisory committee’s note (1991). | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218072/ | ORDER
The state defendants appeal the October 29, 2002, Order and Injunction in this prisoner civil rights action involving the Michigan prisons. On April 2, 2003, the court denied the plaintiffs’ motion to vacate and remand and granted a stay of the October 29 Order and Injunction to the extent that, effective May 1, 2002, the defendants were enjoined from placing or maintaining at-risk prisoners in an environment where the heat index is greater than 90 degrees. The district judge has now certified, pursuant to First Nat’l Bank of Salem, Ohio v. Hirsch, 535 F.2d 343 (6th Cir.1976), that if the case were remanded, he would modify the injunctive relief set forth in the October 29 Order and Injunction. The plaintiffs now move to remand to the district court.
The defendants oppose the motion to remand, arguing that their appeal challenges not only failure of the district court to comply with the Prison Litigation Reform Act (the “PLRA”) prior to granting injunctive relief, but the court’s finding of a constitutional violation with respect to heat-related illness and its assertion of jurisdiction over facilities not subject to the consent decree. However, no final judgment has been entered in this action, and the October 29 Order and Injunction is appealable only to the extent that it grants injunctive relief. See 28 U.S.C. § 1292(a)(1). Because the district court has certified that it will modify the injunctive relief, the defendants’ objections to the remand are not well-taken.
Therefore, the motion to remand is GRANTED, and this appeal is remanded to the district court to vacate the injunctive relief set forth in the October 29 Order and Injunction and conduct further proceedings in accordance with the PLRA. The April 2 stay granted by this court will remain in effect until the district court modifies its October 29 Order and Injunction to vacate the provision enjoining the defendants from placing or maintaining the at-risk prisoners in an environment where the heat index is greater than 90 degrees. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218073/ | BATCHELDER, Circuit Judge.
Marina Management Group, Inc. (“MMG”), plaintiff/appellee, appeals the district court’s order granting summary judgment to Basic Towing, Inc. and its President Daniel Kobasic (“Basic Tow*533ing”), defendants/appeUees, in this admiralty action for negligence brought by MMG. Because we conclude that the plaintiff has failed to demonstrate any negligence on behalf of Basic Towing, we will affirm the judgment of the district court.
BACKGROUND
MMG filed this action seeking damages for the loss of its sixty-one foot motorized hopper barge, the Leprechaun, which sank in Lake Michigan while being towed by Basic Towing pursuant to an agreement between the parties. The agreement called for the barge to be towed from Point Brulee, Michigan, to Grand Haven, Michigan, a trip that would take about 26 hours. On April 1, 2000, MMG’s representative Richard Barrett moved the Leprechaun to open waters to begin the tow. Daniel Kobasic, the President of Basic Towing and the master of the tug that would tow the barge, performed a visual inspection of the Leprechaun and discovered several cracks in the welding of the deck. Kobasic repaired these cracks with rags and silicone caulk. During the visual inspection, Kobasic asked Barrett about the condition of the ballast-type tanks below the deck of the barge. Barrett assured Kobasic that he had examined the tanks himself and they were dry. The watertight hatches to those tanks were then sealed. Kobasic also inquired about a slight list to the starboard side that Barrett explained was caused by the placement of a motorized power unit on that side of the barge. After the inspection, Kobasic specifically asked Barrett if he was “aware of the potential problems” and if he wanted the barge towed in its current condition. Barrett responded that he wanted Kobasic to tow the Leprechaun that evening.
Several hours into the trip, the starboard bow of the Leprechaun appeared to be riding low in the water. After pulling the tug alongside the barge, Kobasic and his crew could see that the starboard bow was awash, indicating that the barge must be taking on water. Kobasic began towing the barge stem-first in an attempt to lessen the amount of water entering the barge. As the tow became more difficult, Kobasic decided to try to tow the barge to Basic Towing’s main dock for repairs instead of completing the intended route. When Barrett was informed of the deteriorating situation, he requested that Kobasic use pumps to help keep the barge afloat, but Kobasic, citing safety concerns for his crew, refused to let anyone board the Leprechaun. As the barge rode lower and lower in the water, endangering the tug as well as the barge, Kobasic eventually decided to cut the tow line. The Leprechaun quickly sank into the 400 foot depth of Lake Michigan. It was never recovered.
MMG filed a lawsuit in admiralty alleging that Basic Towing (1) breached its duty of care and was negligent in towing the Leprechaun, causing the barge to sink in Lake Michigan; (2) breached the tow contract by failing to deliver the barge; and (3) breached the warranty of workmanlike service by failing to tow the barge in a careful, safe, prudent, and workmanlike manner. Basic Towing counterclaimed for breach of contract and filed a motion for summary judgment. The district court found that the Leprechaun was unseaworthy and that MMG had failed to provide any evidence of negligence. The court granted Basic Towing’s motion for summary judgment on all claims except the breach of contract cause of action and counterclaim, which the parties had failed to brief properly.
MMG timely filed its notice of appeal, and the parties stipulated to the dismissal of MMG’s contract claim and Basic Towing’s counterclaim pending the disposition *534of this appeal. Before us, MMG contends that the district court erred in finding that no genuine issue of material fact remained for trial with regard to negligence on the part of Basic Towing in inspecting the barge before undertaking the tow or in its towing of the barge; MMG further contends that a genuine issue of fact remains as to whether Basic Towing’s negligence contributed to the loss of the barge.
ANALYSIS
We review a district court’s grant of summary judgment de novo, using the same standard under Rule 56(c) used by the district court, Williams v. Mehra, 186 F.3d 685, 689 (6th Cir.1999) (en banc), and considering the record as it stood before the district court at the time of its ruling. Niecko v. Emro Marketing Co., 973 F.2d 1296, 1303 (6th Cir.1992). Summary judgment is proper 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 a judgment as a matter of law.” Fed. R. Crv. P. 56(c). We view the evidence, all facts, and any inferences that may be drawn from the facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). To withstand summary judgment, the non-movant must present sufficient evidence to create a genuine issue of material fact. Klepper v. First Am. Bank, 916 F.2d 337, 342 (6th Cir.1990). A mere scintilla of evidence is insufficient; “there must be evidence on which the jury could reasonably find for the [non-movant].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Entry of summary judgment is appropriate “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
“The owner of a tow is responsible for its seaworthiness, and the owner of the tug for its safe navigation.” Valentine Waterways Corp. v. Tug Choptank, 260 F.Supp. 210, 212 (E.D.Va.1966) (citing Curtis Bay Towing Co. of Virginia v. Southern Lighterage Corp., 200 F.2d 33 (4th Cir.1952)). A tug must “exercise such reasonable care and maritime skill as prudent navigators employ for the performance of similar service,” Stevens v. The White City, 285 U.S. 195, 202, 52 S.Ct. 347, 76 L.Ed. 699 (1932), and the burden is upon the tow to establish that “the loss for which he [seeks] recovery was caused by a breach of that duty.” Id. A court may presume that a vessel towed by a barge was unseaworthy when it sinks under normal conditions and there is no proof that the tow was improperly handled. King Fisher Marine Service, Inc. v. NP Sunbonnet, 724 F.2d 1181, 1184 (5th Cir.1984). A tug becomes liable for the loss of an unseaworthy tow only if the condition was so obvious and apparent that it would be unreasonable for the tug operator not to notice it. Id. To establish the negligence of Basic Towing and to overcome the presumption that the Leprechaun was unseaworthy, MMG argues that Basic Towing failed to make a reasonable inspection, failed to use reasonable care to pump water from the barge and failed to refrain from towing the barge when Kobasic should have known it was unseaworthy.
Turning first to the claim of unreasonable inspection, we understand MMG’s argument to be that Kobasic’s inspection was unreasonable because he did not personally inspect the lower ballast-type tanks *535of the barge, but instead relied upon Barrett’s claim that they were dry. The law, however, does not require a tug operator to make a detailed inspection of an apparently seaworthy barge. Nat G. Harrison Overseas Corp. v. American Tug Titan, 516 F.2d 89, 94 (5th Cir.1975). A tow owner’s assurances of a vessel’s seaworthiness in response to specific inquiries by the tug eliminate the need for a detailed and in-depth inspection. The Dow Chemical Co. v. M/V Gulf Seas, 428 F.Supp. 667, 671 (W.D.La.1977). Kobasic had a right to rely upon Barrett’s representation that the barge was dry and his reasonable explanation for the vessel’s slight starboard list, and MMG presented no evidence from which a reasonable jury could have found that Kobasic should have recognized at the time of his inspection that the barge was not as Barrett represented it to be. We agree with the district court that no genuine issue of fact remains for trial on this issue, and that MMG failed to show that Kobasic was unreasonable in relying upon Barrett’s assurances and completing only a visual inspection of the barge.
MMG’s argument that Basic Towing was unreasonable in refusing to pump water from the Leprechaun while the barge was in tow is not supported by the record. Kobasic presented unrefuted evidence that he refused to put crew members on the sinking barge to pump water while the barge was in tow because to do so would have endangered those men. Neither did MMG refute Kobasic’s testimony that he feared a loss of pressure from opening the hatches to pump, which would increase the rate at which the barge would take on water, thus increasing the danger both to the barge and to the tug crew. A captain’s concern for his crew is paramount and deference is due any decision regarding safety. See Dow Chemical, 428 F.Supp. at 672. We agree with the district court that MMG failed to present any evidence from which a reasonable jury could find Kobasic negligent in refusing to put his crew onto the Leprechaun to pump out the water.
MMG argues that it was unreasonable for Kobasic to agree to tow the barge, regardless of Barrett’s desire for the tow to take place, after Kobasic raised his specific concerns about the condition of the barge.
“[T]he tug cannot complain about a condition of unseaworthiness or other weakness that caused the loss if it knew of the condition and failed to use reasonable care under the circumstances. If the alleged unseaworthiness is so apparent that it would be negligent for the tow to attempt to proceed, it cannot disclaim responsibility for the loss.”
King Fisher, 724 F.2d at 1184 (citations omitted) (finding that the tug was liable for the sinking of a vessel when it knew of assorted cracks on the barge’s surface and loose hatches but did nothing about the defects, and these defects allowed water to enter an otherwise seaworthy vessel and caused the sinking of the ship). The issue here is whether MMG has met its burden of showing that it was “so apparent” that the Leprechaun was unseaworthy that the tug master was negligent in 'undertaking to perform the contract to tow.
The facts of the case at bar distinguish it from King Fisher. In King Fisher, the tug master knew of and did nothing about cracks on the surface of the tow, including one crack some two feet long, as well as loose barge hatches and a hole three feet in diameter covered by a plate that was not watertight. Moreover, although the tug master knew that water could enter the cracks, the hole and hatches, he towed the barge through swells high enough and speeds great enough to cause the water to cover the deck. And in King Fisher, the *536district court specifically found that the barge was seaworthy because it had just made a trip carrying a heavy load of steel without apparent difficulty; internal compartments appeared to be fit; the barge was not heeling; and the tug master had observed the barge in the water for a day and a half before undertaking the tow and saw no signs of problems. In sum, although the barge was seaworthy, the tug master was aware that water could enter the barge through cracks and holes on its surface, and he towed the barge in a manner that permitted the water to enter the barge and sink it.
Unlike the barge in King Fisher, the Leprechaun’s only obvious problems were the cracks on its deck and a slight starboard list. Barrett adequately explained the list and Kobasie repaired the cracks, and the fact that Kobasie was concerned about these things does not rise to the level of evidence showing “apparent unseaworthiness.” In any event, there is no evidence that these conditions “caused the loss.” Id. The record does not contain evidence of rough water or excessive speed that caused the water to break over the deck such that the water could have entered the barge through the caulked cracks, nor does the record contain evidence that the starboard list contributed in any way to the water’s entering the barge. In the absence of any evidence that the caulked surface cracks or the starboard list caused the Leprechaun to sink, the district court correctly concluded that the record contained no evidence from which a reasonable jury could find that the barge was so obviously unseaworthy that Kobasie was negligent in undertaking the tow.
Finally, MMG argues that a genuine issue remains for trial as to whether Basic Towing’s negligence contributed to MMG’s loss. Because we conclude that the district court correctly held that MMG failed to present evidence that Basic Towing was negligent at all, we find no merit to this contention.
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218074/ | ORDER
State Farm brought a declaratory judgment action against Joyce Henderson and the Estate of Alan Morgan, seeking a construction of the terms of a homeowner’s policy of insurance and a determination of its rights and liabilities under the policy. The district court granted State Farm’s motion for summary judgment, and the Estate appeals this decision. We affirm.
I.
State Farm Fire & Casualty Company (“State Farm”) issued a homeowner’s policy of insurance to Wilson E. (“Bill”) and Joyce F. Henderson, which was in effect from June 26, 1998 until June 26, 1999 (“Policy”). The Policy provides, inter alia, that:
If a claim is made or a suit is brought against an insured for damages because of bodily injury ... to which this coverage applies, caused by an occurrence, we will:
1. pay up to our limit of liability for the damages for which the insured is legally liable; and
2. provide a defense at our expense by counsel of our choice.
The Policy defines “occurrence” as “an accident ... which results in ... bodily injury ... during the policy period.” The Policy defines “bodily injury” as “physical injury, sickness, or disease to a person .... [and] includes ... death resulting therefrom.” The Policy excludes coverage for “bodily injury ... (1) which is either *538expected or intended by the insured; or (2) which is the result of wilful and malicious acts of the insured.... ”
On December 2, 1999, John F. Morgan and Marilyn F. Morgan, the personal representatives of the Estate of Alan Lee Morgan (“Estate”), brought an action for wrongful death against Joyce Henderson on behalf of the Estate. The lawsuit was based on the events of December 13, 1998, when Joyce Henderson shot and killed Alan Morgan, the boyfriend of her daughter. On the day she shot Alan Morgan, Joyce Henderson gave the following voluntary statement to the police: “I pointed the gun at Alan and told him to stop, stop. Alan said he was going to kill me next. I then shot Alan once.” She also stated in a telephone call to 911 that she shot “the boyfriend,” meaning Alan Morgan. During the pendency of this lawsuit, Joyce Henderson was convicted for the reckless homicide of Morgan, a class C felony. At the criminal trial, Henderson testified “I got the gun and I pointed it, and they [Bill Henderson and Alan Morgan] was [sic] together and he [Morgan] had Bill around the shoulders. I just fired it. I don’t know how I hit him [Morgan] instead of Bill.”1 At the sentencing hearing, she testified “[i]t was an awful thing that happened but as God as my witness, I had no other choice. It was either mine or Bill’s life or both of us and he [Morgan] made that really clear to us.... ”
On December 15, 2000, Joyce Henderson’s obligation to pay damages to the Estate for any liability arising from the wrongful death‘suit was discharged in bankruptcy. On April 9, 2001, State Farm filed a complaint for declaratory judgment against the Estate and Joyce Henderson, alleging that it had no duty to defend Henderson in the wrongful death suit and that it was not responsible for the payment of any applicable insurance proceeds to the Estate for the wrongful death of Alan Morgan. On October 25, 2001, the jury in the wrongful death suit awarded the Estate $2,000,000 in damages, and then reduced the award under Indiana’s Comparative Fault Act by 10% (attributing that amount of the fault to Morgan). On November 30, 2001, State Farm moved for summary judgment in this case, arguing that: (1) Alan Morgan’s death was not an “occurrence” within the meaning of the Policy issued to the Hendersons; and (2) even if Morgan’s death did constitute an “occurrence” under the Policy, the policy explicitly excluded from coverage any “expected or intended” injury caused by the insured (i.e., Joyce Henderson). On May 15, 2002, the district court granted State Farm’s motion for summary judgment, formally entering judgment the next day. The Estate appeals this decision.
II.
We review the district court’s grant of summary judgment de novo, construing all facts in favor of the nonmoving party, the Estate. White v. City of Markham, 310 F.3d 989, 997 (7th Cir.2002).
On appeal, the Estate argues that the district court erred in granting State Farm’s motion for summary judgment because there is a genuine issue of material fact as to whether or not the shooting of *539Alan Morgan constituted an “occurrence” under the Hendersons’ homeowner’s policy. Under Indiana law, which both parties agree governs this dispute, the interpretation of an insurance pohcy is a legal question for the court. Tate v. Secura Ins., 587 N.E.2d 665, 668 (Ind.1992). If a policy’s language is clear and unambiguous, it must be given its plain and ordinary meaning. Id. at 668. Furthermore, State Farm, as the party seeking a declaratory judgment, has the burden of proving, by a preponderance of the evidence, that Joyce Henderson’s actions did not constitute an “occurrence” within the meaning of its Policy. Sans v. Monticello Ins. Co., 718 N.E.2d 814, 819 (Ind.Ct.App.1999).
*538Answer: Yes.
*539Here, as previously noted, the Pohcy provided coverage for bodily injury caused by an “occurrence” (defined as “an accident”), which includes physical injury or death resulting therefrom. In the absence of a pohcy definition, an “accident” is defined under Indiana law as “an unexpected happening without intention or design,” National Mut. Ins. Co. v. Eward, 517 N.E.2d 95, 100 (Ind.Ct.App.1987), and, therefore, an intentional act cannot constitute an accident as that term is used in the standard insurance pohcy definition of “occurrence.” Fidelity & Guar. Ins. Underwriters, Inc. v. Everett I. Brown Co., L.P., 25 F.3d 484, 487-89 (7th Cir.1994) (holding that under Indiana law insurer had no duty to defend or indemnify where underlying complaint alleged intentional conduct which was not an “accident” and therefore not an “occurrence” under the pohcy’s terms); Transamerica Ins. Servs. v. Kopko, 570 N.E.2d 1283, 1284-85 (Ind.1991) (same).
In concluding that Joyce Henderson’s shooting of Morgan was not an “accident” within the meaning of the Pohcy, the district court rehed heavily on the decision of Allstate Ins. Co. v. Norris, 795 F.Supp. 272 (S.D.Ind.1992), finding it “particularly instructive.” At issue in Norris was whether an insurer was hable under a homeowner’s pohcy for damages sustained by a bystander shot by the insured as the insured attempted to “pin down” an assailant until the pohce arrived. Id. at 273. As in this case, the homeowner’s pohcy provided that the insurer would pay damages arising from an “accident,” but did not define the term. Id. at 274-75. In evaluating whether the insurer was hable under the pohcy, the Norris Court, relying on this court’s decision in Red Ball Leasing v. Hartford Accident & Indem. Co., 915 F.2d 306 (7th Cir.1990), noted the distinction “between an event that is unexpected or unintended (which is an accident), and an event or act that is intended, but causes unexpected consequences (which is not),” id. at 275, and that under this distinction “a volitional act-which is always intended-does not constitute an accident, even where the results may be unexpected or unforeseen.” Id. The Norris Court then held that the plaintiff’s injuries did not result from an “accident,” and thus were not covered by the pohcy, explaining “it is undisputed that [the insured] meant to fire his gun, and that he meant to fire it in the direction of the house where [the bystander] was standing. [The insured’s] actions therefore were vohtional, and clearly not accidental, whether or not their consequences were unforeseen.” Id.
Although Norris is not controlling authority, it is entirely consistent with the Indiana courts’ definition of “accident” as “an unexpected happening without intention or design,” Erie Ins. Co. v. American Painting Co., 678 N.E.2d 844, 846 (Ind.App.Ct.1997); Eward, 517 N.E.2d at 100, and is also in line with this circuit’s holding in Red Ball Leasing, 915 F.2d at 311, where we noted that under Indiana law:
*540A volitional act does not become an accident simply because the insured’s negligence prompted the act. Injury that is caused directly by negligence must be distinguished from injury that is caused by a deliberate and contemplated act initiated at least in part by the actor’s negligence at some earlier point. The former injury may be an accident. However, the latter injury, because it is intended and the negligence is attenuated from the volitional act, is not an accident.
Id. (internal citations omitted); see also 9 Couch on Insurance § 126:27 at 126-53 (3d ed.1997) (noting that “the more sound view may be to place the focus on the insured, rather than the victim of the misfortune. In accordance with this view, where the harm is the natural result of the voluntary and intentional acts of the insured, it is not ‘caused by accident,’ even though the result may have been unexpected, unforeseen, and unintended”).
In this case, the record clearly demonstrates that Joyce Henderson intended to point the weapon at Alan Morgan, intended to pull the trigger, and did in fact pull the trigger of the weapon that killed him-1. e., her voluntary statement to police, the 911 phone call, and her testimony at the criminal trial and sentencing hearing.2 Her volitional acts of aiming the gun at Morgan and pulling the trigger were not accidents, and therefore are not covered under the Policy. That she may not have intended to kill Morgan, as the Estate argues on appeal, is irrelevant. Red Ball Leasing, 915 F.2d at 311; Norris, 795 F.Supp. at 275. Given the foregoing, Joyce Henderson’s shooting of Alan Morgan cannot be considered an “occurrence” within the plain meaning of the Policy.3 Because the shooting was not a covered event under the Policy, and there are no genuine issues of material in fact remaining, the district court was correct in granting State Farm’s motion for summary judgment.4
III.
For the reasons noted herein, we AFFIRM the district court’s decision.
. Joyce Henderson also testified at her criminal trial, referring to her grand jury testimony, as follows:
Question: Question, "Okay, is that when you pointed the gun at him [Morgan] and begged him to stop?," answer, "I did both times.... And it did that, and I did that too.” Question, "All right, and then he turned toward you, which is when you shot [him]?,” answer, "Yes,” correct?
. Moreover, even if the Estate could demonstrate a genuine issue of material fact as to whether these actions were accidental, the Estate forfeited the right to do so by admitting, pursuant to Fed.R.Civ.P. 36(b), that Joyce Henderson deliberately, consciously, intentionally, willfully, and knowingly pulled the trigger of the weapon that projected the bullet that struck and killed Alan Morgan.
. Because we conclude that Joyce Henderson’s shooting of Alan Morgan is not an "occurrence” within the meaning of the Policy, it unnecessary to address the alternative basis for the district court's holding: that even if the shooting constituted an "occurrence” within the meaning of the policy, the intended or expected injury exclusion would preclude coverage under the Policy.
. The Estate also argues that the defense of equitable estoppel and laches raise genuine issues of material fact in this case. However, we agree with the district court that this argument is a nonstarter because "[t]he Estate has not offered any evidence to show it can prove the elements of these defenses.” | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218075/ | ORDER
A federal bankruptcy court sanctioned Paula Johnson for violating an automatic bankruptcy stay, see 11 U.S.C. § 362, after she continued collection efforts in state court against debtors Vinton and Marretha Harris. The district court affirmed the bankruptcy court’s order. Johnson appeals, but we dismiss her appeal for failure to comply with Federal Rule of Appellate Procedure 28(a)(9).
In December 2000 Johnson obtained a judgment in state court for $7,784 against Vinton Harris and a sole proprietorship he owned, East Gate Hauling Co., for a defaulted loan. To collect on that judgment, Johnson later filed in state court a “Citation to Discover Assets” against Harris, Marretha (his wife), and East Gate. In January 2001 the Harrises filed a petition for bankruptcy in federal bankruptcy court, and the state court stayed Johnson’s case pending further bankruptcy proceedings. Johnson then filed a motion in state court opposing the order to stay. Counsel for the Harrises notified Johnson by mail that she may be violating the automatic stay imposed in bankruptcy court, 11 U.S.C. § 362(a), and warned her that she could be sanctioned by that court, § 362(h). Johnson continued collection efforts, seeking a number of continuances for a hearing on her motion and requesting that Vinton and the Harrises’ counsel be brought before the state court for charges of contempt.
The Harrises countered by filing a motion in bankruptcy court for contempt and sanctions against Johnson. Following a hearing, the bankruptcy judge found that Johnson was willfully continuing to pursue collection efforts in violation of 11 U.S.C. *542§ 862. Accordingly, the judge found her hable for $166.25 in lost wages (for Vinton) and $913.45 in costs and attorney’s fees. The court also awarded $3,000 in punitive damages. Johnson sought review of the bankruptcy judge’s order in federal district court. The district court affirmed the order, concluding that her brief failed to comply with Federal Rule of Appellate Procedure 28(a)(9) because it merely repeated allegations, discussed issues unrelated to the bankruptcy court’s order, and did not contain developed arguments, relevant legal citations, or citations to the record. The court also noted that it had reviewed the record, including a transcript of the hearing, and found no legal or factual errors.
Johnson now appeals that decision to us, but she does not discuss the district court’s judgment at all. Instead, she has submitted virtually the same brief as the one she submitted to the district court; her argument section again merely repeats allegations and fails to contain any developed arguments, relevant legal citations, or citations to the record. Her brief, therefore, fails to comply with Federal Rule of Appellate Procedure 28(a)(9). Anderson v. Hardman, 241 F.3d 544 (7th Cir.2001).
Accordingly, Johnson’s appeal is DISMISSED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218076/ | ORDER
Plaintiff-Appellant Deborah Radke (“Radke”) sued her former employer, Defendant-Appellee Taco Bell Corporation (“Taco Bell”), alleging that Taco Bell terminated her employment in retaliation for her filing a workers’ compensation claim. The district court disagreed, and granted Taco Bell’s motion for summary judgment. Radke appeals. We affirm.
I. FACTUAL BACKGROUND
In March 1995, while employed as a general manager of a Taco Bell restaurant in Montgomery, Illinois, Radke reported to her supervisor that she had slipped off a stool at work and suffered an injury to her right foot. Shortly thereafter, Radke’s supervisor communicated her claim to Taco Bell’s workers’ compensation carrier, Aetna Insurance (“Aetna”).
Aetna sent Radke to a number of doctors, who attempted to treat her in a variety of ways after being diagnosed as suffering from “plantar fasciitis”1 in her right foot, but none of these treatments proved successful and eventually her condition developed into chronic plantar fasciitis in her left foot resulting from overcompensating from the pain in her right foot. From March 1995 through February 1996, Radke continued to work the required number of hours of Taco Bell General Managers— ie., ten hours per day, five days per week. Because of the medical restrictions imposed on her by her doctors, however, she was not able to be on her feet as much as had been required of her prior to her injury. For instance, in June 1995, Radke’s doctors restricted her to “a sitting job or minimum walking.” Additionally, in November 1995, Radke was restricted to walking only four to six hours per day.
Taco Bell accommodated Radke’s work restrictions. Taco Bell also granted her request in February 1996 to be relieved of some of her duties—ie., serving as general manager for a second Taco Bell restaurant. In July 1996, she took another three-week medical leave. Upon her return, she was unable to work without suffering severe pain in that her feet hurt when she was forced to stand. On August 6,1996, Taco Bell placed Radke on medical leave. On February 5,1997, Radke’s leave was converted into long-term disability leave. While on leave, Radke continued to receive medical life insurance and stock benefits from Taco Bell.
On March 11, 1999, Radke’s workers’ compensation claim went to a hearing before the Illinois Industrial Commission (“IIC”). During the hearing, Radke testified that she was unable to pursue her regular occupation as a general manager because of her medical problems. On the contrary, the evidence and testimony at the hearing demonstrated that Radke was restricted from working more than four hours per day, and that she was unable to *544perform her duties as a general manager at Taco Bell without violating her medical restrictions. Radke further testified that she had sought and was presently working at a car dealership where she was allowed to remain seated while working.
The IIC made several findings in Radke’s favor: (1) Radke’s fasciitis in both feet was casually related to her work-related injury in March 1995; (2) Taco Bell had effectively terminated Radke on August 6, 1996 because they decided they were no longer able to reasonably accommodate her work-related medical restrictions; (3) Radke deserved $466.03 per week during her three-week period of temporary but total disability in September 1995; and (4) Radke was statutorily entitled to $226.03 per week for the duration of her disability, that amount being the differential between her wages at the car dealership and the higher wages she had been earning at Taco Bell.
After the hearing, Aetna informed Taco Bell that it was terminating Radke’s long-term disability benefits effective March 1, 1999, as Radke had secured full-time employment elsewhere. In May 1999, four years after Radke had initially suffered the injury, Taco Bell sent Radke a letter informing her that as she had abandoned her position by failing to return to work, it was formally terminating her employment effective March 1, 1999. Six months later, in November 1999, Taco Bell and Radke entered into a settlement in which she received a lump sum payment of $103,000 and released all claims for lost past and future wages.
On March 23, 2001, Radke filed a complaint in the Circuit Court of DuPage County, Illinois alleging retaliatory discharge. Taco Bell filed a notice of removal to federal district court based on diversity of citizenship and the amount in controversy. On March 21, 2002, the district judge granted Taco Bell’s motion for summary judgment, concluding that Radke had failed to raise an issue of fact concerning the connection between her act of filing for workers’ compensation and her termination, and furthermore that she had failed to offer any admissible evidence that Taco Bell’s proffered reasons for her termination were merely pretextual, as the court found determinative the admissions Radke made during her sworn testimony at the hearing before the Illinois Industrial Commission {e.g., that she had sought and was presently working at a car dealership).
Radke timely filed this appeal, and this Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1291 and 1294.
II. DISCUSSION
A. Standard of Review
A summary judgment motion should be granted only if there is “no genuine issue as to any material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We review a grant of summary judgment de novo, viewing all the facts and drawing all reasonable inferences therefrom in favor of the nonmoving party. See Butera v. Cottey, 285 F.3d 601, 605 (7th Cir.2002). Furthermore, as neither party has raised a conflict of laws issue, the governing law is that of the forum state, Illinois. See Wood v. Mid-Valley, Inc., 942 F.2d 425, 426 (7th Cir.1991).
B. The Retaliatory Discharge Claim
The Illinois Workers’ Compensation Act makes it unlawful for an employer to retaliate against employees for exercising their rights granted under the Act. See 820 Ill. *545Comp. Stat. 305/4(h). In addition, Illinois law recognizes an independent cause of action for retaliatory discharge if an employee can establish that he or she was terminated as a result of filing a workers’ compensation claim. See Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 357 (1978). In order to recover under a theory of retaliatory discharge, a plaintiff must prove: “(1) that [she] was an employee before the injury; (2) that [she] exercised a right granted by [the Illinois] Workers’ Compensation Act; and (3) that [she] was discharged and that the discharge was causally related to [her] filing a claim under the Act.” Borcky v. Maytag Corp., 248 F.3d 691, 695-96 (7th Cir.2001)(quotations omitted).
After reviewing the record, we agree with the district court that Radke failed to offer sufficient evidence establishing a link between her filing of the worker’s compensation claim and her termination. The undisputed evidence demonstrates the fact that four years elapsed between the filing of Radke’s workers’ compensation claim and her termination. The timing of these two events, in our opinion, is too tenuous to create a reasonable inference of a causal connection. See Sweeney v. West, 149 F.3d 550, 557 (7th Cir.1998)(holding that in order to establish a causal connection via temporal proximity, the employer’s adverse action must follow “fairly soon” after the employee’s protected conduct). Having failed to present sufficient evidence in the record to create a genuine issue of material fact regarding the causal connection between her termination and her workers’ compensation claim, we conclude that no reasonable jury could find that but for Radke’s workers’ compensation claim, Taco Bell would not have terminated Radke’s employment.
Even though Radke failed to establish a prima facie case of retaliation under Illinois law, we could also affirm the district court’s grant of summary judgment on the grounds that Taco Bell offered a valid, non-pretextual reason for her discharge— that Radke admitted that she had secured other employment. At the IIC hearing on March 11, 1999, Radke admitted that she had begun working at a car dealership in Aurora, Illinois in July 1998. Her new job, she testified, did not require her to be on her feet as much as she had to at Taco Bell. The record supports the conclusion that it was this revelation, and not the workers’ compensation filing, that led to her dismissal. In addition, we note that in November 1999 Radke entered into a settlement with Taco Bell in which she released all claims for lost wages and received a lump sum payment of $103,000.
III. CONCLUSION
We hold that the district court’s decision to grant the defendant’s motion for summary judgment was proper.
AFFIRMED.
. "Plantar fasciitis” is an inflammation of the connective tissue running along the bottom of the foot. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218078/ | ORDER
Inmate George Fiorentino sued various employees of the Federal Correctional Institution in Pekin, Illinois, pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that his confinement in segregation based on a later-expunged disciplinary conviction violated his due process rights. The district court dismissed the suit under the screening mechanism of 28 U.S.C. § 1915A for failure to state a claim, and we affirm.
On November 10, 2000, one of Fiorentino’s fellow inmates, Logan Edwards, told prison officials that he had been injured in a fight with Fiorentino over the use of a table in the prison recreation center. Fiorentino denied fighting with Edwards, though he acknowledged being in the recreation center playing pinochle at the time of the alleged altercation. Prison officials placed Fiorentino in segregation pending an investigation, which revealed that Edwards sustained injuries that were consistent with fighting but that Fiorentino had no injuries or marks on his body. Fiorentino was charged with fighting, as detailed in an incident report dated December 1, 2000. Eleven days later a prison Displinary Hearing Officer (DHO) held a hearing at which Edwards recanted his previous accusation, and several witnesses called by Fiorentino testified that they did not observe a fight in the recreation center on November 10. Nonetheless, based on Edwards’ initial statement and the incident report, the DHO found Fiorentino guilty and revoked 14 days of his good time, denied him commissary privileges for 90 days, and sentenced him to 30 days in disciplinary segregation.
Fiorentino appealed the DHO’s decision to the Bureau of Prison’s regional director, arguing that the disciplinary proceeding was untimely, that he was denied access to exculpatory evidence, that the DHO failed to provide an adequate explanation for the decision, that the DHO was biased, and that the decision lacked evidentiary support. The regional director stated, without elaboration, that there was a “procedural error” in the proceeding and ordered a rehearing. Upon rehearing six months later, the DHO found insufficient evidence to support a guilty finding, expunged the conviction from Fiorentino’s record, and restored his good time credits before they had any effect on the length of his sentence. By this time, however, Fiorentino had spent approximately 60 days in segre*552gated confinement-30 days pending his initial hearing plus the 30-day punishment.
After the BOP denied his requests for compensation, Fiorentino filed this Bivens suit seeking damages for his wrongful confinement in segregation. Specifically, he alleges that he was confined to a cell nearly 24 hours a day and was deprived of various rights and privileges enjoyed by the general prison population such as smoking, watching TV, listening to the radio, using the telephone, accessing the law library, and participating in recreational and religious programs. The district-court, relying on the Supreme Court’s well-established holding in Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), dismissed Fiorentino’s due process claim because his segregated confinement did not constitute an atypical, significant deprivation that would create a liberty interest protected by due process. In addition, the court concluded, the factual allegations detailed in Fiorentino’s complaint demonstrated that he received the minimum requirements of due process. We review the district court’s dismissal de novo, taking all well-pleaded allegations of the complaint as true and viewing them in a light most favorable to Fiorentino. Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir.2000).
Fiorentino first argues that the district court erred in dismissing his suit because the “unauthorized denial of due process is an atypical and significant deprivation” in its own right; the deprivations he alleged stemming from his segregated confinement were merely “secondary.” To this end, Fiorentino contends that he was deprived of a liberty interest created by 28 C.F.R. § 541.12, which states that “as a human being [he] will be treated respectfully, impartially and fairly by all [Bureau of Prisons] personnel.” But Sandin holds that prison disciplinary actions require due process safeguards only when the punishment imposed affects the duration of the prisoner’s sentence or inflicts an “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 484, 115 S.Ct. 2293. Like Fiorentino, the prisoner in Sandin had already served his 30-day sentence in disciplinary segregation before his disciplinary conviction was overturned, and during that period, was denied out-of-cell activities and other privileges enjoyed by the general prison population. Id. at 486, 115 S.Ct. 2293. The Court held such restrictions, although punitive, fell “within the range of confinement to be normally expected” as part of a prison sentence. Id. at 487, 115 S.Ct. 2293. Accordingly, we have repeatedly held that disciplinary segregation does not create an “atypical and significant hardship” triggering due process protections. See Thomas v. Ramos, 130 F.3d 754, 760-62 (7th Cir.1997); Wagner v. Hanks, 128 F.3d 1173, 1176 (7th Cir.1997). The prison therefore did not have to use any particular process to put Fiorentino in segregation notwithstanding any federal regulation to the contrary, and his due process claim is untenable.
Fiorentino next argues that the district court erred by failing to recognize his complaint as raising a potential claim that the defendants violated his right to freely exercise his religion under the First Amendment. He asserts in his brief that while in segregation he was not allowed to practice his Native American religion by participating in weekly sweat lodge and peace pipe ceremonies. Prisoners do retain a right to the free exercise of religion under the First Amendment, and restrictions on that right must be based on legitimate penological interests. O’Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987); Tarpley v. Allen County, 312 F.3d 895, 898 (7th *553Cir.2002). And, Sandin would not preclude such a claim. 515 U.S. at 487 n. 11, 115 S.Ct. 2293 (“Prisoners ... retain other protection from arbitrary state action even within the expected conditions of confinement. They may invoke the First and Eighth Amendments and the Equal Protection Clause of the Fourteenth Amendment.”). But we cannot fault the district court for not reading Fiorentino’s complaint as stating an independent claim under the First Amendment. In his 30-page complaint Fiorentino mentions religion only twice, and then only generally in a list of items that he claimed he was deprived while unjustly confined in segregation. Indeed, Fiorentino concedes that he never intended to allege a First Amendment violation. The district court therefore treated Fiorentino’s general allegation that he was not allowed to exercise his religion as Fiorentino did-as another alleged deprivation resulting from the denial of due process. As such, the district court correctly concluded that such a temporary denial of access to communal religious programs is neither an atypical nor significant deprivation warranting due process protection. See Phillips v. Norris, 320 F.3d 844, 847 (8th Cir.2003); Arce v. Walker, 139 F.3d 329, 336-37 (2d Cir.1998).
Lastly, Fiorentino contends that the district court erred in dismissing his case sua sponte after permitting him to proceed in forma pauperis. This contention also is unavailing. District courts are to employ § 1915A’s screening mechanism to “all suits by prisoners, whether or not they seek to proceed in forma pauperis. ” Gladney v. Pendleton Corr. Facility, 302 F.3d 773, 775 (7th Cir.2002). Section 1915A(b)(l) required the district court to dismiss Fiorentino’s case if it determined that he had failed to state a claim or that his claims were frivolous, even if he had already partially paid the filing fee. See id.; Rowe v. Shake, 196 F.3d 778, 781 (7th Cir.1999). Having made that determination, the district court was right to dismiss Fiorentino’s suit under § 1915A. We note, however, that the district court’s judgment states that the dismissal was “without prejudice,” whereas, a dismissal for failure to state a claim under § 1915A should be made with prejudice. Gladney, 302 F.3d at 775. Accordingly, the judgment is modified to reflect dismissal with prejudice, and as modified the judgment is affirmed. Because Fiorentino’s due process claim is squarely barred by Sandin, the district court correctly determined that under the PLRA Fiorentino earned a “strike” for bringing the action. See 28 U.S.C. § 1915(g). He earns a second strike for taking this appeal.
MODIFIED and AFFIRMED | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218079/ | ORDER
A disciplinary board found Indiana inmate Kenneth Morrow guilty of participating in a riot in his prison dormitory, and revoked 180 days of his good-time credits and reduced his credit-earning class. After his administrative appeals were unsuccessful, Morrow petitioned under 28 U.S.C. § 2254 to overturn the board’s decision. Because he suffered a loss of good-time credits, his petition was properly brought under § 2254, see Montgomery v. Anderson, 262 F.3d 641, 643 (7th Cir.2001), and the hearing before the board had to comply with due process standards, see Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985); Wolff v. *555McDonnell, 418 U.S. 539, 558, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Morrow was charged with engaging in the riot based on an investigation by Officer Madison. Lieutenant Lightburn, who was in charge of diffusing the riot, told Madison that when he gained entry to the dorm he announced over a bullhorn that “any offender not wanting to participate in the demonstration should come forward with their hands above their head, and he would secure their exit from the unit.” But according to Lightburn no inmate-including Morrow-came forward. Morrow was provided with Officer Madison’s field report, a conduct report setting forth the charge, and written notice of an upcoming disciplinary hearing. Morrow pleaded not guilty, requested a lay advocate to assist him, and, he says, requested several witnesses. Around the date set for hearing, Morrow was transferred to another prison and his hearing was postponed. The disciplinary board at his new prison held the hearing the following month, and Morrow appeared with his lay advocate. Morrow denied participating in the riot, asserting that Lieutenant Lightburn told everyone who was not involved not to come forward, but to lay down with their hands behind their head, which he did. He presented no evidence aside from his own testimony. The disciplinary board found him guilty and revoked 180 days of his good-time credits and demoted him from credit-earning class I to credit-earning class II.
In his petition Morrow alleged only that the disciplinary board violated state regulations and his due process rights by failing to hold a separate hearing to determine his punishment after it determined his guilt. The district court denied the petition, concluding that the rudimentary safeguards of due process required by Wolff and its progeny do not mandate two hearings-one to determine guilt and another to determine punishment. Rather, due process requires only that the prisoner receive advance written notice of the charges, see Wolff, 418 U.S. at 564, 94 S.Ct. 2963, an opportunity to present testimony and documentary evidence to an impartial decision-maker, id. at 566, 570-71, 94 S.Ct. 2963, and a written explanation for the discipline, id. at 564, 94 S.Ct. 2963, that is supported by “some evidence” in the record, see Hill, 472 U.S. at 454-55, 105 S.Ct. 2768; Webb v. Anderson, 224 F.3d 649, 652 (7th Cir.2000). So long as those safeguards are met, the court concluded, violations of prison policy such as those alleged by Morrow were matters of state law beyond the scope of habeas corpus. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).
As a preliminary matter, Indiana contends that we may not entertain Morrow’s appeal because 28 U.S.C. § 2253 required that a certificate of appealability be issued before the appeal could be taken. To this end, Indiana urges us to reconsider our decision in Walker v. O’Brien, 216 F.3d 626 (7th Cir.2000), which holds that a certificate of appealability is not necessary in prison disciplinary cases. Indiana raises no new or compelling arguments for overturning Walker. Indeed, in Moffat v. Broyles, 288 F.3d 978, 980 (7th Cir.2002), we acknowledged that several other circuits have rejected Walker’s holding. We thus decline Indiana’s invitation to rethink our position here.
Still, though Morrow did not need a certificate of appealability, he does need to make an argument relating to the district court’s denial of the single claim alleged in his petition-namely, that the disciplinary board violated his due process rights by failing to hold a separate hearing to determine his punishment. But rather than doing so Morrow instead asserts that the district court “failed to note fundamental errors apparent on the face of the *556record,” and goes on to raise several arguments that were never presented in his petition. He now argues that his disciplinary proceeding was flawed because the board denied him the opportunity to present witnesses, was comprised of biased members, and found him guilty without evidence that he actually participated in the riot. But by failing to raise those arguments in his petition, Morrow waived them. See Rodriguez v. United States, 286 F.3d 972, 978 (7th Cir.2002); Rittenhouse v. Battles, 263 F.3d 689, 694-95 (7th Cir.2001). And, as the state points out, Morrow did not argue in his administrative appeals that his requests for witnesses were refused and, thus, procedurally defaulted the argument. See Moffat, 288 F.3d at 982.
The judgment of the district court is AFFIRMED. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218080/ | *557ORDER
In October 2000 a female prison guard filed a conduct report alleging that Indiana inmate James H. Higgason, Jr., while naked, had been jumping around his cell and making gestures and comments of a sexual nature to her. A prison disciplinary board thereafter found Mr. Higgason guilty of making sexual proposals, gestures, or threats against a staff member and consequently revoked 180 days of his good-time credit. After exhausting his administrative appeals, Mr. Higgason filed with the district court a petition challenging the sanction under 28 U.S.C. § 2254.** The court denied the petition, and we affirm.
Mr. Higgason argues that the conduct report does not support the charge of making sexual proposals, gestures, or threats. He contends rather that the conduct report, at most, supports a charge of indecent exposure. Indiana prisoners have a liberty interest in good-time credits and are therefore entitled to due process before the state revokes those credits. Webb v. Anderson, 224 F.3d 649, 651-52 (7th Cir.2000). Due process entails: (1) advance written notice of the charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present evidence; (3) a written statement by the fact finder of the evidence relied upon and the reasons for the decision; and (4) “some evidence” to support the decision. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 454-55, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985). The “some evidence” standard is lenient, requiring no more than “a modicum of evidence,” and is met if there is any evidence in the record that could support the board’s decision. Id. at 455-56, 105 S.Ct. 2768. Here, Mr. Higgason does not identify any procedural shortcomings in the disciplinary proceedings. Rather, he asserts that the evidence did not support the severity of the charge of which he was found guilty. But our review of the conduct report, which alone can provide “some evidence” for a disciplinary sanction, see McPherson v. McBride, 188 F.3d 784, 786 (7th Cir.1999), reflects that Mr. Higgason made sexual proposals, threats, or gestures to the female staff member. The conduct report is therefore sufficient to support the board’s decision.
Mr. Higgason also renews on appeal many of the arguments that he has raised repeatedly in his other § 2254 cases before this court: federal courts lacking jurisdiction over Indiana prisoners’ habeas corpus petitions, disciplinary board members lacking authority to sanction prisoners because they are not judges, and disciplinary boards violating due process by revoking the maximum allowable amount of good-time credit for every prison rule infraction to keep Indiana prisons full. Most recently, we issued our decision in another one of his cases, Higgason v. Hanks, 54 Fed.Appx. 448 (7th Cir.2002), rejecting all of these arguments as frivolous and repetitive. Therefore, Mr. Higgason is now directed to show cause why he should not be fined or otherwise sanc*558tioned for filing a pattern of frivolous appeals. See Fed. R.App. P. 38; Alexander v. United States, 121 F.3d 312, 315-16 (7th Cir.1997). He has 21 days to file a response.
AFFIRMED; ORDER TO SHOW CAUSE ISSUED.
The state asserts that we have already affirmed the denial of Mr. Higgason’s § 2254 petition challenging the disciplinary sanction for this specific conduct violation. But our order in Higgason v. Hanks, 42 Fed.Appx. 876 (7th Cir.2002), considered a different incident, as evidenced by its reference to a different district court case number than the one at issue here. Although seemingly inconsistent with its claim of collateral estoppel, the state also admits-as Mr. Higgason points out-that it has "mixed up” different conduct violations committed by Mr. Higgason in responding to the numerous § 2254 petitions that he has filed. Appellant’s Br. at 2-3. Here, we address the conduct violation that Mr. Higgason specifically referenced in the § 2254 petition at issue in this appeal. | 01-04-2023 | 07-25-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/7218081/ | ORDER
A dispute over a missing book escalated into a bloody fight between two inmates at an Indiana prison. One of the inmates, Paul Eugene Miller, was injured during the fight and subsequently sued prison officials under 42 U.S.C. § 1983 for failing to protect him from other prisoners, particularly those in the notorious Gangster Disciples gang. The district court granted summary judgment for the prison officials, and Mr. Miller appeals. We affirm because Mr. Miller failed to show that the officials were deliberately indifferent to his safety.
The facts relating to Mr. Miller’s claims are drawn from the materials that the parties presented at the summary judgment stage. On May 13, 1997, while serving time at the Westville Correctional Center (WCC) in northern Indiana, Mr. Miller informed prison staff that he had been threatened by several Gangster Disciples (whom he identified by name) and requested housing in the protective custody dormitory. The record does not reflect why the gang members threatened Mr. Miller. His case manager at WCC, Ms. Susan Tappan, transferred him to protective custody that same day. In the same request, Mr. Miller also asked to be housed in a single cell (protective custody was comprised of an open dorm area with no cells), but Ms. Tappan informed him that WCC did not have any.
On September 21 or 22, prisoner J. Grandberry, an alleged member of the Gangster Disciples but not one of those that Mr. Miller had named in his earlier request, was transferred into the same protective custody dorm. Other prisoners quickly alerted Mr. Miller that Grandberry had been inquiring as to his whereabouts. Once again, the record does not reflect why Grandberry was looking for Mr. Miller, but Mr. Miller speculates that Grand-berry intended to carry out a “hit” on him, ordered by either the Gangster Disciples or prison staff.
Upon returning to the dorm on September 23, Mr. Miller discovered that one of his books was missing. Another prisoner told Mr. Miller that he had earlier seen Grandberry carrying something away from Mr. Miller’s bed. Mr. Miller then confronted Grandberry and asked him whether he had taken the book. Mr. Miller, testifying at his deposition, stated that he did not first tell a staff member about the missing book because he did not expect a fight. But an argument between the two ensued, and Grandberry punched Mr. Miller in the face several times. Another prisoner intervened and started fighting with Grandberry, drawing several other prisoners into the fray. Mr. Miller stated that “as far as I’m concerned, it’s done and over with” and started walking away from the fight. See Appellants’ App. at 18. But *560Grandberry came up behind him and hit him over the head with a padlock. During the fight, there was no prison guard monitoring the floor because Officer Thomas Ludwig, the guard assigned to the protective custody dorm that day, had left the dorm shortly before the fight without securing a relief officer. After Mr. Miller was later treated for his injury, he learned that the blow had ruptured his eardrum.
For reasons that the record does not make clear, Ms. Tappan transferred Mr. Miller three weeks later from protective custody to another dorm. Within 30 minutes of Mr. Miller’s arrival in this new dorm, unidentified gang members surrounded him. Prison staff immediately transferred him back to protective custody. But Ms. Tappan, concluding that there was not enough substantiating documentation to keep him in protective custody, transferred him sometime after that back into the general population, and eventually to another prison. Mr. Miller filed with Daniel McBride, superintendent of WCC, two grievances about the transfers out of protective custody and his injuries from the fight, but Superintendent McBride denied both grievances.
Mr. Miller thereafter filed in district court this § 1983 suit alleging that McBride, Tappan, and Ludwig failed to heed his requests for protective custody and failed to protect him from other prisoners, ultimately resulting in his being injured during the fight with Grandberry. Mr. Miller further alleged that the defendants, in retaliation for his filing several lawsuits, intentionally placed Grandberry in the same dorm, knowing that Grandberry would likely attack him. The district court granted summary judgment for the defendants, concluding that Mr. Miller failed to establish that the defendants exhibited deliberate indifference to his safety. We review the district court’s decision to grant summary judgment de novo. Boyce v. Moore, 314 F.3d 884, 888 (7th Cir.2002).
The central question in this case is whether the fight and Mr. Miller’s various housing placements are enough to raise a triable issue on whether any of the defendants exhibited deliberate indifference to Mr. Miller’s safety, amounting to cruel and unusual punishment under the Eighth Amendment. Prison officials have a duty to protect prisoners from other prisoners, but this does not mean that the Eighth Amendment is implicated every time a prisoner harms another. Farmer v. Brennan, 511 U.S. 825, 833-34, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Rather, to survive summary judgment, Mr. Miller must show that he was incarcerated under conditions posing a “substantial risk of serious harm” and that the defendants acted with deliberate indifference to that danger. Id. at 834, 114 S.Ct. 1970. It is the latter question of deliberate indifference that is ' at issue here, because we can assume that Mr. Miller’s injury, or the risk of being attacked by a Gangster Disciple in a similar fashion, was sufficiently serious.
A prison official may be found deliberately indifferent only if he “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference.” Id. at 837, 114 S.Ct. 1970. Ordinary, or even gross, negligence is not enough to establish liability. Washington v. LaPorte County Sheriff’s Dep’t, 306 F.3d 515, 518 (7th Cir.2002). And officials who actually know of a substantial risk to inmate safety are free from liability if they respond reasonably to the risk, even if the harm ultimately is not averted. Peate v. McCann, 294 F.3d 879, 882 (7th Cir.2002). Furthermore, a supervisor cannot be held *561liable unless he was personally involved in the wrongful conduct, either by participating in or causing the alleged constitutional violation. Boyce, 314 F.3d at 888.
We begin our analysis with Mr. Miller’s various placements in prison housing. When he requested protective custody because of threats from named Gangster Disciples, Ms. Tappan responded reasonably by immediately transferring him to protective custody. Although Mr. Miller may have wished to be transferred to a facility with single cells or to have remained in protective custody later after his fight with Grandberry, courts afford prison administrators-in this case Ms. Tappan and Superintendent McBride-great discretion in deciding where to place prisoners. See King v. Fairman, 997 F.2d 259, 262 (7th Cir.1993).
As for the fight with Grandberry, there is no evidence that any of the defendants knew that Grandberry posed a threat to Mr. Miller. Mr. Miller did not alert any staff members to the potential danger upon learning that Grandberry had asked about him nor did he inform staff that he intended to confront Grandberry about the missing book. See Washington, 306 F.3d at 518 (officials cannot have actual knowledge of risk unless prisoner reports trouble); cf. Case v. Ahitow, 301 F.3d 605, 607 (7th Cir.2002) (summary judgment precluded where plaintiff notified prison staff about threats from another prisoner). Although Mr. Miller had reported threats from other Gangster Disciples (and assuming that prison staff even knew that Grandberry was affiliated with the Gangster Disciples), the defendants could not be expected to know that Grand-berry in particular posed a threat to Mr. Miller, as he had never identified Grand-berry as an antagonist in the past. See Peate, 294 F.3d at 883 (staff cannot be expected to predict fights without any knowledge of “bad blood” between prisoners); Lewis v. Richards, 107 F.3d 549, 554 (7th Cir.1997) (officials had no way of knowing that plaintiff was in heightened peril when he did not report new threats from different gang members). In fact, Mr. Miller admitted during his deposition that even he did not expect a fight with Grandberry. Although it was almost certainly negligent for Officer Ludwig to leave the dorm without securing a replacement monitor, even gross negligence is not enough to establish constitutional liability. Washington, 306 F.3d at 518. And Superintendent McBride cannot be hable for Mr. Miller’s injuries from the fight because he lacked personal involvement in the incident; he was not involved in either the decision to transfer Mr. Miller to that dorm in May or the day-to-day operations of the unit. See Steidl v. Gramley, 151 F.3d 739, 741 (7th Cir.1998). Finally, there is absolutely no evidence that any of the defendants, or any other prison officials for that matter, arranged for Grand-berry to attack Mr. Miller in retaliation for filing lawsuits. Cf. Case, 301 F.3d at 606-07 (discussing evidence of guard offering to cover for prisoner who planned to attack another prisoner). We conclude, as did the district court, that Mr. Miller has not shown that the defendants were deliberately indifferent to his safety.
In addition to challenging the grant of summary judgment, Mr. Miller also attacks the way that the district court handled certain discovery matters, but we find no abuse of discretion, see Grayson v. O’Neill, 308 F.3d 808, 816 (7th Cir.2002). In July 2001 the district court acted within its discretion by denying Mr. Miller’s request for a further extension of time to conduct discovery, given that, as Judge Sharp noted, the deadline had already been extended six times (for a total of 15 months) for Mr. Miller. In another July *5622001 order, this time denying a motion to compel, the district court noted incorrectly that Mr. Miller had failed to serve the defendants properly. But Mr. Miller was not prejudiced by this denial because the defendants eventually complied with his request for documents, on which the motion to compel was based. See Peate, 294 F.3d at 884 (no reversible error where plaintiff was not prejudiced). And Judge Sharp did not abuse his discretion by denying as moot another motion to compel in November 2001, as the defendants had already complied with Mr. Miller’s requests for documents and answers to interrogatories. Furthermore, Mr. Miller was not prejudiced by the defendants’ delay in responding to his discovery requests because he was able to include the defendants’ answers in his response to and cross-motion for summary judgment.
AFFIRMED. | 01-04-2023 | 07-25-2022 |
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