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[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 8, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\95/95-40385.0.wpd.pdf", "author_id": null, "opinion_text": " UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT\n\n\n _______________________\n\n No. 95-40385\n _______________________\n\n\n ROBERT LEE BASSINGTHWAIGHTE,\n\n Plaintiff/Appellee,\n\n versus\n\n McDERMOTT INTERNATIONAL, INC. AND\n McDERMOTT INCORPORATED,\n\n Defendants/Appellants.\n\n\n_________________________________________________________________\n\n Appeal from the United States District Court\n for the Eastern District of Texas\n (1:90-CV-263)\n_________________________________________________________________\n\n October 17, 1996\nBefore JOLLY, JONES, and BENAVIDES, Circuit Judges.\n\nEDITH H. JONES, Circuit Judge:*\n\n This appeal arises from a dispute with which this court\n\nhas become intimately familiar. Appellant Bassingthwaighte seeks\n\ndamages from McDermott International, Inc. (“McDermott, Int’l”) and\n\nMcDermott, Inc. (“McDermott, Inc.”) for personal injuries he\n\nsuffered nearly a decade ago while residing in Scotland and working\n\n\n *\n Pursuant to Local Rule 47.5, the court has determined\nthat this opinion should not be published and is not precedent\nexcept under the limited circumstances set forth in Local Rule\n47.5.4.\n\fas a diver off Great Yarmouth in the North Sea. At first glance,\n\nthe fact that this straightforward claim for personal injuries has\n\ncommanded the attention of this court in several previous occasions\n\nbefore ever going to trial is mysterious. Under more careful\n\nscrutiny, its longevity in the federal courts is the product of\n\nforum shopping by the plaintiff’s attorney and of an unfortunate\n\nseries of orders by the district court that indulged the shopping.\n\nResolving to deter these tactics, this court affirms the district\n\ncourt’s dismissal of McDermott, Int’l for want of personal\n\njurisdiction rather than for forum non conveniens. We must,\n\nhowever dismiss McDermott, Inc. as an appellant for lack of\n\nstanding but note that this action deprives the district court’s\n\nchoice of law ruling of any preclusive effect.\n\n BACKGROUND\n\n A brief reiteration of the crucial procedural jockeying\n\nin this case will suffice.1\n\n McDermott, Int’l and McDermott, Inc. are affiliated\n\ncompanies. McDermott, Int’l is chartered in Panama, but has its\n\nexecutive offices in New Orleans, Louisiana. McDermott, Int’l\n\nconducts no business in Texas, has no agent or employee conducting\n\nbusiness in Texas, and owns no property in that state. McDermott,\n\n\n\n\n 1\n See this court’s prior opinions on this matter for further details.\nSee, e.g., Bassingthwaighte v. McDermott, Int'l, No. 92-4099 (5th Cir. 1992); In re\nMcDermott, Int'l & McDermott, Inc., No. 94-40369 (5th Cir. 1994).\n\n 2\n\fInc., is a Delaware corporation whose principal place of business\n\nis New Orleans.\n\n McDermott, Int’l employed Bassingthwaighte, an American\n\ncitizen, as a deep sea diver. After his 1987 employment-related\n\ninjury, Bassingthwaighte first sought redress in Scottish courts,\n\nwhere he filed suit in 1989. When he moved back to the States, he\n\nended up in Beaumont, Texas. Dismissing the action pending in\n\nScotland, he then filed suit against McDermott, Int’l in the United\n\nStates District Court for the Eastern District of Texas. He later\n\namended this suit to add McDermott, Inc. as a defendant.2 He has\n\nfiled two more law suits over the injury.\n\n Much to its consternation, McDermott, Inc., has remained\n\na defendant throughout this litigation, although it has no relation\n\nto the events sued upon. According to its affidavits, McDermott,\n\nInc. has never offered employment to Bassingthwaighte, or executed\n\nany contract with him, or agreed to have Bassingthwaighte perform\n\nany services whatsoever on any vessels owned or operated by\n\nMcDermott, Inc. But such seamy details are merely substantive, and\n\nhardly discouraged Bassingthwaighte’s pursuit of McDermott, Inc.\n\n Moving directly to the most recent orders issued by the\n\ndistrict court, the McDermott parties challenge the court's\n\ndecision to dismiss them for forum non conveniens.\n\n\n\n 2\n Bassingthwaighte has since filed virtually identical suits in Texas\nstate court in Beaumont against both McDermott defendants and, recently, in state\ncourt in Louisiana against, McDermott, Int’l alone.\n\n 3\n\f DISCUSSION\n\n A. McDermott, Int’l\n\n Exactly five years after the federal lawsuit was filed by\n\nBassingthwaighte against McDermott, Int’l in the Eastern District\n\nof Texas, that court suddenly concluded, contrary to an earlier\n\nruling, that it was not a convenient forum for this litigation\n\nafter all, and on that basis dismissed McDermott Int’l.3 While one\n\nmight expect McDermott, Int’l to be pleased at this result, the\n\ncompany is dismayed, confronted with the prospect that it will now\n\nbe forced to litigate in the pending Texas state court suit.4\n\n But the district court’s dismissal of McDermott, Int’l\n\nfor forum non conveniens necessarily assumes that the court\n\nexercises personal jurisdiction over McDermott, Int’l. As this\n\ncourt has explained, “[i]n the normal case, therefore, the District\n\nCourt must first determine that it possesses both subject matter\n\nand in personam jurisdiction before it resolves a forum non\n\nconveniens motion. This is so because forum non conveniens is a\n\ndoctrine which permits a court to decline to exercise jurisdiction\n\n\n\n 3\n The initial complaint was filed in the district court on April 12,\n1990 and the court granted the dismissal for forum non conveniens on April 12,\n1995.\n Strangely, although the district court concluded that it was not a\nconvenient forum for this litigation, the court simultaneously reversed its prior\ndecision that Scottish law governed the dispute and held instead that American\nlaw applied to certain aspects of Bassingthwaighte’s injury in the North Sea.\n\n 4\n Indeed, it is precisely this prospect of relitigation in Texas state\ncourt that aggrieves McDermott, Int’l. Accordingly, Bassingthwaighte’s argument\nthat this appeal should be dismissed because McDermott, Int’l cannot appeal a\n“favorable” ruling is meritless.\n\n 4\n\falready properly vested.” Syndicate 420 at Lloyd’s London v. Early\n\nAmerican Insurance Co., 796 F.2d 821, 826 n.8 (5th Cir. 1986).\n\nLikewise, the Supreme Court has instructed that “the doctrine of\n\nforum non conveniens can never apply if there is absence of\n\njurisdiction or mistake of venue.” Gulf Oil Corp. v. Gilbert, 330\n\nU.S. 501, 504, 67 S. Ct. 839, 841 (1947).\n\n In the instant case, the district court did not have\n\npersonal jurisdiction over McDermott, Int’l and, as a result, was\n\npowerless to dismiss McDermott, Int’l for forum non conveniens.\n\nThis conclusion is inescapable, given our recent decision in Cooper\n\nv. McDermott, Int’l, No. 93-2907 (5th Cir. 1995), that there is no\n\nin personam jurisdiction over McDermott, Int’l in Texas.5 Cooper\n\nconcluded that “[w]hen considered as a whole, the limited contacts\n\n[McDermott] International had with Texas are less substantial than\n\nthose enumerated in Helicopteros, which the Supreme Court held to\n\nbe insufficient to satisfy due process.” Id. at 13 (citing\n\nHelicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 409,\n\n412-13, 104 S. Ct. 1868, 1874 (1984)). The ink has barely dried on\n\nCooper; as McDermott, Int’l has done nothing since Cooper to\n\nsubject it to personal jurisdiction in Texas courts, the district\n\ncourt’s dismissal of McDermott, Int’l for forum non conveniens must\n\n\n\n\n 5\n Bassingthwaighte’s counsel conceded at oral argument that McDermott,\nInt’l has had no additional contacts with Texas since this court decided Cooper.\n\n 5\n\fbe reversed and dismissal rendered instead for want of personal\n\njurisdiction.\n\n B. McDermott, Inc.\n\n Since Bassingthwaighte amended his suit in May of 1990 to\n\nadd McDermott, Inc. as a defendant, McDermott, Inc. has had to\n\nlitigate a claim for personal injuries that does not implicate or\n\ninvolve it in any way. Hence, like McDermott, Int’l, McDermott,\n\nInc. does not relish the district court’s order dismissing it for\n\nforum non conveniens, as this order will allow Bassingthwaighte to\n\npursue identical suits now pending in other courts. If the history\n\nof this litigation is instructive, McDermott, Inc. has reason to\n\nfear that it will be sending lawyers to courts in Texas and\n\nLouisiana to defend against the claim that it is somehow liable as\n\nan \"employer\" for injuries sustained by someone it simply never\n\nemployed.6\n\n McDermott, Inc.’s motion for summary judgment, filed in\n\nthe district court in January 1993, stressed the facts refuting any\n\npossible theory of liability. After this summary judgment motion\n\nwas filed, this court ordered the district court in a previous\n\nappeal “to rule upon all of the remaining motions now reinstated in\n\n\n\n 6\n As he had to, Bassingthwaighte’s counsel conceded at oral argument that\nthe only claims asserted against McDermott, Inc. seek recovery for its negligence\nas Bassingthwaighte’s employer. Counsel also conceded that McDermott, Inc. is not\nand never has been Bassingthwaighte’s employer. Put bluntly, counsel openly\nacknowledged that Bassingthwaighte has no plausible theory under which McDermott,\nInc. could be held liable for Bassingthwaighte’s injuries.\n\n\n 6\n\fthe remanded action.” In re McDermott Int’l & McDermott, Inc., No.\n\n94-40369 (5th Cir. 1994) (emphasis added). The district court then\n\ndismissed McDermott, Inc. for forum non conveniens without ruling\n\non McDermott, Inc.’s motion for summary judgment.\n\n Because the district court had in personam jurisdiction\n\nover McDermott, Inc., it had the authority to dismiss McDermott,\n\nInc. for forum non conveniens. Further, read in context of our\n\nopinion on the earlier appeal, the district court’s decision to\n\nrule on forum non conveniens rather than the summary judgment\n\nmotion was a permissible interpretation of our mandate.\n\n The question then arises whether McDermott, Inc. is a\n\n“party aggrieved” by the dismissal so as to permit it to appeal.\n\nMcDermott, Inc. cited no authority directly on point, and we have\n\nfound none, suggesting that we should review on appeal an entirely\n\ndifferent issue, i.e. the summary judgment merits of the\n\nplaintiff’s case, than the issue which formed the basis of the\n\ntrial court’s decision. By contrast, in two cases which did\n\nauthorize appeal from “favorable” rulings by district courts, the\n\nappellate court was asked to decide simply whether dismissal should\n\nhave been with prejudice rather than without. See Disher v.\n\nInformation Resources, Inc., 873 F.2d 136, 139 (7th Cir. 1989); La\n\nBuhn v. Bulkmatic Transport Co., 865 F.2d 119, 121 (7th Cir. 1988).\n\nMoreover, although it may regret the decision, McDermott, Inc.\n\nasked for dismissal for forum non conveniens, so it is in a weak\n\n\n 7\n\fposition now to complain of getting its motion granted. Compare\n\nDisher, LaBuhn, supra.\n\n Nevertheless, the company observes that it has been\n\ndisadvantaged by the district court’s turnabout decision that\n\nAmerican law applied regarding the employment contract and Jones\n\nAct, if that ruling has binding effect in future litigation. We\n\nnote that it does not. Because McDermott, Inc. lacked standing to\n\nappeal the favorable forum non conveniens ruling, the trial court’s\n\nchoice of law determination has no possible collateral estoppel\n\neffect against McDermott, Inc. See In re: DES Litigation, 7 F.2d\n\n20 (2d Cir. 1992). Thus, McDermott, Inc.’s appeal must be\n\ndismissed, but plaintiff may not rely on the district court’s\n\ncurious choice of law ruling if he dares to continue litigating\n\nthis case.\n\n\n\n CONCLUSION\n\n For the foregoing reasons, this court AFFIRMS the\n\ndistrict court’s dismissal of McDermott, Int’l on the alternate\n\nbasis of a lack of personal jurisdiction in Texas. We DISMISS the\n\nappeal of McDermott, Inc.\n\n AFFIRMED in part as MODIFIED; appeal DISMISSED in part.\n\n\n\n\n 8\n\f", "ocr": false, "opinion_id": 34711 } ]

[ "309 F.2d 99" ]

[ { "author_str": "Browning", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/309/309.F2d.99.17391_1.html", "author_id": null, "opinion_text": "309 F.2d 99\n 135 U.S.P.Q. 145\n Orin OSBORN, Appellant,v.BOEING AIRPLANE COMPANY, Appellee.\n No. 17391.\n United States Court of Appeals Ninth Circuit.\n Oct. 11, 1962.\n \n Wettrick, Flood, O'Brien, Toulouse & Lirhus, and George J. Toulouse, Jr., Seattle, Wash., for plaintiff.\n Halman, Mickelwait, Marion, Black & Perkins, J. Paul Coie and David E. Wagoner, Seattle, Wash., for appellee.\n Before HAMLEY, BROWNING and DUNIWAY, Circuit Judges.\n BROWNING, Circuit Judge.\n \n \n 1\n Appellant, an employee of Boeing Airplane Company, brought this action to recover compensation for the use of an idea he had submitted for improvement of Boeing's production methods.1 The District Court granted Boeing's motion for summary judgment. We reverse, finding material factual issues to be tried.\n \n \n 2\n The parties had agreed to a pretrial order, which, under the heading 'Admitted Facts,' described a 'Suggesion System' through which Boeing solicited and paid for useful ideas. The pretrial order stated that appellant had submitted his idea to Boeing in December 1955 on a Suggestion System form containing the following printed provision: 'Suggestions are sumbitted with the understanding that the Company shall have the right to use all those which are adopted, and the decision of the Company shall be final and conclusive as to the person entitled to a cash award and the amount of such award.' The pretrial order further recited that appellant had submitted his idea in reliance upon Boeing's good faith in the administration of the Suggestion System and not upon an express contractual agreement or oral promise to compensate. The single 'Issue of Law' set out in the pretrial order was whether appellant could recover under the doctrine or unjust enrichment or implied-in-law contract.\n \n \n 3\n The District Court read these recitals as limiting appellant to a theory of recovery based legally upon the doctrine of quasi-contract and factually upon the submission of appellant's idea to Boeing in December 1955 through the Suggestion System. The Court held that recovery could be had in quasi-contract only where a benefit was conferred upon another under the mistaken belief that the recipient had assumed a legal obligation to pay, and that the wording of the printed provision on the Suggestion Form, taken with the admitted fact that appellant submitted his idea in reliance upon Boeing's good faith in the administration of the Suggestion System, conclusively established that appellant knew that Boeing did not intend to assume a contractual obligation.\n \n \n 4\n Appellant contends that the District Court misread the pretrial order and erroneously narrowed the issues. It is appellant's position that the he first submitted his idea to Boeing orally in June of 1955, and that his written submission of the same idea in December of that year was only an effort to exhaust all available means to obtain compensation short of litigation. Appellant asserts that he understood Boeing's announcements to its employees prior to June of 1955 to be a request for the submission of ideas of value and a promise to pay for those ideas which Boeing might accept and use. He argues that Boeing accepted and used his idea, therefore entitling him to recover its reasonable value either on the basis of a contract implied-in-fact or upon principles of quasi-contract. He contends that the printed provision on the Suggestion Form which he later signed in December could not deprive him of his then already vested ocntract right. Alternatively, appellant argues that if he is bound by the printed provision of the Suggestion Form, its language does not have the meaning attributed to it by the Court, either on its face or in the light of the surrounding circumstances, and, properly interpreted, does not free Boeing of the obligation to make cash awards for suggestions which it receives and puts to use. Appellant contends that these issues remain in the case, and require trial.\n \n \n 5\n Neither the complaint nor the pretrial order (which by its terms supplants the pleadings) is clearly drawn. It has been held that 'upon a motion for directed verdict the plaintiff's pretrial statement should be read in the light most favorable to him.'2 To read the pretrial statement in such a light on a defendant's motion for summary judgment, before trial, seems even more appropriate; at this stage in the litigation the opposing party will have taken no action in reliance upon the pretrial order by which he might be prejudiced. We think that the pretrial order in this case, read favorably to appellant, preserved the issues for which appellant contends.\n \n \n 6\n The pretrial order did not purport to state all of the facts, but only the 'Admitted Facts.' The recitation of the 'Admitted Fact' that appellant's idea was submitted through Boeing's Suggestion System in December 1955 would not be inconsistent with the assertion at trial that the idea was also solicited and submitted earlier, in June 1955, independently of the Suggestion System.3 Indeed, in the pretrial order under the heading 'Plaintiff's Contentions,' the contention 'that plaintiff's idea was submitted in accordance with the rules and regulations of the defendant's Suggestion System,' is followed immediately by a separate contention 'that the plaintiff is not bound by the Suggestion System or its rules in order to recover in this action.'\n \n \n 7\n Although it is true that the pretrial order lists the question of whether the doctrine of unjust enrichment or implied-in-law contract provided a basis for recovery, as the sole 'Issue of Law,' the pretrial order as a whole does not reflect an intention to exclude the issue of possible recovery upon the theory of contract implied-in-fact. The order includes express contentions that appellant had submitted his idea in reliance 'upon the implied promise of the defendant to compensate him in (the) event his idea was accepted and used,' and an 'Issue of Fact' which reads, 'Did the defendant impliedly promise to compensate the plaintiff, in the event of its adoption, application and use of the plaintiff's idea?'\n \n \n 8\n With the issue of an earlier oral submission still in the case, the printed provision in the Suggestion Form, regardless of how interpreted, could not bar recovery as a matter of law. If appellant were to succeed in establishing the existence of an implied-in-fact or implied-in-law contractual obligation prior to the signing of the Suggestion System form in December 1955, the printed provision would not be a term of that contract and would in any event fail for want of consideration.\n \n \n 9\n Moreover, we do not think that the language of the provision in the Suggestion Form is so clear that the District Court could properly hold as a matter of law that Boeing reserved the right in its absolute discretion to appropriate a valuable idea for its own use without payment. It may be conceded that if this meaning were unambiguously clear there could be no recovery either on the basis of a contract implied-in-fact or on quasi-contractual principles. Contracts implied-in-fact, like express contracts, must rest upon a manifestation of mutual assent: They will not be implied in terms inconsistent with intentions clearly expressed nor in the face of a conclusive manifestation that no contract was intended.4 And, while it is true that quasi-contracts do not depend upon mutual assent and may be imposed by law contrary to the intent of one or both parties,5 quasi-contractual obligations rest upon equitable considerations and will not be imposed if in particular circumstances it would not be unjust for the recipient of something of value to retain and use it without paying for it.6 Thus an obligation to pay, ordinarily, will not be implied in fact or by law if it is clear that there was indeed no expectation of payment, that a gratuity was intended to be conferred, that the benefit was conferred officiously, or that the question of payment was left to the unfettered discretion of the recipient.7\n \n \n 10\n But such an intention not appear unambiguously from the face of the printed provision of this Suggestion Form. Thus, a possible interpretation8 of the language, for which there is support even in this abbreviated record, is that Boeing was not to have unfettered discretion in administering the Suggestion System but rather was to have the right to make use of the suggestions submitted to it, to decide which one of competing applicants was entitled to the award for a particular suggestion, and to determine in good faith the sum which would reflect the reasonable value of the idea. Where, as here, the existence and terms of a contract must be determined by drawing inferences of fact from all of the pertinent circumstances, and the possible inferences are conflicting, the choice is for the jury.9 We conclude that the printed provision of the Suggestion Form did not provide a proper basis for the order granting summary judgment.\n \n \n 11\n Appellee's motion for summary judgment was also based upon the ground that appellant's idea was neither new nor novel. The District Court concluded that the record presented a disputed issue of fact. Appellee reasserts its contention here as an alternate ground in support of the order granting summary judgment.\n \n \n 12\n Since it is conceded that Boeing solicited useful ideas whether or not they were original with the employee or new, originality or novelty would not be a material issue as to the cause of action based upon an implied-in-fact contract. In any event, we agree with the District Court that a disputed question of fact was presented. We think it inadvisable to anticipate the question of whether, under Washington law, a quasi-contractual obligation might arise from the appropriation and use of an unoriginal and non-novel idea in any possible circumstances which might be disclosed by the evidence ultimately offered.10\n \n \n 13\n Reversed and remanded.\n \n \n \n 1\n Since jurisdiction rested upon diversity of citizenship (28 U.S.C.A. 1332(a)(2)), the substantive law of Washington controls. Appellant is a Washington resident and appellee was incorporated in Delaware. Appellee's principal place of business is in Washington, but the complaint was filed prior to the 1958 amendment of the jurisdictional statute providing that 'a corporation shall be deemed a citizen of any State by which it has been incorporated and of the State where it has its principal place of business.' 28 U.S.C.A. 1332(c)\n \n \n 2\n Johnson v. Geffen, 111 U.S.App.D.C. 1, 294 F.2d 197, 200 (1960)\n \n \n 3\n Cf. Miles v. Pennsylvania R.R., 158 F.2d 336 (7th Cir. 1946); 3 Moore, Federal Practice 1128\n \n \n 4\n The test is an objective one. The question is what a reasonable man would have understood, rather than the actual intention or belief of the parties. Western Asphalt Co. v. Valle, 25 Wash.2d 428, 438, 171 P.2d 159, 165 (1946); 22 Wash.L.Rev. 139 (1947)\n \n \n 5\n Chandler v. Washington Toll Bridge, 17 Wash.2d 591, 137 P.2d 97 (1943); Restatement, Contracts 5, Comment a (1932)\n \n \n 6\n Chandler v. Washington Toll Bridge, supra, note 5; Kerr v. King County, 42 Wash.2d 845, 259 P.2d 398 (1953). See Comment, 29 Wash.L.Rev. 98 (1954); Restatement, Restitution 1, Comment c (1937)\n \n \n 7\n Sandeman v. Sayres, 50 Wash.2d 539, 314 P.2d 428 (1957); Winslow v. Mell, 48 Wash.2d 581, 295 P.2d 319 (1956); Spooner v. Reserve Life Ins. Co., 47 Wash.2d 454, 287 P.2d 735 (1955); 31 Wash.L.Rev. 109 (1956); Davision v. Times Printing Co., 63 Wash. 577, 116 P. 18, 34 L.R.A.,N.S., 1164 (1911); Gross v. Cadwell, 4 Wash. 670, 30 P. 1052 (1892); Restatement, restitution 2, 112 (1937). See also Thompson v. United States, 9th Cir., 1962, 308 F.2d 628, and cases cited. The decisions relied upon by the District Court (Wiles v. Union Wire Rope Corp., 134 F.Supp. 299 (W.D.Mo.1955); Davis v. General Foods Corp., 21 F.Supp. 445 (S.D.N.Y.1937)) appear to fall in this category. However, because quasi-contractual liability rests upon broad equitable considerations, the ultimate inquiry is always whether it would be just to require payment for the benefit received, and the remedy is not to be frustrated by imposing rigid or technical requirements unrelated to justice and equity. 1 Williston, Contracts 3A (3d ed. 1957). See Halver v. Welle, 44 Wash.2d 288, 266 P.2d 1053 (1954); Mill & Logging Supply Co. v. West Tenino Limber Co., 44 Wash.2d 102, 265 P.2d 807 (1954). Thus where equitable considerations do favor payment, a quasi-contractual obligation has been imposed though there was neither expectation of compensation (Hendryx v. Turner, 109 Wash. 672, 187 P. 372 (1920)) nor mistaken reliance upon a supposed contractual obligation. How J. Ryan & Associates, Cin. v. Century Brewing Ass'n, 185 Wash. 600, 55 P.2d 1053, 104 A.L.R. 1353 (1936); King County v. Odman, 8 Wash.2d 32, 111 P.2d 228 133 A.L.R. 1440 (1941). See also Nash v. Alska Airlines, Inc., 94 F.Supp. 428 (S.D.N.Y.1950)\n \n \n 8\n Where the choice is open, language relating to the terms of a contract will be so interpreted that the contract will be fair and reasonable rather than unfair and unreasonable. Smith v. Smith, 56 Wash.2d 1, 351 P.2d 142 (1960); 3 Corbin, Contracts 552 at 210-11 (1960); Restatement, contracts 236(a) (1932). And language such as that found in the printed provision of this Suggestion Form will be read against the party who chose it. Fossum v. Timber Structures, Inc., 54 Wash.2d 317, 341 P.2d 157 (1959); Willett v. Davis, 30 Wahs.2d 622, 193 P.2d 321 (1948); State Bank of Wilbur v. Phillips, 11 Wash.2d 483, 11. P.2d 664 (1941); Dorsey v. Strand, 21 Wash.2d 217, 150 P.2d 702 (1944); Restatement, Contracts 236(d) (1932). See also Shay v. Agricultural Stabilization Comm., 299 F.2d 516, 517 (9th Cir. 1962), and authorities cited regarding the construction of a \"contract of adhesion'-- one which gave the plaintiffs but one choice-- to adhere to it or reject it.'\n \n \n 9\n 3 Corbin, contracts 554 at 226-27 (1960). See, e.g., Durand v. Heney, 33 Wash. 38, 73 P. 775 (1903); Keeter v. John Griffith Inc., 40 Wash.2d 128, 241 P.2d 213 (1952); State Bank of Wilbur v. Phillips, 11 Wash.2d 483, 119 P.2d 664 (1941). Thus, whether or not it was intended that services were to be performed or value conferred gratuitously is a question of fact to be determined by the jury under appropriate instructions from the court as to the legal consequences which will follow from the factual inferences which the jury chooses to draw from the relevant circumstances. Western Asphalt Co. v. Valle, 25 Wash.2d 428, 438-441, 171 P.2d 159, 165-167; 22 Wash.L.Rev. 139 (1947); 3 Corbin, Contracts 566 at 309 (1960); 1 Williston, Contracts 36 (3d ed. 1957)\n \n \n 10\n See generally 27 So.Cal.L.Rev. 119, 124 (1954)\n \n \n ", "ocr": false, "opinion_id": 258488 } ]

[ "294 N.E.2d 579", "1 Mass. App. Ct. 156" ]

[ { "author_str": "Goodman", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nGoodman, J.\nThese are appeals from orders sustaining demurrers to four counts in tort for libel. Each count names as plaintiff a different member of the Roketenetz family which operates a waste disposal business in Woburn. Each of the four counts (hereafter referred to collectively as the declaration1) alleges that the defendant in its newspaper *157“did publish in said paper a false and malicious libel ... with express malice toward the said plaintiff.”\nThe publication attached to the declaration is an account of a meeting of the board of health of the city of Woburn at which two aldermen “asked for the cooperation of the new Board members to either convince the Woburn Redevelopment Authority to reassign another location to the Rokenctz [sic] businesses or to effectively police the Roketenetz property so that citizens in the area would not be bothered by foul smelling garbage left in trucks overnight.”\nThe meeting was held “in anticipation of tonight’s public hearing on the application for a permit to store gas, oil and diesel fuel at the new Roketenetz’s business location.”\nThe account reported that members of the board “stated that they would do everything in their power to see that the Roketenetz business obeyed the law and washed out their garbage hauling trucks each day.” The chairman “pointed out, however, that in the past it had been very difficult to deal with the Roketenetz family.” These difficulties as described by the chairman are set out in the footnote.2\nThe article then quotes verbatim the discussion at the meeting between Alderman O’Rourke and the superintendent of solid wastes as to the feasibility of preventing spillage and odor problems in the collection of garbage. Alderman Hassett asked “if there was any way to prevent a truck full of garbage being parked there overnight” and was told by the board of health secretary that it was illegal.\nThe account ends with a request to the board by Alderman O’Rourke “that he be immediately informed if there were any complaints about the operations at the new *158site and stated that he personally would inspect each complaint.”\nThe defendant demurred on the ground, among others, that the declaration did not state a cause of action. We agree; the demurrers were properly sustained.\nThe plaintiffs rely on the proposition in Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34, that “a demurrer to a declaration in libel cannot be sustained ... unless the words ... are incapable of a defamatory meaning” and its corollary that given defamatory words, privilege is “matter of defence not open on demurrer”. Muchnick v. Post Publishing Co. 332 Mass. 304, dealing with the privilege of fair comment. But see the qualification in Poland v. Post Publishing Co. 330 Mass. 701, 704 and Boston Nutrition Society, Inc. v. Stare, 342 Mass. 439, 443 (“ordinarily not open on demurrer”). This order of pleading based on the common law allocation of the burden of proof (see Restatement: Torts, § 613) derives from the view of defamation as an intentional tort like trespass. Harper & James, Torts, § 5.21. “A person publishes libellous matter at his peril.” Burt v. Advertiser Newspaper Co. 154 Mass. 238, 245 (Holmes, J.). “[T]he liability [is] the usual liability in tort for the natural consequence of a manifestly injurious act.” Hanson v. Globe Newspaper Co. 159 Mass. 293, 303, (Holmes, J., dissenting opinion). (See Sweet v. Post Publishing Co. 215 Mass. 450). This historical development of libel bears out this analysis. Holdsworth, 8 History of English Law, 365-367, 375, et seq. Plucknett, A Concise History of the Common Law (4th ed.) 466, et seq.\nHowever, the analysis is not qualified by the constitutional limitation imposed by New York Times Co. v. Sullivan, 376 U. S. 254, and — particularly applicable in this case — Rosenbloom v. Metromedia, Inc. 403 U. S. 29 and Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118. See Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807.\nThe publication in this case is strikingly similar to the newspaper reports in Priestley v. Hastings & Sons Publish*159ing Co. of Lynn of meetings of the selectmen in Saugus at which the town manager made defamatory charges, which a jury could have found to be false, against an architect commissioned to build a new junior high school. The Supreme Judicial Court in the Priestley case, supra, at 123, following Rosenbloom v. Metromedia, Inc. and Greenbelt Cooperative Publishing Association v. Bresler, 398 U. S. 6, held that the publication “related to the plaintiffs involvement in an event of public or general concern” and applied the Times standard. Under that standard it is a matter of proof by the plaintiff (376 U. S. at 284) that the publication was made “with knowledge that it was false or with reckless disregard of whether it was false or not” (376 U. S. at 279-280), “that the lie was a knowing one, or uttered in reckless disregard of the truth.” Rosenblatt v. Baer, 383 U.S. 75,92.\nThe Times case, as extended by Rosenbloom v. Metromedia, Inc. 403 U. S. 29, thus established a qualified constitutional privilege to publish false and defamatory material about matters of public concern. It adopted the view of the Kansas Court in Coleman v. MacLennan, 78 Kan. 711, 723, that “the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.” See Kalven, The New York Times Case: A Note on “the Central Meaning of the First Amendment,” 1964 Sup. Ct. Rev. 191, 203; Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L. Q. 581,587.\nThe publication in this case clearly comes within the constitutional privilege. It reports a meeting of the board of health concerning garbage disposal and the grant of a permit to store gasoline, etc. at a new location about which a public hearing was scheduled. These were obviously matters of public concern. See Arizona Biochemical Co. v. Hearst Corp. 302 F. Supp. 412 (S. D. N. Y.). The publication cannot, therefore, be the basis for a cause of action *160unless the declaration contains an allegation adequate to comply with the Times standard. The introduction at trial of this article and the fact of its publication, without more, would result in a directed verdict for the defendant at the close of the plaintiffs’ case unless the plaintiffs had also introduced sufficient evidence to permit the trier to find the facts that it was false and that the defendant either knew it was false or published the article recklessly, “in fact entertain [ing] serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U. S. 727, 731, quoted in Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807. See Priestley v. Hastings & Sons Publishing Co. of Lynn, supra; Tripoli v. Boston Herald-Traveler Corp. 359 Mass. 150. Since such “substantive facts [are] necessary to constitute the cause of action” when the Times privilege applies, they must be pleaded. G. L. c. 231, § 7, Second.3 Gabriel v. Borowy, 324 Mass. 231, 234-235. Cluff v. Picardi, 331 Mass. 320, 322. Mottla, Civil Practice (3ded.) § 275.\nThis is consistent with the indications in Haynes v. Clinton Printing Co. 169 Mass. 512, 515 (“[T]he defendant can escape liability [on] the ground of privilege, if any such appears on the face of the declaration”) and Dow v. Long, 190 Mass. 138, 141 (“[UJnless the averments of the declaration show a sufficient occasion and justification for what the defendant is alleged to have done this [publication] is enough to constitute a cause of action”).4 See Adams v. Clapp, 346 Mass. 245, 248-249. Cf. Peck v. Wakefield Item Co. 280 Mass. 451, 456.\nIndeed, the Supreme Judicial Court has held that where an absolute privilege appears on the face of the declaration, *161it is subject to demurrer though, as with a qualified privilege, “[ijf the defendant relies upon the defence of absolute privilege, he has the burden of proving it.” Restatement: Torts, § 613, comment f. Mezullo v. Maletz, 331 Mass. 233 (physician’s certificate in commitment proceedings). Perry v. E. Anthony & Sons, Inc. 353 Mass. 112 (report of litigation in a Federal Court). Aborn v. Lipson, 357 Mass. 71 (testimony of witness). See Cluff v. Picardi, 331 Mass. 320, 323, holding a bill of complaint demurrable where a memorandum of an oral contract incorporated by reference in the bill of complaint was inadequate to satisfy the statute of frauds. The court said — particularly applicable here — “If the plaintiff at a hearing on the merits should prove all the allegations of fact properly set forth in his bill, without more, he would lose his case for lack of a sufficient memorandum”. See also Weiner v. Lowenstein, 314 Mass. 642 (declaration disclosing defence of statute of frauds held demurrable); Reavey v. Guild of St. Agnes, 284 Mass. 300 (declaration for negligence held demurrable where it appeared on its face that the defendant had charitable immunity although “charitable immunity is an affirmative defence . . . not open on demurrer” [Grueninger v. President and Fellows of Harvard College, 343 Mass. 338, 339-340]).\nThe allegations of the declaration that the newspaper account was “false and malicious” and was published “with express malice toward the said plaintiff’ are insufficient to make out a cause of action under the Times standard. Falsehood does not by itself make a publication actionable. “What the New York Times rule ultimately protects is defamatory falsehood.” Rosenblatt v. Baer, 383 U. S. 75, 92 (Stewart, J., concurring). Indeed, even at common law falsehood is insufficient to overcome the conditional privilege which attaches to “[t]he publication of a report of.. . proceedings of a legislative or administrative body or an executive officer of... a municipal corporation or of a body empowered by law to perform a public duty.” Restatement: Torts, § 611. “This privilege differs from the usual conditional privilege [e.g., the *162privilege of fair comment] in that it affords protection even though the defamatory statement reported is known to be false.” Restatement: Torts, § 611, comment a. See Lewis v. Vallis, 356 Mass. 662, 669 (report of false charges made at a Registry of Motor Vehicles hearing held qualifiedly privileged); Joyce v. Globe Newspaper Co. 355 Mass. 492, 498-499; Howland v. Flood, 160 Mass. 509, 516; Sheehan v. Tobin, 326 Mass. 185.\nThe word “malicious” does not advance the pleader. “The summary allegation that the false statements are ‘malicious’ is usual in a libel suit. The word is one of art in such pleadings . . ..” Krebiozen Research Foundation v. Beacon Press, Inc. 334 Mass. 86, 89-90, citing, among other cases, Goodwin v. Daniels, 7 Allen, 61, 63 (“An averment in a declaration for slander that the words were spoken maliciously is not a distinct and substantive allegation of fact, but it is only descriptive of the legal character which the law imputes to words which import a charge of crime”). In considering a declaration on demurrer we “lay to one side epithets such as ‘without just cause,’ and ‘main ciously.’ General conclusions of this nature without allegations of fact sufficient to support them are not admitted by the demurrer.” J. J. Gordon, Inc. v. Worcester Telegram Publishing Co. Inc. 343 Mass. 142,143, and cases cited. See Lothrop v. Adams, 133 Mass. 471, 479.\nThe allegation that the account was published “with express malice” does not satisfy the Times standard. That phrase, used interchangeably with “actual malice” and “malice in fact,” commonly means “malicious intention” (Lothrop v. Adams, 133 Mass. 470, 479), “an improper motive” (Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 59; Bander v. Metropolitan Life Insurance Co. 313 Mass. 337, 344). See Black’s Law Dictionary (rev. 4th ed.), 1109. “A wish to harm” (Squires v. Wason Manufacturing Co. 182 Mass. 137, 141) might, perhaps, rebut the common law privilege of fair reporting, although “it is questionable how far the defendant’s motivation will be of controlling significance in a case of a writing in a field of public interest” even if a case were made out “of active *163malice in the defendant — of a purpose to injure the plaintiffs or their business rather than an intent to publish a book about a controversial subject.” Krebiozen Research Foundation v. Beacon Press, Inc. 334 Mass. 86, 89. See Restatement: Torts, § 611, comment a, taking the position that “protection is lost if the report is published solely for the purpose of defaming the other and not for the purpose of informing the public” (emphasis supplied). Such a motive does not in any event make a case of “actual malice”— knowing falsehood or reckless disregard — under the Times standard. Beckley Newspapers Corp. v. Hanks, 389 U. S. 81, Henry v. Collins, 380 U. S. 356. Washington Post Co. v. Keogh, 365 F. 2d 965 (D. C. Cir.).\nWe cannot construe “express malice” in the declaration to refer to “actual malice” in the Times sense. There is no indication in the declaration or the plaintiffs’ scant brief, which does not mention the Times case, that more than the ordinary common law meaning of “express malice” was intended. “No intendment in favor of the pleader can be made upon a demurrer.” Comerford v. Meier, 302 Mass. 398, 402. Gabriel v. Borowy, 324 Mass. 231. Becker v. Calnan, 313 Mass. 625, 630. Moreover, the “actual malice” required by the Times case is, as Prosser points out, akin to deceit and misrepresentation, rather than motive. Prosser, Torts (4th ed.) § 118, p. 821. It should, therefore, like fraud, be pleaded with particularity greater than the bare phrase. Krebiozen Research Foundation v. Beacon Press, Inc. 334 Mass. 86. See Dealtry v. Selectmen of Watertown, 279 Mass. 22, 26-27 (general charges of bad faith not admitted on demurrer).\nThis accords with the Times objective to minimize the inhibiting effect of the expense involved in defending libel suits on “the vigor and .. . the variety of public debate.” New York Times Co. v. Sullivan, 376 U. S. 254, 279. Time, Inc. v. Hill, 385 U. S. 374, 389. The mere incantation of the words “actual malice” should not be enough to put a defendant to the expense of a trial.5\n*164We therefore hold that where it appears from the publication alleged to be defamatory that the Times privilege applies, the plaintiff must allege that it was false and that the defendant either knew it was false or published the material with reckless disregard of whether it was false.\nThe order sustaining the demurrers is affirmed. However, since the effect of the Times standard on pleadings has not heretofore been considered by the Supreme Judicial Court or this court, the plaintiffs are given leave to file a motion to amend the declaration in the Superior Court which motion should be allowed if the proposed amendment is in conformity with this opinion. Moran v. Dunphy, 177 Mass. 485, 488. Berkwitz v. Dunham, 269 Mass. 65, 66. Cf. Keljikian v. Star Brewing Co. 303 Mass. 53, 62-63.\n\nOrders sustaining demurrers affirmed.\n\n\nJudgment for the defendant unless within sixty days after rescript a motion to amend the declaration in conformity with the opinion has been allowed in the Superior Court.\n\n\n Apart from the names of the plaintiffs, the counts are substantially the same.\n\n\n “The Board of Health Chairman cited instances when shotguns had been pointed at inspectors and Board of Health members attempting to do their duty by checking out complaints about the Roketenetz operations at their old location.\n“The situation at the old location was unenforceable.’’ stated Hardcastle who claimed that a State Health Officer who had faced the shotgun informed him not to bother because, ‘[t]he job isn’t worth your life.’\n“The Board of Health Chairman also stated that [on] one occasion Edward App, the Health Inspector had been physically beaten while attempting to inspect the Roketenetz property on Old New Boston Street.”\n\n\n It might be said that the Times case abolishes the intentional tort of libel in the area of public concern and permits the States to substitute instead a cause of action for publishing defamatory material with calculated falsehood or in reckless disregard of its truth — a change analogous to the “Transition from Trespass to Negligence,” discussed in Gregory and Kalven. Cases and Materials on Torts (2d ed.) 54. The Times case, however, speaks in terms of privilege (p. 282) and the “forfeiture of the privilege” (p. 284).\n\n\n Analogously, before the practice act of 1851, St. 1851, c. 233, if the declaration showed a privilege, a defendant could introduce evidence on that matter of defence although he had pleaded only the general issue. Remington v. Congdon, 2 Pick.310. Bradley v. Heath, 12 Pick. 163.\n\n\n The Federal Courts have recognized this consideration and have held *164summary judgment (Rule 56, Fed. R. Civ. P.) appropriate to avoid a trial. Bon Air Hotel, Inc. v. Time, Inc. 426 F. 2d 858 (5th Cir.), and cases cited. (Summary judgment is not available in Massachusetts tort actions. G. L. c. 281, § 59.) See Steam v. MacLean-Hunter Ltd. 46 F.R.D. 76 (S. D. N. Y.) and Arizona Biochemical Company v. Hearst Corp. 302 F. Supp. 412 (S. D. N. Y.) which point out the availability of summary judgment and permit “actual malice” to be pleaded generally under the second sentence of Rule 9 (b), Fed. R. Civ. P. (“Malice, intent, knowledge, and other conditions of mind of a person may be averred generally”) — although “actual malice” in the Times sense is not merely “a condition of mind,” but more nearly like fraud as to which the first sentence of Rule 9 (b), Fed. R. Civ. P. applies (“in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity”). See Linn v. Plant Guard Workers, 383 U. S. 53, 65-66. Nothing here should be construed as indicating our views on the interpretation of the parallel rules in the proposed Rules of Civil Procedure if they are adopted.\n\n", "ocr": false, "opinion_id": 9744552 }, { "author_str": "Armstrong", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nArmstrong, J.\n(dissenting). This case falls within the settled rule that a demurrer to a libel action cannot be sustained unless the publication is not reasonably capable of any defamatory meaning. Twombly v. Monroe, 136 *165Mass. 464, 469. Robinson v. Coulter, 215 Mass. 566, 570. Morgan v. Republican Publishing Co. 249 Mass. 388, 390. Lyman v. New England Newspaper Publishing Co. 286 Mass. 258, 261. Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34. Epstein v. Dun & Bradstreet, Inc. 306 Mass. 595, 596. Tobin v. Boston Herald-Traveler Corp. 324 Mass. 478, 487. Muchnick v. Post Publishing Co. 332 Mass. 304, 305-306. Mabardi v. Boston Herald-Traveler Corp. 347 Mass. 411, 413. The declaration follows the forms set forth as sufficient in G. L. c. 231, § 147, Forms, 18-20, except that no innuendo is stated. Where, as here, the published matter imputes crime, no innuendo is necessary. Lyman v. New England Newspaper Publishing Co. 286 Mass. 258, 261. Therefore I would reverse the order sustaining the demurrers.\nI would not reach the question whether the words “express malice” or “actual malice” are a sufficient method of pleading facts necessary to overcome the conditional privilege enunciated in New York Times Co. v. Sullivan, 376 U. S. 254, and later cases. Privilege is a matter of defence and has repeatedly been held not to be raised by demurrer. Robinson v. Coulter, 215 Mass. 566, 571. Peck v. Wakefield Item Co. 280 Mass. 451, 457. Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34-35. Muchnick v. Post Publishing Co. 332 Mass. 304, 308. It is possible, of course, for a declaration to allege facts disclosing an affirmative defence, thus enabling the defendant to raise by demurrer what he would normally raise by his answer. The majority find such disclosure not in the plaintiffs’ own allegations of fact but in the text of the allegedly libelous newspaper article. I feel that the sounder approach is that taken in Peck v. Wakefield Item Co. 280 Mass. 451, 456, that facts stated in the allegedly libelous publication are not to be treated as allegations of fact by the plaintiff. The only fact these plaintiffs allege with respect to the article is that the defendant published it. They do not allege as fact any statements in the article, including those that the majority rely upon tó establish privilege. Nothing in the declaration precludes a .contention by the plaintiffs that *166the participants at the board of health meeting did not in fact make the defamatory statements reported, that the meeting never touched upon the Roketenetz business, or that there was in fact no meeting of the board of health. Peck v. Wakefield Item Co., supra. Since the plaintiffs have not alleged facts showing conditional privilege, they are not required to allege facts sufficient to overcome the privilege.\nNothing in New York Times Co. v. Sullivan or later cases has altered our established rules of pleading or proving privilege, or the facts which overcome privilege. The burden of proving facts to overcome a conditional privilege has always been on the plaintiff. Brow v. Hathaway, 13 Allen 239. Doane v. Grew, 220 Mass. 171, 182. Bander v. Metropolitan Life Insurance Co. 313 Mass. 337, 344. Cases after New York Times Co. v. Sullivan holding that the defendant is entitled to a directed verdict where the plaintiff fails to carry that burden (Tripoli v. Boston Herald-Traveler Corp. 359 Mass. 150; Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118; Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807) stand on no different footing from such earlier cases as Childs v. Erhard, 226 Mass. 454, and Terrini v. New England Steamship Co. 244 Mass. 325.\nEven if facts stated in the allegedly libelous publication were treated as part of the plaintiffs’ own allegations of facts, any conditional privilege thus disclosed was sufficiently rebutted by pleading that the defendant acted with “actual malice”, “express malice”, or “malice in fact.”1 The New York Times Co. case itself used the phrase “actual malice” to denote the knowledge of falsity or reckless disregard necessary to overcome the privilege. 376 U. S. 254, 279-280. So do Tripoli v. Boston Herald-Traveler Corp., Priestly v. Hastings & Sons Publishing Co. of Lynn, and Twohig v. Boston Herald-Traveler Corp., all supra. *167The plaintiff in a libel action should be able to use the same phrase. To require more particularity cannot, in my opinion, materially reduce “the inhibiting effect [on public debate] of the expenses involved in defending libel suits.” Few plaintiffs in libel actions will be loathe to recite that the defendant published “with reckless disregard of whether the facts were true or false.”\n\n The phrases are used interchangeably. See Hartmann v. Boston HeraldTraueler Corp. 323 Mass. 56, 59; Bander v. Metropolitan Life Insurance Co. 313 Mass. 337, 343-344; Sweet v. Post Publishing Co. 215 Mass. 450,452.\n\n", "ocr": false, "opinion_id": 9744553 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7504, "opinion_text": "\n1 Mass. App. Ct. 156 (1973)\n294 N.E.2d 579\nSTANLEY P. ROKETENETZ, JR. & others\nvs.\nWOBURN DAILY TIMES, INC.\nAppeals Court of Massachusetts, Middlesex.\nNovember 21, 1972.\nMarch 14, 1973.\nPresent: HALE, C.J., ROSE, KEVILLE, GOODMAN, GRANT, & ARMSTRONG, JJ.\nNorman Kerman, for the plaintiffs, submitted a brief.\nGOODMAN, J.\nThese are appeals from orders sustaining demurrers to four counts in tort for libel. Each count names as plaintiff a different member of the Roketenetz family which operates a waste disposal business in Woburn. Each of the four counts (hereafter referred to collectively as the declaration[1]) alleges that the defendant in its newspaper *157 \"did publish in said paper a false and malicious libel ... with express malice toward the said plaintiff.\"\nThe publication attached to the declaration is an account of a meeting of the board of health of the city of Woburn at which two aldermen \"asked for the cooperation of the new Board members to either convince the Woburn Redevelopment Authority to reassign another location to the Rokenctz [sic] businesses or to effectively police the Roketenetz property so that citizens in the area would not be bothered by foul smelling garbage left in trucks overnight.\"\nThe meeting was held \"in anticipation of tonight's public hearing on the application for a permit to store gas, oil and diesel fuel at the new Roketenetz's business location.\"\nThe account reported that members of the board \"stated that they would do everything in their power to see that the Roketenetz business obeyed the law and washed out their garbage hauling trucks each day.\" The chairman \"pointed out, however, that in the past it had been very difficult to deal with the Roketenetz family.\" These difficulties as described by the chairman are set out in the footnote.[2]\nThe article then quotes verbatim the discussion at the meeting between Alderman O'Rourke and the superintendent of solid wastes as to the feasibility of preventing spillage and odor problems in the collection of garbage. Alderman Hassett asked \"if there was any way to prevent a truck full of garbage being parked there overnight\" and was told by the board of health secretary that it was illegal.\nThe account ends with a request to the board by Alderman O'Rourke \"that he be immediately informed if there were any complaints about the operations at the new *158 site and stated that he personally would inspect each complaint.\"\nThe defendant demurred on the ground, among others, that the declaration did not state a cause of action. We agree; the demurrers were properly sustained.\nThe plaintiffs rely on the proposition in Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34, that \"a demurrer to a declaration in libel cannot be sustained ... unless the words ... are incapable of a defamatory meaning\" and its corollary that given defamatory words, privilege is \"matter of defence not open on demurrer\". Muchnick v. Post Publishing Co. 332 Mass. 304, dealing with the privilege of fair comment. But see the qualification in Poland v. Post Publishing Co. 330 Mass. 701, 704 and Boston Nutrition Society, Inc. v. Stare, 342 Mass. 439, 443 (\"ordinarily not open on demurrer\"). This order of pleading based on the common law allocation of the burden of proof (see Restatement: Torts, § 613) derives from the view of defamation as an intentional tort like trespass. Harper & James, Torts, § 5.21. \"A person publishes libellous matter at his peril.\" Burt v. Advertiser Newspaper Co. 154 Mass. 238, 245 (Holmes, J.). \"[T]he liability [is] the usual liability in tort for the natural consequence of a manifestly injurious act.\" Hanson v. Globe Newspaper Co. 159 Mass. 293, 303, (Holmes, J., dissenting opinion). (See Sweet v. Post Publishing Co. 215 Mass. 450). This historical development of libel bears out this analysis. Holdsworth, 8 History of English Law, 365-367, 375, et seq. Plucknett, A Concise History of the Common Law (4th ed.) 466, et seq.\nHowever, the analysis is not qualified by the constitutional limitation imposed by New York Times Co. v. Sullivan, 376 U.S. 254, and — particularly applicable in this case — Rosenbloom v. Metromedia, Inc. 403 U.S. 29 and Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118. See Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807.\nThe publication in this case is strikingly similar to the newspaper reports in Priestley v. Hastings & Sons Publishing *159 Co. of Lynn of meetings of the selectmen in Saugus at which the town manager made defamatory charges, which a jury could have found to be false, against an architect commissioned to build a new junior high school. The Supreme Judicial Court in the Priestley case, supra, at 123, following Rosenbloom v. Metromedia, Inc. and Greenbelt Cooperative Publishing Association v. Bresler, 398 U.S. 6, held that the publication \"related to the plaintiff's involvement in an event of public or general concern\" and applied the Times standard. Under that standard it is a matter of proof by the plaintiff (376 U.S. at 284) that the publication was made \"with knowledge that it was false or with reckless disregard of whether it was false or not\" (376 U.S. at 279-280), \"that the lie was a knowing one, or uttered in reckless disregard of the truth.\" Rosenblatt v. Baer, 383 U.S. 75, 92.\nThe Times case, as extended by Rosenbloom v. Metromedia, Inc. 403 U.S. 29, thus established a qualified constitutional privilege to publish false and defamatory material about matters of public concern. It adopted the view of the Kansas Court in Coleman v. MacLennan, 78 Kan. 711, 723, that \"the occasion gives rise to a privilege, qualified to this extent: any one claiming to be defamed by the communication must show actual malice or go remediless. This privilege extends to a great variety of subjects, and includes matters of public concern, public men, and candidates for office.\" See Kalven. The New York Times Case: A Note on \"the Central Meaning of the First Amendment,\" 1964 Sup. Ct. Rev. 191, 203; Pedrick, Freedom of the Press and the Law of Libel: The Modern Revised Translation, 49 Cornell L.Q. 581, 587.\nThe publication in this case clearly comes within the constitutional privilege. It reports a meeting of the board of health concerning garbage disposal and the grant of a permit to store gasoline, etc. at a new location about which a public hearing was scheduled. These were obviously matters of public concern. See Arizona Biochemical Co. v. Hearst Corp. 302 F. Supp. 412 (S.D.N.Y.). The publication cannot, therefore, be the basis for a cause of action *160 unless the declaration contains an allegation adequate to comply with the Times standard. The introduction at trial of this article and the fact of its publication, without more, would result in a directed verdict for the defendant at the close of the plaintiffs' case unless the plaintiffs had also introduced sufficient evidence to permit the trier to find the facts that it was false and that the defendant either knew it was false or published the article recklessly, \"in fact entertain[ing] serious doubts as to the truth of his publication.\" St. Amant v. Thompson, 390 U.S. 727, 731, quoted in Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807. See Priestley v. Hastings & Sons Publishing Co. of Lynn, supra; Tripoli v. Boston Herald-Traveler Corp. 359 Mass. 150. Since such \"substantive facts [are] necessary to constitute the cause of action\" when the Times privilege applies, they must be pleaded. G.L.c. 231, § 7, Second.[3]Gabriel v. Borowy, 324 Mass. 231, 234-235. Cluff v. Picardi, 331 Mass. 320, 322, Mottla, Civil Practice (3d ed.) § 275.\nThis is consistent with the indications in Haynes v. Clinton Printing Co. 169 Mass. 512, 515 (\"[T]he defendant can escape liability [on] the ground of privilege, if any such appears on the face of the declaration\") and Dow v. Long, 190 Mass. 138, 141 (\"[U]nless the averments of the declaration show a sufficient occasion and justification for what the defendant is alleged to have done this [publication] is enough to constitute a cause of action\").[4] See Adams v. Clapp, 346 Mass. 245, 248-249. Cf. Peck v. Wakefield Item Co. 280 Mass. 451, 456.\nIndeed, the Supreme Judicial Court has held that where an absolute privilege appears on the face of the declaration. *161 it is subject to demurrer though, as with a qualified privilege, \"[i]f the defendant relies upon the defence of absolute privilege, he has the burden of proving it.\" Restatement: Torts, § 613, comment f. Mezullo v. Maletz, 331 Mass. 233 (physician's certificate in commitment proceedings). Perry v. E. Anthony & Sons, Inc. 353 Mass. 112 (report of litigation in a Federal Court). A born v. Lipson, 357 Mass. 71 (testimony of witness). See Cluff v. Picardi, 331 Mass. 320, 323, holding a bill of complaint demurrable where a memorandum of an oral contract incorporated by reference in the bill of complaint was inadequate to satisfy the statute of frauds. The court said — particularly applicable here — \"If the plaintiff at a hearing on the merits should prove all the allegations of fact properly set forth in his bill, without more, he would lose his case for lack of a sufficient memorandum\". See also Weiner v. Lowenstein, 314 Mass. 642 (declaration disclosing defence of statute of frauds held demurrable); Reavey v. Guild of St. Agnes, 284 Mass. 300 (declaration for negligence held demurrable where it appeared on its face that the defendant had charitable immunity although \"charitable immunity is an affirmative defence ... not open on demurrer\" [Grueninger v. President and Fellows of Harvard College, 343 Mass. 338, 339-340]).\nThe allegations of the declaration that the newspaper account was \"false and malicious\" and was published \"with express malice toward the said plaintiff\" are insufficient to make out a cause of action under the Times standard. Falsehood does not by itself make a publication actionable. \"What the New York Times rule ultimately protects is defamatory falsehood.\" Rosenblatt v. Baer, 383 U.S. 75, 92 (Stewart, J., concurring). Indeed, even at common law falsehood is insufficient to overcome the conditional privilege which attaches to \"[t]he publication of a report of ... proceedings of a legislative or administrative body or an executive officer of ... a municipal corporation or of a body empowered by law to perform a public duty.\" Restatement: Torts, § 611. \"This privilege differs from the usual conditional privilege [e.g., the *162 privilege of fair comment] in that it affords protection even though the defamatory statement reported is known to be false.\" Restatement: Torts, § 611, comment a. See Lewis v. Vallis, 356 Mass. 662, 669 (report of false charges made at a Registry of Motor Vehicles hearing held qualifiedly privileged); Joyce v. Globe Newspaper Co. 355 Mass. 492, 498-499; Howland v. Flood, 160 Mass. 509, 516: Sheehan v. Tobin, 326 Mass. 185.\nThe word \"malicious\" does not advance the pleader. \"The summary allegation that the false statements are `malicious' is usual in a libel suit. The word is one of art in such pleadings....\" Krebiozen Research Foundation v. Beacon Press, Inc. 334 Mass. 86, 89-90, citing, among other cases, Goodwin v. Daniels, 7 Allen, 61, 63 (\"An averment in a declaration for slander that the words were spoken maliciously is not a distinct and substantive allegation of fact, but it is only descriptive of the legal character which the law imputes to words which import a charge of crime\"). In considering a declaration on demurrer we \"lay to one side epithets such as `without just cause,' and `maliciously.' General conclusions of this nature without allegations of fact sufficient to support them are not admitted by the demurrer.\" J.J. Gordon, Inc. v. Worcester Telegram Publishing Co. Inc. 343 Mass. 142, 143, and cases cited. See Lothrop v. Adams, 133 Mass. 471, 479.\nThe allegation that the account was published \"with express malice\" does not satisfy the Times standard. That phrase, used interchangeably with \"actual malice\" and \"malice in fact,\" commonly means \"malicious intention\" (Lothrop v. Adams, 133 Mass. 470, 479), \"an improper motive\" (Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 59; Bander v. Metropolitan Life Insurance Co. 313 Mass. 337, 344). See Black's Law Dictionary (rev. 4th ed.), 1109. \"A wish to harm\" (Squires v. Wason Manufacturing Co. 182 Mass. 137, 141) might, perhaps, rebut the common law privilege of fair reporting, although \"it is questionable how far the defendant's motivation will be of controlling significance in a case of a writing in a field of public interest\" even if a case were made out \"of active *163 malice in the defendant — of a purpose to injure the plaintiffs or their business rather than an intent to publish a book about a controversial subject.\" Krebiozen Research Foundation v. Beacon Press, Inc. 334 Mass. 86, 89. See Restatement: Torts, § 611, comment a, taking the position that \"protection is lost if the report is published solely for the purpose of defaming the other and not for the purpose of informing the public\" (emphasis supplied). Such a motive does not in any event make a case of \"actual malice\" — knowing falsehood or reckless disregard — under the Times standard. Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, Henry v. Collins, 380 U.S. 356. Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir.).\nWe cannot construe \"express malice\" in the declaration to refer to \"actual malice\" in the Times sense. There is no indication in the declaration or the plaintiffs' scant brief, which does not mention the Times case, that more than the ordinary common law meaning of \"express malice\" was intended. \"No intendment in favor of the pleader can be made upon a demurrer.\" Comerford v. Meier, 302 Mass. 398, 402. Gabriel v. Borowy, 324 Mass. 231. Becker v. Calnan, 313 Mass. 625, 630. Moreover, the \"actual malice\" required by the Times case is, as Prosser points out, akin to deceit and misrepresentation, rather than motive. Prosser, Torts (4th ed.) § 118, p. 821. It should, therefore, like fraud, be pleaded with particularity greater than the bare phrase. Krebiozen Research Foundation v. Beacon Press, Inc. 334 Mass. 86. See Dealtry v. Selectmen of Watertown, 279 Mass. 22, 26-27 (general charges of bad faith not admitted on demurrer).\nThis accords with the Times objective to minimize the inhibiting effect of the expense involved in defending libel suits on \"the vigor and ... the variety of public debate.\" New York Times Co. v. Sullivan, 376 U.S. 254, 279. Time, Inc. v. Hill, 385 U.S. 374, 389. The mere incantation of the words \"actual malice\" should not be enough to put a defendant to the expense of a trial.[5]\n*164 We therefore hold that where it appears from the publication alleged to be defamatory that the Times privilege applies, the plaintiff must allege that it was false and that the defendant either knew it was false or published the material with reckless disregard of whether it was false.\nThe order sustaining the demurrers is affirmed. However, since the effect of the Times standard on pleadings has not heretofore been considered by the Supreme Judicial Court or this court, the plaintiffs are given leave to file a motion to amend the declaration in the Superior Court which motion should be allowed if the proposed amendment is in conformity with this opinion. Moran v. Dunphy, 177 Mass. 485, 488 Berkwitz v. Dunham, 269 Mass. 65, 66, Cf. Keljikian v. Star Brewing Co. 303 Mass. 53, 62-63.\nOrders sustaining demurrers affirmed.\nJudgment for the defendant unless within sixty days after rescript a motion to amend the declaration in conformity with the opinion has been allowed in the Superior Court.\nARMSTRONG, J. (dissenting).\nThis case falls within the settled rule that a demurrer to a libel action cannot be sustained unless the publication is not reasonably capable of any defamatory meaning. Twombly v. Monroe, 136 *165 Mass. 464, 469. Robinson v. Coulter, 215 Mass. 566, 570. Morgan v. Republican Publishing Co. 249 Mass. 388, 390. Lyman v. New England Newspaper Publishing Co. 286 Mass. 258, 261. Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34. Epstein v. Dun & Bradstreet, Inc. 306 Mass. 595, 596. Tobin v. Boston Herald-Traveler Corp. 324 Mass. 478, 487. Muchnick v. Post Publishing Co. 332 Mass. 304, 305-306. Mabardi v. Boston Herald-Traveler Corp. 347 Mass. 411, 413. The declaration follows the forms set forth as sufficient in G.L.c. 231, § 147, Forms, 18-20, except that no innuendo is stated. Where, as here, the published matter imputes crime, no innuendo is necessary. Lyman v. New England Newspaper Publishing Co. 286 Mass. 258, 261. Therefore I would reverse the order sustaining the demurrers.\nI would not reach the question whether the words \"express malice\" or \"actual malice\" are a sufficient method of pleading facts necessary to overcome the conditional privilege enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, and later cases. Privilege is a matter of defence and has repeatedly been held not to be raised by demurrer. Robinson v. Coulter, 215 Mass. 566, 571. Peck v. Wakefield Item Co. 280 Mass. 451, 457. Ingalls v. Hastings & Sons Publishing Co. 304 Mass. 31, 34-35. Muchnick v. Post Publishing Co. 332 Mass. 304, 308. It is possible, of course, for a declaration to allege facts disclosing an affirmative defence, thus enabling the defendant to raise by demurrer what he would normally raise by his answer. The majority find such disclosure not in the plaintiffs' own allegations of fact but in the text of the allegedly libelous newspaper article. I feel that the sounder approach is that taken in Peck v. Wakefield Item Co. 280 Mass. 451, 456, that facts stated in the allegedly libelous publication are not to be treated as allegations of fact by the plaintiff. The only fact these plaintiffs allege with respect to the article is that the defendant published it. They do not allege as fact any statements in the article, including those that the majority rely upon to establish privilege. Nothing in the declaration precludes a contention by the plaintiffs that *166 the participants at the board of health meeting did not in fact make the defamatory statements reported, that the meeting never touched upon the Roketenetz business, or that there was in fact no meeting of the board of health. Peck v. Wakefield Item Co., supra. Since the plaintiffs have not alleged facts showing conditional privilege, they are not required to allege facts sufficient to overcome the privilege.\nNothing in New York Times Co. v. Sullivan or later cases has altered our established rules of pleading or proving privilege, or the facts which overcome privilege. The burden of proving facts to overcome a conditional privilege has always been on the plaintiff. Brow v. Hathaway, 13 Allen 239. Doane v. Grew, 220 Mass. 171, 182. Bander v. Metropolitan Life Insurance Co. 313 Mass. 337, 344. Cases after New York Times Co. v. Sullivan holding that the defendant is entitled to a directed verdict where the plaintiff fails to carry that burden (Tripoli v. Boston Herald-Traveler Corp. 359 Mass. 150; Priestley v. Hastings & Sons Publishing Co. of Lynn, 360 Mass. 118; Twohig v. Boston Herald-Traveler Corp. 362 Mass. 807) stand on no different footing from such earlier cases as Childs v. Erhard, 226 Mass. 454, and Terrini v. New England Steamship Co. 244 Mass. 325.\nEven if facts stated in the allegedly libelous publication were treated as part of the plaintiffs' own allegations of facts, any conditional privilege thus disclosed was sufficiently rebutted by pleading that the defendant acted with \"actual malice\", \"express malice\", or \"malice in fact.\"[1] The New York Times Co. case itself used the phrase \"actual malice\" to denote the knowledge of falsity or reckless disregard necessary to overcome the privilege. 376 U.S. 254, 279-280. So do Tripoli v. Boston Herald-Traveler Corp., Priestly v. Hastings & Sons Publishing Co. of Lynn, and Twohig v. Boston Herald-Traveler Corp., all supra. *167 The plaintiff in a libel action should be able to use the same phrase. To require more particularity cannot, in my opinion, materially reduce \"the inhibiting effect [on public debatel of the expenses involved in defending libel suits.\" Few plaintiffs in libel actions will be loathe to recite that the defendant published \"with reckless disregard of whether the facts were true or false.\"\nNOTES\n[1] Apart from the names of the plaintiffs, the counts are substantially the same.\n[2] \"The Board of Health Chairman cited instances when shotguns had been pointed at inspectors and Board of Health members attempting to do their duty by checking out complaints about the Roketenetz operations at their old location.\n\n\"The situation at the old location was unenforceable,\" stated Hardcastle who claimed that a State Health Officer who had faced the shotgun informed him not to bother because, `[t]he job isn't worth your life.'\n\"The Board of Health Chairman also stated that [on] one occasion Edward App, the Health Inspector had been physically beaten while attempting to inspect the Roketenetz property on Old New Boston Street.\"\n[3] It might be said that the Times case abolishes the intentional tort of libel in the area of public concern and permits the States to substitute instead a cause of action for publishing defamatory material with calculated falsehood or in reckless disregard of its truth — a change analogous to the \"Transition from Trespass to Negligence,\" discussed in Gregory and Kalven. Cases and Materials on Torts (2d ed.) 54. The Times case, however, speaks in terms of privilege (p. 282) and the \"forfeiture of the privilege\" (p. 284).\n[4] Analogously, before the practice act of 1851, St. 1851, c. 233, if the declaration showed a privilege, a defendant could introduce evidence on that matter of defence although he had pleaded only the general issue. Remington v. Congdon, 2 Pick. 310. Bradley v. Health, 12 Pick. 163.\n[5] The Federal Courts have recognized this consideration and have held summary judgment (Rule 56, Fed. R. Civ. P.) appropriate to avoid a trial. Bon Air Hotel, Inc. v. Time, Inc. 426 F.2d 858 (5th Cir.), and cases cited. (Summary judgment is not available in Massachusetts tort actions, G.L.c. 281, § 59.) See Stearn v. MacLean-Hunter Ltd. 46 F.R.D. 76 (S.D.N.Y.) and Arizona Biochemical Company v. Hearst Corp. 302 F. Supp. 412 (S.D.N.Y.) which point out the availability of summary judgment and permit \"actual malice\" to be pleaded generally under the second sentence of Rule 9 (b). Fed. R. Civ. P. (\"Malice, intent, knowledge, and other conditions of mind of a person may be averred generally\")-although \"actual malice\" in the Times sense is not merely \"a condition of mind,\" but more nearly like fraud as to which the first sentence of Rule 9 (b). Fed. R. Civ. P. applies (\"in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity\"). See Linn v. Plant Guard Workers, 383 U.S. 53, 65-66. Nothing here should be construed as indicating our views on the interpretation of the parallel rules in the proposed Rules of Civil Procedure if they are adopted.\n[1] The phrases are used interchangeably. See Hartmann v. Boston Herald-Traveler Corp. 323 Mass. 56, 59; Bander v. Metropolitan Life Insurance Co. 313 Mass. 337, 343-344; Sweet v. Post Publishing Co. 215 Mass. 450, 452.\n\n", "ocr": false, "opinion_id": 2242427 } ]

[ "398 F.3d 384" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/398/398.F3d.384.03-2203.html", "author_id": null, "opinion_text": "398 F.3d 384\n John HIGGINS, et al. Plaintiffs-Appellants,v.INTERNATIONAL UNION, SECURITY, POLICE, FIRE PROFESSIONALS OF AMERICA (SPFPA), International Executive Board of the SPFPA, and DaimlerChrysler Corporation, Defendants-Appellees.\n No. 03-2203.\n United States Court of Appeals, Sixth Circuit.\n Argued: December 9, 2004.\n Decided and Filed: February 4, 2005.\n \n ARGUED: Ann Curry Thompson, Kelman, Loria, Downing, Schneider & Simpson, Detroit, Michigan, for Appellants. Scott A. Brooks, Gregory, Moore, Jeakle & Heinen, Detroit, Michigan, Richard M. Tuyn, Cattel, Tuyn & Rudzewicz, Bloomfield Hills, Michigan, for Appellees. ON BRIEF: Alan B. Posner, Kelman, Loria, Downing, Schneider & Simpson, Detroit, Michigan, for Appellants. Scott A. Brooks, Gregory, Moore, Jeakle & Heinen, Detroit, Michigan, Richard M. Tuyn, Lisa S. Lane, Cattel, Tuyn & Rudzewicz, Bloomfield Hills, Michigan, for Appellees.\n Before: KENNEDY, MARTIN, and MOORE, Circuit Judges.\n OPINION\n MARTIN, Circuit Judge.\n \n \n 1\n A group of fire and security employees appeals the district court's summary judgment in favor of their union and employer in this hybrid action under Section 301 of the Labor Management Relations Act. On appeal, the employees claim that the district court erred in holding that the lawsuit was barred by the statute of limitations and in finding that they failed to establish a breach of contract by their employer or a breach of duty of fair representation by their union. For the following reasons, we AFFIRM the judgment of the district court.\n \n I.\n \n 2\n The plaintiffs in this case, led by John Higgins, are former and current fire and security employees of the DaimlerChrysler Corporation. The employees were covered by a collective bargaining agreement between the International Union, Security, Police, Fire, Professionals of America and DaimlerChrysler effective from August 31, 1998 to August 31, 2003. The claims at issue here arise out of DaimlerChrysler and the Union amending the terms of a part of that collective bargaining agreement known as Letter 53, which provided for the use of supplemental security personnel by DaimlerChrysler. As originally drafted, Letter 53 permitted DaimlerChrysler to use supplemental employees on an as-needed basis, generally limited, however, to eight hours per day, twenty-four hours per week, and provided that such supplemental employees would be paid only $8.50 per hour.\n \n \n 3\n In anticipation of layoffs at DaimlerChrysler, DaimlerChrysler and the Union entered into a Letter of Understanding on March 22, 2001, which modified the terms of Letter 53. The Letter of Understanding altered Letter 53 in several respects, in part by giving DaimlerChrysler the permission to hire full-time supplemental employees and increasing the maximum hourly rate for supplemental employees to $10.50. The Letter of Understanding also limited the proportion of supplemental employees to 15% of the permanent workforce.\n \n \n 4\n On May 25, lead plaintiff John Higgins sent a protest-charge letter on behalf of \"Concerned DaimlerChrysler Members\" to Dennis Eck, the International Secretary-Treasurer for the Union. The letter demanded that the March Letter of Understanding be submitted to the Union membership for a ratification vote because it involved economic changes. According to the letter, the Purpose and Intent Living Agreement entered into between the parties in August 1998 impliedly required membership ratification of all economic changes to the collective bargaining agreement. Based on the Union's conduct involving the March Letter of Understanding, the May 25 letter also \"charge[d]\" several Union officials with \"violating the constitution, Article XIX Contracts and Negotiations, Purpose and Intent of the Living Agreement between DaimlerChrysler Corporation and the [Union].\"\n \n \n 5\n The International President of the Union, David Hickey, responded with a letter dated May 29, which directed that the March Letter of Understanding be submitted to the membership for ratification because it contained changes that could be considered economic within the meaning of the Living Agreement. Hickey ordered the ratification vote even though he apparently believed that ratification may not have been required. As the district court found, economic changes to the collective bargaining agreement generally favorable to Union employees were made in the past without membership ratification. On June 20, Eck sent a letter to Higgins to notify him that his \"charge\" against the Union officers did not appear to comply with Article XX of the Union's constitution, and to ask if he wished to withdraw his protest and charge in light of Hickey's order of the ratification vote.\n \n \n 6\n On June 27, Higgins replied to Eck's letter by telling him that the employees would get back to him. The ratification vote was held and the effort to ratify the Letter of Understanding failed. Consequently, the Union notified DaimlerChrysler on July 18 that the terms of the March Letter of Understanding were no longer in effect. DaimlerChrysler, however, apparently thought that the agreement remained effective despite the vote. On July 23, Higgins sent a letter to Eck requesting that despite the failed ratification vote he wished to \"proceed with the protest/charges filed on May 25, 2001.\" Eck responded in a letter dated August 3 declaring that the protest was \"moot\" because the March Letter of Understanding was submitted for a ratification vote and the Union did not have jurisdiction to hear the charge because Higgins failed to comply with certain procedural requirements. Higgins took no further action regarding this charge.\n \n \n 7\n Several months later, on October 2, the Union and DaimlerChrysler reached another agreement in an effort to resolve the controversy regarding the March Letter of Understanding. The October agreement, which remains effective, is substantially similar to the March Letter of Understanding, but was never submitted to a ratification vote by the Union membership.\n \n II.\n \n 8\n The employees filed the instant lawsuit under Section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, on January 11, 2002, claiming a breach of the 1998 collective bargaining agreement between DaimlerChrysler and the Union and a breach of the Union's duty of fair representation. According to the complaint, the Union and DaimlerChrysler negotiated and implemented the March Letter of Understanding without submitting the modification to the Union membership for ratification.\n \n \n 9\n At the close of discovery, all parties moved for summary judgment and the employees filed a motion for class certification. After a hearing on the motions was held on May 15, 2003, the district court issued a written opinion granting DaimlerChrysler's and the Union's motions for summary judgment and denying the employees' motion for class certification. According to the court, the employees' Section 301 claims for breach of the collective bargaining agreement and breach of the Union's duty of fair representation were barred by the six-month statute of limitations. Furthermore, the court found that the breach of the collective bargaining agreement claim against DaimlerChrysler also failed because there was no specific language in the agreement requiring the parties to submit economic issues to ratification. Similarly, the court found that even if economic changes were impliedly required to be ratified by Union membership, the adoption of the Letter of Understanding did not adversely affect the Union employees and therefore ratification was not required given the parties' past practice of submitting to ratification only those economic changes adverse to Union membership. The court also found that the employees failed to allege a violation of the Union's duty of fair representation because the collective bargaining agreement did not require any ratification by Union members. Finally, the court found insufficient evidence that the employees had shown that they had suffered damages as a result of the March Letter of Understanding.\n \n \n 10\n On appeal, the employees claim that the district court erred in holding that their claims are barred by the statute of limitations. They also argue that their claims establish a breach of contract and a breach of the duty of fair representation. The employees do not, however, appeal the district court's denial of their motion for class certification.\n \n III.\n \n 11\n This Court reviews a district court's grant of summary judgment de novo. Bell v. Marinko, 367 F.3d 588, 591 (6th Cir.2004). 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.Civ.P. 56(c). We view all evidence before us in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).\n \n \n 12\n The employees' claims here — that DaimlerChrysler breached the collective bargaining agreement and the Union breached its duty of fair representation — form a hybrid cause of action under Section 301 of the Labor Management Relations Act. Unless the employees \"demonstrate[] both violations, [they] cannot succeed against either party.'\" Bagsby v. Lewis Bros., Inc. of Tenn., 820 F.2d 799, 801 (6th Cir.1987).\n \n \n 13\n We begin, and end, our analysis with whether the employees present a genuine issue of material fact regarding their claim of breach of the collective bargaining agreement. On appeal, the employees' primary claim is that DaimlerChrysler violated the terms of the collective bargaining agreement by agreeing to the Letter of Understanding without Union member ratification. In support of their claim, they point to the Purpose and Intent Living Agreement of the collective bargaining agreement for the proposition that economic changes must be submitted to the membership for a ratification vote. The Agreement provides in relevant part:\n \n \n 14\n As further evidence of the trust that has developed between the parties, with the exception of the economic provisions which will expire as indicated, this Agreement is intended as a \"living document\" permitting the parties to continually improve on their working relationship and moving that relationship outside the traditional collective bargaining process. Accordingly, the non-economic provisions of this Agreement shall not expire at the termination provided in Section (93).\n \n \n 15\n Therefore, the parties agree that non-economic problems and concerns may be brought forth by either party any time for discussion at the Corporate and International UPGWA level. Efforts of the parties to resolve these problems or concerns may require change or waiver of certain provisions. It is understood that any such waiver, modifications or changes shall be agreed to in writing by the Corporation and the International Union, but shall not require further ratification.\n \n \n 16\n The employees' claim, as we understand it, is that the March Letter of Understanding signed between the Union and DaimlerChrysler without Union membership approval gave DaimlerChrysler permission to hire permanent full-time supplemental employees at higher wages than previously provided to part-time supplemental employees. This, according to the employees, significantly reduced the amount of available overtime for Union members by giving DaimlerChrysler the opportunity \"to restructure its work schedules so that the amount of available overtime was either greatly reduced or eliminated.\" Accordingly, the employees argue that the Letter of Understanding constituted an economic change with adverse economic consequences for the employees and thus required Union membership ratification.\n \n \n 17\n Even if we were to hold that the Purpose and Intent Living Agreement impliedly requires economic changes adverse to Union membership to be subjected to a membership vote, our extensive review of the record in this case produced no substantive evidence that the employees were adversely impacted by the signing of the Letter of Understanding. Thus, in our view, membership ratification of the Letter of Understanding was not required under the collective bargaining agreement given the parties' prior practice of modifying the collective bargaining agreement without membership ratification where there is no adverse impact. It appears that any alleged lost overtime was a result of a number of factors, particularly the hiring of supplemental employees, rather than any provision of the Letter of Understanding. While the Letter of Understanding did give DaimlerChrysler more latitude in hiring supplemental employees, the corporation was generally allowed to use supplemental employees well before the Letter of Understanding was signed. In fact, the Letter of Understanding actually limited how many supplemental employees DaimlerChrysler could hire. Moreover, as the district court pointed out, the Letter of Understanding explicitly provides that any overtime must first be offered to permanent employees before being offered to supplemental employees. Thus, we agree with the district court that the employees are unable to show a genuine issue that any alleged overtime losses are attributable to the signing of the Letter of Understanding.\n \n \n 18\n Similarly, the employees' claim of \"intangible\" damage caused by \"the establishment of a two-tier wage system\" under the Letter of Understanding is simply too speculative in light of the evidence in the record to establish injury sufficient to require a membership vote. We note, furthermore, that a \"two-tier wage system\" was seemingly already in place before the Letter of Understanding was enacted, as supplemental employees were receiving lower wages than other permanent employees. Consequently, we hold that the employees are unable to present a genuine issue of material fact that DaimlerChrysler breached the collective bargaining agreement by entering into the Letter of Understanding without membership ratification, and we therefore hold that their action for breach of contract under Section 301 of the Labor Management Relations Act fails.\n \n IV.\n \n 19\n Because the employees are unable to establish a genuine issue of material fact regarding their breach of contract claim against DaimlerChrysler, their remaining claim for breach of duty of fair representation under Section 301 must also fail. See, e.g., Bagsby, 820 F.2d at 803 (holding that Section 301 hybrid claim failed given meritless breach of collective bargaining agreement claim). Thus, for the foregoing reasons, we AFFIRM the district court's grant of summary judgment.\n \n ", "ocr": false, "opinion_id": 789264 } ]

[ "156 F.3d 188" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/156/156.F3d.188.97-6058.html", "author_id": null, "opinion_text": "156 F.3d 188\n Alexis Herman, Secretary of U.S. Department of Laborv.South Carolina National Bank, Charter Medical Corporation,Employee Stock Ownerhsip Plan, William A. Fickling, Jr.,Bank South of Macon, Trustee Under Agreement of William A.Fickling, Jr., Self-Employed Reitrement Plan, Neva L. Fickling\n NO. 97-6058\n United States Court of Appeals,Eleventh Circuit.\n August 10, 1998\n N.D.Ala., 140 F.3d 1413\n \n 1\n DENIALS OF REHEARING EN BANC.\n \n ", "ocr": false, "opinion_id": 758007 } ]

[ "10 A.3d 524", "299 Conn. 908" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n10 A.3d 524 (2010)\n299 Conn. 908\nAnthony DIBLASE\nv.\nLOGISTEC OF CONNECTICUT, INC., et al.\nSupreme Court of Connecticut.\nDecided November 10, 2010.\nDavid A. Kelly, Glastonbury, in support of the petition.\nThe plaintiffs petition for certification for appeal from the Appellate Court. 123 Conn.App. 753, 3 A.3d 128 (2010), is denied.\n", "ocr": false, "opinion_id": 2423548 } ]

[ "102 F. App'x 879" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\03/03-51242.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT July 20, 2004\n\n Charles R. Fulbruge III\n Clerk\n No. 03-51242\n Summary Calendar\n\n\n\nCLENTIS L. TURNER,\n\n Plaintiff-Appellant,\n\nversus\n\nRAUL ANGUIANO; RAUL CAHILL; PAUL WEATHERBY,\nCaptain; ENRIQUE DEANDA; LAURA HILLEMEYER;\nA. DOMINGUEZ,\n\n Defendants-Appellees.\n\n --------------------\n Appeal from the United States District Court\n for the Western District of Texas\n USDC No. P-03-CV-2\n --------------------\n\nBefore JOLLY, DAVIS, and WIENER, Circuit Judges.\n\nPER CURIAM:*\n\n Clentis L. Turner, Texas prisoner #498120, appeals the\n\ndistrict court’s denial of his motion to proceed in forma\n\npauperis (IFP) and certification that his appeal would not be\n\ntaken in good faith. See Baugh v. Taylor, 117 F.3d 197, 202 (5th\n\nCir. 1997). Turner argues that the district court\n\nmischaracterized his 42 U.S.C. § 1983 complaint as challenging\n\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined\nthat this opinion should not be published and is not precedent\nexcept under the limited circumstances set forth in 5TH CIR.\nR. 47.5.4.\n\f No. 03-51242\n -2-\n\nhis disciplinary hearing and that he alleged facts sufficient to\n\nsupport his claims of deliberate indifference and verbal abuse by\n\nprison employees. Turner has abandoned any argument he had\n\nconcerning his disciplinary proceeding. See Yohey v. Collins,\n\n985 F.2d 222, 224-25 (5th Cir. 1993).\n\n The district court dismissed Turner’s Eighth Amendment\n\nclaims as frivolous and for failure to state a claim under 28\n\nU.S.C. § 1915(e). Turner has failed to raise a nonfrivolous\n\nissue for appeal with respect to the dismissal of his deliberate\n\nindifference and verbal abuse claims. See Bender v. Brumley, 1\n\nF.3d 271, 274 n.4 (5th Cir. 1993); Mendoza v. Lynaugh, 989 F.2d\n\n191, 193 (5th Cir. 1993).\n\n Turner’s request for IFP status is DENIED, and his appeal\n\nis DISMISSED as frivolous. See Baugh, 117 F.3d at 202 & n.24;\n\n5TH CIR. R. 42.2. The dismissal of this appeal and the district\n\ncourt’s dismissal of this lawsuit as frivolous count as two\n\nstrikes for purposes of 28 U.S.C. § 1915(g). Adepegba v.\n\nHammons, 103 F.3d 383, 388 (5th Cir. 1996). In Turner v. State\n\nof Texas Board of Pardons, No. 03-51260, Turner was notified that\n\nhe had accumulated two strikes. Turner has therefore accumulated\n\nfour strikes, and he is barred from proceeding IFP in any civil\n\naction or appeal brought in a United States court unless he is\n\nunder imminent danger of serious physical injury. See 28 U.S.C.\n\n§ 1915(g).\n\f No. 03-51242\n -3-\n\n IFP DENIED; APPEAL DISMISSED AS FRIVOLOUS; SANCTIONS\n\nIMPOSED.\n\f", "ocr": false, "opinion_id": 35857 } ]

[ "69 F.3d 309" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/69/69.F3d.309.94-50406.html", "author_id": null, "opinion_text": "69 F.3d 309\n 95 Cal. Daily Op. Serv. 8329, 95 Daily JournalD.A.R. 14,391UNITED STATES of America, Plaintiff-Appellee,v.Jario A. MEJIA, Defendant-Appellant.\n No. 94-50406.\n United States Court of Appeals,Ninth Circuit.\n Argued and Submitted April 4, 1995.Decided Oct. 26, 1995.\n \n Callie A. Glanton, Deputy Federal Public Defender, Los Angeles, California, for defendant-appellant.\n Erica Kelly Martin, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee.\n Appeal from the United States District Court for the Central District of California.\n Before: McKAY,* REINHARDT, and FERNANDEZ, Circuit Judges.\n Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.\n OPINION\n REINHARDT, Circuit Judge:\n \n \n 1\n Jario Mejia entered a conditional guilty plea to the charge of possessing counterfeit currency, after the district court denied his motions to suppress (1) statements he made while in custody and (2) counterfeit currency seized from his home. The principal issue on appeal is whether the district judge committed a reversible error in refusing to continue the suppression hearing for one court day to permit two key witnesses to testify before him in person. We conclude that the refusal to grant a continuance requires vacation of the denials of the motions to suppress. Thus, under Fed.R.Crim.P. 11(a)(2), we must remand to permit Mejia to withdraw his guilty plea if he elects to do so.\n \n I. BACKGROUND\n \n 2\n After being arrested on an unrelated charge, Mejia admitted to possessing counterfeit currency and consented to a search of his home. During the search the currency was recovered. The issues at Mejia's suppression hearing were: (1) whether Mejia voluntarily consented to the search of his home; and (2) whether he received Miranda warnings before making incriminating statements to detectives. Resolution of each of these issues hinged on credibility--specifically, on whether Mejia's version of post-arrest events should be credited or that of the Los Angeles Police Department officers who interrogated him.\n \n A. The Arrest\n \n 3\n The government and the defendant do not dispute the circumstances precipitating Mejia's arrest. Mejia negotiated the sale of a substance he said was cocaine to a confidential informant and an undercover officer. After Mejia produced the substance, which was later determined to be plaster of paris mixed with a minute quantity of cocaine, several officers with their guns drawn arrested him.1 Immediately following his arrest, he was transported to a Los Angeles police station and placed in an interview room.\n \n B. The Interview\n \n 4\n Mejia and the government agree that Detectives Decesare and Barba of the Los Angeles Police Department interviewed Mejia at the police station. However, as sometimes happens, the account of the interview offered by the defendant differs sharply from that offered by the LAPD investigating officers.\n \n 1. Mejia's Version\n \n 5\n According to Mejia's version of what transpired at the police station, he was handcuffed to a chair throughout the interview. Soon after he was placed in the interview room, Detective Decesare entered and began asking him questions about the aborted drug sale in Spanish, the defendant's primary language. A few minutes later, Detective Barba appeared on the scene. The detectives then asked Mejia whether he had anything illegal in the house. Before he could answer, they told him that if he did not consent to a search of his home they would obtain a warrant, that they could do so in 20 to 30 minutes, and that they would bring charges against his wife if they found anything illegal in the house. Mejia stated that, because he did not want his wife to be charged with any crime, he felt that he had no alternative but to sign the consent form.\n \n \n 6\n Mejia signed the form and told the detectives that he had counterfeit currency at the house. The detectives then stated that they would not bother to search his home since they were interested in drugs and not counterfeit monies. At that point, Mejia ripped up the consent form.2 The detectives continued to question him, pressuring him for information regarding his drug contacts. Decesare and Barba informed him that he was looking at 12 to 16 years in prison on the drug charges if he did not cooperate with the police; on the other hand, the detectives stated that, if he turned in two people, they would see that his sentence was reduced to one to two years. The detectives also told him that he should sign the consent form because it was not a good idea to have counterfeit currency in his home.\n \n \n 7\n Afraid that the officers would obtain a search warrant and arrest his wife if he failed to cooperate--and that he faced a long prison term--Mejia signed a second consent form. After he signed this form, Mejia was informed by Detective Decesare that he would also have to sign a written statement to prove that he was cooperating with them. Decesare wrote the statement in English, verbally translating only the beginning into Spanish for Mejia. Decesare, Barba, and Mejia all signed the statement. No Miranda warning was ever given.\n \n 2. The Detectives' Version\n \n 8\n Decesare and Barba provided a version of the facts markedly different from that of Mejia. According to Decesare, Mejia's handcuffs were removed when he was first placed in the interview room. Decesare informed Mejia that he faced narcotic charges for selling six kilograms of cocaine and that he faced a stiff fine. Decesare did not mention prison time to Mejia. Decesare told Mejia that \"it made no difference to me whether or not he spoke to me.\" Mejia nevertheless expressed a willingness to speak, so long as the conversation was taped. Decesare responded that it would first be necessary to read him his Miranda rights. Before doing so, Decesare left the room to wait for Barba.\n \n \n 9\n When Decesare returned to the room a few minutes later, accompanied by Barba, Mejia immediately stated his desire to confess. At this point, Decesare read Mejia his Miranda rights in Spanish and Mejia verbally waived those rights. Neither detective made any reference to the length of prison time Mejia faced or promised him a reduced sentence if he cooperated--in fact, neither Decesare nor Barba knew the length of sentences for the amount of cocaine Mejia purported to sell. Barba explained to Mejia that the charging decision was for the prosecutors to make.\n \n \n 10\n Mejia voluntarily confessed to making the plaster of paris mixture and to possessing counterfeit money at his house. The detectives asked him for permission to search his house, informing him that he did not have to consent, but that they would attempt to obtain a search warrant if he chose not to. Neither detective at any time threatened to arrest Mejia's wife if he declined to consent to a search.\n \n \n 11\n Without further discussion, Mejia signed a form consenting to the search. This was the only consent form presented to Mejia or signed by him; no form was torn up. Decesare then wrote out a statement of cooperation, which Mejia and the detectives signed.\n \n C. Post-Interview Events\n \n 12\n The parties do not dispute the events following the interrogation. Several officers, including Barba, escorted Mejia to his home. Upon arrival, Mejia told his wife, Denise, where the money was located. Barba and Mark McKee, a special agent of the United States Secret Service, followed her to retrieve the counterfeit currency and McKee took possession of it. The next day, Mejia wrote and signed a declaration in Spanish stating that he had counterfeit money, that he had told the police the previous day that the money was at his house, and that he was cooperating with both the police and the United States Secret Service.\n \n D. The Suppression Hearing\n \n 13\n Mejia was indicted for possession of counterfeit money, in violation of 18 U.S.C. Sec. 472, and the case was assigned to Judge Richard A. Gadbois, Jr. Mejia filed, along with supporting declarations, a motion to suppress the counterfeit currency and a motion to suppress his statements to the detectives. The government opposed both motions, and filed supporting declarations from Decesare and Barba.\n \n \n 14\n On May 9, 1994, Judge Gadbois heard testimony on the motions from Denise Mejia, Detective Decesare, and Detective Barba. The testimony consisted of both direct and cross-examination. The direct testimony was partly live and partly in the form of declarations. The hearing was then continued until May 25, 1994, so that the government could present the testimony of one additional witness, Special Agent McKee, and cross-examine Mejia.\n \n \n 15\n During the intervening period Judge Gadbois became ill and the case was temporarily assigned to Judge Manuel Real. Judge Real conducted a hearing commencing on Thursday, May 26. He announced at the outset that the hearing would be conducted from scratch. The government stated that Decesare and Barba were on vacation for the Memorial Day weekend and were therefore unable to testify that day, but that both detectives would be available to testify on the following Tuesday (Monday being a legal holiday). The defendant then requested a continuance, so that he could obtain a transcript of the proceedings before Judge Gadbois for the purpose of impeaching the detectives. In response to the defendant's request, Judge Real stated: \"No. We don't need a transcript on the motion to suppress. We can start over on the motion here. I am going to hear it today.\" When defense counsel tried to explain why she wanted the transcript, Judge Real disagreed, stating: \"it boils down, basically, to believability.... One person says one thing about the arrest and what happened at the arrest, and the other side says something else, absolutely the other end of the spectrum. So it's only a question of believability.\"3\n \n \n 16\n The hearing then began, as the earlier, aborted version had, with the testimony of Denise Mejia. When she finished, the government called Special Agent Mark McKee, to testify as to the events that transpired during the search of the defendant's home. After McKee left the stand, the government stated that it had no further witnesses to call at that time. Judge Real then informed the parties that it would not be necessary for him to hear live testimony from Detectives Decesare and Barba; instead, the court reporter would read him the transcript of Decesare's and Barba's earlier testimony the next afternoon. Surprised by Judge Real's announcement of his intention to substitute a transcript for the live testimony of the detectives, defense counsel objected, requesting \"that the witnesses be called so that the Court could observe their demeanor in answering the questions.\" Judge Real overruled the objection. Mejia then took the stand and was examined by both counsel as well as by Judge Real.\n \n \n 17\n The next day, Friday, May 27, Judge Real announced that he had read the reporter's transcript of Decesare's and Barba's testimony and defense counsel again objected to its use in place of live testimony. Counsel argued that the hearing should be continued to the following court day, Tuesday, May 31, so that the detectives could be examined in person in front of Judge Real. Again, Judge Real refused to grant a continuance, stating: \"I don't need to do that.... There's no problem with [the detectives'] credibility.... The transcript will be made part of this proceedings [sic].\" No further testimony was adduced.\n \n \n 18\n After hearing arguments from both sides, Judge Real announced his decision to deny both Mejia's motion to suppress his statements and his motion to suppress the counterfeit currency. The judge requested the prosecutor to submit proposed findings of fact and conclusions of law, and then adopted them verbatim. In the written findings he adopted, Judge Real explicitly rejected the version of facts offered by Mejia. Alluding to the \"demeanor of the witnesses as well as the content of their testimony,\" Judge Real concluded that Mejia and his wife had \"hyperbolized the events\" in question. On the other hand, Judge Real found the testimony of Barba and Decesare to be credible; specifically, he found that the transcript \"did not reveal any inconsistencies, falsehoods or facts not already set forth in their declarations.\" Based on the officers' version of the events, Judge Real concluded that Mejia had voluntarily confessed after waiving his Miranda rights and similarly that he had voluntarily consented to the search of his home. Mejia subsequently filed a conditional plea of guilty, reserving his right to appeal the denials of the motions to suppress.\n \n II. DENIAL OF CONTINUANCE\n \n 19\n Mejia contends that Judge Real abused his discretion in refusing to grant his request that the suppression hearing be continued for one court day, so that the government's two main witnesses could testify in person and be cross-examined in front of the judge who would be required to assess their credibility. We agree. As Judge Real recognized, the outcome of the suppression hearing turned on the credibility of the witnesses. We conclude that it was improper for the court to find the detectives' testimony credible without viewing their demeanor, especially in view of the fact that it relied on the \"demeanor\" of Mejia in determining that his testimony was not credible. Because the denial of a one-day continuance resulted in the fact-finder's being required to decide factual issues without observing critical witnesses or hearing them testify in person, we conclude that sufficient prejudice exists to require reversal.\n \n \n 20\n The district court's decision to grant or deny a request to continue a hearing is reviewed for an abuse of discretion. United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.1985), amended, 764 F.2d 675.4 In determining whether a district court abused its discretion in denying a requested continuance, we analyze the following factors:\n \n \n 21\n the extent of appellant's diligence in his efforts to ready his defense prior to the date set for hearing.... how likely it is that the need for a continuance could have been met if the continuance had been granted.... the extent to which granting the continuance would have inconvenienced the court and the opposing party, including witnesses.... the extent to which the appellant might have suffered harm as a result of the district court's denial.\n \n \n 22\n Id. at 1359.5 The weight accorded to each factor may vary from case to case; \"[h]owever, in order to obtain a reversal, appellant must show at a minimum that he has suffered prejudice as a result of the denial of his request.\" Id. Here the factors all weigh in Mejia's favor.\n \n A. Diligence\n \n 23\n The first factor we consider in reviewing the district court's refusal to grant a continuance is the appellant's diligence in preparing his case. Flynt, 756 F.2d at 1359. This factor clearly weighs in Mejia's favor. There is no indication from the record, and the government does not argue, that Mejia was less than diligent. The need for a continuance was not due to Mejia's lack of diligence, but rather to the fact that the government's two key witnesses were on vacation.\n \n B. Usefulness\n \n 24\n The second factor is the likelihood that the continuance would serve a useful purpose. Flynt, 756 F.2d at 1360. A requested continuance would be useful if it would permit the appellant to introduce evidence relevant to the issue at hand. Id.; see also United States v. Pope, 841 F.2d 954, 957 (9th Cir.1988) (noting that Flynt required showing that \"testimony would be relevant\" and that \"[n]othing more should be required\" to demonstrate usefulness of continuance). Mejia argues that a continuance would have been useful, because it would have permitted Judge Real to perform a critical function necessary to a proper resolution of the suppression motion--to assess the detectives' demeanor while they testified. We agree.\n \n \n 25\n There is no question that the alleged purpose of the continuance--allowing Judge Real to hear the testimony of the two detectives live--would have been satisfied if the continuance had been granted. The government, however, contends that there was no legitimate reason to continue the suppression hearing, since Decesare and Barba had already testified, and had been subject to cross-examination before Judge Gadbois. In these circumstances, the government argues, Judge Real was entitled to rely on Decesare's and Barba's declarations and the transcripts of their testimony. Thus, according to the government, further testimony would have served no useful purpose but would merely have prolonged the hearing.\n \n \n 26\n We reject the government's contention that no useful purpose would have been served by granting the continuance. There can be no doubt that seeing a witness testify live assists the finder of fact in evaluating the witness's credibility. As the Supreme Court stated in Anderson v. City of Bessemer, 470 U.S. 564, 105 S. Ct. 1504, 84 L. Ed. 2d 518 (1985): \"[O]nly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said.\" Id. at 575, 105 S.Ct. at 1512. Live testimony enables the finder of fact to see the witness's physical reactions to questions, to assess the witness's demeanor, and to hear the tone of the witness's voice--matters that cannot be gleaned from a written transcript. See id.; United States v. Hood, 493 F.2d 677, 680 (9th Cir.) (trial judge in unique position to observe witnesses demeanor while appellate court only has \"the cold record, which is sterile in comparison\"), cert. denied, 419 U.S. 852, 95 S. Ct. 94, 42 L. Ed. 2d 84 (1974). Because the district judge is able to hear testimony live and to view the witnesses as they testify, his credibility findings are entitled to deference on appeal. See id. By continuing the hearing for one court day, Judge Real would have had the opportunity to see and hear the government witnesses testify. Thus, the continuance would indisputably have served a useful purpose.\n \n \n 27\n In support of its argument to the contrary, the government cites cases holding that it does not violate due process for a district judge to approve the factual findings of a magistrate judge without hearing testimony himself. United States v. Raddatz, 447 U.S. 667, 100 S. Ct. 2406, 65 L. Ed. 2d 424 (1980); Campbell v. United States, 501 F.2d 196 (9th Cir.), cert. denied, 419 U.S. 879, 95 S. Ct. 143, 42 L. Ed. 2d 119 (1974). These cases do not support the government's position. In Raddatz, the Court approved a statutory scheme that permits the district judge to accept the magistrate's factual findings without himself hearing testimony. Raddatz thus stands for the proposition that the ultimate decisionmaker, the district judge, need not hear live testimony, so long as the preliminary finder of fact, the magistrate judge, hears testimony and makes credibility findings based on his observations, which the district judge then considers and accepts. Because the magistrate sees and hears live testimony, he has an adequate basis for making credibility determinations. Thus, no constitutional violation occurs. Here, Mejia was denied the opportunity to present live testimony before any person who acted as a fact-finder, preliminary or otherwise. Judge Gadbois, before whom the detectives did testify, does not qualify: He made no findings of any kind.\n \n \n 28\n The circumstances that this case presents are thus materially different from those considered in Raddatz. Indeed, the Raddatz court expressly recognized the importance of live testimony before a trier of fact: \"[W]e assume it is unlikely that a district judge would reject a magistrate's proposed findings on credibility when those findings are dispositive and substitute the judge's own appraisal; to do so without seeing or hearing the witnesses whose credibility is in question could well give rise to serious questions which we do not reach.\" Id. at 681 n. 7, 100 S. Ct. at 2415 n. 7.6\n \n \n 29\n The district judge's actions in this case involve some of the same elements against which the Court warned. Judge Real made a conclusive evaluation of credibility on the basis of the written transcript without hearing live testimony from the witnesses whose credibility he was evaluating, and without the benefit of any credibility findings by the judicial officer who had presided over the taking of the witnesses' testimony. Given the importance of live testimony to credibility determinations--which the Court recognized not only in Anderson but also in Raddatz--we conclude that granting the continuance would clearly have served a useful purpose.7\n \n C. Inconvenience\n \n 30\n The third factor is whether the continuance would inconvenience the parties, the court, or other witnesses. Flynt, 756 F.2d at 1360. This factor weighs heavily in Mejia's favor. Had the district court continued the proceedings for one court day, both Decesare and Barba could have presented their testimony. A delay of one court-day is ordinarily not a \"cognizable inconvenience.\" Flynt, 756 F.2d at 1360 (\"The hearing began at 1:30 p.m. and ended later that same day; recalendaring the proceedings would not have created any scheduling difficulties for the court\"); see also Armant v. Marquez, 772 F.2d 552, 557 (9th Cir.1985) (recalendaring proceeding that lasted only one day would create minimal inconvenience). At any rate, neither the government nor the district judge indicated during the hearing that a one-day delay would result in any inconvenience whatsoever.\n \n D. Prejudice\n \n 31\n The most critical question is whether Mejia was prejudiced by the district court's refusal to grant his request for a continuance. We may not reverse unless the party whose request was denied suffered prejudice. United States v. Maybusher, 735 F.2d 366, 369 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S. Ct. 790, 83 L. Ed. 2d 783 (1985). Given the importance of the testimony of the government witnesses who did not appear before Judge Real--and particularly the fact that the outcome turned on the credibility of those witnesses--we conclude that the district court's failure to hear their testimony directly and to view their demeanor was prejudicial.8\n \n \n 32\n Where the denial of a continuance prevents the introduction of specific evidence, the prejudice inquiry focuses on the significance of that evidence. In Flynt, we held that the appellant was prejudiced by the district court's refusal to continue the hearing so that the appellant could obtain a psychiatric evaluation. 752 F.2d at 1361. Because the appellant's sole defense was his lack of the requisite mental capacity, we concluded that the importance of psychiatric expert testimony was \"obvious.\" Id. The defendant was \"not allowed to put forward the only defense he had.\" Id. at 1362. Similarly, in United States v. Pope, 841 F.2d 954, 958 (9th Cir.1988), we held that the defendant was prejudiced, where the denial of a brief continuance prevented him from introducing \"the only testimony that could plausibly have helped him.\" See also United States v. 2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir.1985) (finding prejudice where denial of continuance prevented defendant from introducing any evidence on its behalf); Armant v. Marquez, 772 F.2d 552 (9th Cir.1985) (finding prejudice where denial of continuance effectively denied defendant the opportunity to prepare his own defense). Reversal is not required, however, where the complaining party is unable to explain how the denial of a continuance affected his ability to present his case. United States v. Lim, 984 F.2d 331, 336 (9th Cir.1993), cert. denied, --- U.S. ----, 113 S. Ct. 2944, 124 L. Ed. 2d 692 (1993); United States v. Shirley, 884 F.2d 1130, 1135 (9th Cir.1989); United States v. Lane, 765 F.2d 1376, 1379 (9th Cir.1985).\n \n \n 33\n Here, Mejia has provided a more than persuasive explanation of how the denial of the continuance adversely affected him. As Judge Real recognized, the outcome of both the motion to suppress Mejia's statements and the motion to suppress the counterfeit currency depended on the respective credibility of Mejia and the detectives. Mejia's only way to prevail was to convince the district judge that the officers' version of events was not truthful. Because the continuance was denied, the fact-finder was compelled to make his decision without hearing the live testimony of the critical witnesses and without having an opportunity to observe their demeanor.9 Consequently, the defendant was deprived of the process to which he was entitled--a process designed to safeguard his interests and ensure a fair and proper result. Because the testimony of key witnesses was involved, the deprivation was substantial.10 Under these circumstances, the prejudice requirement set forth in Flynt and other relevant cases is met.11\n \n \n 34\n Our cases require the district court to conduct an evidentiary hearing when the moving papers filed in connection with a pre-trial suppression motion show that there are contested issues of fact relating to the lawfulness of a search. United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986). The purpose of requiring an evidentiary hearing, rather than permitting a decision to be based solely on written declarations, is to ensure that the district judge is presented with the information necessary to evaluate the truthfulness of the declarants. In this case, Judge Gadbois correctly concluded that an evidentiary hearing was necessary to resolve the disputed factual issues. Judge Real initially appeared to recognize that fact also. All that changed during the course of the hearing was that Judge Real concluded that he could end the proceedings one court day earlier if he read the transcript of the key witnesses' prior testimony instead of having them testify before him.\n \n \n 35\n In arguing that Judge Real's decision was proper, the government likens this case to those in which a witness was unavailable and the court admitted transcripts of prior testimony under an exception to the hearsay rule. However, in every case cited by the government in which such transcripts were admitted because a witness was unavailable, the witness had either died prior to or during trial, United States v. McGinnis, 574 F. Supp. 661, 663 (N.D.Ill.1983), aff'd, 757 F.2d 1291 (7th Cir.1985) (table), United States ex rel. Haywood v. Wolff, 658 F.2d 455, 457 (7th Cir.), cert. denied, 454 U.S 1088, 102 S. Ct. 649, 70 L. Ed. 2d 625 (1981), could not be located after a diligent search, Ohio v. Roberts, 448 U.S. 56, 75, 100 S. Ct. 2531, 2544, 65 L. Ed. 2d 597 (1979), Gonzalez v. Scully, 578 F. Supp. 1063, 1069 (S.D.N.Y.), aff'd, 738 F.2d 418 (2nd Cir.) (table), cert. denied, 469 U.S. 1020, 105 S. Ct. 438, 83 L. Ed. 2d 363 (1984), was incarcerated, United States v. Salim, 664 F. Supp. 682, 689 (E.D.N.Y.1987), aff'd, 855 F.2d 944 (2nd Cir.1988), or claimed the privilege of self-incrimination, Phillips v. Wyrick, 558 F.2d 489, 492 (8th Cir.1977), cert. denied, 434 U.S. 1088, 98 S. Ct. 1283, 55 L. Ed. 2d 793 (1978).12 Thus, the court could not reasonably obtain live testimony.\n \n \n 36\n The reason for the exception permitting the use of transcripts in some instances is not because live testimony is unimportant, but because there are circumstances in which there is no practical alternative. Such is clearly not the case here. Decesare and Barba were on vacation and were available to testify on the next court day. Their unavailability for one day does not bring the case within the hearsay rule exception. In any event, the question here is not whether the transcript of the detectives' testimony was admissible, but whether the district court abused its discretion in failing to grant a continuance so that the witnesses could testify live.\n \n \n 37\n The fact that we make exceptions to the live testimony requirement when it is necessary to do so does not mean that transcript testimony is as desirable as live testimony, or that one or both of the parties do not suffer some prejudice as a result of its use. Rather, we admit the testimony because we conclude that in certain instances the prejudicial consequences of doing so are outweighed by the necessity of obtaining relevant information that is sufficiently reliable and that significantly advances the truth-finding process. However, we continue to recognize that whenever possible we must proceed by way of live testimony, so that the rights of the parties will be protected to the fullest extent practical. Were this not the case, we would simply permit the use of deposition testimony in all instances. In short, notwithstanding the hearsay exceptions, the inability of the fact-finder to observe witnesses whose credibility he must evaluate is, generally, contrary to our traditional fact-finding process and adversely affects the rights of the parties. When, as here, the inability to observe critical witnesses results from an erroneous judicial determination regarding the importance of live testimony, rather than from the application of established legal exceptions to the hearsay rule, we have no difficulty in concluding that the aggrieved party suffered substantial prejudice.\n \n \n 38\n Because Judge Real did not view or hear the testimony of Decesare and Barba, he had no opportunity assess their demeanor and tone of voice. As he recognized, such evidence is critical to credibility determinations. Given the importance of the detectives' testimony--and of Mejia's attempt to impeach their testimony--we conclude that the district court's refusal to grant a one-day continuance so that the witness could appear and testify before the fact-finder prejudiced Mejia. In light of the above, the error requires reversal.\n \n III. INEVITABLE DISCOVERY\n \n 39\n As an alternative basis for upholding the denial of Mejia's motion to suppress the counterfeit currency recovered from his home, the government contends that the evidence is admissible under the inevitable discovery exception to the exclusionary rule. We reject the contention that this doctrine applies where the police had probable cause to conduct a search but simply failed to obtain a warrant.\n \n \n 40\n The inevitable discovery exception allows the introduction of illegally obtained evidence where the government proves by a preponderance of the evidence \"that the tainted evidence would inevitably have been discovered through lawful means.\" United States v. Ramirez-Sandoval, 872 F.2d 1392, 1396 (9th Cir.1989); United States v. Echegoyen, 799 F.2d 1271, 1280 n. 7 (9th Cir.1986). The government contends that a failure to obtain a warrant should be excused, because Mejia's statements while in custody gave them probable cause to search his home. Thus, the government argues, a warrant would have issued if the detectives had sought one.\n \n \n 41\n We first note that the factual premise of the government's argument is questionable--it is unclear whether there was competent evidence that would have supported an application for a warrant. Mejia, after all, has moved to suppress his statements to the detectives as well as the counterfeit money seized from his home. According to Mejia, his statements while in custody were made without the benefit of Miranda warnings. Thus, if the court had credited Mejia's testimony, it would have been compelled to suppress the statements he made while in custody. See Gonzalez-Sandoval, 894 F.2d 1043. Had Mejia's statements been suppressed, the government would have lacked probable cause to search his home and could not have obtained a warrant in any event. Thus, at best, the government's inevitable discovery argument is contingent on its prevailing on the continuance issue.13\n \n \n 42\n Even, however, were we to assume that Mejia's post-arrest statements were admissible, and would have supported a warrant application, the inevitable discovery doctrine would not apply to the counterfeit currency recovered from Mejia's home. This court has never applied the inevitable discovery exception so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant. As we stated in Echegoyen, to \"excuse the failure to obtain a warrant merely because the officers had probable cause and could have obtained a warrant would completely obviate the warrant requirement.\" 799 F.2d at 1280 n. 7; see also United States v. Johnson, 22 F.3d 674, 683 (6th Cir.1994) (\"to hold that simply because the police could have obtained a warrant, it was therefore inevitable that they would have done so would mean that there is inevitable discovery and no warrant requirement whenever there is probable cause\"). If evidence were admitted notwithstanding the officers' unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant. To apply the inevitable discovery doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant requirement.\n \n \n 43\n We are neither free nor willing to read the warrant requirement out of the Constitution. Accordingly, even if we assume that the detectives were in possession of competent evidence showing probable cause at the time of the search, the inevitable discovery doctrine would not justify introduction of the evidence seized without a warrant.\n \n IV. CONCLUSION\n \n 44\n Judge Real abused his discretion in refusing to grant a continuance of one court day to allow the government's key witnesses to testify live before him. Given the importance of those witnesses' testimony and the need to assess their credibility, we conclude that Mejia has made the showing of prejudice that the Flynt test requires. Accordingly, the denial of Mejia's suppression motions must be vacated and he must be permitted, if he so elects, to withdraw his Rule 11(a)(2) plea of guilty.\n \n \n 45\n REVERSED and REMANDED.\n \n \n 46\n FERNANDEZ, Circuit Judge, concurring and dissenting:\n \n \n 47\n I dissent from Part II of the majority opinion but concur in Part III.\n \n \n 48\n Mejia's argument proceeds from the premise that an ideal procedure would have been for Judge Real to grant a continuance and hear live testimony from the officers. No doubt that would have been ideal, and I am somewhat at a loss to understand why the ideal did not become the reality. Nevertheless, I do not agree that reversal is required.\n \n \n 49\n Mejia's argument comes parlously close to suggesting that district courts simply cannot make proper decisions in suppression cases without seeing the witnesses. That, of course, is not true. See United States v. Raddatz, 447 U.S. 667, 677-81, 100 S. Ct. 2406, 2413-15, 65 L. Ed. 2d 424 (1980); Campbell v. United States District Court, 501 F.2d 196 (9th Cir.), cert. denied, 419 U.S. 879, 95 S. Ct. 143, 42 L. Ed. 2d 119 (1974). I do not overlook the Supreme Court's footnote 7 in Raddatz, 447 U.S. at 681, 100 S.Ct. at 2415. However, I do not think that one should put very much weight on the dicta in that footnote. The agency proceedings alluded to by the Court do not, as far as I know, preclude the boards, which are making the ultimate decisions, from making credibility determinations different from those of the hearing officers. Indeed, we know that agency boards do just that. See, e.g., Cardoza-Fonseca v. INS, 767 F.2d 1448, 1455 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S. Ct. 1207, 94 L. Ed. 2d 434 (1987); McMullen v. INS, 658 F.2d 1312 (9th Cir.1981). Moreover, the idea that a district court must actually review a magistrate judge's determinations de novo, but may not upset the magistrate judge's credibility decisions is troublesome to say the least. Much of what passes as factfinding in our system does in fact require resolving conflicts in the evidence and therefore believing one party or the other. If a district judge could not read a hearing transcript and come to a conclusion that differs from that of the magistrate judge, the utility of magistrate judges in our system would be greatly undermined. That cannot be: mutatis mutandis a district judge should generally be able to read a hearing transcript and make his own assessment in the first place.\n \n \n 50\n That being said, I do not think that Mejia should carry the day. It seems to me that he has utterly failed to show that he was prejudiced. True, he keeps uttering the generality that the district court could have made a much more just decision had it only seen the officers in person. But Judge Real had the officers' declarations before him and had the transcript of their cross-examination in front of Judge Gadbois. As Judge Real pointed out, that cross-examination did not appear to develop any relevant inconsistencies or to bring out any even remotely interesting contradictory testimony. There was no particular reason to think that a second cross-examination would have been more efficacious.\n \n \n 51\n Also, if the officers did exhibit any unusual body language, facial expressions, vocal hesitations, or the like on the first cross-examination, we may assume that Mejia would have been quick to tell Judge Real about those incidents. Demeanor problems would surely underscore the need for seeing the officers in person. Again, Mejia contented himself with generalities.\n \n \n 52\n Finally, when the fact that the district court found Mejia and his wife to be unbelievable is added to the mix, the whole becomes less, not more, redolent of prejudice. In short, while I do not entirely fathom the district court's reluctance to hear the officers' testimony on a later day, I also do not think that Mejia has adequately explained how he was actually prejudiced. See United States v. Robertson, 15 F.3d 862, 873 (9th Cir.), cert. denied, --- U.S. ----, 115 S. Ct. 362, 130 L. Ed. 2d 315 (1994).\n \n \n 53\n Thus, I respectfully dissent from Part II of the opinion.\n \n \n \n *\n The Honorable Monroe G. McKay, Senior Circuit Judge for the Tenth Circuit, sitting by designation\n \n \n 1\n Mejia was not charged with the attempted sale of a controlled substance, but only with the possession of counterfeit currency\n \n \n 2\n He testified that only one hand was cuffed to the chair, and that he grabbed the form with the other, transferred it to the cuffed hand, and then, using both hands, tore it up\n \n \n 3\n This remark is puzzling. As Judge Real stated, the key question was believability; therefore, it would seem that a transcript of the prior proceedings would have been useful for impeachment purposes. However, whether the hearing should have been delayed in order to permit Mejia's counsel to obtain the transcript is another matter--a matter that is not in any way the basis for this appeal or otherwise before this court. In any event, because the officers did not testify a second time, the transcript issue is moot\n \n \n 4\n The government devotes much of its brief to arguing that the district court's findings of fact were not clearly erroneous. As the government correctly points out, the district court's finding as to whether consent to search was voluntary is reviewed for clear error. United States v. Preciado-Robles, 964 F.2d 882, 885 (9th Cir.1992). In this case, however, Mejia's primary contention is not that the district judge's findings were clearly erroneous, but rather that the district judge committed a critical error of law in conducting the hearing\n \n \n 5\n The government cites United States v. Robinson for the factors to be considered when determining whether the court abused its discretion in denying a continuance. 967 F.2d 287, 291 (9th Cir.1992). The factors listed in Robinson differ slightly from the Flynt factors. According to Robinson, the court should consider:\n whether the continuance would inconvenience witnesses, the court, counsel, or the parties; whether other continuances have been granted; whether legitimate reasons exist for the delay; whether the delay is the defendant's fault; and whether a denial would prejudice the defendant.\n 967 F.2d at 291 (citing United States v. Studley, 783 F.2d 934 (9th Cir.1986)). In both Studley and Robinson, the defendant's right to counsel was implicated in the decision to deny a continuance. On the other hand, we have applied the Flynt factors in a variety of contexts. See, e.g. Armant v. Marquez, 772 F.2d 552, 557-58 (9th Cir.1985) (request for continuance to permit defendant representing himself to prepare for trial), cert. denied, 475 U.S. 1099, 106 S. Ct. 1502, 89 L. Ed. 2d 902 (1986); United States v. 2.61 Acres of Land, More or Less, 791 F.2d 666, 671-72 (9th Cir.1985) (request for continuance to allow bank whose property was seized to revive itself). We therefore apply the Flynt factors here. In any event, the factors in Flynt and Robinson are not very different, and the application of either set of factors would yield the same conclusion in this case.\n \n \n 6\n Our decision in Campbell, on which the government also relies, is similar to Raddatz. Both cases uphold, against a constitutional challenge, the statute authorizing magistrate-judges to conduct an evidentiary hearing and to make initial findings of fact\n \n \n 7\n We note that the district judge took an active role in cross-examining Mejia, when he thought that the prosecution did not pursue a point sufficiently. He did likewise with respect to Mejia's wife. We assume that Judge Real would have shown the same vigor in cross-examining the police officers, if their testimony was in any way open to question. Although we do not rely on this point, live testimony might have been useful for this reason as well. It would have permitted the district judge to explore all the facts thoroughly and fairly\n \n \n 8\n Although the district court concluded that Mejia did not act in response to any threats to his wife when he signed the consent form, it appears that this finding is based not only on incomplete information (given the absence of live testimony and the attendant demeanor observations) but on a misapprehension as to the nature of Mejia's actual testimony. The district court appeared to believe that Mejia acknowledged that he did not sign the consent form in response to any threat regarding his wife. However, while Mejia testified that no threat was made at the time he signed the form, he also testified that at the beginning of the interview the officers threatened to arrest his wife if he refused to consent and if they then discovered contraband in his home. Moreover, even if the district court were correct, that fact could not affect the outcome of this appeal. We here consider a conditional guilty plea under Fed.R.Crim.P. 11(a)(2). If any ruling that forms a basis for the conditional plea is found to be erroneous, we are required to permit the defendant to withdraw his plea. Here, there were two motions to suppress. Only one is affected in any way by the finding regarding Mejia's state of mind concerning the threats to his wife. If as Mejia contends, the detectives failed to inform him of his Miranda rights, then suppression of his statements would be required, United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1046-47 (9th Cir.1990), and he would be entitled to prevail in any event. Finally, given the fact that the motions were heard together, that they related to the same interrogation and involved overlapping issues, that the failure to give a Miranda warning can be a consideration when determining questions of consent, and that the court's error as to both motions was identical, we would conclude that, under all the circumstances, a showing of prejudice as to either would be sufficient to require a finding of error and a new hearing as to both\n \n \n 9\n It is telling that the district judge thought demeanor evidence to be a crucial factor in evaluating Mejia's credibility. In explaining his reasons for rejecting the testimony of Mejia and his wife, Judge Real stated: \"Based upon the demeanor of the witnesses as well as the content of their testimony, the Court finds that both the defendant and his wife hyperbolized the events underlying defendant's arrest and defendant's motion.\" Because Judge Real did not observe the testimony of the two key prosecution witnesses, he was obviously unable make a comparable assessment of their \"demeanor.\"\n \n \n 10\n Even the evaluation of Mejia's credibility could have been affected had the court had the opportunity to make a proper determination as to the veracity of the officers' testimony. While Mejia's demeanor may not have impressed Judge Real, the court's view of Mejia might have been far different had he observed the officers and reached the conclusion that they were being untruthful\n \n \n 11\n We note that the standard we recently announced for determining prejudice in discovery cases is not applicable here. See Martel v. County of Los Angeles, 56 F.3d 993 (9th Cir.1995). As we recognized in Sablan v. Dept. of Finance of N. Mariana Islands, 856 F.2d 1317, 1321 (9th Cir.1988) and Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir.1986), trial courts have unusually broad discretion to permit or deny discovery. Following this line of cases, Martel states that \"a district court's decision to deny a continuance sought for the purposes of obtaining discovery will be disturbed only 'upon the clearest showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant.' \" Martel, 56 F.3d at 995 (quoting Sablan, 856 F.2d at 1321 and Butcher's Union, 788 F.2d at 540)\n Martel requires an exceptionally high showing of prejudice because the right to take discovery preparatory to a judicial proceeding, unlike the right to present witnesses or offer other evidence at the judicial proceeding itself, is highly discretionary. For that reason, the Martel standard is not applicable outside the discovery context. Where, as here, the denial of a continuance of the proceeding directly affects a defendant's ability to present evidence, we do not require \"the clearest showing\" of \"actual and substantial prejudice.\" To the contrary, we have consistently applied the less stringent prejudice test articulated in Flynt, and have examined carefully the extent to which the aggrieved party's right to present his defense has been affected.\n \n \n 12\n In California v. Green, 399 U.S. 149, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970), also cited by the government, the admission of prior statements was held not to violate the Confrontation Clause, where the declarant testified at trial and was subject to cross-examination before the jury at the time his statements were admitted. In contrast to Barba and Decesare, the declarant in Green testified before the trier of fact\n \n \n 13\n Of course, if the government could prevail on the continuance issue, it would not need to invoke the inevitable discovery rule. Accordingly, the government's raising of this issue serves no purpose whatsoever\n \n \n ", "ocr": false, "opinion_id": 706974 }, { "author_str": "Reinhardt", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOpinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.\nOPINION\nREINHARDT, Circuit Judge:\nJario Mejia entered a conditional guilty plea to the charge of possessing counterfeit currency, after the district court denied his motions to suppress (1) statements he made while in custody and (2) counterfeit currency seized from his home. The principal issue on appeal is whether the district judge committed a reversible error in refusing to continue the suppression hearing for one court day to permit two key witnesses to testify before him in person. We conclude that the refusal to grant a continuance requires vacation of the denials of the motions to suppress. Thus, under Fed.R.Crim.P. 11(a)(2), we must remand to permit Mejia to withdraw his guilty plea if he elects to do so.\nI. BACKGROUND\nAfter being arrested on an unrelated charge, Mejia admitted to possessing counterfeit currency and consented to a search of his home. During the search the currency was recovered. The issues at Mejia’s suppression hearing were: (1) whether Mejia voluntarily consented to the search of his home; and (2) whether he received Miranda warnings before making incriminating statements to detectives. Resolution of each of these issues hinged on credibility — specifically, on whether Mejia’s version of post-arrest events should be credited or that of the Los Angeles Police Department officers who interrogated him.\nA. The Arrest\nThe government and the defendant do not dispute the circumstances precipitating Mejia’s arrest. Mejia negotiated the sale of a substance he said was cocaine to a confidential informant and an undercover officer. After Mejia produced the substance, which was later determined to be plaster of paris mixed with a minute quantity of cocaine, several officers with their guns drawn arrested him.1 Immediately following his arrest, he was transported to a Los Angeles police station and placed in an interview room.\nB. The Interview\nMejia and the government agree that Detectives Decesare and Barba of the Los An-geles Police Department interviewed Mejia at the police station. However, as sometimes happens, the account of the interview offered by the defendant differs sharply from that offered by the LAPD investigating officers.\n1. Mejia’s Version\nAccording to Mejia’s version of what transpired at the police station, he was handcuffed to a chair throughout the interview. Soon after he was placed in the interview room, Detective Decesare entered and began asking him questions about the aborted drug sale in Spanish, the defendant’s primary language. A few minutes later, Detective Barba appeared on the scene. The detectives then asked Mejia whether he had anything illegal in the house. Before he could answer, they told him that if he did not consent to a search of his home they would obtain a warrant, that they could do so in 20 to 30 minutes, and that they would bring charges against his wife if they found anything illegal in the house. Mejia stated that, because he did not want his wife to be charged with any crime, he felt that he had no alternative but to sign the consent form.\nMejia signed the form and told the detectives that he had counterfeit currency at the house. The detectives then stated that they would not bother to search his home since they were interested in drugs and not counterfeit monies. At that point, Mejia ripped *312up the consent form.2 The detectives continued to question him, pressuring him for information regarding his drug contacts. Deeesare and Barba informed him that he was looking at 12 to 16 years in prison on the drug charges if he did not cooperate with the police; on the other hand, the detectives stated that, if he turned in two people, they would see that his sentence was reduced to one to two years. The detectives also told him that he should sign the consent form because it was not a good idea to have counterfeit currency in his home.\nAfraid that the officers would obtain a search warrant and arrest his wife if he failed to cooperate — and that he faced a long prison term — Mejia signed a second consent form. After he signed this form, Mejia was informed by Detective Deeesare that he would also have to sign a written statement to prove that he was cooperating -with them. Deeesare wrote the statement in English, verbally translating only the beginning into Spanish for Mejia. Deeesare, Barba, and Mejia all signed the statement. No Miranda warning was ever given.\n2. The Detectives’ Version\nDeeesare and Barba provided a version of the facts markedly different from that of Mejia. According to Deeesare, Mejia’s handcuffs were removed when he was first placed in the interview room. Deeesare informed Mejia that he faced narcotic charges for selling six kilograms of cocaine and that he faced a stiff fine. Deeesare did not mention prison time to Mejia. Deeesare told Mejia that “it made no difference to me whether or not he spoke to me.” Mejia nevertheless expressed a willingness to speak, so long as the conversation was taped. Deeesare responded that it would first be necessary to read him his Miranda rights. Before doing so, Deeesare left the room to wait for Barba.\nWhen Deeesare returned to the room a few minutes later, accompanied by Barba, Mejia immediately stated his desire to confess. At this point, Deeesare read Mejia his Miranda rights in Spanish and Mejia verbally waived those rights. Neither detective made any reference to the length of prison time Mejia faced or promised him a reduced sentence if he cooperated — in fact, neither Deeesare nor Barba knew the length of sentences for the amount of cocaine Mejia purported to sell. Barba explained to Mejia that the charging decision was for the prosecutors to make.\nMejia voluntarily confessed to making the plaster of parís mixture and to possessing counterfeit money at his house. The detectives asked him for permission to search his house, informing him that he did not have to consent, but that they would attempt to obtain a search warrant if he chose not to. Neither detective at any time threatened to arrest Mejia’s wife if he declined to consent to a search.\nWithout further discussion, Mejia signed a form consenting to the search. This was the only consent form presented to Mejia or signed by him; no form was torn up. Dece-sare then wrote out a statement of cooperation, which Mejia and the detectives signed.\nC. Post-Interview Events\nThe parties do not dispute the events following the interrogation. Several officers, including Barba, escorted Mejia to his home. Upon arrival, Mejia told his wife, Denise, where the money was located. Barba and Mark McKee, a special agent of the United States Secret Service, followed her to retrieve the counterfeit currency and McKee took possession of it. The next day, Mejia wrote and signed a declaration in Spanish stating that he had counterfeit money, that he had told the police the previous day that the money was at his house, and that he was cooperating with both the police and the United States Secret Service.\nD. The Suppression Hearing\nMejia was indicted for possession of counterfeit money, in violation of 18 U.S.C. § 472, and the case was assigned to Judge Richard A. Gadbois, Jr. Mejia filed, along with supporting declarations, a motion to suppress the counterfeit currency and a motion to *313suppress his statements to the detectives. The government opposed both motions, and filed supporting declarations from Decesare and Barba.\nOn May 9, 1994, Judge Gadbois heard testimony on the motions from Denise Mejia, Detective Decesare, and Detective Barba. The testimony consisted of both direct and cross-examination. The direct testimony was partly live and partly in the form of declarations. The hearing was then continued until May 25, 1994, so that the government could present the testimony of one additional witness, Special Agent McKee, and cross-examine Mejia.\nDuring the intervening period Judge Gad-bois became ill and the case was temporarily assigned to Judge Manuel Real. Judge Real conducted a hearing commencing on Thursday, May 26. He announced at the outset that the hearing would be conducted from scratch. The government stated that Dece-sare and Barba were on vacation for the Memorial Day weekend and were therefore unable to testify that day, but that both detectives would be available to testify on the following Tuesday (Monday being a legal holiday). The defendant then requested a continuance, so that he could obtain a transcript of the proceedings before Judge Gadbois for the purpose of impeaching the detectives. In response to the defendant’s request, Judge Real stated: “No. We don’t need a transcript on the motion to suppress. We can start over on the motion here. I am going to hear it today.” When defense counsel tried to explain why she wanted the transcript, Judge Real disagreed, stating: “it boils down, basically, to believability.... One person says one thing about the arrest and what happened at the arrest, and the other side says something else, absolutely the other end of the spectrum. So it’s only a question of believability.”3\nThe hearing then began, as the earlier, aborted version had, with the testimony of Denise Mejia. When she finished, the government called Special Agent Mark McKee, to testify as to the events that transpired during the search of the defendant’s home. After McKee left the stand, the government stated that it had no further witnesses to call at that time. Judge Real then informed the parties that it would not be necessary for him to hear live testimony from Detectives Dece-sare and Barba; instead, the court reporter would read him the transcript of Decesare’s and Barba’s earlier testimony the next afternoon. Surprised by Judge Real’s announcement of his intention to substitute a transcript for the live testimony of the detectives, defense counsel objected, requesting “that the witnesses be called so that the Court could observe their demeanor in answering the questions.” Judge Real overruled the objection. Mejia then took the stand and was examined by both counsel as well as by Judge Real.\nThe next day, Friday, May 27, Judge Real announced that he had read the reporter’s transcript of Decesare’s and Barba’s testimony and defense counsel again objected to its use in place of live testimony. Counsel argued that the hearing should be continued to the following court day, Tuesday, May 31, so that the detectives could be examined in person in front of Judge Real. Again, Judge Real refused to grant a continuance, stating: “I don’t need to do that.... There’s no problem with [the detectives’] credibility.... The transcript will be made part of this proceedings [sic].” No further testimony was adduced.\nAfter hearing arguments from both sides, Judge Real announced his decision to deny both Mejia’s motion to suppress his statements and his motion to suppress the counterfeit currency. The judge requested the prosecutor to submit proposed findings of fact and conclusions of law, and then adopted them verbatim. In the written findings he adopted, Judge Real explicitly rejected the version of facts offered by Mejia. Alluding *314to the “demeanor of the witnesses as well as the content of their testimony,” Judge Real concluded that Mejia and his wife had “hy-perbolized the events” in question. On the other hand, Judge Real found the testimony of Barba and Decesare to be credible;. specifically, he found that the transcript “did not reveal any inconsistencies, falsehoods or facts not already set forth in their declarations.” Based on the officers’ version of the events, Judge Real concluded that Mejia had voluntarily confessed after waiving his Miranda rights and similarly that he had voluntarily consented to the search of his home. Mejia subsequently filed a conditional plea of guilty, reserving his right to appeal the denials of the motions to suppress.\nII. DENIAL OF CONTINUANCE\nMejia contends that Judge Real abused his discretion in refusing to grant his request that the suppression hearing be continued for one court day, so that the government’s two main witnesses could testify in person and be cross-examined in front of the judge who would be required to assess their credibility. We agree. As Judge Real recognized, the outcome of the suppression hearing turned on the credibility of the witnesses. We conclude that it was improper for the court to find the detectives’ testimony credible without viewing their demeanor, especially in view of the fact that it relied on the “demeanor” of Mejia in determining that his testimony was not credible. Because the denial of a one-day continuance resulted in the fact-finder’s being required to decide factual issues without observing critical witnesses or hearing them testify in person, we conclude that sufficient prejudice exists to require reversal.\nThe district court’s decision to grant or deny a request to continue a hearing is reviewed for an abuse of discretion. United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.1985), amended, 764 F.2d 675.4 In determining whether a district court abused its discretion in denying a requested continuance, we analyze the following factors:\n[1] the extent of appellant’s diligence in his efforts to ready his defense prior to the date set for hearing.... [2] how likely it is that the need for a continuance could have been met if the continuance had been granted_[3] the extent to which granting the continuance would have inconvenienced the court and the opposing party, including witnesses.... [4] the extent to which the appellant might have suffered harm as a result of the district court’s denial.\nId. at 1359.5 The weight accorded to each factor may vary from case to case; “[however, in order to obtain a reversal, appellant must show at a minimum that he has suffered prejudice as a result of the denial of his *315request.” Id. Here the factors all weigh in Mejia’s favor.\nA. Diligence\nThe first factor we consider in reviewing the district court’s refusal to grant a continuance is the appellant’s diligence in preparing his ease. Flynt, 756 F.2d at 1359. This factor clearly weighs in Mejia’s favor. There is no indication from the record, and the government does not argue, that Mejia was less than diligent. The need for a continuance was not due to Mejia’s lack of diligence, but rather to the fact that the government’s two key witnesses were on vacation.\nB. Usefulness\nThe second factor is the likelihood that the continuance would serve a useful purpose. Flynt, 756 F.2d at 1360. A requested continuance would be useful if it would permit the appellant to introduce evidence relevant to the issue at hand. Id.; see also United States v. Pope, 841 F.2d 954, 957 (9th Cir.1988) (noting that Flynt required showing that “testimony would be relevant” and that “[njothing more should be required” to demonstrate usefulness of continuance). Mejia argues that a continuance would have been useful, because it would have permitted Judge Real to perform a critical function necessary to a proper resolution of the suppression motion—to assess the detectives’ demeanor while they testified. We agree.\nThere is no question that the alleged purpose of the continuance—allowing Judge Real to hear the testimony of the two detectives live—would have been satisfied if the continuance had been granted. The government, however, contends that there was no legitimate reason to continue the suppression hearing, since Decesare and Barba had already testified, and had been subject to cross-examination before Judge Gadbois. In these circumstances, the government argues, Judge Real was entitled to rely on Deee-sare’s and Barba’s declarations and the transcripts of their testimony. Thus, according to the government, further testimony would have served no useful purpose but would merely have prolonged the hearing.\nWe reject the government’s contention that no useful purpose would have been served by granting the continuance. There can be no doubt that seeing a witness testify live assists the finder of fact in evaluating the witness’s credibility. As the Supreme Court stated in Anderson v. City of Bessemer, 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985): “[Ojnly the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Id. at 575, 105 S.Ct. at 1512. Live testimony enables the finder of fact to see the witness’s physical reactions to questions, to assess the witness’s demeanor, and to hear the tone of the witness’s voice—matters that cannot be gleaned from a written transcript. See id.; United States v. Hood, 493 F.2d 677, 680 (9th Cir.) (trial judge in unique position to observe witnesses demeanor while appellate court only has “the cold record, which is sterile in comparison”), cert. denied, 419 U.S. 852, 95 S.Ct. 94, 42 L.Ed.2d 84 (1974). Because the district judge is able to hear testimony live and to view the witnesses as they testify, his credibility findings are entitled to deference on appeal. See id. By continuing the hearing for one court day, Judge Real would have had the opportunity to see and hear the government witnesses testify. Thus, the continuance would indisputably have served a useful purpose.\nIn support of its argument to the contrary, the government cites cases holding that it does not violate due process for a district judge to approve the factual findings of a magistrate judge without hearing testimony himself. United States v. Raddatz, 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980); Campbell v. United States, 501 F.2d 196 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). These eases do not support the government’s position. In Rad-datz, the Court approved a statutory scheme that permits the district judge to accept the magistrate’s factual findings without himself hearing testimony. Raddatz thus stands for the proposition that the ultimate decision-maker, the district judge, need not hear live testimony, so long as the preliminary finder of fact, the magistrate judge, hears testimony and makes credibility findings based on his *316observations, which the district judge then considers and accepts. Because the magistrate sees and hears live testimony, he has an adequate basis for making credibility determinations. Thus, no constitutional violation occurs. Here, Mejia was denied the opportunity to present live testimony before any person who acted as a fact-finder, preliminary or otherwise. Judge Gadbois, before whom the detectives did testify, does not qualify: He made no findings of any kind.\nThe circumstances that this case presents are thus materially different from those considered in Raddatz. Indeed, the Raddatz court expressly recognized the importance of live testimony before a trier of fact: “[W]e assume it is unlikely that a district judge would reject a magistrate’s proposed findings on credibility when those findings are dispos-itive and substitute the judge’s own appraisal; to do so without seeing or hearing the witnesses whose credibility is in question could well give rise to serious questions which we do not reach.” Id. at 681 n. 7, 100 S.Ct. at 2415 n. 7.6\nThe district judge’s actions in this case involve some of the same elements against which the Court warned. Judge Real made a conclusive evaluation of credibility on the basis of the written transcript without hearing live testimony from the witnesses whose credibility he was evaluating, and without the benefit of any credibility findings by the judicial officer who had presided over the taking of the witnesses’ testimony. Given the importance of live testimony to credibility determinations — which the Court recognized not only in Anderson but also in Raddatz— we conclude that granting the continuance would clearly have served a useful purpose.7\nC. Inconvenience\nThe third factor is whether the continuance would inconvenience the parties, the court, or other witnesses. Flynt, 756 F.2d at 1360. This factor weighs heavily in Mejia’s favor. Had the district court continued the proceedings for one court day, both Decesare and Barba could have presented their testimony. A delay of one court-day is ordinarily not a “cognizable inconvenience.” Flynt, 756 F.2d at 1360 (“The hearing began at 1:30 p.m. and ended later that same day; recalendaring the proceedings would not have created any scheduling difficulties for the court”); see also Armant v. Marquez, 772 F.2d 552, 557 (9th Cir.1985) (recalendaring proceeding that lasted only one day would create minimal inconvenience). At any rate, neither the government nor the district judge indicated during the hearing that a one-day delay would result in any inconvenience whatsoever.\nD. Prejudice\nThe most critical question is whether Mejia was prejudiced by the district court’s refusal to grant his request for a continuance. We may not reverse unless the party whose request was denied suffered prejudice. United States v. Maybusher, 735 F.2d 366, 369 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985). Given the importance of the testimony of the government witnesses who did not appear before Judge Real — and particularly the fact that the outcome turned on the credibility of those witnesses — we conclude that the district court’s failure to hear their testimony directly and to view their demeanor was prejudicial.8\n*317Where the denial of a continuance prevents the introduction of specific evidence, the prejudice inquiry focuses on the significance of that evidence. In Flynt, we held that the appellant was prejudiced by the district court’s refusal to continue the hearing so that the appellant could obtain a psychiatric evaluation. 752 F.2d at 1361. Because the appellant’s sole defense was his lack of the requisite mental capacity, we concluded that the importance of psychiatric expert testimony was “obvious.” Id. The defendant was “not allowed to put forward the only defense he had.” Id. at 1362. Similarly, in United States v. Pope, 841 F.2d 954, 958 (9th Cir.1988), we held that the defendant was prejudiced, where the denial of a brief continuance prevented him from introducing “the only testimony that could plausibly have helped him.” See also United States v. 2.61 Acres of Land, 791 F.2d 666, 671 (9th Cir.1985) (finding prejudice where denial of continuance prevented defendant from introducing any evidence on its behalf); Armant v. Marquez, 772 F.2d 552 (9th Cir.1985) (finding prejudice where denial of continuance effectively denied defendant the opportunity to prepare his own defense). Reversal is not required, however, where the complaining party is unable to explain how the denial of a continuance affected his ability to present his case. United States v. Lim, 984 F.2d 331, 336 (9th Cir.1993), cert. denied, — U.S. -, 113 S.Ct. 2944, 124 L.Ed.2d 692 (1993); United States v. Shirley, 884 F.2d 1130, 1135 (9th Cir.1989); United States v. Lane, 765 F.2d 1376, 1379 (9th Cir.1985).\nHere, Mejia has provided a more than persuasive explanation of how the denial of the continuance adversely affected him. As Judge Real recognized, the outcome of both the motion to suppress Mejia’s statements and the motion to suppress the counterfeit currency depended on the respective credibility of Mejia and the detectives. Mejia’s only way to prevail was to convince the district judge that the officers’ version of events was not truthful. Because the continuance was denied, the fact-finder was compelled to make his decision without hearing the live testimony of the critical witnesses and without having an opportunity to observe their demeanor.9 Consequently, the defendant was deprived of the process to which he was entitled—a process designed to safeguard his interests and ensure a fair and proper result. Because the testimony of key witnesses was involved, the deprivation was substantial.10 *318Under these circumstances, the prejudice requirement set forth in Flynt and other relevant cases is met.11\nOur cases require the district court to conduct an evidentiary hearing when the moving papers filed in connection with a pretrial suppression motion show that there are contested issues of fact relating to the lawfulness of a search. United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986). The purpose of requiring an evidentiary hearing, rather than permitting a decision to be based solely on written declarations, is to ensure that the district judge is presented with the information necessary to evaluate the truthfulness of the declarants. In this ease, Judge Gadbois correctly concluded that an eviden-tiary hearing was necessary to resolve the disputed factual issues. Judge Real initially appeared to recognize that fact also. All that changed during the course of the hearing was that Judge Real concluded that he could end the proceedings one court day earlier if he read the transcript of the key witnesses’ prior testimony instead of having them testify before him.\nIn arguing that Judge Real’s decision was proper, the government likens this case to those in which a witness was unavailable and the court admitted transcripts of prior testimony under an exception to the hearsay rule. However, in every ease cited by the government in which such transcripts were admitted because a witness was unavailable, the witness had either died prior to or during trial, United States v. McGinnis, 574 F.Supp. 661, 663 (N.D.Ill.1983), aff'd, 757 F.2d 1291 (7th Cir.1985) (table), United States ex rel. Haywood v. Wolff, 658 F.2d 455, 457 (7th Cir.), cert. denied, 454 U.S 1088, 102 S.Ct. 649, 70 L.Ed.2d 625 (1981), could not be located after a diligent search, Ohio v. Roberts, 448 U.S. 56, 75, 100 S.Ct. 2531, 2544, 65 L.Ed.2d 597 (1979), Gonzalez v. Scully, 578 F.Supp. 1063, 1069 (S.D.N.Y.), aff'd, 738 F.2d 418 (2nd Cir.) (table), cert. denied, 469 U.S. 1020, 105 S.Ct. 438, 83 L.Ed.2d 363 (1984), was incarcerated, United States v. Salim, 664 F.Supp. 682, 689 (E.D.N.Y.1987), aff'd, 855 F.2d 944 (2nd Cir.1988), or claimed the privilege of self-incrimination, Phillips v. Wyrick, 558 F.2d 489, 492 (8th Cir.1977), cert. denied, 434 U.S. 1088, 98 S.Ct. 1283, 55 L.Ed.2d 793 (1978).12 Thus, the court could not reasonably obtain live testimony.\nThe reason for the exception permitting the use of transcripts in some instances is not because live testimony is unimportant, but because there are circumstances in which there is no practical alternative. Such is clearly not the ease here. Decesare and Barba were on vacation and were available to testify on the next court day. Their unavailability for one day does not bring the case within the hearsay rule exception. In any event, the question here is not whether the transcript of the detectives’ testimony was admissible, but whether the district court *319abused its discretion in failing to grant a continuance so that the witnesses could testify live.\nThe fact that we make exceptions to the live testimony requirement when it is necessary to do so does not mean that transcript testimony is as desirable as live testimony, or that one or both of the parties do not suffer some prejudice as a result of its use. Rather, we admit the testimony because we conclude that in certain instances the prejudicial consequences of doing so are outweighed by the necessity of obtaining relevant information that is sufficiently reliable and that significantly advances the truth-finding process. However, we continue to recognize that whenever possible we must proceed by way of live testimony, so that the rights of the parties will be protected to the fullest extent practical. Were this not the ease, we would simply permit the use of deposition testimony in all instances. In short, notwithstanding the hearsay exceptions, the inability of the fact-finder to observe witnesses whose credibility he must evaluate is, generally, contrary to our traditional fact-finding process and adversely affects the rights of the parties. When, as here, the inability to observe critical witnesses results from an erroneous judicial determination regarding the importance of live testimony, rather than from the application of established legal exceptions to the hearsay rule, we have no difficulty in concluding that the aggrieved party suffered substantial prejudice.\nBecause Judge Real did not view or hear the testimony of Decesare and Barba, he had no opportunity assess their demeanor and tone of voice. As he recognized, such evidence is critical to credibility determinations. Given the importance of the detectives’ testimony—and of Mejia’s attempt to impeach their testimony—we conclude that the district court’s refusal to grant a one-day continuance so that the witness could appear and testify before the fact-finder prejudiced Mejia. In light of the above, the error requires reversal.\nIII. INEVITABLE DISCOVERY\nAs an alternative basis for upholding the denial of Mejia’s motion to suppress the counterfeit currency recovered from his home, the government contends that the evidence is admissible under the inevitable discovery exception to the exclusionary rule. We reject the contention that this doctrine applies where the police had probable cause to conduct a search but simply failed to obtain a warrant.\nThe inevitable discovery exception allows the introduction of illegally obtained evidence where the government proves by a preponderance of the evidence “that the tainted evidence would inevitably have been discovered through lawful means.” United States v. Ramirez-Sandoval 872 F.2d 1392, 1396 (9th Cir.1989); United States v. Echegoyen, 799 F.2d 1271, 1280 n. 7 (9th Cir.1986). The government contends that a failure to obtain a warrant should be excused, because Mejia’s statements while in custody gave them probable cause to search his home. Thus, the government argues, a warrant would have issued if the detectives had sought one.\nWe first note that the factual premise of the government’s argument is questionable— it is unclear whether there was competent evidence that would have supported an application for a warrant. Mejia, after all, has moved to suppress his statements to the detectives as well as the counterfeit money seized from his home. According to Mejia, his statements while in custody were made without the benefit of Miranda warnings. Thus, if the court had credited Mejia’s testimony, it would have been compelled to suppress the statements he made while in custody. See Gonzalez-Sandoval, 894 F.2d 1043. Had Mejia’s statements been suppressed, the government would have lacked probable cause to search his home and could not have obtained a warrant in any event. Thus, at best, the government’s inevitable discovery argument is contingent on its prevailing on the continuance issue.13\n*320Even, however, were we to assume that Mejia’s post-arrest statements were admissible, and would have supported a warrant application, the inevitable discovery doctrine would not apply to the counterfeit currency recovered from Mejia’s home. This court has never applied the inevitable discovery exception so as to excuse the failure to obtain a search warrant where the police had probable cause but simply did not attempt to obtain a warrant. As we stated in Echegoyen, to “excuse the failure to obtain a warrant merely because the officers had probable cause and could have obtained a warrant would completely obviate the warrant requirement.” 799 F.2d at 1280 n. 7; see also United States v. Johnson, 22 F.3d 674, 683 (6th Cir.1994) (“to hold that simply because the police could have obtained a warrant, it was therefore inevitable that they would have done so would mean that there is inevitable discovery and no warrant requirement whenever there is probable cause”). If evidence were admitted notwithstanding the officers’ unexcused failure to obtain a warrant, simply because probable cause existed, then there would never be any reason for officers to seek a warrant. To apply the inevitable discovery doctrine whenever the police could have obtained a warrant but chose not to would in effect eliminate the warrant requirement.\nWe are neither free nor willing to read the warrant requirement out of the Constitution. Accordingly, even if we assume that the detectives were in possession of competent evidence showing probable cause at the time of the search, the inevitable discovery doctrine would not justify introduction of the evidence seized without a warrant.\nIV. CONCLUSION\nJudge Real abused his discretion in refusing to grant a continuance of one court day to allow the government’s key witnesses to testify live before him. Given the importance of those witnesses’ testimony and the need to assess their credibility, we conclude that Mejia has made the showing of prejudice that the Flynt test requires. Accordingly, the denial of Mejia’s suppression motions must be vacated and he must be permitted, if he so elects, to withdraw his Rule 11(a)(2) plea of guilty.\nREVERSED and REMANDED.\n\n. Mejia was not charged with the attempted sale of a controlled substance, but only with the possession of counterfeit currency.\n\n\n. He testified that only one hand was cuffed to the chair, and that he grabbed the form with the other, transferred it to the cuffed hand, and then, using both hands, tore it up.\n\n\n. This remark is puzzling. As Judge Real stated, the key question was believability; therefore, it would seem that a transcript of the prior proceedings would have been useful for impeachment purposes. However, whether the hearing should have been delayed in order to permit Mejia’s counsel to obtain the transcript is another matter — a matter that is not in any way the basis for this appeal or otherwise before this court. In any event, because the officers did not testify a second time, the transcript issue is moot.\n\n\n. The government devotes much of its brief to arguing that the district court’s findings of fact were not clearly erroneous. As the government correctly points out, the district court's finding as to whether consent to search was voluntary is reviewed for clear error. United States v. Preciado-Robles, 964 F.2d 882, 885 (9th Cir.1992). In this case, however, Mejia's primary contention is not that the district judge's findings were clearly erroneous, but rather that the district judge committed a critical error of law in conducting the hearing.\n\n\n. The government cites United States v. Robinson for the factors to be considered when determining whether the court abused its discretion in denying a continuance. 967 F.2d 287, 291 (9th Cir.1992). The factors listed in Robinson differ slightly from the Flynt factors. According to Robinson, the court should consider:\n[1] whether the continuance would inconvenience witnesses, the court, counsel, or the parties; [2] whether other continuances have been granted; [3] whether legitimate reasons exist for the delay; [4] whether the delay is the defendant's fault; and [5] whether a denial would prejudice the defendant.\n967 F.2d at 291 (citing United States v. Studley, 783 F.2d 934 (9th Cir.1986)). In both Studley and Robinson, the defendant's right to counsel was implicated in the decision to deny a continuance. On the other hand, we have applied the Flynt factors in a variety of contexts. See, e.g. Armant v. Marquez, 772 F.2d 552, 557-58 (9th Cir.1985) (request for continuance to permit defendant representing himself to prepare for trial), cert. denied, 475 U.S. 1099, 106 S.Ct. 1502, 89 L.Ed.2d 902 (1986); United States v. 2.61 Acres of Land, More or Less, 791 F.2d 666, 671-72 (9th Cir.1985) (request for continuance to allow bank whose property was seized to revive itself). We therefore apply the Flynt factors here. In any event, the factors in Flynt and Robinson are not very different, and the application of either set of factors would yield the same conclusion in this case.\n\n\n. Our decision in Campbell, on which the government also relies, is similar to Raddatz. Both cases uphold, against a constitutional challenge, the statute authorizing magistrate-judges to conduct an evidentiary hearing and to make initial findings of fact.\n\n\n. We note that the district judge took an active role in cross-examining Mejia, when he thought that the prosecution did not pursue a point sufficiently. He did likewise with respect to Mejia's wife. We assume that Judge Real would have shown the same vigor in cross-examining the police officers, if their testimony was in any way open to question. Although we do not rely on this point, live testimony might have been useful for this reason as well. It would have permitted the district judge to explore all the facts thoroughly and fairly.\n\n\n.Although the district court concluded that Mejia did not act in response to any threats to his wife when he signed the consent form, it appears that this finding is based not only on incomplete information (given the absence of live testimony and the attendant demeanor observations) but on a misapprehension as to the nature of Mejia’s actual testimony. The district court appeared to *317believe that Mejia acknowledged that he did not sign the consent form in response to any threat regarding his wife. However, while Mejia testified that no threat was made at the time he signed the form, he also testified that at the beginning of the interview the officers threatened to arrest his wife if he refused to consent and if they then discovered contraband in his home. Moreover, even if the district court were correct, that fact could not affect the outcome of this appeal. We here consider a conditional guilty plea under Fed.R.Crim.P. 11(a)(2). If any ruling that forms a basis for the conditional plea is found to be erroneous, we are required to permit the defendant to withdraw his plea. Here, there were two motions to suppress. Only one is affected in any way by the finding regarding Mejia's state of mind concerning the threats to his wife. If as Mejia contends, the detectives failed to inform him of his Miranda rights, then suppression of his statements would be required, United States v. Gonzalez-Sandoval, 894 F.2d 1043, 1046-47 (9th Cir.1990), and he would be entitled to prevail in any event. Finally, given the fact that the motions were heard together, that they related to the same interrogation and involved overlapping issues, that the failure to give a Miranda warning can be a consideration when determining questions of consent, and that the court’s error as to both motions was identical, we would conclude that, under all the circumstances, a showing of prejudice as to either would be sufficient to require a finding of error and a new hearing as to both.\n\n\n. It is telling that the district judge thought demeanor evidence to be a crucial factor in evaluating Mejia's credibility. In explaining his reasons for rejecting the testimony of Mejia and his wife, Judge Real stated: “Based upon the demeanor of the witnesses as well as the content of their testimony, the Court finds that both the defendant and his wife hyperbolized the events underlying defendant's arrest and defendant’s motion.” Because Judge Real did not observe the testimony of the two key prosecution witnesses, he was obviously unable make a comparable assessment of their \"demeanor.”\n\n\n. Even the evaluation of Mejia’s credibility could have been affected had the court had the opportunity to make a proper determination as to the veracity of the officers’ testimony. While Mejia’s demeanor may not have impressed Judge Real, the court's view of Mejia might have been far different had he observed the officers and reached the conclusion that they were being untruthful.\n\n\n. We note that the standard we recently announced for determining prejudice in discovery cases is not applicable here. See Martel v. County of Los Angeles, 56 F.3d 993 (9th Cir.1995). As we recognized in Sablan v. Dept. of Finance of N. Mariana Islands, 856 F.2d 1317, 1321 (9th Cir.1988) and Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir.1986), trial courts have unusually broad discretion to permit or deny discovery. Following this line of cases, Martel states that \"a district court's decision to deny a continuance sought for the purposes of obtaining discovery will be disturbed only 'upon the clearest showing that the denial of discovery results in actual and substantial prejudice to the complaining litigant.’\" Martel, 56 F.3d at 995 (quoting Sablan, 856 F.2d at 1321 and Butcher’s Union, 788 F.2d at 540).\nMartel requires an exceptionally high showing of prejudice because the right to take discovery preparatory to a judicial proceeding, unlike the right to present witnesses or offer other evidence at the judicial proceeding itself, is highly discretionary. For that reason, the Martel standard is not applicable outside the discovery context. Where, as here, the denial of a continuance of the proceeding directly affects a defendant's ability to present evidence, we do not require \"the clearest showing” of \"actual and substantial prejudice.” To the contrary, we have consistently applied the less stringent prejudice test articulated in Flynt, and have examined carefully the extent to which the aggrieved party’s right to present his defense has been affected.\n\n\n. In California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), also cited by the government, the admission of prior statements was held not to violate the Confrontation Clause, where the declarant testified at trial and was subject to cross-examination before the jury at the time his statements were admitted. In contrast to Barba and Decesare, the declarant in Green testified before the trier of fact.\n\n\n. Of course, if the government could prevail on the continuance issue, it would not need to invoke the inevitable discoveiy rule. Accordingly, the government’s raising of this issue serves no purpose whatsoever.\n\n", "ocr": false, "opinion_id": 9488654 }, { "author_str": "Fernandez", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nFERNANDEZ, Circuit Judge,\nconcurring and dissenting:\nI dissent from Part II of the majority opinion but concur in Part III.\nMejia’s argument proceeds from the premise that an ideal procedure would have been for Judge Real to grant a continuance and hear live testimony from the officers. No doubt that would have been ideal, and I am somewhat at a loss to understand why the ideal did not become the reality. Nevertheless, I do not agree that reversal is required.\nMejia’s argument comes parlously close to suggesting that district courts simply cannot make proper decisions in suppression cases without seeing the witnesses. That, of course, is not true. See United States v. Raddatz, 447 U.S. 667, 677-81, 100 S.Ct. 2406, 2413-15, 65 L.Ed.2d 424 (1980); Campbell v. United States District Court, 501 F.2d 196 (9th Cir.), cert. denied, 419 U.S. 879, 95 S.Ct. 143, 42 L.Ed.2d 119 (1974). I do not overlook the Supreme Court’s footnote 7 in Raddatz, 447 U.S. at 681, 100 S.Ct. at 2415. However, I do not think that one should put very much weight on the dicta in that footnote. The agency proceedings alluded to by the Court do not, as far as I know, preclude the boards, which are making the ultimate decisions, from making credibility determinations different from those of the hearing officers. Indeed, we know that agency boards do just that. See, e.g., Cardoza-Fonseca v. INS, 767 F.2d 1448, 1455 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); McMullen v. INS, 658 F.2d 1312 (9th Cir.1981). Moreover, the idea that a district court must actually review a magistrate judge’s determinations de novo, but may not upset the magistrate judge’s credibility decisions is troublesome to say the least. Much of what passes as factfinding in our system does in fact require resolving conflicts in the evidence and therefore believing one party or the other. If a district judge could not read a hearing transcript and come to a conclusion that differs from that of *321the magistrate judge, the utility of magistrate judges in our system would be greatly undermined. That cannot be: mutatis mu-tandis a district judge should generally be able to read a hearing transcript and make his own assessment in the first place.\nThat being said, I do not think that Mejia should carry the day. It seems to me that he has utterly failed to show that he was prejudiced. True, he keeps uttering the generality that the district court could have made a much more just decision had it only seen the officers in person. But Judge Real had the officers’ declarations before him and had the transcript of their cross-examination in front of Judge Gadbois. As Judge Real pointed out, that cross-examination did not appear to develop any relevant inconsistencies or to bring out any even remotely interesting contradictory testimony. There was no particular reason to think that a second cross-examination would have been more efficacious.\nAlso, if the officers did exhibit any unusual body language, facial expressions, vocal hesitations, or the like on the first cross-examination, we may assume that Mejia would have been quick to tell Judge Real about those incidents. Demeanor problems would surely underscore the need for seeing the officers in person. Again, Mejia contented himself with generalities.\nFinally, when the fact that the district court found Mejia and his wife to be unbelievable is added to the mix, the whole becomes less, not more, redolent of prejudice. In short, while I do not entirely fathom the district court’s reluctance to hear the officers’ testimony on a later day, I also do not think that Mejia has adequately explained how he was actually prejudiced. See United States v. Robertson, 15 F.3d 862, 873 (9th Cir.), cert. denied, — U.S. -, 115 S.Ct. 362, 130 L.Ed.2d 315 (1994).\nThus, I respectfully dissent from Part II of the opinion.\n", "ocr": false, "opinion_id": 9488655 } ]

[ "106 F. App'x 279" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 11, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\03/03-60185.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n UNITED STATES COURT OF APPEALS\n For the Fifth Circuit August 5, 2004\n\n Charles R. Fulbruge III\n No. 03-60185 Clerk\n\n\n\n ERNAD BEGANOVIC; SAFETA BEGANOVIC; JASMIN BEGANOVIC\n\n Petitioners,\n\n VERSUS\n\n\n JOHN ASHCROFT, U.S. ATTORNEY GENERAL\n\n Respondent.\n\n\n Petition For Review of an Order\n of the Board of Immigration Appeals\n (A76 433 107)\n\n\nBefore BENAVIDES, STEWART and DENNIS Circuit Judges.\nPER CURIAM:*\n\n Petitioner Ernad Beganovic, his wife Safeta, and his son\n\nYasmin challenge the Board of Immigration’s (“BIA”) affirmance of\n\nthe Immigration Judge’s (“IJ”) denial of asylum. After carefully\n\nreviewing the record, we deny the petition for review.\n\nI. Background\n\n In August 1997, the Beganovics, Albanians from Kosovo,\n\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the Court has determined that this\nopinion should not be published and is not precedent except under\nthe limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\n\n\n 1\n\fSerbia-Montenegro, entered the United States on visitors’ visas.\n\nSix months later, the INS served them notice to appear charging\n\nthem as eligible for deportation for overstaying their visas. The\n\nBeganovics then filed an asylum application.\n\n In the asylum application, Ernad claimed that he was subject\n\nto both past and future persecution due to his participation in\n\npolitical activities with the Democratic Action Party (“PDA”), and\n\nDemocratic League of Kosovo (“LDK”). Ernad alleged mistreatment or\n\nharassment by the Serbian police on five separate occasions because\n\nof his political affiliation with those groups. In sum, the\n\nallegations of fact in the asylum application are as follows:\n\nA. First Incident\n\n In October 1991, in his hometown of Pec, Ernad joined the SDA,\n\na secular party that advocated for the right of Albanians in Kosovo\n\nas well as other Muslims throughout then-Yugoslavia. A month\n\nlater, a Serbian police officer arrested Ernad while Ernad was\n\nhanging posters with some friends. The officer confiscated the\n\nposters and took Ernad and his friends to the police station for\n\nquestioning. The young men were roughly treated by the police and\n\nErnad claims that he was beaten for roughly half an hour. When the\n\nofficers were finished asking questions, Ernad asked for the return\n\nof his posters. In response, an officer punched Ernad in the face\n\nand stomach and threatened worse if he caught Ernad again.\n\n\n\n\n 2\n\fB. Second Incident\n\n In April 1992, Serbian police officers stepped up their\n\nharassment of party members and arrested SDA’s regional president,\n\nBalic. Balic was jailed for two days and was allegedly beaten. In\n\nresponse to Balic’s arrest and the increasing police harassment of\n\nparty members, the SDA was disbanded and Balic fled the country.\n\nC. Third Incident\n\n In 1994, after marrying Safeta and fathering Yasmin, Ernad\n\njoined LDK. He worked frequently for the party and became a\n\neditorial writer for its newsletter. In the middle of the night on\n\nFebruary 3, 1996, Beganovic heard pounding on the door by three men\n\nhe suspected were police officers though the men wore no uniform.\n\nWhen Ernad opened the door, one of the men, who was armed, attacked\n\nhim and began to beat him. The man put his foot on Ernad to hold\n\nhim down and at times dropped to his knee to punch Ernad in the\n\nface. The other two men ransacked the apartment, yelling, “Where\n\nare your guns? Where are your friends? Where’s your damned\n\npaper?” One of the men threatened to throw Safeta and Yasmin off\n\nof the apartment’s balcony if she and Yasmin did not quit\n\nscreaming. After beating Ernad sufficiently enough to leave welts\n\nand bruises on his body and destroying most of the Beganovics’\n\npossessions in the apartment, the men left.\n\nD. Fourth Incident\n\n\n\n\n 3\n\f In June of 1996, four uniformed officers came to Ernad’s\n\napartment and took him to the police station. The police\n\nquestioned Ernad about LDK and its officers. When Ernad did not\n\ngive the officers any specific information, he was taken into a\n\ndark room and beaten until he was unconscious. Ernad awoke and was\n\nquestioned a second time. After Ernad refused to sign a piece of\n\npaper upon which he could not see what was written, Ernad was again\n\ntaken into the dark room and beaten until unconscious. Ernad awoke\n\nnear his apartment door on the 11th floor, but could not recall how\n\nhe got there. He knocked on the door and his wife Safeta helped\n\nhim inside. The Beganovics then abandoned their home to live with\n\nErnad’s parents who lived nearby.\n\nE. Fifth Incident\n\n Seven months later, in January 1997, while Ernad was out with\n\na friend, the police came looking for him at his parents’ home.\n\nHis wife testified that the officers had a menacing tone and when\n\ninformed that Ernad wasn’t there, said “We’ll find him.” After\n\nthis incident, the Beganovics moved to Novi Sad, and in August\n\n1997, they fled to the United States.\n\n\n\nF. The Hearing and the IJ’s decision\n\n At the two-day asylum hearing before the IJ, the Beganovics\n\nhad five people testify in support of the asylum petition. They\n\n\n\n\n 4\n\fwere: (1) Ernad; (2) Safeta; (3) Professor Reinhartz, a history\n\nprofessor at University of Texas-Arlington; (4) Benin Sucheere, one\n\nof Safeta’s cousins, and (5) Dennis Mala, an acquaintance of\n\nErnad’s from Kosovo. After the hearing, the IJ concluded that the\n\nBeganovics had not carried their burden of persuasion on their\n\nasylum petition because the testimony of Ernad and Safeta regarding\n\npast persecution was incredible. The IJ made an alternative ruling\n\nthat even if he had found the Beganovics’ testimony credible, the\n\nfive incidents of harassment Ernad suffered did not rise to the\n\nlevel of persecution. Finally, the IJ concluded that because of\n\nchanged country conditions in Kosovo, even if the five incidents of\n\nharassment constituted persecution, the Beganovics failed to\n\nestablish a well-founded fear of future persecution. Accordingly,\n\nthe IJ denied all relief, except that he granted the Beganovics’\n\nrequest for voluntary departure.\n\n The Beganovics appealed the IJ’s findings to the BIA. The\n\nBeganovics also asked to supplement the record with additional\n\nmaterial regarding conditions within the country as well as some\n\nspecific documentary evidence of medical treatment Ernad received\n\nas a result of the June 1996 incident and that Ernad was still\n\nwanted by the Serbian police. The BIA summarily denied all relief,\n\nprimarily relying on the adverse credibility determinations made by\n\nthe IJ. The BIA also denied the motion to supplement the record\n\nbecause the additional materials would not have affected the\n\n\n\n 5\n\foutcome of the case. The Beganovics timely filed a petition for\n\nreview with this court challenging both the denial of asylum and\n\nthe BIA’s refusal to grant the Beganovics’ motion to supplement the\n\nadministrative record.\n\nII. Analysis\n\n “Any alien who is present in the United States or who arrives\n\nin the United States,...irrespective of such alien’s status, may\n\napply for asylum.” 8 U.S.C. § 1158(a)(1). “The Attorney General\n\nmay grant asylum to an alien who has applied for asylum...if the\n\nAttorney General determines that such alien is a refugee....” Id.\n\nat § 1158(b)(1). The term “refugee” includes “any person who is\n\noutside of any country of such person’s nationality...and who is\n\nunable or unwilling to avail himself or herself of the protection\n\nof, that country because of persecution or a well-founded fear of\n\npersecution on account of race, religion, nationality, membership\n\nin a particular social group, or political opinion.” Id. at §\n\n1101(a)(42)(A). “The applicant may qualify as a refugee because he\n\nor she has suffered past persecution or because he or she has a\n\nwell-founded fear of future persecution.” See 8 C.F.R. § 208.13.\n\nIt is the alien who bears the burden of proof to show that he is a\n\n“refugee” in order to be eligible for a grant of asylum. See 8\n\nC.F.R. § 208.13.\n\n In reviewing BIA decisions, we review factual findings for\n\n\n\n\n 6\n\fsubstantial evidence and questions of law de novo. Lopez-Gomez v.\n\nAshcroft, 263 F.3d 442, 44 (5th Cir. 2001). “The substantial\n\nevidence standard requires only that the BIA’s decision be\n\nsupported by record evidence and be substantially reasonable.”\n\nOmagah v. Ashcroft, 288 F.3d 254, 258 (5th Cir. 2002). We will\n\n“accord deference to the BIA’s interpretation of immigration\n\nstatutes unless the record reveals compelling evidence that the\n\nBIA’s interpretation is incorrect.” Mikhael v. INS, 115 F.3d 299,\n\n302 (5th Cir. 1997). “In other words, [an alien] must show that\n\nthe evidence was so compelling that no reasonable factfinder could\n\nconclude against it.” See Efe, 293 F.3d at 905; 8 U.S.C.\n\n§1252(b)(4)(B)(“[A]dministrative findings of fact are conclusive\n\nunless any reasonable adjudicator would be compelled to conclude to\n\nthe contrary.”). This court only reviews decisions made by the\n\nBIA. See Castillo-Rodriguez v. INS, 929 F.2d 181, 183 (5th Cir.\n\n1991). Because the BIA summarily adopted the IJ’s findings and\n\nconclusions in this case, we refer to those findings as\n\nincorporated by the BIA decision. Efe, 293 F.3d at 903.\n\n The primary basis for the IJ’s denial of the Beganovics’\n\nasylum petition is that he did not find the Beganovics credible and\n\nthus did not find that they carried their burden in proving past\n\npersecution. This adverse credibility determination is based on a\n\nnumber of inconsistencies that the IJ observed between the\n\n\n\n\n 7\n\fpetitioners’ pre-hearing asylum statement, Ernad’s hearing\n\ntestimony, Safeta’s hearing testimony, and the Beganovic’s failure\n\nto present documentary evidence in support of their asylum claim.\n\n It is clear that we give great deference to an immigration\n\njudge’s decisions concerning an alien’s credibility. Chun v. INS,\n\n40 F.3d 76, 78 (5th Cir. 1994). In addition, the immigration judge\n\nhas the duty to judge the credibility of the witnesses and to make\n\nfindings accordingly. Vasquez-Mondragon v. INS, 560 F.2d 1225,\n\n1226 (5th Cir. 1977). Furthermore, this court is simply “not\n\npermitted to substitute our judgment for that of the Board or the\n\n[Judge] with respect to the credibility of this testimony or the\n\nultimate findings of fact based thereon.” See id. at 1226 (internal\n\ncitation omitted).\n\n But the IJ may not completely insulate his findings from our\n\nreview simply by stating that a petitioner is not credible. See\n\nAnderson v. Bessmer City, 470 U.S. 564, 575 (citing Wainwright v.\n\nWitt, 469 U.S. 412 (1985)). We agree with other circuits that the\n\nIJ must provide cogent reasons for his credibility determination,\n\nsee, e.g., Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994);\n\nAlvarado-Carillo v. INS, 251 F.3d 44, 56 (2d Cir. 2001);\n\nBalasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998); Mansour\n\nv. INS, 230 F.3d 902, 906-09 (7th Cir. 2000); Zahedi v. INS, 222\n\nF.3d 1157, 1165 (9th Cir. 2000), and those reasons must be\n\n\n\n\n 8\n\fsupported by substantial evidence in the record much like any\n\nfactual determination. See Lopez De Jesus v. INS, 312 F.3d 155,161\n\n(5th Cir. 2002)(“a credibility determination may not be overturned\n\nunless the record compels it.”)\n\n Our review of the IJ’s reasons and the record in this case,\n\nhowever, does not compel us to reverse the IJ’s adverse credibility\n\ndetermination. Ernad’s testimony before the IJ was inconsistent\n\nwith the first and second incidents of persecution he alleged in\n\nhis asylum petition. For example, in the first incident, the\n\nasylum petition states that Ernad was beaten for a period of 30\n\nminutes during police questioning. But his testimony before the IJ\n\nalleges only that he was punched in the stomach once after the end\n\nof questioning and only when he asked the police for the posters\n\nback. Similarly, the second incident of alleged persecution in the\n\nasylum petition makes no mention of Ernad being questioned and\n\nreleased by the Serbian police as he testified before the IJ.\n\nInstead, the petition only details the arrest of the SDA’s regional\n\npresident, Balic.\n\n Further, as the IJ noted, the testimony of Ernad and Safeta\n\nwith regard to the fourth incident in June of 1996 is inconsistent.\n\nErnad never testified that he was hospitalized or that he went to\n\nthe hospital for outpatient treatment as a result of the police\n\nbeating. Conversely, Safeta testified first that Ernad was taken\n\n\n\n\n 9\n\fby an ambulance to the hospital “for a day or so.” Safeta next\n\ntestified that Ernad had not gone to the hospital until hours\n\nlater, was released the same day, and that he had been initially\n\ntreated by an emergency ambulance crew. In light of the\n\ninconsistencies, the shifting nature of Safeta’s account of who was\n\npresent at the apartment when the ambulance arrived, and the\n\nabsence of any reference to an ambulance or hospital visit in the\n\nrather detailed asylum petition submitted on the Beganovics’s\n\nbehalf, we cannot conclude that the IJ’s adverse credibility\n\ndetermination in this case was not supported by substantial\n\nevidence. A reasonable judge could view these inconsistencies as\n\nevidence of falsity. See United States v. Jencks, 353 U.S. 657,\n\n667 (1957)(“Flat contradiction between the witness’ testimony and\n\nthe version of the events given in his reports is not the only test\n\nof inconsistency. The omission from the reports of facts related\n\nat trial, or a contrast in emphasis upon the same facts, even a\n\ndifferent order of treatment, are also relevant to the cross-\n\nexamining process of testing the credibility of a witness’ trial\n\ntestimony.”).\n\n Moreover, the IJ stated that his adverse credibility\n\ndetermination was also bolstered by his “observing the respondent\n\nclosely” while Ernad was testifying and by the lack of any\n\ndocumentation directly in support of Ernad’s political activities\n\n\n\n\n 10\n\for his troubles with the Serbian police. While the Beganovics were\n\nnot required to provide documentary corroboration of the alleged\n\nincidents of persecution, the immigration regulations\n\n“unambiguously contemplate cases where an applicant’s testimony\n\nalone will not satisfy his burden of proof.” See Sidhu v. INS, 220\n\nF.3d 1085, 1090 (9th Cir. 2000)(citing 8 C.F.R. § 208.13(a)).\n\nThough we agree that Ernad initially testified why documentation\n\nwas not available, i.e. the danger of keeping political articles\n\nand party membership cards coupled with the difficulty of getting\n\ninformation from Serbian officials, that initial testimony was\n\nundercut by his later testimony in which he stated that civil\n\nunrest prevented him from providing any documentary corroboration.\n\n Ultimately, we cannot find a compelling reason in the record\n\nto reverse the IJ’s adverse credibility determination and the IJ’s\n\nconcomitant determination that the Beganovics had not carried their\n\nburden of proving past persecution necessary to warrant a grant of\n\nasylum. Accordingly, we need not consider whether the IJ’s\n\nalternative rulings withstand our scrutiny. The petition for\n\nreview is DENIED.\n\n\n\nPETITION DENIED\n\n\n\n\n 11\n\f", "ocr": false, "opinion_id": 36146 } ]

[ "796 F.2d 478" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/796/796.F2d.478.85-3985.html", "author_id": null, "opinion_text": "796 F.2d 478\n LeBrunv.Watson\n 85-3985\n United States Court of Appeals,Ninth Circuit.\n 8/4/86\n \n 1\n D.Or.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 473932 } ]

[ "2009 OK CIV APP 87", "221 P.3d 743" ]

[ { "author_str": "Gabbard", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 8168, "opinion_text": "\n221 P.3d 743 (2009)\n2009 OK CIV APP 87\nJeffrey TAYLOR, Petitioner/Appellant,\nv.\nSTATE of Oklahoma ex rel. The Oklahoma POLICE PENSION AND RETIREMENT BOARD, Respondent/Appellee.\nNo. 106,349. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 4.\nCourt of Civil Appeals of Oklahoma, Division No. 4.\nSeptember 18, 2009.\n*744 James R. Moore, Sue Wycoff, Moore & Vernier, P.C., Oklahoma City, OK, for Petitioner/Appellant.\nSteven K. Snyder, Executive Director, Oklahoma Police Pension and Retirement Board, Oklahoma City, OK, Victoria V. Johnson, Davis Graham & Stubbs LLP, Denver, CO, for Respondent/Appellee.\nDOUG GABBARD, II, Presiding Judge.\n¶ 1 Petitioner/Appellant Jeffrey Taylor appeals the trial court's order affirming the Oklahoma Police Pension and Retirement Board's denial of his application for a disability benefit. The Board found competent evidence to rebut a statutory presumption that Taylor's disability was incurred while performing his job. After reviewing the facts and the law, we reverse and remand with instructions.[1]\n\nFACTS\n¶ 2 In 2004, Taylor was hired as a police officer for the City of Glenpool. About a year later, he began experiencing tremors in his right arm and hand, and was diagnosed as suffering from Parkinson's syndrome. Doctors implanted an electrode in his brain and a battery in his chest wall to help control the tremor. The City determined he was disabled and terminated him from his job on the force.\n¶ 3 Taylor applied for disability benefits from the State Police Pension and Retirement Board.[2] He asserted that his job had required that he use road flares and handle methamphetamine taken from arrestees. Both the flares and the drug contain red phosphorous which, according to studies noted by his treating physician, can trigger the development of Parkinson's symptoms.\n¶ 4 The evidence at the Pension Board hearing was disputed. Several officers supported his claim that he had handled, tested, and inventoried methamphetamine, and handled and been in close proximity to road flares. On the other hand, the Glenpool police chief stated that Taylor had only participated as a back-up officer in one incident involving methamphetamine; had never been involved in a meth lab arrest; and had never notified the Department about exposure to any dangerous substance.\n¶ 5 The medical evidence was also disputed. Taylor's doctors noted that traditional medical treatment for Parkinson's disease had not helped him, leading them to conclude that he suffered from Parkinsonism syndrome, which has similar symptoms to Parkinson's disease. According to his treating physician, Dr. Kevin J. Klos:\nIn our experience, toxin induced parkinsonism does not respond to traditional medication therapy as does Parkinson's disease. I believe to a reasonable degree of medical certainty that his exposure to this environmental toxin may have influenced the developments of his parkinsonism.\n*745 Dr. Paul Francel, the doctor who performed the implant, agreed that Taylor's condition was \"toxin-induced.\" Dr. Kenneth R. Trinidad, his workers' compensation doctor, noted that it was common for a person to suffer from a parkinsonian-like syndrome, and not from true Parkinson's disease, when exposed to chemical toxins. Dr. Trinidad opined that Taylor's injuries were due to work-related trauma through exposure to red phosphorous.\n¶ 6 However, other evidence showed Taylor had a family history of tremors, and several doctors disputed the reports mentioned above. Dr. John A. Munneke was retained by the Board. He examined Taylor and reviewed the records, noting that Dr. Klos' records indicated that Taylor had given a history of having a right-sided resting tremor for several years prior to August 9, 2006. Dr. Munneke stated:\n[I]t is my opinion the patient does have a tremor in his right upper extremity. However, it is my opinion that his tremor and possibly his Parkinson's disease is unrelated to his alleged exposure to toxin while working for the Glenpool Police Department.\nWhile the treating physicians' opinions are correct, with regard to the possibility that his Parkinsonism is toxin induced, they are operating on erroneous information and it is my opinion that his Parkinsonism is not toxin induced and is unrelated to his work as a police officer.\nThe patient will need further medical care with regard to his current problem. However, his current problem is not the result of his employment as a police officer for the Glenpool Police Department.\n¶ 7 Three months after writing his report, Dr. Munneke issued a further report, stating that after reviewing additional medical reports, including Dr. Trinidad's, his opinion was unchanged. Additionally, a doctor retained by the City of Glenpool, Dr. J. Mike Banowetz, opined that the disease was degenerative and idiopathic, not relating to Taylor's exposure to chemicals.[3]\n¶ 8 In a 12-page decision, the Pension Board extensively reviewed the evidence, concluded that Taylor had been exposed to hazardous substances in the line of duty, and applied the presumption found in 11 O.S. Supp.2008 § 50-115(I) that Taylor \"incurred such disability while performing the officer's duties.\" However, the Board also found that the presumption was overcome by competent \"contrary\" evidence, concluded that Taylor was not disabled from a condition that was the result of exposure to hazardous substances, and denied his request for benefits.\n¶ 9 Taylor filed a petition for judicial review. The trial court affirmed the Board's decision. Taylor now appeals.\n\nSTANDARD OF REVIEW\n¶ 10 Generally, in reviewing a state agency's order, we will affirm unless we determine that the agency's decision is clearly erroneous in view of the reliable, material, probative, and substantial competent evidence. 75 O.S.2001 § 322(1)(e); see also Seely v. Okla. Horse Racing Comm'n, 1987 OK CIV APP 61, ¶ 7, 743 P.2d 685, 688-89. We apply this competent evidence test to the agency's decision, not the district court's. State ex rel. Bd. of Trustees of Teachers' Retirement Sys. v. Garrett, 1993 OK CIV APP 29, n. 8, 848 P.2d 1182, 1183-84. However, 11 O.S. Supp.2008 § 50-115(I) states the presumption applies \"unless the contrary is shown by competent evidence.\" Therefore, we must determine whether the Pension Board's decision that the statutory presumption was overcome is supported by competent evidence.[4]\n\n\n*746 ANALYSIS\n¶ 11 Although Taylor asserts several propositions of error, one is dispositive: Taylor asserts that the Board improperly applied the statutory presumption and reached an inconsistent decision with conflicting findings.[5] We agree.\n¶ 12 Title 11 O.S. Supp.2008 § 50-115(I) provides:\nAny member of a police department of any municipality who, in the line of duty, has been exposed to hazardous substances, including but not limited to chemicals used in the manufacture of a controlled dangerous substance or chemicals resulting from the manufacture of a controlled dangerous substance, or to blood-borne pathogens and who is later disabled from a condition that was the result of such exposure and that was not revealed by the physical examination passed by the member upon entry into the System shall be presumed to have incurred such disability while performing the officer's duties unless the contrary is shown by competent evidence. (Emphasis added.)\n¶ 13 Before applying the § 50-115(I) presumption, the Board must answer these preliminary questions: first, is the applicant a member of a municipal police department; second, was the applicant \"exposed to hazardous substances\" in the line of duty; third, was the applicant \"later disabled from a condition that was the result of such exposure,\" that is, was his condition caused by some exposure to the hazardous substance in question, although not necessarily the specific line-of-duty exposure; and fourth, was the condition one which was not pre-existing at the time the applicant passed the physical examination to enter the retirement system. If the answer to any question is negative, the statutory presumption does not apply. If the answer to each question is affirmative, the Board must apply the presumption and presume that the applicant's disability resulted from the line-of-duty exposure, as opposed to some other exposure to the same hazardous substance. Furthermore, the presumption continues unless there is competent evidence \"contrary\" thereto. The \"contrary\" evidence necessary to rebut the presumption must not bear upon whether the applicant was disabled as a result of some exposure to the hazardous substance in question, a fact which the Board has already determined, but must demonstrate that the applicant's disability has not resulted from the specific line-of-duty exposure claimed by the applicant, i.e., it must demonstrate that the applicant has not \"incurred such disability while performing the officer's duties.\"\n¶ 14 Indisputably, Taylor had been a member of the Glenpool Police Department. In addition, the Board found that Taylor had been exposed to the hazardous substance red phosphorous in the line of duty. It also found that he was entitled to the statutory presumption. By imposing the presumption, the Board implied that it had determined Taylor's disability \"was the result of\" some exposure to red phosphorous, and that his *747 disability was not pre-existing when he entered the retirement system. After imposing the presumption, the Board was required to presume that the exposure to red phosphorous which resulted in his Parkinson's syndrome occurred in the line of duty. At that point, the only \"contrary\" evidence which could be shown was evidence that Taylor's Parkinson's syndrome did not result from a line of duty exposure to red phosphorous, but from some other exposure or exposures to red phosphorous. Such rebuttal evidence was never presented.\n¶ 15 Nevertheless, the Board ultimately denied benefits on the grounds that Taylor \"was not disabled from a condition that was the result of exposure to hazardous substances.\" In other words, the Board found that Taylor's disability was not caused by any exposure to red phosphorous, a finding contrary to, and inconsistent with, findings implied in its application of the statutory presumption. The courts of this state have long held that a judgment containing material findings which are inconsistent with each other will be set aside. Dickerson v. Waldo, 1903 OK 69, ¶ 0, 13 Okla. 189, 74 P. 505 (syllabus of the court #1); Magnolia Petroleum Co. v. Phillips, 1933 OK 146, ¶ 0, 162 Okla. 149, 19 P.2d 576 (syllabus of the court #1).\n¶ 16 Because the Board's order denying benefits contains inconsistent factual findings, we must reverse.\n\nCONCLUSION\n¶ 17 Accordingly, the Board's order denying benefits is hereby reversed and remanded with instructions that a new hearing be conducted and, at the conclusion thereof, the Board enter findings of fact, apply the law to the facts in a manner consistent with this opinion, and reach its decision.\n¶ 18 REVERSED AND REMANDED WITH INSTRUCTIONS.\nRAPP, J., and FISCHER, J., concur.\nNOTES\n[1] On the ground that Taylor's appellate reply brief alleges that the Board \"seriously misrepresents the evidence that was before the Board at the hearing,\" the Board has filed a Motion for Oral Argument to primarily discuss the \"[a]ccuracy of the parties' statements concerning key aspects of the record.\" We have thoroughly reviewed the record submitted and find oral argument for that purpose unnecessary. The Board's motion for oral argument is denied.\n[2] Taylor also filed workers' compensation benefits. The parties have not provided any information concerning whether benefits were awarded.\n[3] \"Idiopathic\" has been defined as arising spontaneously or from an obscure or unknown cause. Webster's Third New International Dictionary 1123 (1986)\n[4] In City of Edmond v. Vernon, 2009 OK CIV APP 36, 210 P.3d 860, we recently upheld the constitutionality of 11 O.S. Supp.2008 § 49-110, which created a presumption that municipal firefighters who are disabled by certain diseases (there, cancer) incurred such diseases while performing job-related duties \"unless the contrary is shown by competent evidence.\" Relying on Scheets v. Ada Fire Department, 2004 OK CIV APP 8, 83 P.3d 905, and City of Tulsa Fire Department v. Miller, 2006 OK CIV APP 57, 135 P.3d 850, we stated:\n\nHere, as in Miller, the workers' compensation court received conflicting medical evidence and concluded that City had not overcome the statutory presumption. Generally, the workers' compensation court's determination of a factual question is final. See 85 O.S. Supp.2008 § 26(B). Because there is competent evidence to support the trial court's determination, its decision is sustained. Id. at ¶¶ 24-26.\nVernon at ¶ 26, 210 P.3d at 866. Though Vernon was a workers' compensation case, where separate standards apply, both it and the present case involve statutes in which a presumption applies unless rebutted by competent evidence. Under the rule that a specific statute controls a general statute, Aetna Cas. and Sur. Co. v. State Bd. for Prop. and Cas. Rates, 1981 OK 153, ¶ 24, 637 P.2d 1251, 1257, we find that 11 O.S. Supp. 2008 § 50-115(I) controls over the general \"substantial evidence\" rule provided in 75 O.S.2001 § 322(1). Therefore, we must review the Board's decision that the presumption was overcome to determine whether it is supported by competent evidence.\n[5] Taylor asserted the Board's decision was clearly erroneous and arbitrary because his evidence establishing causation was \"overwhelming.\" He also asserted the Board's order was not supported by the evidence. Finally, he asserted the Board committed three errors of law justifying reversal: a) the Board improperly applied the statute; b) the Board attributed his condition to his own negligence, improperly substituting its own judgment for that of experts; and c) the Board based its decision on \"unknown reasoning\" by failing to determine what caused his disability, if not his on-the-job exposure to hazardous chemicals.\n\n", "ocr": false, "opinion_id": 2636710 } ]

[ "2012 Ohio 5345", "134 Ohio St. 3d 114" ]

[ { "author_str": "Brown", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMcGee Brown, J.\n*115{¶ 1} This appeal involves three rulings in a medical-malpractice trial. Appellee, Margaret Branch, suffered a stroke during brain surgery performed at appellant, the Cleveland Clinic. As a result, Branch sued the clinic, claiming that its surgeon had struck a ventricle, causing the stroke.\n{¶ 2} Following a jury trial, a verdict was entered for the clinic. Branch appealed, and the Eighth District Court of Appeals found abuses of discretion in three rulings of the trial court. Branch v. Cleveland Clinic Found., 8th Dist. No. 95475, 2011-Ohio-3975, 2011 WL 3505286. The court of appeals found that the trial court abused its discretion in (1) allowing the clinic to use demonstrative evidence recreating the surgery that was provided to counsel for Branch ten minutes before the expert using it testified, (2) ordering counsel for Branch not to argue an inference that because the best piece of evidence — a computerized image prepared prior to the surgery — was not saved, it must have been adverse to the clinic, and (3) instructing the jury that evidence of alternative medical approaches was not evidence of negligence, because no evidence of recognized alternate methods of treatment was presented.\n{¶ 3} The clinic now argues that the Eighth District’s decision was, in each of these respects, “legally and factually flawed” and inconsistent with our precedent. We agree. Based on the record before us, the trial court did not abuse its discretion in any of the rulings at issue. Therefore, we reverse the judgment of the Eighth District Court of Appeals and reinstate the jury verdict for the clinic.\n\nBackground\n\n{¶ 4} Evidence at trial demonstrated that Branch is a highly accomplished attorney with a long history of advocating for injured plaintiffs. Prior to the surgery, Branch and her husband, Turner Branch, managed a law firm with approximately 30 staff members and 8 attorneys in Albuquerque, New Mexico.\n{¶ 5} Branch testified, however, that in 2003 she noticed symptoms of a neurological disorder known as cervical dystonia. The condition irresistibly drew her head downwards and to the right, causing severe spasms and pain. It led to serious struggles in Branch’s career, personal life, and mental health.\n{¶ 6} As the condition took its toll, Branch learned that the clinic offered a new procedure for dystonia, known as deep-brain stimulation (“DBS”). In DBS, surgeons implant electrodes within the brain to defeat destructive brain impulses such as those causing dystonia. After consulting with clinic physicians, Branch elected to undergo the surgery.\n{¶ 7} During surgery, Branch suffered a stroke that caused significant damage to her physical and cognitive abilities. Branch then sued the clinic, contending that the clinic committed medical negligence that caused permanent brain *116damage, partial paralysis, impaired vision and speech, lost ability to pursue her chosen occupation, and severe pain and suffering.\n{¶ 8} At one time, the complaint also included counts of lack of informed consent and negligent credentialing, as well as a loss-of-consortium claim for Branch’s husband, Turner. Before trial, however, Branch dropped all these claims except for a portion of the lack-of-informed-consent claim relating to the experience, knowledge, and identity of the doctors performing Branch’s surgery.\n{¶ 9} After a two-week trial, a unanimous jury found for the clinic. Branch appealed, and the Eighth District identified three abuses of discretion that warranted reversal and a new trial. Branch, 2011-Ohio-3975, 2011 WL 3505286.\n{¶ 10} The first error related to the clinic’s use of demonstrative evidence. Branch argued at trial that the clinic improperly failed to retain a three-dimensional mapping of her brain that was created before the surgery to assist the surgeon in directing the probe that would be inserted into her brain. The clinic admitted that the surgeon had not saved the electronic image, but countered that it had kept all the surgeon’s notes detailing the surgical procedure.\n{¶ 11} To illustrate the point, the clinic produced a three-dimensional computer simulation of the brain mapping, using data it had retained from the surgeon’s notes regarding Branch’s procedure. Branch objected, claiming that the simulation was prejudicial and that the clinic had not provided adequate notice of its intent to offer the exhibit. After discussion with counsel, the trial court permitted the clinic to use the exhibit. The Eighth District, however, concluded that the late admission of the evidence prejudiced Branch because she had no opportunity to prepare effective cross-examination. Branch, 2011-Ohio-3975, 2011 WL 3505286, at ¶ 18, 27.\n{¶ 12} The second error identified by the Eighth District also involved the surgery plan. At trial, the clinic explained that its computer systems automatically deleted surgery plans unless clinic employees affirmatively saved them, which they typically did for clinical studies only. Branch, however, suggested that the clinic’s failure to save the plan after a significant complication was suspicious.\n{¶ 13} The trial court allowed Branch to refer to this failure repeatedly. But when Branch’s counsel began to argue in closing that the failure to maintain the plan was suspicious and compared the clinic’s action to BP’s destruction of safety plans after the disastrous 2010 oil spill in the Gulf of Mexico, the trial court ordered Branch to “avoid that topic” because “there’s no suggestion that there’s anything willful about the destruction of any documents.” Branch claims that this directive effectively prevented her from seeking an adverse inference that the plan would have been unfavorable to the clinic, because the clinic had failed to *117save it. The Eighth District agreed and found that the trial court abused its discretion in the ruling. Branch, 2011-Ohio-3975, 2011 WL 3505286, at ¶ 63-64.\n{¶ 14} The third and final error identified by the Eighth District related to an instruction given by the trial court at the clinic’s request that informed the jury that alternative methods could be used and that the use of one medical approach rather than another did not necessarily constitute negligence. The Eighth District determined that this instruction was not appropriate because the dispute turned on whether a clinic surgeon had violated a standard of care and thus had caused the bleed by improperly striking Branch’s ventricle, a vascular structure in the brain. Id. at ¶ 49, 51, 54. Therefore, according to the Eighth District, the issue before the jury was not whether the clinic had employed the best of several appropriate medical methods, but rather, whether the method chosen was properly performed. Id. at ¶ 51-52.\n{¶ 15} The clinic appealed, and this court accepted review. 131 Ohio St.3d 1410, 2012-Ohio-136, 959 N.E.2d 1055.\n\nAdmission of Demonstrative Evidence\n\n{¶ 16} The clinic’s first proposition of law alleges that the Eighth District’s decision disallowing the use of demonstrative evidence at the trial was both legally and factually flawed.\n{¶ 17} In considering this proposition, we are mindful that a trial court is in the best position to make evidentiary rulings and that an appellate court should not substitute its judgment for that of the trial judge absent an abuse of discretion. Vogel v. Wells, 57 Ohio St.3d 91, 95, 566 N.E.2d 154 (1991) (a trial court did not abuse its discretion when it allowed a videotaped reconstruction of an accident to be admitted into evidence); State v. Cowans, 87 Ohio St.3d 68, 73, 717 N.E.2d 298 (1999) (a trial court did not abuse its discretion when it allowed a video recreation of a bloodhound’s path in tracking a suspect to be admitted into evidence). We do not, however, defer to trial court rulings that are unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).\n{¶ 18} In this case, the trial judge carefully reviewed both parties’ arguments and was well aware of the issue’s importance. Indeed, before exercising his discretion to allow the demonstration, the judge explained that it was a “tough” decision. The result was not an abuse of discretion. Branch was permitted to use an exhibit that the trial court deemed to be comparable to the clinic’s exhibit. Branch’s counsel had access to the same notes that the clinic used in preparing its demonstrative aid, and we defer to the trial court’s judgment that counsel for Branch had adequate opportunity to cross-examine clinic doctors with respect to the exhibit despite the minimal notice.\n*118{¶ 19} We conclude that the trial court reasonably exercised its discretion in allowing the clinic’s demonstration. That court’s decision was far from unreasonable, arbitrary, or unconscionable. The Eighth District’s ruling to the contrary was in error.\n\nAdverse Inference\n\n{¶ 20} The clinic next argues that the Eighth District erred in finding that Branch was unable to argue an adverse inference of negligence after the trial court refused to allow her to refer to the BP oil disaster during closing arguments.\n{¶ 21} In other words, the clinic challenges the Eighth District’s determination that Branch was entitled to argue an adverse inference arising from the clinic’s failure to retain the plan developed for surgery. The Eighth District stated that an adverse inference that the missing evidence would be unfavorable to the party who failed to produce it arises “ ‘ “where there is relevant evidence under the control of a party who fails to produce it without satisfactory explanation.” ’ ” Branch, 2011-Ohio-3975, 2011 WL 3505286, at ¶ 62, quoting Cherovsky v. St. Luke’s Hosp. of Cleveland, 8th Dist. No. 68326, 1995 WL 739608, *7 (Dec. 14, 1995) quoting Signs v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 94AP105-628, 1994 WL 663454, *2 (Nov. 22, 1994). The issue here, however, was not that the clinic failed to produce evidence in its control, but that Branch disagreed with the clinic’s standard practice of deleting surgical plans. The clinic produced the written records from the surgery that detailed the path the surgeon had used in inserting the probe into the brain.\n{¶ 22} More importantly, the trial court did not prevent Branch from actually arguing for the adverse inference. The order to avoid references to the topic occurred just moments before the end of Branch’s closing argument. Up until that point, Branch referred to the missing records repeatedly. The trial court did not forbid the jury from considering Branch’s argument in this respect.\n{¶ 23} The trial court was well within its discretion to determine the boundaries of closing argument absent an abuse of discretion. Pang v. Minch, 53 Ohio St.3d 186, 559 N.E.2d 1313 (1990). The Eighth District’s ruling to the contrary was in error.\n\nJury Instruction Regarding Different Methods\n\n{¶ 24} Finally, the clinic argues that the Eighth District erred in “disallowing the different methods jury instruction.” We agree.\n{¶ 25} We have previously reviewed the role of the “different methods” jury instruction in medical-malpractice cases. Pesek v. Univ. Neurologists Assoc., Inc, 87 Ohio St.3d 495, 498, 721 N.E.2d 1011 (2000). In Pesek, we explained that the instruction is “grounded ‘on the principle that juries, with their limited *119medical knowledge, should not be forced to decide which of two acceptable treatments should have been performed by a defendant physician.’ ” Id., quoting Dailey, The Two Schools of Thought and Informed Consent Doctrines in Pennsylvania: A Model for Integration, 98 Dickinson L.Rev. 713, 713 (1994).\n{¶ 26} We held in Peselc that the different-methods charge is appropriate only if “there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition.” Id. at syllabus. Regardless, we found that the trial court erred in giving the instruction in that case because no acceptable alternative methods of treatment were presented; instead, Pesek turned on a classic misdiagnosis. Id. at 499.\n{¶ 27} The Eighth District found that it was error to give the different-methods instruction in this case because Branch claimed that the clinic’s surgeon was negligent in striking the ventricle wall. Id. at ¶ 51. The surgeon denied, however, that he had struck the ventricle wall. In other words, the dispute turned on facts, not legal theories. However, this analysis oversimplifies what transpired at trial. In fact, the parties’ experts raised a number of questions regarding how different planning and procedures could have prevented the stroke, all of which required the jury to determine whether another medical approach would have been preferable.\n{¶ 28} For example, the parties disputed whether the clinic’s planned trajectory into Branch’s brain was dangerously close to vascular structures in the middle of her brain; Branch’s experts proposed an alternative trajectory that they claim would have been safer. Similarly, Branch’s experts challenged the clinic’s approach in creating the map of Branch’s brain for surgery and testified to an alternative mapping strategy that the clinic could have employed. Likewise, Branch’s experts questioned whether the clinic’s surgeon conducted too many “tracks” into Branch’s brain while searching for the best site for electrode placement. With respect to each of these issues, medical professionals in the case disagreed about the best method of performing the surgery.\n{¶ 29} In short, Branch raised a number of questions about whether the clinic adopted the correct medical approach in her surgery despite the existence of alternative methods. These questions fall outside the limited medical knowledge that we expect of juries. Therefore, the trial court did not err in allowing the different-methods instruction.\n\nConclusion\n\n{¶ 30} Based on the foregoing, we conclude that the trial court did not abuse its discretion in any of the three rulings at issue. Accordingly, we reverse the *120decision of the Eighth District Court of Appeals, and we reinstate the jury verdict for the clinic.\nPaul W. Flowers Co., L.P.A., and Paul Flowers; and Becker Law Firm and Michael Becker, for appellee.\nRoetzel & Andress, L.P.A., Douglas G. Leak, Anna Moore Carulas, and Ingrid Kinkopf-Zajac, for appellant.\nJudgment reversed.\nO’Connor, C.J., and Lundberg Stratton, O’Donnell, Lanzinger, and Cupp, JJ., concur.\nPfeifer, J., dissents.\n", "ocr": false, "opinion_id": 9801558 }, { "author_str": "Pfeifer", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPfeifer, J.,\ndissenting.\n{¶ 31} In this case, we review a court of appeals’ review of a trial court’s evidentiary and jury-instruction decisions. Our holding is that “the trial court did not abuse its discretion in any of the three rulings at issue.” Undoubtedly, this case is a matter of great personal interest for the Branches and a matter of great corporate interest for the Cleveland Clinic Foundation, but it does not meet this court’s jurisdictional requirement of a case “of public or great general interest.” Ohio Constitution, Article IV, Section 2(B)(2)(e). I would hold that jurisdiction was improvidently allowed in this case.\n", "ocr": false, "opinion_id": 9801559 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/0/2012/2012-ohio-5345.pdf", "author_id": 5358, "opinion_text": "[Cite as Branch v. Cleveland Clinic Found., 134 Ohio St. 3d 114, 2012-Ohio-5345.]\n\n\n\n\n BRANCH, APPELLEE, v. CLEVELAND CLINIC FOUNDATION, APPELLANT.\n [Cite as Branch v. Cleveland Clinic Found.,\n 134 Ohio St. 3d 114, 2012-Ohio-5345.]\nMedical-malpractice trial—Late production of demonstrative evidence—Adverse\n inference when evidence is not produced—Jury instruction regarding\n different methods of treatment.\n (No. 2011-1634—Submitted June 20, 2012—Decided November 21, 2012.)\n APPEAL from the Court of Appeals for Cuyahoga County,\n No. 95475, 2011-Ohio-3975.\n __________________\n MCGEE BROWN, J.\n {¶ 1} This appeal involves three rulings in a medical-malpractice trial.\nAppellee, Margaret Branch, suffered a stroke during brain surgery performed at\nappellant, the Cleveland Clinic. As a result, Branch sued the clinic, claiming that\nits surgeon had struck a ventricle, causing the stroke.\n {¶ 2} Following a jury trial, a verdict was entered for the clinic. Branch\nappealed, and the Eighth District Court of Appeals found abuses of discretion in\nthree rulings of the trial court. Branch v. Cleveland Clinic Found., 8th Dist. No.\n95475, 2011-Ohio-3975, 2011 WL 3505286. The court of appeals found that the\ntrial court abused its discretion in (1) allowing the clinic to use demonstrative\nevidence recreating the surgery that was provided to counsel for Branch ten\nminutes before the expert using it testified, (2) ordering counsel for Branch not to\nargue an inference that because the best piece of evidence—a computerized image\nprepared prior to the surgery—was not saved, it must have been adverse to the\nclinic, and (3) instructing the jury that evidence of alternative medical approaches\n\f SUPREME COURT OF OHIO\n\n\n\n\nwas not evidence of negligence, because no evidence of recognized alternate\nmethods of treatment was presented.\n {¶ 3} The clinic now argues that the Eighth District’s decision was, in\neach of these respects, “legally and factually flawed” and inconsistent with our\nprecedent. We agree. Based on the record before us, the trial court did not abuse\nits discretion in any of the rulings at issue. Therefore, we reverse the judgment of\nthe Eighth District Court of Appeals and reinstate the jury verdict for the clinic.\n Background\n {¶ 4} Evidence at trial demonstrated that Branch is a highly\naccomplished attorney with a long history of advocating for injured plaintiffs.\nPrior to the surgery, Branch and her husband, Turner Branch, managed a law firm\nwith approximately 30 staff members and 8 attorneys in Albuquerque, New\nMexico.\n {¶ 5} Branch testified, however, that in 2003 she noticed symptoms of a\nneurological disorder known as cervical dystonia. The condition irresistibly drew\nher head downwards and to the right, causing severe spasms and pain. It led to\nserious struggles in Branch’s career, personal life, and mental health.\n {¶ 6} As the condition took its toll, Branch learned that the clinic offered\na new procedure for dystonia, known as deep-brain stimulation (“DBS”). In\nDBS, surgeons implant electrodes within the brain to defeat destructive brain\nimpulses such as those causing dystonia. After consulting with clinic physicians,\nBranch elected to undergo the surgery.\n {¶ 7} During surgery, Branch suffered a stroke that caused significant\ndamage to her physical and cognitive abilities. Branch then sued the clinic,\ncontending that the clinic committed medical negligence that caused permanent\nbrain damage, partial paralysis, impaired vision and speech, lost ability to pursue\nher chosen occupation, and severe pain and suffering.\n\n\n\n\n 2\n\f January Term, 2012\n\n\n\n\n {¶ 8} At one time, the complaint also included counts of lack of\ninformed consent and negligent credentialing, as well as a loss-of-consortium\nclaim for Branch’s husband, Turner. Before trial, however, Branch dropped all\nthese claims except for a portion of the lack-of-informed-consent claim relating to\nthe experience, knowledge, and identity of the doctors performing Branch’s\nsurgery.\n {¶ 9} After a two-week trial, a unanimous jury found for the clinic.\nBranch appealed, and the Eighth District identified three abuses of discretion that\nwarranted reversal and a new trial. Branch, 2011-Ohio-3975.\n {¶ 10} The first error related to the clinic’s use of demonstrative evidence.\nBranch argued at trial that the clinic improperly failed to retain a three-\ndimensional mapping of her brain that was created before the surgery to assist the\nsurgeon in directing the probe that would be inserted into her brain. The clinic\nadmitted that the surgeon had not saved the electronic image, but countered that it\nhad kept all the surgeon’s notes detailing the surgical procedure.\n {¶ 11} To illustrate the point, the clinic produced a three-dimensional\ncomputer simulation of the brain mapping, using data it had retained from the\nsurgeon’s notes regarding Branch’s procedure. Branch objected, claiming that the\nsimulation was prejudicial and that the clinic had not provided adequate notice of\nits intent to offer the exhibit. After discussion with counsel, the trial court\npermitted the clinic to use the exhibit. The Eighth District, however, concluded\nthat the late admission of the evidence prejudiced Branch because she had no\nopportunity to prepare effective cross-examination. Branch, 2011-Ohio-3975, at\n¶ 18, 27.\n {¶ 12} The second error identified by the Eighth District also involved the\nsurgery plan. At trial, the clinic explained that its computer systems automatically\ndeleted surgery plans unless clinic employees affirmatively saved them, which\n\n\n\n\n 3\n\f SUPREME COURT OF OHIO\n\n\n\n\nthey typically did for clinical studies only. Branch, however, suggested that the\nclinic’s failure to save the plan after a significant complication was suspicious.\n {¶ 13} The trial court allowed Branch to refer to this failure repeatedly.\nBut when Branch’s counsel began to argue in closing that the failure to maintain\nthe plan was suspicious and compared the clinic’s action to BP’s destruction of\nsafety plans after the disastrous 2010 oil spill in the Gulf of Mexico, the trial court\nordered Branch to “avoid that topic” because “there’s no suggestion that there’s\nanything willful about the destruction of any documents.” Branch claims that this\ndirective effectively prevented her from seeking an adverse inference that the plan\nwould have been unfavorable to the clinic, because the clinic had failed to save it.\nThe Eighth District agreed and found that the trial court abused its discretion in\nthe ruling. Branch, 2011-Ohio-3975, at ¶ 63-64.\n {¶ 14} The third and final error identified by the Eighth District related to\nan instruction given by the trial court at the clinic’s request that informed the jury\nthat alternative methods could be used and that the use of one medical approach\nrather than another did not necessarily constitute negligence. The Eighth District\ndetermined that this instruction was not appropriate because the dispute turned on\nwhether a clinic surgeon had violated a standard of care and thus had caused the\nbleed by improperly striking Branch’s ventricle, a vascular structure in the brain.\nId. at ¶ 49, 51, 54. Therefore, according to the Eighth District, the issue before\nthe jury was not whether the clinic had employed the best of several appropriate\nmedical methods, but rather, whether the method chosen was properly performed.\nId. at ¶ 51-52.\n {¶ 15} The clinic appealed, and this court accepted review. 131 Ohio\nSt.3d 1410, 2012-Ohio-136, 959 N.E.2d 1055.\n\n\n\n\n 4\n\f January Term, 2012\n\n\n\n\n Admission of Demonstrative Evidence\n {¶ 16} The clinic’s first proposition of law alleges that the Eighth\nDistrict’s decision disallowing the use of demonstrative evidence at the trial was\nboth legally and factually flawed.\n {¶ 17} In considering this proposition, we are mindful that a trial court is\nin the best position to make evidentiary rulings and that an appellate court should\nnot substitute its judgment for that of the trial judge absent an abuse of discretion.\nVogel v. Wells, 57 Ohio St. 3d 91, 95, 566 N.E.2d 154 (1991) (a trial court did not\nabuse its discretion when it allowed a videotaped reconstruction of an accident to\nbe admitted into evidence); State v. Cowans, 87 Ohio St. 3d 68, 73, 717 N.E.2d\n298 (1999) (a trial court did not abuse its discretion when it allowed a video\nrecreation of a bloodhound’s path in tracking a suspect to be admitted into\nevidence). We do not, however, defer to trial court rulings that are unreasonable,\narbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St. 3d 217, 450\nN.E.2d 1140 (1983).\n {¶ 18} In this case, the trial judge carefully reviewed both parties’\narguments and was well aware of the issue’s importance. Indeed, before\nexercising his discretion to allow the demonstration, the judge explained that it\nwas a “tough” decision. The result was not an abuse of discretion. Branch was\npermitted to use an exhibit that the trial court deemed to be comparable to the\nclinic’s exhibit. Branch’s counsel had access to the same notes that the clinic\nused in preparing its demonstrative aid, and we defer to the trial court’s judgment\nthat counsel for Branch had adequate opportunity to cross-examine clinic doctors\nwith respect to the exhibit despite the minimal notice.\n {¶ 19} We conclude that the trial court reasonably exercised its discretion\nin allowing the clinic’s demonstration. That court’s decision was far from\nunreasonable, arbitrary, or unconscionable. The Eighth District’s ruling to the\ncontrary was in error.\n\n\n\n 5\n\f SUPREME COURT OF OHIO\n\n\n\n\n Adverse Inference\n {¶ 20} The clinic next argues that the Eighth District erred in finding that\nBranch was unable to argue an adverse inference of negligence after the trial court\nrefused to allow her to refer to the BP oil disaster during closing arguments.\n {¶ 21} In other words, the clinic challenges the Eighth District’s\ndetermination that Branch was entitled to argue an adverse inference arising from\nthe clinic’s failure to retain the plan developed for surgery. The Eighth District\nstated that an adverse inference that the missing evidence would be unfavorable to\nthe party who failed to produce it arises “ ‘ “where there is relevant evidence\nunder the control of a party who fails to produce it without satisfactory\nexplanation.” ’ ” Branch, 2011-Ohio-3975, at ¶ 62, quoting Cherovsky v. St.\nLuke’s Hosp. of Cleveland, 8th Dist. No. 68326, 1995 WL 739608, *7 (Dec. 14,\n1995), quoting Signs v. Ohio Dept. of Rehab. & Corr., 10th Dist. No. 94AP105-\n628, 1994 WL 663454, *2 (Nov. 22, 1994). The issue here, however, was not that\nthe clinic failed to produce evidence in its control, but that Branch disagreed with\nthe clinic’s standard practice of deleting surgical plans. The clinic produced the\nwritten records from the surgery that detailed the path the surgeon had used in\ninserting the probe into the brain.\n {¶ 22} More importantly, the trial court did not prevent Branch from\nactually arguing for the adverse inference. The order to avoid references to the\ntopic occurred just moments before the end of Branch’s closing argument. Up\nuntil that point, Branch referred to the missing records repeatedly. The trial court\ndid not forbid the jury from considering Branch’s argument in this respect.\n {¶ 23} The trial court was well within its discretion to determine the\nboundaries of closing argument absent an abuse of discretion. Pang v. Minch, 53\nOhio St. 3d 186, 559 N.E.2d 1313 (1990). The Eighth District’s ruling to the\ncontrary was in error.\n\n\n\n\n 6\n\f January Term, 2012\n\n\n\n\n Jury Instruction Regarding Different Methods\n {¶ 24} Finally, the clinic argues that the Eighth District erred in\n“disallowing the different methods jury instruction.” We agree.\n {¶ 25} We have previously reviewed the role of the “different methods”\njury instruction in medical-malpractice cases. Pesek v. Univ. Neurologists Assoc.,\nInc., 87 Ohio St. 3d 495, 498, 721 N.E.2d 1011 (2000). In Pesek, we explained\nthat the instruction is “grounded ‘on the principle that juries, with their limited\nmedical knowledge, should not be forced to decide which of two acceptable\ntreatments should have been performed by a defendant physician.’ ” Id., quoting\nDailey, The Two Schools of Thought and Informed Consent Doctrines in\nPennsylvania: A Model for Integration, 98 Dickinson L.Rev. 713, 713 (1994).\n {¶ 26} We held in Pesek that the different-methods charge is appropriate\nonly if “there is evidence that more than one method of diagnosis or treatment is\nacceptable for a particular medical condition.” Id. at syllabus. Regardless, we\nfound that the trial court erred in giving the instruction in that case because no\nacceptable alternative methods of treatment were presented; instead, Pesek turned\non a classic misdiagnosis. Id. at 499.\n {¶ 27} The Eighth District found that it was error to give the different-\nmethods instruction in this case because Branch claimed that the clinic’s surgeon\nwas negligent in striking the ventricle wall. Id. at ¶ 51. The surgeon denied,\nhowever, that he had struck the ventricle wall. In other words, the dispute turned\non facts, not legal theories. However, this analysis oversimplifies what transpired\nat trial. In fact, the parties’ experts raised a number of questions regarding how\ndifferent planning and procedures could have prevented the stroke, all of which\nrequired the jury to determine whether another medical approach would have\nbeen preferable.\n {¶ 28} For example, the parties disputed whether the clinic’s planned\ntrajectory into Branch’s brain was dangerously close to vascular structures in the\n\n\n\n 7\n\f SUPREME COURT OF OHIO\n\n\n\n\nmiddle of her brain; Branch’s experts proposed an alternative trajectory that they\nclaim would have been safer. Similarly, Branch’s experts challenged the clinic’s\napproach in creating the map of Branch’s brain for surgery and testified to an\nalternative mapping strategy that the clinic could have employed. Likewise,\nBranch’s experts questioned whether the clinic’s surgeon conducted too many\n“tracks” into Branch’s brain while searching for the best site for electrode\nplacement. With respect to each of these issues, medical professionals in the case\ndisagreed about the best method of performing the surgery.\n {¶ 29} In short, Branch raised a number of questions about whether the\nclinic adopted the correct medical approach in her surgery despite the existence of\nalternative methods. These questions fall outside the limited medical knowledge\nthat we expect of juries. Therefore, the trial court did not err in allowing the\ndifferent-methods instruction.\n Conclusion\n {¶ 30} Based on the foregoing, we conclude that the trial court did not\nabuse its discretion in any of the three rulings at issue. Accordingly, we reverse\nthe decision of the Eighth District Court of Appeals, and we reinstate the jury\nverdict for the clinic.\n Judgment reversed.\n O’CONNOR, C.J., and LUNDBERG STRATTON, O’DONNELL, LANZINGER,\nand CUPP, JJ., concur.\n PFEIFER, J., dissents.\n __________________\n PFEIFER, J., dissenting.\n {¶ 31} In this case, we review a court of appeals’ review of a trial court’s\nevidentiary and jury-instruction decisions. Our holding is that “the trial court did\nnot abuse its discretion in any of the three rulings at issue.” Undoubtedly, this\ncase is a matter of great personal interest for the Branches and a matter of great\n\n\n\n\n 8\n\f January Term, 2012\n\n\n\n\ncorporate interest for the Cleveland Clinic Foundation, but it does not meet this\ncourt’s jurisdictional requirement of a case “of public or great general interest.”\nOhio Constitution, Article IV, Section 2(B)(2)(e). I would hold that jurisdiction\nwas improvidently allowed in this case.\n __________________\n Paul W. Flowers Co., L.P.A., and Paul Flowers; and Becker Law Firm and\nMichael Becker, for appellee.\n Roetzel & Andress, L.P.A., Douglas G. Leak, Anna Moore Carulas, and\nIngrid Kinkopf-Zajac, for appellant.\n ______________________\n\n\n\n\n 9\n\f", "ocr": false, "opinion_id": 2690621 } ]

[ "354 A.2d 559", "467 Pa. 79" ]

[ { "author_str": "Roberts", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nOPINION OF THE COURT\nROBERTS, Justice.\nThe question presented is whether a school district may agree in a collective bargaining agreement to arbi*81trate an unsatisfactory performance rating of a teacher. The court of common pleas held that it may do so. We agree and affirm.\nThe collective bargaining agreement between the Philadelphia Board of Education and the Philadelphia Federation of Teachers establishes a comprehensive grievance procedure which terminates in arbitration. Article B-V, section 2f(ii) (hereinafter “the agreement”) provides:\n“The employee may invoke the grievance procedure if he believes that his rating is improper because of capriciousness, arbitrariness, unfairness, prejudice, failure to conform with prevailing practices for rating, or absence of factual support for such rating.”\nAt the end of the 1973-74 school year, an unsatisfactory rating was filed against Antoinette Milberry, a tenured teacher. On July 3, 1974, Milberry and the union invoked the grievance procedures to challenge the rating. On July 8, 1974, the board informed Milberry that her dismissal was being sought on the ground of incompetency. When the board later refused to allow the grievance to proceed to arbitration, Milberry and the union initiated this action in equity. On January 17, 1975, the court of common pleas ordered the board to submit the grievance to arbitration in accordance with the provisions of the agreement. This appeal followed.1\nThe board maintains that sections 1122-32 and section 510 of the Public School Code 2 grant the board sole au*82thority to make decisions concerning the rating and dismissal of a tenured teacher. Therefore, the board argues, the agreement is invalid under section 703 3 of the Public Employee Relations Act (PERA) insofar as it provides for arbitration of a grievance concerning an unsatisfactory rating when the rating has become the subject of a dismissal proceeding. We do not agree.\nIn the closely related case of Board of Education v. Philadelphia Federation of Teachers, 464 Pa. 92, 346 A. 2d 35 (1975), this Court held that section 703 of the PERA does not prohibit a school district from agreeing to arbitrate the discharge of a nontenured teacher. Citing Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975), we held that section 703 does not prevent agreement to, or implementation of, a particular provision merely because the subject matter of that provision is covered by legislation. The statutory prohibition in the PERA applies only when the particular provision “would be in violation of, or inconsistent with, or in conflict with” a statutory directive. Section 703 must be considered in light of the PERA as a whole, which embodies a strong policy in favor of arbitrating disputes. Accordingly, we held in Philadelpia Federation of Teachers, supra, that the board is prohibited from delegating a particular function to the arbitrator only if the General Assembly has mandated that the function shall be discharged by the board alone.\nThe General Assembly has not mandated that review of unsatisfactory ratings be conducted only by the *83board. The Public School Code requires the school district to rate the performance of all teachers. Section 1123 of the Code 4 S.specifies the manner in which the applicable standards and regulations are to be promulgated and indicates the persons who are permitted to do the rating. It does not specify procedures by which an unsatisfactory rating may be reviewed, nor does any other section of the Public School Code specifically cover this subject.\nThe agreement does not in any way affect the obligation of the board to rate teachers in conformance with section 1123. It does not define the standards or establish the practices by which teachers are to be rated by the school districts. The agreement provides only for an impartial review to determine whether the “rating is improper because of capriciousness, arbitrariness, unfairness, prejudice, failure to conform with prevailing practices for rating or absence of factual support for such rating.” We conclude that the board is not precluded *84from agreeing to submit to arbitration a dispute concerning the propriety of an unsatisfactory rating.\nThe board contends, however, that even if the agreement does not constitute an invalid delegation of the board’s authority to rate the performance of teachers, it does constitute an unlawful delegation of the board’s authority to discharge tenured teachers when an unsatisfactory rating has become the subject of a dismissal proceeding. We disagree.\nThe General Assembly has granted certain procedural safeguards to any tenured teacher whom the board seeks to dismiss. The Public School Code provides that the tenured teacher has the right to a public hearing before the board, that two-thirds of the board members must vote for dismissal, and that the tenured teacher has the right to appeal an adverse decision to the Secretary of Education and eventually to the courts.5 The agreement neither modifies nor creates an alternative to that dismissal procedure; nor does it provide for a review of the dismissal of a tenured teacher. Its sole effect on the dismissal process is to allow an arbitrator to determine the propriety of an unsatisfactory rating. That determination would be binding should the rating be introduced into evidence at a subsequent dismissal hearing before the board.6 The requirements of the School Code have not been circumvented. All the parties have done is to accord the teacher a further procedural protection — the *85right to an impartial determination of an important evidentiary matter — which does not conflict with any mandate of the General Assembly.\nConsequently, we conclude that section 703 of the PERA does not prevent implementation of Article B-V, section 2f(ii) of the agreement regardless of whether a dismissal proceeding had been instituted.\nMotion to quash and motion to dismiss denied. Decree affirmed. Each party pay own costs.\nJONES, C. J., did not participate in the consideration or decision of this case.\nPOMEROY, J., filed a concurring opinion.\nEAGEN, J., dissents.\n\n. Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(4), 17 P.S. § 211.202(4) (Supp.1975).\nThe union’s contention that the appeal should be quashed is without merit. The order was final notwithstanding the court’s direction that the case be retained on the docket until the arbitration was completed and a copy of the arbitrator’s decision presented to the court. Board of Educ. v. Philadelphia Federation of Teachers, 464 Pa. 95-96 n. 2, 346 A.2d 35, 37 n. 2 (1975).\n\n\n. Act of March 10, 1949, P.L. 30, art. XI, §§ 1122-32, as amended, 24 P.S. §§ 11-1122 to 11-1132 (Supp.1975); id., art. V, § 510, as amended, 24 P.S. § 5-510 (Supp.1975).\n\n\n. That section provides:\n“The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rul© charters ^\nAct of July 23, 1970, P.L. 563, No. 195, art. VII, § 703, 43 P.S. § 1101.703 (Supp.1975).\n\n\n. That section provides:\n“In determining whether a professional employee shall be dismissed for incompetency, and in rating the services of a temporary professional employee, the professional employee or temporary professional employee shall be rated by an approved rating system which shall give due consideration to personality, preparation, technique, and pupil reaction, in accordance with standards and regulations for such scoring as defined by rating cards to be prepared by the Department of Public Instruction, and to be revised, from time to time, by the Department of Public Instruction with the cooperation and advice of a committee appointed by the Superintendent of Public Instruction, including representation from district superintendents of schools, classroom teachers, school directors, school supervisors, and such other groups or interests as the Superintendent of Public Instruction may deem appropriate. Rating shall be done by or under the supervisions of the superintendent of schools or, if so directed by him, the same may be done by an assistant superintendent, a supervisor, or a principal, who has supervision over the work of the professional employee or temporary professional employee who is being rated: Provided, That no satisfactory rating shall be valid unless approved by the district superintendent.”\nAct of March 10, 1949, P.L. 30, art. XI, § 1123, as amended, 24 P. S. § 11-1123 (Supp.1975).\n\n\n. See the Public School Code, Act of March 10, 1949, P.L. 30, art. XI, §§ 1122-32, as amended, 24 P.S. §§ 11-1122 to 11-1132 (Supp. 1975).\n\n\n. The board’s practice of objecting to review by an arbitrator only when a dismissal proceeding has been instituted is untenable. Any determination by an arbitrator concerning the propriety of an unsatisfactory rating may have an effect on a subsequent dismissal proceeding. A first unsatisfactory rating is as relevant to a charge of incompetency as is a second unsatisfactory rating. Thus, we must consider the validity of the board’s argument irrespective of the specific context in which a teacher seeks to invoke the agreement.\n\n", "ocr": false, "opinion_id": 9635700 }, { "author_str": "Pomeroy", "per_curiam": false, "type": "030concurrence", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nPOMEROY, Justice\n(concurring).\nA provision of the collective bargaining agreement between the Philadelphia Board of Education and its teachers permits an “unsatisfactory” rating of a professional employee to be the subject of a grievance and so arbitrable. In my view this provision is consonant with the scheme and intent of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, No. 195, 43 P.S. § 1101.-101 et seq. (Supp.1975) [herein PERA] and, in the words of Section 703 of that Act, 43 P.S. § 1101.703, is neither “in violation of, or inconsistent with or in conflict with” the provisions of The Public School Code, Act of March 10, 1949, P.L. 30; as amended, 24 P.S. §§ 1-101 et seq. I therefore agree that the School Board was in error in resisting arbitration and that the court of common pleas correctly so decided and was warranted in granting equitable relief.\nThe Court, in reaching its conclusion to affirm the trial court, relies on its decision in what it terms “the closely related case” of Board of Education v. Philadel*86phia Federation of Teachers, 464 Pa. 92, 346 A.2d 35 (1975). That case in turn relied on the interpretation of Section 703 of the Act contained in the Court’s opinion in Penna. Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975). In the former case I dissented and in the latter disagreed with the portion of the opinion now relied upon. I continue of the views I expressed in those cases,1 and feel equally strongly that in today’s opinion the Court continues its unwarranted distortion of the plain language of Section 703 when it repeats that that section prohibits a delegation by a school board (or, presumably, any other public employer) of “a particular function to the arbitrator only if the General Assembly has mandated that the function shall be discharged by the board alone” (my emphasis) ,2 Opinion of the Court, ante at 561.\nThe present case, in my view, bears only a superficial similarity to Board of Education v. Philadelphia Federation of Teachers, supra. The holding there was that PERA (Act 195) permitted a school board to agree to arbitrate the propriety of discharging a non-tenured teacher — thus sanctioning, as I believe, an impermissible surrender of a board prerogative under the School Code. See Sections 508, 1108 and 1122, of the School Code, Act of March 10, 1949, P.L. 30, art. 5, § 508 as amended, and art. 11 §§ 1108 & 1122, as amended, 24 P.S. §§ 5-508 (Supp.1975), 11-1108 (Supp.1975), 11-1122. Moreover, the agreement in that case, which stipulated that *87the discharge of a non-tenured teacher should be only for “just cause”, left the arbitrators free to adopt a standard for the discharge of teachers which differed from the carefully enumerated grounds of the School Code, i. e., incompetency, immorality, intemperance, cruelty, persistent and wilful violations of the school laws. Section 1122 of the School Code, supra.\nIn the case at bar, the collective bargaining agreement provides that the rating of a teacher as “unsatisfactory” is a proper subject of grievance and so of arbitration. Unlike a decision as to whether a teacher, tenured or otherwise, shall be discharged — matter clearly entrusted by the School Code to the school board — rating a teacher’s performance is an administrative function. It is governed by standards and regulations set by the Department of Public Instruction, and is done by or under the supervision of the superintendent of schools or by such other administrator as supervises the work of the teacher being rated; no unsatisfactory rating is valid unless approved by the district superintendent. Sec. 1123 of the School Code, 24 P.S. § 11-1123 (Supp.1975).3\nUnder the agreement now before us a teacher’s rating, if unsatisfactory, is reviewable in arbitration, but only to test whether it is warped by specified vices, viz., “capriciousness, arbitrariness, unfairness, prejudice, failure to conform with prevailing practices for rating or absence of factual support for such rating.” (Collective bargain*88ing agreement, Article B-V, Section 2F(ii), R. 6a). Thus the effect of the arbitration provision is to interject, in a case where a grievance is asserted, an additional step into the rating procedure — a further scrutiny, in addition to that of the district superintendent under the School Code, to ensure the procedural fairness of a recorded black mark against the competency of a teacher. The authority of the school board to make the ultimate decision whether or not to suspend or discharge a teacher is not abridged. I agree with the Court that the agreement in question “neither modifies nor creates an alternative to [the Code’s] dismissal procedure; nor does it provide for a review of the dismissal of a tenured teacher. . . . All the parties have done is to afford the teacher a further procedural protection . . ..” Opinion of the Court, ante at 562. As I observed in the outset, I cannot see that this rather limited additional review of an administrative function is “in violation of, or inconsistent with, or in conflict with”, see § 703 of PERA, the scheme of the School Code governing the rating of professional employees. It is clear that under the Code not only the rating system but the rating process is to be fair; the arbitration to which the parties have agreed is designed to make doubly sure that unfairness does not creep into the handling of a particular case. Section 703 of PERA is not a bar to this design.\n\n. See 464 Pa. 92, 108, 346 A.2d 35, 45 (1975) (Pomeroy, J., dissenting) and 461 Pa. 494, 513, 337 A.2d 262, 271 n. 1 (1975) (Pomeroy, J., concurring).\n\n\n. The actual provision of § 703 is as follows: “The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters.” Act of July 23, 1970, P. L. 563, No. 195, art. VII, § 703, 43 P.S. § 1101.703 (Supp.1975).\n\n\n. One purpose of rating is to aid in the determination as to whether a professional employee shall be dismissed for incompetency. Section 1123 of the Code, 24 P.S. § 11-1123 (Supp.1975), supra. Another purpose of rating is to provide an order for suspensions in connection with decreases in size of the staff of professional employees. Section 1125(a) of the Code, 24 P.S. § 11— 1125. Under the latter section it is the duty of boards Of school directors to establish a permanent record system containing ratings of each professional employee. A copy Of any unsatisfactory rating is required to be sent to the professional employee concerned. No such employee may be dismissed unless such rating records have been kept on file by the board of school directors. Ibid.\n\n", "ocr": false, "opinion_id": 9635701 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n467 Pa. 79 (1976)\n354 A.2d 559\nAntoinette MILBERRY et al.\nv.\nBOARD OF EDUCATION OF the SCHOOL DISTRICT OF PHILADELPHIA, Appellant.\nSupreme Court of Pennsylvania.\nArgued November 21, 1975.\nDecided April 7, 1976.\n*80 Robert T. Lear, Philadelphia, for appellant.\nLeonard M. Sagot, Randall J. Sommovilla, Philadelphia, for appellees.\nBefore EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.\n\nOPINION OF THE COURT\nROBERTS, Justice.\nThe question presented is whether a school district may agree in a collective bargaining agreement to arbitrate *81 an unsatisfactory performance rating of a teacher. The court of common pleas held that it may do so. We agree and affirm.\nThe collective bargaining agreement between the Philadelphia Board of Education and the Philadelphia Federation of Teachers establishes a comprehensive grievance procedure which terminates in arbitration. Article B-V, section 2f(ii) (hereinafter \"the agreement\") provides:\n\"The employee may invoke the grievance procedure if he believes that his rating is improper because of capriciousness, arbitrariness, unfairness, prejudice, failure to conform with prevailing practices for rating, or absence of factual support for such rating.\"\nAt the end of the 1973-74 school year, an unsatisfactory rating was filed against Antoinette Milberry, a tenured teacher. On July 3, 1974, Milberry and the union invoked the grievance procedures to challenge the rating. On July 8, 1974, the board informed Milberry that her dismissal was being sought on the ground of incompetency. When the board later refused to allow the grievance to proceed to arbitration, Milberry and the union initiated this action in equity. On January 17, 1975, the court of common pleas ordered the board to submit the grievance to arbitration in accordance with the provisions of the agreement. This appeal followed.[1]\nThe board maintains that sections 1122-32 and section 510 of the Public School Code[2] grant the board sole authority *82 to make decisions concerning the rating and dismissal of a tenured teacher. Therefore, the board argues, the agreement is invalid under section 703[3] of the Public Employee Relations Act (PERA) insofar as it provides for arbitration of a grievance concerning an unsatisfactory rating when the rating has become the subject of a dismissal proceeding. We do not agree.\nIn the closely related case of Board of Education v. Philadelphia Federation of Teachers, 464 Pa. 92, 346 A.2d 35 (1975), this Court held that section 703 of the PERA does not prohibit a school district from agreeing to arbitrate the discharge of a nontenured teacher. Citing Pennsylvania Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975), we held that section 703 does not prevent agreement to, or implementation of, a particular provision merely because the subject matter of that provision is covered by legislation. The statutory prohibition in the PERA applies only when the particular provision \"would be in violation of, or inconsistent with, or in conflict with\" a statutory directive. Section 703 must be considered in light of the PERA as a whole, which embodies a strong policy in favor of arbitrating disputes. Accordingly, we held in Philadelpia Federation of Teachers, supra, that the board is prohibited from delegating a particular function to the arbitrator only if the General Assembly has mandated that the function shall be discharged by the board alone.\nThe General Assembly has not mandated that review of unsatisfactory ratings be conducted only by the *83 board. The Public School Code requires the school district to rate the performance of all teachers. Section 1123 of the Code[4] specifies the manner in which the applicable standards and regulations are to be promulgated and indicates the persons who are permitted to do the rating. It does not specify procedures by which an unsatisfactory rating may be reviewed, nor does any other section of the Public School Code specifically cover this subject.\nThe agreement does not in any way affect the obligation of the board to rate teachers in conformance with section 1123. It does not define the standards or establish the practices by which teachers are to be rated by the school districts. The agreement provides only for an impartial review to determine whether the \"rating is improper because of capriciousness, arbitrariness, unfairness, prejudice, failure to conform with prevailing practices for rating or absence of factual support for such rating.\" We conclude that the board is not precluded *84 from agreeing to submit to arbitration a dispute concerning the propriety of an unsatisfactory rating.\nThe board contends, however, that even if the agreement does not constitute an invalid delegation of the board's authority to rate the performance of teachers, it does constitute an unlawful delegation of the board's authority to discharge tenured teachers when an unsatisfactory rating has become the subject of a dismissal proceeding. We disagree.\nThe General Assembly has granted certain procedural safeguards to any tenured teacher whom the board seeks to dismiss. The Public School Code provides that the tenured teacher has the right to a public hearing before the board, that two-thirds of the board members must vote for dismissal, and that the tenured teacher has the right to appeal an adverse decision to the Secretary of Education and eventually to the courts.[5] The agreement neither modifies nor creates an alternative to that dismissal procedure; nor does it provide for a review of the dismissal of a tenured teacher. Its sole effect on the dismissal process is to allow an arbitrator to determine the propriety of an unsatisfactory rating. That determination would be binding should the rating be introduced into evidence at a subsequent dismissal hearing before the board.[6] The requirements of the School Code have not been circumvented. All the parties have done is to accord the teacher a further procedural protection — the *85 right to an impartial determination of an important evidentiary matter — which does not conflict with any mandate of the General Assembly.\nConsequently, we conclude that section 703 of the PERA does not prevent implementation of Article B-V, section 2f(ii) of the agreement regardless of whether a dismissal proceeding had been instituted.\nMotion to quash and motion to dismiss denied. Decree affirmed. Each party pay own costs.\nJONES, C.J., did not participate in the consideration or decision of this case.\nPOMEROY, J., filed a concurring opinion.\nEAGEN, J., dissents.\nPOMEROY, Justice (concurring).\nA provision of the collective bargaining agreement between the Philadelphia Board of Education and its teachers permits an \"unsatisfactory\" rating of a professional employee to be the subject of a grievance and so arbitrable. In my view this provision is consonant with the scheme and intent of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, No. 195, 43 P.S. § 1101.101 et seq. (Supp. 1975) [herein PERA] and, in the words of Section 703 of that Act, 43 P.S. § 1101.703, is neither \"in violation of, or inconsistent with or in conflict with\" the provisions of The Public School Code, Act of March 10, 1949, P.L. 30; as amended, 24 P.S. §§ 1-101 et seq. I therefore agree that the School Board was in error in resisting arbitration and that the court of common pleas correctly so decided and was warranted in granting equitable relief.\nThe Court, in reaching its conclusion to affirm the trial court, relies on its decision in what it terms \"the closely related case\" of Board of Education v. Philadelphia *86 Federation of Teachers, 464 Pa. 92, 346 A.2d 35 (1975). That case in turn relied on the interpretation of Section 703 of the Act contained in the Court's opinion in Penna. Labor Relations Board v. State College Area School District, 461 Pa. 494, 337 A.2d 262 (1975). In the former case I dissented and in the latter disagreed with the portion of the opinion now relied upon. I continue of the views I expressed in those cases,[1] and feel equally strongly that in today's opinion the Court continues its unwarranted distortion of the plain language of Section 703 when it repeats that that section prohibits a delegation by a school board (or, presumably, any other public employer) of \"a particular function to the arbitrator only if the General Assembly has mandated that the function shall be discharged by the board alone\" (my emphasis).[2] Opinion of the Court, ante at 561.\nThe present case, in my view, bears only a superficial similarity to Board of Education v. Philadelphia Federation of Teachers, supra. The holding there was that PERA (Act 195) permitted a school board to agree to arbitrate the propriety of discharging a non-tenured teacher — thus sanctioning, as I believe, an impermissible surrender of a board prerogative under the School Code. See Sections 508, 1108 and 1122, of the School Code, Act of March 10, 1949, P.L. 30, art. 5, § 508 as amended, and art. 11 §§ 1108 & 1122, as amended, 24 P.S. §§ 5-508 (Supp. 1975), 11-1108 (Supp. 1975), 11-1122. Moreover, the agreement in that case, which stipulated that *87 the discharge of a non-tenured teacher should be only for \"just cause\", left the arbitrators free to adopt a standard for the discharge of teachers which differed from the carefully enumerated grounds of the School Code, i.e., incompetency, immorality, intemperance, cruelty, persistent and wilful violations of the school laws. Section 1122 of the School Code, supra.\nIn the case at bar, the collective bargaining agreement provides that the rating of a teacher as \"unsatisfactory\" is a proper subject of grievance and so of arbitration. Unlike a decision as to whether a teacher, tenured or otherwise, shall be discharged — matter clearly entrusted by the School Code to the school board — rating a teacher's performance is an administrative function. It is governed by standards and regulations set by the Department of Public Instruction, and is done by or under the supervision of the superintendent of schools or by such other administrator as supervises the work of the teacher being rated; no unsatisfactory rating is valid unless approved by the district superintendent. Sec. 1123 of the School Code, 24 P.S. § 11-1123 (Supp. 1975).[3]\nUnder the agreement now before us a teacher's rating, if unsatisfactory, is reviewable in arbitration, but only to test whether it is warped by specified vices, viz., \"capriciousness, arbitrariness, unfairness, prejudice, failure to conform with prevailing practices for rating or absence of factual support for such rating.\" (Collective bargaining *88 agreement, Article B-V, Section 2F(ii), R. 6a). Thus the effect of the arbitration provision is to interject, in a case where a grievance is asserted, an additional step into the rating procedure — a further scrutiny, in addition to that of the district superintendent under the School Code, to ensure the procedural fairness of a recorded black mark against the competency of a teacher. The authority of the school board to make the ultimate decision whether or not to suspend or discharge a teacher is not abridged. I agree with the Court that the agreement in question \"neither modifies nor creates an alternative to [the Code's] dismissal procedure; nor does it provide for a review of the dismissal of a tenured teacher. . . . All the parties have done is to afford the teacher a further procedural protection . . ..\" Opinion of the Court, ante at 562. As I observed in the outset, I cannot see that this rather limited additional review of an administrative function is \"in violation of, or inconsistent with, or in conflict with\", see § 703 of PERA, the scheme of the School Code governing the rating of professional employees. It is clear that under the Code not only the rating system but the rating process is to be fair; the arbitration to which the parties have agreed is designed to make doubly sure that unfairness does not creep into the handling of a particular case. Section 703 of PERA is not a bar to this design.\nNOTES\n[1] Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 202(4), 17 P.S. § 211.202(4) (Supp. 1975).\n\nThe union's contention that the appeal should be quashed is without merit. The order was final notwithstanding the court's direction that the case be retained on the docket until the arbitration was completed and a copy of the arbitrator's decision presented to the court. Board of Educ. v. Philadelphia Federation of Teachers, 464 Pa. 95-96 n. 2, 346 A.2d 35, 37 n. 2 (1975).\n[2] Act of March 10, 1949, P.L. 30, art. XI, §§ 1122-32, as amended, 24 P.S. §§ 11-1122 to 11-1132 (Supp. 1975); id., art. V, § 510, as amended, 24 P.S. § 5-510 (Supp. 1975).\n[3] That section provides:\n\n\"The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters.\"\nAct of July 23, 1970, P.L. 563, No. 195, art. VII, § 703, 43 P.S. § 1101.703 (Supp. 1975).\n[4] That section provides:\n\n\"In determining whether a professional employee shall be dismissed for incompetency, and in rating the services of a temporary professional employee, the professional employee or temporary professional employee shall be rated by an approved rating system which shall give due consideration to personality, preparation, technique, and pupil reaction, in accordance with standards and regulations for such scoring as defined by rating cards to be prepared by the Department of Public Instruction, and to be revised, from time to time, by the Department of Public Instruction with the cooperation and advice of a committee appointed by the Superintendent of Public Instruction, including representation from district superintendents of schools, classroom teachers, school directors, school supervisors, and such other groups or interests as the Superintendent of Public Instruction may deem appropriate. Rating shall be done by or under the supervisions of the superintendent of schools or, if so directed by him, the same may be done by an assistant superintendent, a supervisor, or a principal, who has supervision over the work of the professional employee or temporary professional employee who is being rated: Provided, That no satisfactory rating shall be valid unless approved by the district superintendent.\"\nAct of March 10, 1949, P.L. 30, art. XI, § 1123, as amended, 24 P. S. § 11-1123 (Supp. 1975).\n[5] See the Public School Code, Act of March 10, 1949, P.L. 30, art. XI, §§ 1122-32, as amended, 24 P.S. §§ 11-1122 to 11-1132 (Supp. 1975).\n[6] The board's practice of objecting to review by an arbitrator only when a dismissal proceeding has been instituted is untenable. Any determination by an arbitrator concerning the propriety of an unsatisfactory rating may have an effect on a subsequent dismissal proceeding. A first unsatisfactory rating is as relevant to a charge of incompetency as is a second unsatisfactory rating. Thus, we must consider the validity of the board's argument irrespective of the specific context in which a teacher seeks to invoke the agreement.\n[1] See 464 Pa. 92, 108, 346 A.2d 35, 45 (1975) (Pomeroy, J., dissenting) and 461 Pa. 494, 513, 337 A.2d 262, 271 n. 1 (1975) (Pomeroy, J., concurring).\n[2] The actual provision of § 703 is as follows: \"The parties to the collective bargaining process shall not effect or implement a provision in a collective bargaining agreement if the implementation of that provision would be in violation of, or inconsistent with, or in conflict with any statute or statutes enacted by the General Assembly of the Commonwealth of Pennsylvania or the provisions of municipal home rule charters.\" Act of July 23, 1970, P. L. 563, No. 195, art. VII, § 703, 43 P.S. § 1101.703 (Supp. 1975).\n[3] One purpose of rating is to aid in the determination as to whether a professional employee shall be dismissed for incompetency. Section 1123 of the Code, 24 P.S. § 11-1123 (Supp. 1975), supra. Another purpose of rating is to provide an order for suspensions in connection with decreases in size of the staff of professional employees. Section 1125(a) of the Code, 24 P.S. § 11-1125. Under the latter section it is the duty of boards of school directors to establish a permanent record system containing ratings of each professional employee. A copy of any unsatisfactory rating is required to be sent to the professional employee concerned. No such employee may be dismissed unless such rating records have been kept on file by the board of school directors. Ibid.\n\n", "ocr": false, "opinion_id": 1469446 } ]

[ "800 F.2d 266" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/800/800.F2d.266.86-3044.html", "author_id": null, "opinion_text": "800 F.2d 266\n **Shuev.Dugger\n 86-3044\n United States Court of Appeals,Eleventh Circuit.\n 8/19/86\n \n 1\n M.D.Fla.\n \n AFFIRMED\n \n 2\n ---------------\n \n \n \n ** Local Rule: 25 case.\n \n \n ", "ocr": false, "opinion_id": 475698 } ]

[ "94 L. Ed. 2d 616", "70 S. Ct. 445", "339 U.S. 33", "1950 U.S. LEXIS 2297" ]

[ { "author_str": "Jackson", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*35Mr. Justice Jackson\ndelivered the opinion of the Court.\nThis habeas corpus proceeding involves a single ultimate question — whether administrative hearings in deportation cases must conform to requirements of the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U. S. C. §§ 1001 et seg.\nWong Yang Sung, native and citizen of China, was arrested by immigration officials on a charge of being unlawfully in the United States through having overstayed shore leave as one of a shipping crew. A hearing was held before an immigrant inspector who recommended deportation. The Acting Commissioner approved; and the Board of Immigration Appeals affirmed.\nWong Yang Sung then sought release from custody by habeas corpus proceedings in District Court for the District of Columbia, upon the sole ground that the administrative hearing was not conducted in conformity with §§ 5 and 11 of the Administrative Procedure Act.1 *36The Government admitted noncompliance, but asserted that the Act did not apply. The court, after hearing, discharged the writ and remanded the prisoner to custody, holding the Administrative Procedure Act inapplicable to deportation hearings. 80 F. Supp. 235. The Court of Appeals affirmed. 84 U. S. App. D. C. 419, 174 F. 2d 158. Prisoner’s petition for certiorari was not opposed by the Government and, because the question presented has obvious importance in the administration of the immigration laws, we granted review. 338 U. S. 812.\nThe Administrative Procedure Act of June 11, 1946, supra, is a new, basic and comprehensive regulation of procedures in many agencies, more than a few of which can advance arguments that its generalities should not or do not include them. Determination of questions of its coverage may well be approached through consideration of its purposes as disclosed by its background.\nMultiplication of federal administrative agencies and expansion of their functions to include adjudications *37which have serious impact on private rights has been one of the dramatic legal developments of the past half-century.2 Partly from restriction by statute, partly from judicial self-restraint, and partly by necessity — from the nature of their multitudinous and semilegislative or executive tasks — the decisions of administrative tribunals were accorded considerable finality, and especially with respect to fact finding.3 The conviction developed, particularly within the legal profession, that this power was not sufficiently safeguarded and sometimes was put to arbitrary and biased use.4\nConcern over administrative impartiality and response to growing discontent was reflected in Congress as early as 1929, when Senator Norris introduced a bill to create *38a separate administrative court.5 Fears and dissatisfactions increased as tribunals grew in number and jurisdiction, and a succession of bills offering various remedies appeared in Congress.6 Inquiries into the practices of state agencies, which tended to parallel or follow the federal pattern, were instituted in several states, and some studies noteworthy for thoroughness, impartiality and vision resulted.7\nThe Executive Branch of the Federal Government also became concerned as to whether the structure and procedure of these bodies was conducive to fairness in the administrative process. President Roosevelt’s Committee on Administrative Management in 1937 recommended complete separation of adjudicating functions and personnel from those having to do with investigation or prosecution.8 The President early in 1939 also directed the Attorney General to name “a committee of eminent lawyers, jurists, scholars, and administrators to review the entire administrative process in the various *39departments of the executive Government and to recommend improvements, including the suggestion of any needed legislation.” 9\nSo strong was the demand for reform, however, that Congress did not await the Committee’s report but passed what was known as the Walter-Logan bill, a comprehensive and rigid prescription of standardized procedures for administrative agencies.10 This bill was vetoed by President Roosevelt December 18, 1940,11 and the veto was sustained by the House.12 But the President’s veto message made no denial of the need for reform. Rather it pointed out that the task of the Committee, whose objective was “to suggest improvements to make the process more workable and more just,” had proved “unexpectedly complex.” The President said, “I should desire to await their report and recommendations before approving any measure in this complicated field.”13\nThe committee divided in its views and both the majority and the minority submitted bills 14 which were introduced in 1941. A subcommittee of the Senate Judiciary Committee held exhaustive hearings on three proposed *40measures,15 but, before the gathering storm of national emergency and war, consideration of the problem was put aside. Though bills on the subject reappeared in 1944,16 they did not attract much attention.\nThe McCarran-Sumners bill, which evolved into the present Act, was introduced in 1945.17 Its consideration and hearing, especially of agency interests, was painstaking. All administrative agencies were invited to submit their views in writing. A tentative revised bill was then prepared and interested parties again were invited to submit criticisms.18 The Attorney General named representatives of the Department of Justice to canvass the agencies and report their criticisms, and submitted a favorable report on the bill as finally revised.19 It passed both Houses without opposition and was signed by President Truman June 11, 1946.20\nThe Act thus represents a long period of study and strife; it settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest. It contains many compromises and generalities and, no doubt, some am*41biguities. Experience may reveal defects. But it would be a disservice to our form of government and to the administrative process itself if the courts should fail, so far as the terms of the Act warrant, to give effect to its remedial purposes where the evils it was aimed at appear.\nII.\nOf the several administrative evils sought to be cured or minimized, only two are particularly relevant to issues before us today. One purpose was to introduce greater uniformity of procedure and standardization of administrative practice among the diverse agencies whose customs had departed widely from each other.21 We pursue this no further than to note that any exception we may find to its applicability would tend to defeat this purpose.\nMore fundamental, however, was the purpose to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge. The President’s Committee on Administrative Management voiced in 1937 the theme which, with variations in language, was reiterated throughout the legislative history of the Act. The Committee’s report, which President Roosevelt transmitted to Congress with his approval as “a great document of permanent importance,”22 said:\n“. . . the independent commission is obliged to carry on judicial functions under conditions which *42threaten the impartial performance of that judicial work. The discretionary work of the administrator is merged with that of the judge. Pressures and influences properly enough directed toward officers responsible for formulating and administering policy constitute an unwholesome atmosphere in which to adjudicate private rights. But the mixed duties of the commissions render escape from these subversive influences impossible.\n“Furthermore, the same men are obliged to serve both as prosecutors and as judges. This not only undermines judicial fairness;' it weakens public confidence in that fairness. Commission decisions affecting private rights and conduct lie under the suspicion of being rationalizations of the preliminary findings which the commission, in the role of prosecutor, presented to itself.” Administrative Management in the Government of the United States, Report of the President’s Committee on Administrative Management, 36-37 (1937).\nThe Committee therefore recommended a redistribution of functions within the regulatory agencies. “[I]t would be divided into an administrative section and a judicial section” and the administrative section “would formulate rules, initiate action, investigate complaints . . .” and the judicial section “would sit as an impartial, independent body to make decisions affecting the public interest and private rights upon the basis of the records and findings presented to it by the administrative section.” Id. at 37.\nAnother study was made by a distinguished committee named by the Secretary of Labor, whose jurisdiction at the time included the Immigration and Naturalization Service. Some of the committee’s observations have relevancy to the procedure under examination here. It said:\n*43“The inspector who presides over the formal hearing is in many respects comparable to a trial judge. He has, at a minimum, the function of determining— subject to objection on the alien’s behalf — what goes into the written record upon which decision ultimately is to be based. Under the existing practice he has also the function of counsel representing the moving party — he does not merely admit evidence against the alien; he has the responsibility of seeing that such evidence is put into the record. The precise scope of his appropriate functions is the first question to be considered.” The Secretary of Labor’s Committee on Administrative Procedure, The Immigration and Naturalization Service, 77 (Mimeo. 1940).\nFurther:\n“Merely to provide that in particular cases different inspectors shall investigate and hear is an insufficient guarantee of insulation and independence of the presiding official. The present organization of the field staff not only gives work of both kinds commonly to the same inspector but tends toward an identity of viewpoint as between inspectors who are chiefly doing only one or the other kind of work. . . .\n“. . . We recommend that the presiding inspectors. be relieved of their present duties of presenting the case against aliens and be confirmed [sic] entirely to the duties customary for a judge. This, of course, would require the assignment of another officer to perform the task of a prosecuting attorney. The appropriate officer for this purpose would seem to be the investigating inspector who, having prepared the case against the alien, is already thoroughly familiar with it. . . .\n*44“A genuinely impartial hearing, conducted with critical detachment, is psychologically improbable if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible. Nor is complete divorce between investigation and hearing possible so long as the presiding inspector has the duty himself of assembling and presenting the results of the investigation. . . .” Id. at 81-82.\nAnd the Attorney General’s Committee on Administrative Procedure, which divided as to the appropriate remedy,23 was unanimous that this evil existed. Its Final Report said:\n“These types of commingling of functions of investigation or advocacy with the function of deciding are thus plainly undesirable. But they are also avoidable and should be avoided by appropriate internal division of labor. For the disqualifications produced by investigation or advocacy are personal psychological ones which result from engaging in those types of activity; and the problem is simply one of isolating those who engage in the activity. Creation of independent hearing commissioners insulated from all phases of a case other than hearing and deciding will, the Committee believes, go far toward solving this problem at the level of the initial hearing provided the proper safeguards are established to assure the insulation. . . .” Rep. Atty. Gen. Comm. Ad. Proc. 56 (1941), S. Doc. No. 8, 77th Cong., 1st Sess. 56 (1941).\nThe Act before us adopts in general this recommended form of remedial action. A minority of the Committee had, furthermore, urged an even more thoroughgoing *45separation and supported it with a cogent report. Id. at 203 et seq.\nSuch were the evils found by disinterested and competent students. Such were the facts before Congress which gave impetus to the demand for the reform which this Act was intended to accomplish. It is the plain duty of the courts, regardless of their views of the wisdom or policy of the Act, to construe this remedial legislation to eliminate, so far as its text permits, the practices it condemns.\nIII.\nTurning now to the case before us, we find the administrative hearing a perfect exemplification of the practices so unanimously condemned.\nThis hearing, which followed the uniform practice of the Immigration Service,24 was before an immigrant inspector, who, for purposes of the hearing, is called the “presiding inspector.” Except with consent of the alien, the presiding inspector may not be the one who investigated the case. 8 C. F. R. 150.6 (b).25 But the inspector’s duties include investigation of like cases; and while he is today hearing cases investigated by a colleague, tomorrow his investigation of a case may be heard before the inspector whose case he passes on today. An “examining inspector” may be designated to conduct the prosecution, 8 C. F. R. 150.6 (n), but none was in this case; and, in any event, the examining inspector also has the same mixed prosecutive and hearing functions. The presiding *46inspector, when no examining inspector is present, is required to “conduct the interrogation of the alien and the witnesses in behalf of the Government and shall cross-examine the alien’s witnesses and present such evidence as is necessary to support the charges in the warrant of arrest.” 8 C. F. R. 150.6 (b). It may even become his duty to lodge an additional charge against the alien and proceed to hear his own accusation in like manner. 8 C. F. R. 150.6 (1). Then, as soon as practicable, he is to prepare a summary of the evidence, proposed findings of fact, conclusions of law, and a proposed order. A copy is furnished the alien or his counsel, who may file exceptions and brief, 8 C. F. R. 150.7, whereupon the whole is forwarded to the Commissioner. 8 C. F. R. 150.9.\nThe Administrative Procedure Act did not go so far as to require a complete separation of investigating and prosecuting functions from adjudicating functions. But that the safeguards it did set up were intended to ameliorate the evils from the commingling of functions as exemplified here is beyond doubt. And this commingling, if objectionable anywhere, would seem to be particularly so in the deportation proceeding, where we frequently meet with a voteless class of litigants who not only lack the influence of citizens, but who are strangers to the laws and customs in which they find themselves involved and who often do not even understand the tongue in which they are accused. Nothing in the nature of the parties or proceedings suggests that we should strain to exempt deportation proceedings from reforms in administrative procedure applicable generally to federal agencies.\nNor can we accord any weight to the argument that to apply the Act to such hearings will cause inconvenience and added expense to the Immigration Service. Of course it will, as it will to nearly every agency to which it is applied. But the power of the purse belongs to Congress, and Congress has determined that the price *47for greater fairness is not too high. The agencies, unlike the aliens, have ready and persuasive access to the legislative ear and if error is made by including them, relief from Congress is a simple matter.\nThis brings us to contentions both parties have advanced based on the pendency in Congress of bills to exempt this agency from the Act. Following an adverse decision,26 the Department asked Congress for exempting legislation,27 which appropriate committees of both Houses reported favorably but in different form and substance.28 Congress adjourned without further action. The Government argues that Congress knows that the Immigration Service has construed the Act as not applying to deportation proceedings, and that it “has taken no action indicating disagreement with that interpretation”; that therefore it “is at least arguable that Congress was prepared to specifically confirm the administrative construction by clarifying legislation.” We do not think we can draw that inference from incompleted steps in the legislative process. Cf. Helvering v. Hallock, 309 U. S. 106, 119-120.\nOn the other hand, we will not draw the inference, urged by petitioner, that an agency admits that it is acting upon a wrong construction by seeking ratification from Congress. Public policy requires that agencies feel free to ask legislation which will terminate or avoid adverse contentions and litigations. We do not feel justified in holding that a request for and failure to get in a single session of Congress clarifying legislation on a genuinely debatable point of agency procedure admits weakness in the agency’s contentions. We draw, therefore, no inference in favor of either construction of the Act — from the *48Department’s request for legislative clarification, from the congressional committees’ willingness to consider it, or from Congress’ failure to enact it.\nWe come, then, to examination of the text of the Act to determine whether the Government is right in its contentions: first, that the general scope of § 5 of the Act does not cover deportation proceedings; and, second, that even if it does, the proceedings are excluded from the requirements of the Act by virtue of § 7.\nIV.\nThe Administrative Procedure Act, § 5, establishes a number of formal requirements to be applicable “In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.” The argument here depends upon the words “adjudication required by statute.” The Government contends that there is no express requirement for any hearing or adjudication in the statute authorizing deportation,29 and that this omission shields these proceedings from the impact of § 5. Petitioner, on the other hand, contends that deportation hearings, though not expressly required by statute, are required under the decisions of this Court,30 *49and the proceedings, therefore, are within the scope of § 5.\nBoth parties invoke many citations to legislative history as to the meaning given to these key words by the framers, advocates or opponents of the Administrative Procedure Act. Because § 5 in the original bill applied to hearings required “by law,” 31 because it was suggested by the Attorney General that it should be changed to “required by statute or Constitution,” 32 and because it finally emerged “required by statute,” the Government argues that the section is intended to apply only when explicit statutory words granting a right to adjudication can be pointed out. Petitioner on the other hand cites references which would indicate that the limitation to statutory hearing was merely to avoid creating by inference a new right to hearings where no right existed otherwise. We do not know. The legislative history is more conflicting than the text is ambiguous.\nBut the difficulty with any argument premised on the proposition that the deportation statute does not require a hearing is that, without such hearing, there would be no constitutional authority for deportation. The constitutional requirement of procedural due process of law derives from the same source as Congress’ power to legislate and, where applicable, permeates every valid enactment of that body. It was under compulsion of the Constitution that this Court long ago held that an antecedent deportation statute must provide a hearing at least for aliens who had not entered clandestinely and *50who had been here some time even if illegally. The Court said:\n“This is the reasonable construction of the acts of Congress here in question, and they need not be otherwise interpreted. In the case of all acts of Congress, such interpretation ought to be adopted as, without doing violence to the import of the words used, will bring them into harmony with the Constitution.” The Japanese Immigrant Case, 189 U. S. 86, 101.\nWe think that the limitation to hearings “required by statute” in § 5 of the Administrative Procedure Act exempts from that section’s application only those hearings which administrative agencies may hold by regulation, rule, custom, or special dispensation; not those held by compulsion. We do not think the limiting words render the Administrative Procedure Act inapplicable to hearings, the requirement for which has been read into a statute by the Court in order to save the statute from invalidity. They exempt hearings of less than statutory authority, not those of more than statutory authority. We would hardly attribute to Congress a purpose to be less scrupulous about the fairness of a hearing necessitated by the Constitution than one granted by it as a matter of expediency.\nIndeed, to so construe the Immigration Act might again bring it into constitutional jeopardy. When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality. A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself. It might be difficult to justify as measuring up to constitutional standards of impartiality a hearing tribunal for deportation proceed*51ings the like of which has been condemned by Congress as unfair even where less vital matters of property rights are at stake.\nWe hold that the Administrative Procedure Act, § 5, does cover deportation proceedings conducted by the Immigration Service.\nV.\nThe remaining question is whether the exception of § 7 (a) of the Administrative Procedure Act exempts deportation hearings held before immigrant inspectors. It provides:\n“Sec. 7. In hearings which section 4 or 5 requires to be conducted pursuant to this section- — •\n“(a) Presiding officers. — There shall preside at the taking of evidence (1) the agency, (2) one or more members of the body which comprises the agency, or (3) one or more examiners appointed as provided in this Act; but nothing in this Act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute. . . .” 60 Stat. 237, 241, 5 U. S. C. § 1006.\nThe Government argues that immigrant inspectors are “specially provided for by or designated pursuant to” § 16 of the Immigration Act, which, in pertinent part, reads:\n“. . . The inspection ... of aliens, including those seeking admission or readmission to or the privilege of passing through or residing in the United States, and the examination of aliens arrested within the United States under this Act,33 shall be conducted by *52immigrant inspectors, except as hereinafter provided in regard to boards of special inquiry. . . . Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; . . 39 Stat. 874, 885, as amended, 8 U. S. C. § 152.\nCertainly nothing here specifically provides that immigrant inspectors shall conduct deportation hearings or be designated to do so. This language does direct them to conduct border inspections of aliens seeking admission. They may administer oaths and take, record, and consider evidence. But these functions are indispensable to investigations which are concededly within their competence. And these functions are likewise necessary to enable the preparation of complaints for prosecutive purposes. But that Congress by grant of these powers has specially constituted them or provided for their designation as hearing officers in deportation proceedings does not appear.\nSection 7 (a) qualifies as presiding officers at hearings the agency and one or more of the members of the body comprising the agency, and it also leaves untouched any others whose responsibilities and duties as hearing officers are established by other statutory provision. But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process.\nWe find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards *53enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner.*\n\nReversed.\n\nMr. Justice Douglas and Mr. Justice Clark took no part in the consideration or decision of this case.\n\n Particularly invoked are §5 (c), 60 Stat. 237, 240, 5 U. S. C. § 1004 (c), which provides in part:\n“The same officers who preside at the reception of evidence pursuant to section 7 shall make the recommended decision or initial decision required by section 8 except where such officers become unavailable to the agency. Save to the extent required for the disposition of ex parte matters as authorized by law, no such officer shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; nor shall such officer be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency. No officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related ease, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 except as witness or counsel in public proceedings. . . .”; and § 11, 60 Stat. at 244, 5 ■U. S. C. § 1010, which provides in part: “Subject to the civil-service *36and other laws to the extent not inconsistent with this Act, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 7 and 8, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission (hereinafter called the Commission) after opportunity for hearing and upon the record thereof. Examiners shall receive compensation prescribed by the Commission independently of agency recommendations or ratings and in accordance with the Classification Act of 1923, as amended, except that the provisions of paragraphs (2) and (3) of subsection (b) of section 7 of said Act, as amended, and the provisions of section 9 of said Act, as amended, shall not be applicable. . . .”\n\n\n See e. g., Blachly and Oatman, Administrative Legislation and Adjudication 1 (1934); Landis, The Administrative Process 1 (1938); Pound, Administrative Law 27 (1942); Carrow, The Background of Administrative Law 1 (1948); The Federal Administrative Procedure Act and the Administrative Agencies 4 (N. Y. U. 1947); Final Report of Attorney General’s Committee on Administrative Procedure 7 (1941), contained in S. Doc. No. 8, 77th Cong., 1st Sess. (1941); Cushman, The Independent Regulatory Commissions, cc. II-V (1941); Frankfurter, The Task of Administrative Law, 75 U. of Pa. L. Rev. 614 (1927); materials cited in n. 4, infra.\n\n\n See e. g., Dickinson, Administrative Justice and the Supremacy of Law, passim (1927); Final Report of Attorney General’s Committee on Administrative Procedure, supra, at 11-18, 75-92; and see materials cited in n, 4, infra.\n\n\nE. g., Root, Public Service by the Bar, 41 A. B. A. Rep. 355, 368 (1916); Hughes, Some Aspects of the Development of American Law, 39 N. Y. B. A. Rep. 266, 269 (1916); Sutherland, Private Rights and Government Control, 42 A. B. A. Rep. 197, 205 (1917); Address of President Guthrie, 46 N. Y. B. A. Rep. 169, 186 (1923). After 1933, when the American Bar Association formed a Special Committee on Administrative Law, the Bar’s concern can be traced in this Committee’s reports. E. g., 58 A. B. A. Rep. 197, 407 (1933) ; 59 A. B. A. Rep. 539 (1934); 61 A. B. A. Rep. 720 (1936); 62 A. B. A. Rep. 789 (1937).\n\n\n S. 5154,70th Cong., 2d Sess. (1929).\n\n\n S. 1835, 73d Cong., 1st Sess. (1933); S. 3787, H. R. 12297, 74th Cong., 2d Sess. (1936); S. 3676, 75th Cong., 3d Sess. (1938); H. R. 6324, H. R. 4235, H. R. 4236, S. 915, S. 916, 76th Cong., 1st Sess. (1939); S. 674, S. 675, S. 918, H. R. 3464, H. R. 4238, H. R. 4782, 77th Cong., 1st Sess. (1941); H. R. 4314, H. R. 5081, H. R. 5237, S. 2030, 78th Cong., 2d Sess. (1944); H. R. 1203, S. 7, 79th Cong., 1st Sess. (1945).\n\n\n E. g., Benjamin, Administrative Adjudication in the State of New York (1942); Tenth Biennial Report of the Judicial Council to the Governor and Legislature of California (1944). See also Fesler, The Independence of State Regulatory Agencies (1942); Handbook of the National Conference of Commissioners on Uniform State Laws, 226 et seq. (1943); 63 A. B. A. Rep. 623 (1938).\n\n\n Administrative Management in the Government of the United States, Report of the President’s Committee on Administrative Management 37 (1937).\n\n\n The quoted statement is from President Roosevelt’s message to Congress of December 18, 1940, vetoing H. R. 6324, the so-called Walter-Logan bill. H. R. Doc. No. 986, 76th Cong., 3d Sess., 3-4 (1940). The origin and orders leading to the creation of the Attorney General’s Committee are set out in Appendix A of the Committee’s Final Report, supra.\n\n\n S. 915, H. R. 6324,76th Cong., 1st Sess. (1939).\n\n\n 86 Cong. Rec. 13942-3 (1940), reprinted in H. R. Doc. No. 986, 76th Cong., 3d Sess. (1940).\n\n\n 86 Cong. Rec. 13953 (1940).\n\n\n 86 Cong. Rec. at 13943; H. R. Doc. No. 986, supra, 4.\n\n\n These bills appear at pp. 192 and 217 of the Committee’s Final Report, supra. The majority bill became S. 675, 77th Cong., 1st Sess. (1941) and the minority recommendation was embodied in S. 674, 77th Cong., 1st Sess. (1941).\n\n\n The hearings ran from April 2 to July 2, 1941, and, with an appendix, have been collected in four parts and over 1,600 pages. Hearings before Subcommittee of the Committee on the Judiciary on S. 674, S. 675 and S. 918,77th Cong., 1st Sess. (1941).\n\n\n H. R. 4314, H. R. 5081, H. R. 5237, S. 2030, 78th Cong., 2d Sess. (1944).\n\n\n S. 7 and H. R. 1203,79th Cong., 1st Sess. (1945).\n\n\n See H. R. Rep. No. 1980, 79th Cong., 2d Sess. 14-15 (1946); S. Rep. No. 752, 79th Cong., 1st Sess. 4-5 (1945), reprinted in S. Doc. No. 248, 79th Cong., 2d Sess., at 233, 248-249, and 185, 190-191, respectively.\n\n\n S. Rep. No. 752, 79th Cong., 1st Sess. 37-45 (1945); 92 Cong. Rec. App. A-2982-5 (1946).\n\n\n 92 Cong. Rec. 2167 (1946) (passage by the Senate); 92 Cong. Rec. 5668 (1946) (amended version passed by House); 92 Cong. Rec. 5791 (1946) (House version agreed to by Senate); 92 Cong. Rec. 6706 (1946) (approved by the President).\n\n\n H. R. Rep. No. 1980, 79th Cong., 2d Sess. 16 (1946); Final Report of the Attorney General’s Committee on Administrative Procedure, 20 (1941); McFarland, Analysis of the Federal Administrative Procedure Act, in Federal Administrative Procedure Act and the Administrative Agencies 16, 22 (N. Y. U. 1947). See also Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H. R. 4236, H. R. 6198, and H. R. 6324, 76th Cong., 1st Sess. 14, 31 (1939); S. Rep. No. 442, 76th Cong., 1st Sess. 9 (1939); H. R. Rep. No. 1149, 76th Cong., 1st Sess. 2-3 (1939); S. Doc. No. 71, 76th Cong., 1st Sess. 5 (1939).\n\n\n 81 Cong. Rec. 187, 191 (1937).\n\n\n See n. 14, supra.\n\n\n See 8 C. F. R. 150.1 et seq.\n\n\n The initial step in a deportation case is the investigation of an alien by an immigrant inspector. 8 C. F. R. 150.1. This is followed by issuance of a warrant of arrest, 8 C. F. R. 150.2-150.4, and incarceration, unless the alien is released under bond. 8 C. F. R. 150.5. The formal hearing follows.\n\n\n Eider v. Clark (D. D. C. 1948), 77 F. Supp. 610.\n\n\n S. 2755 and H. R. 6652, 80th Cong., 2d Sess. (1948).\n\n\n S. Rep. No. 1588, H. R. Rep. No. 2140, 80th Cong., 2d Sess. (1948).\n\n\n Section 19 (a) of the Immigration Act of February 5, 1917, 39 Stat. 874, 889, as amended, 8 U. S. C. § 155 (a), provides in part:\n“. . . any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States . . . shall, upon the warrant of the Attorney General, be taken into custody and deported. ... In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Attorney General shall be final.” See Note 33, infra.\n\n\n The Japanese Immigrant Case, 189 U. S. 86, 100, 101; Kwock Jan Fat v. White, 253 U. S. 454, 459, 464; Bridges v. Wixon, 326 U.S. 135, 160 (concurringopinion).\n\n\n Section 301 of the bills proposed in the majority and minority recommendations of the Final Report of the Attorney General's Committee on Administrative Procedure, pp. 195, 232-233.\n\n\n Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. 1456 (1941).\n\n\n The original Act, 39 Stat. 886, reads “under this Act,” although in the codification, 8 U. S. C. § 152, it reads “under this section.” , The former is controlling. 1 U. S. C. (Supp. II, 1949) §§ 112, 204 (a).\n\n\n[For order modifying the judgment, see post, p. 908.]\n\n", "ocr": false, "opinion_id": 9420439 }, { "author_str": "Reed", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nMr. Justice Reed,\ndissenting.\nThe Court, it seems to me, has disregarded a congressional exemption of certain agencies, including the Immigration and Naturalization Service, from some of the requirements of the Administrative Procedure Act. Such judicial intrusion into the legislative domain justifies a protest. It may be useful to call attention to the necessity of recognizing specific exceptions to general rules. This protest is rested on the ground that immigrant inspectors performing duties under § 16 of the Immigration Act are within the exception provided by § 7 (a) of the Administrative Procedure Act. The Court's opinion discusses this point under subdivision V. The sections are there set out and can be examined by the reader.\nIn this case no one questions the constitutionality of the hearing Wong received before the immigrant inspector, with administrative review by the Commissioner and the Board of Immigration Appeals. The question on which I disagree with the Court is whether the Administrative Procedure Act permits an inspector of the Immigration and Naturalization Service to serve as a presiding officer at a deportation hearing.\n*54Section 7 (a) of the Administrative Procedure Act provides that the official presiding at the taking of evidence shall be an agency, an agency member or an examiner appointed under that Act. There is an exception to this requirement. It reads as follows:\n“but nothing in this Act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute.”\nIt is this exception that made it proper for an immigrant inspector to preside at this deportation hearing.\nUnder § 16 of the Immigration Act, 39 Stat. 874, 885, the\n“inspection ... of aliens, including those seeking admission or readmission to or the privilege of passing through or residing in the United States, and the examination of aliens arrested within the United States under this Act, shall be conducted by immigrant inspectors, .... Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; . . . .”\nIt seems to me obvious that the exception provided in § 7 (a) covers immigrant inspectors dealing with the arrest of an alien for violation of the Immigration Act. The examination of arrested aliens at a deportation proceeding is surely a specified class of proceedings under § 7 (a) of the Administrative Procedure Act, and it is surely conducted by an officer “specially provided for by . . . statute.”\nThe reason for the exception in § 7 (a) was not spelled out in the legislative history or in the Act itself. The *55exception may have been made to retain smoothness of operation in the several agencies where there were officials specially provided for by statute or designated pursuant to a statute. When making exceptions from the requirements as to separation of the investigatory and adjudicatory functions, it was natural to include officers specially designated by statute to sit in judgment. Agency members are excluded from these requirements of the Administrative Procedure Act. They, too, have investigatory and adjudicatory duties. Since the members of the agency and the statutorily designated officers were specially selected for the functions they were to perform, Congress probably reposed confidence in their experience and expertness. It doubtless did not wish to disorganize administration until time showed whether that confidence was well placed.1\nSince the Court does not accept my view of the reach of § 7 (a), it would be useless to undertake an analysis of the other questions presented by the petition for certiorari.\n\n Thus the congressional committee warned that should the exception “be a loophole for avoidance of the examiner system in any real sense, corrective legislation would be necessary. That provision is not intended to permit agencies to avoid the use of examiners but to preserve special statutory types of hearing officers who contribute something more than examiners could contribute and at the same time assure the parties fair and impartial procedure.” S. Doc. No. 248, 79th Cong., 2d Sess., p. 216.\n\n", "ocr": false, "opinion_id": 9420440 }, { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 1612, "opinion_text": "\n339 U.S. 33 (1950)\nWONG YANG SUNG\nv.\nMcGRATH, ATTORNEY GENERAL, ET AL.\nNo. 154.\nSupreme Court of United States.\nArgued December 6, 1949.\nDecided February 20, 1950.\nCERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT.\n*34 Irving Jaffe argued the cause for petitioner. With him on the brief were Jack Wasserman, Gaspare Cusumano and Thomas A. Farrell.\nRobert W. Ginnane argued the cause for respondents. With him on the brief were Solicitor General Perlman, Assistant Attorney General Campbell, Robert S. Erdahl, L. Paul Winings and Charles Gordon.\nWendell Berge, A. Alvis Layne, Jr. and John B. Gage filed a brief for Riss & Co., Inc., as amicus curiae, supporting petitioner.\n*35 MR. JUSTICE JACKSON delivered the opinion of the Court.\nThis habeas corpus proceeding involves a single ultimate question—whether administrative hearings in deportation cases must conform to requirements of the Administrative Procedure Act of June 11, 1946, 60 Stat. 237, 5 U. S. C. §§ 1001 et seq.\nWong Yang Sung, native and citizen of China, was arrested by immigration officials on a charge of being unlawfully in the United States through having overstayed shore leave as one of a shipping crew. A hearing was held before an immigrant inspector who recommended deportation. The Acting Commissioner approved; and the Board of Immigration Appeals affirmed.\nWong Yang Sung then sought release from custody by habeas corpus proceedings in District Court for the District of Columbia, upon the sole ground that the administrative hearing was not conducted in conformity with §§ 5 and 11 of the Administrative Procedure Act.[1]*36 The Government admitted noncompliance, but asserted that the Act did not apply. The court, after hearing, discharged the writ and remanded the prisoner to custody, holding the Administrative Procedure Act inapplicable to deportation hearings. 80 F. Supp. 235. The Court of Appeals affirmed. 84 U. S. App. D. C. 419, 174 F. 2d 158. Prisoner's petition for certiorari was not opposed by the Government and, because the question presented has obvious importance in the administration of the immigration laws, we granted review. 338 U. S. 812.\n\nI.\nThe Administrative Procedure Act of June 11, 1946, supra, is a new, basic and comprehensive regulation of procedures in many agencies, more than a few of which can advance arguments that its generalities should not or do not include them. Determination of questions of its coverage may well be approached through consideration of its purposes as disclosed by its background.\nMultiplication of federal administrative agencies and expansion of their functions to include adjudications *37 which have serious impact on private rights has been one of the dramatic legal developments of the past half-century.[2] Partly from restriction by statute, partly from judicial self-restraint, and partly by necessity—from the nature of their multitudinous and semilegislative or executive tasks—the decisions of administrative tribunals were accorded considerable finality, and especially with respect to fact finding.[3] The conviction developed, particularly within the legal profession, that this power was not sufficiently safeguarded and sometimes was put to arbitrary and biased use.[4]\nConcern over administrative impartiality and response to growing discontent was reflected in Congress as early as 1929, when Senator Norris introduced a bill to create *38 a separate administrative court.[5] Fears and dissatisfactions increased as tribunals grew in number and jurisdiction, and a succession of bills offering various remedies appeared in Congress.[6] Inquiries into the practices of state agencies, which tended to parallel or follow the federal pattern, were instituted in several states, and some studies noteworthy for thoroughness, impartiality and vision resulted.[7]\nThe Executive Branch of the Federal Government also became concerned as to whether the structure and procedure of these bodies was conducive to fairness in the administrative process. President Roosevelt's Committee on Administrative Management in 1937 recommended complete separation of adjudicating functions and personnel from those having to do with investigation or prosecution.[8] The President early in 1939 also directed the Attorney General to name \"a committee of eminent lawyers, jurists, scholars, and administrators to review the entire administrative process in the various *39 departments of the executive Government and to recommend improvements, including the suggestion of any needed legislation.\"[9]\nSo strong was the demand for reform, however, that Congress did not await the Committee's report but passed what was known as the Walter-Logan bill, a comprehensive and rigid prescription of standardized procedures for administrative agencies.[10] This bill was vetoed by President Roosevelt December 18, 1940,[11] and the veto was sustained by the House.[12] But the President's veto message made no denial of the need for reform. Rather it pointed out that the task of the Committee, whose objective was \"to suggest improvements to make the process more workable and more just,\" had proved \"unexpectedly complex.\" The President said, \"I should desire to await their report and recommendations before approving any measure in this complicated field.\"[13]\nThe committee divided in its views and both the majority and the minority submitted bills[14] which were introduced in 1941. A subcommittee of the Senate Judiciary Committee held exhaustive hearings on three proposed *40 measures,[15] but, before the gathering storm of national emergency and war, consideration of the problem was put aside. Though bills on the subject reappeared in 1944,[16] they did not attract much attention.\nThe McCarran-Sumners bill, which evolved into the present Act, was introduced in 1945.[17] Its consideration and hearing, especially of agency interests, was painstaking. All administrative agencies were invited to submit their views in writing. A tentative revised bill was then prepared and interested parties again were invited to submit criticisms.[18] The Attorney General named representatives of the Department of Justice to canvass the agencies and report their criticisms, and submitted a favorable report on the bill as finally revised.[19] It passed both Houses without opposition and was signed by President Truman June 11, 1946.[20]\nThe Act thus represents a long period of study and strife; it settles long-continued and hard-fought contentions, and enacts a formula upon which opposing social and political forces have come to rest. It contains many compromises and generalities and, no doubt, some ambiguities. *41 Experience may reveal defects. But it would be a disservice to our form of government and to the administrative process itself if the courts should fail, so far as the terms of the Act warrant, to give effect to its remedial purposes where the evils it was aimed at appear.\n\nII.\nOf the several administrative evils sought to be cured or minimized, only two are particularly relevant to issues before us today. One purpose was to introduce greater uniformity of procedure and standardization of administrative practice among the diverse agencies whose customs had departed widely from each other.[21] We pursue this no further than to note that any exception we may find to its applicability would tend to defeat this purpose.\nMore fundamental, however, was the purpose to curtail and change the practice of embodying in one person or agency the duties of prosecutor and judge. The President's Committee on Administrative Management voiced in 1937 the theme which, with variations in language, was reiterated throughout the legislative history of the Act. The Committee's report, which President Roosevelt transmitted to Congress with his approval as \"a great document of permanent importance,\"[22] said:\n\". . . the independent commission is obliged to carry on judicial functions under conditions which *42 threaten the impartial performance of that judicial work. The discretionary work of the administrator is merged with that of the judge. Pressures and influences properly enough directed toward officers responsible for formulating and administering policy constitute an unwholesome atmosphere in which to adjudicate private rights. But the mixed duties of the commissions render escape from these subversive influences impossible.\n\"Furthermore, the same men are obliged to serve both as prosecutors and as judges. This not only undermines judicial fairness; it weakens public confidence in that fairness. Commission decisions affecting private rights and conduct lie under the suspicion of being rationalizations of the preliminary findings which the commission, in the role of prosecutor, presented to itself.\" Administrative Management in the Government of the United States, Report of the President's Committee on Administrative Management, 36-37 (1937).\nThe Committee therefore recommended a redistribution of functions within the regulatory agencies. \"[I]t would be divided into an administrative section and a judicial section\" and the administrative section \"would formulate rules, initiate action, investigate complaints . . .\" and the judicial section \"would sit as an impartial, independent body to make decisions affecting the public interest and private rights upon the basis of the records and findings presented to it by the administrative section.\" Id. at 37.\nAnother study was made by a distinguished committee named by the Secretary of Labor, whose jurisdiction at the time included the Immigration and Naturalization Service. Some of the committee's observations have relevancy to the procedure under examination here. It said:\n\n*43 \"The inspector who presides over the formal hearing is in many respects comparable to a trial judge. He has, at a minimum, the function of determining— subject to objection on the alien's behalf—what goes into the written record upon which decision ultimately is to be based. Under the existing practice he has also the function of counsel representing the moving party—he does not merely admit evidence against the alien; he has the responsibility of seeing that such evidence is put into the record. The precise scope of his appropriate functions is the first question to be considered.\" The Secretary of Labor's Committee on Administrative Procedure, The Immigration and Naturalization Service, 77 (Mimeo. 1940).\nFurther:\n\"Merely to provide that in particular cases different inspectors shall investigate and hear is an insufficient guarantee of insulation and independence of the presiding official. The present organization of the field staff not only gives work of both kinds commonly to the same inspector but tends toward an identity of viewpoint as between inspectors who are chiefly doing only one or the other kind of work. . . .\n\". . . We recommend that the presiding inspectors be relieved of their present duties of presenting the case against aliens and be confirmed [sic] entirely to the duties customary for a judge. This, of course, would require the assignment of another officer to perform the task of a prosecuting attorney. The appropriate officer for this purpose would seem to be the investigating inspector who, having prepared the case against the alien, is already thoroughly familiar with it. . . .\n\n*44 \"A genuinely impartial hearing, conducted with critical detachment, is psychologically improbable if not impossible, when the presiding officer has at once the responsibility of appraising the strength of the case and of seeking to make it as strong as possible. Nor is complete divorce between investigation and hearing possible so long as the presiding inspector has the duty himself of assembling and presenting the results of the investigation. . . .\" Id. at 81-82.\nAnd the Attorney General's Committee on Administrative Procedure, which divided as to the appropriate remedy,[23] was unanimous that this evil existed. Its Final Report said:\n\"These types of commingling of functions of investigation or advocacy with the function of deciding are thus plainly undesirable. But they are also avoidable and should be avoided by appropriate internal division of labor. For the disqualifications produced by investigation or advocacy are personal psychological ones which result from engaging in those types of activity; and the problem is simply one of isolating those who engage in the activity. Creation of independent hearing commissioners insulated from all phases of a case other than hearing and deciding will, the Committee believes, go far toward solving this problem at the level of the initial hearing provided the proper safeguards are established to assure the insulation . . . .\" Rep. Atty. Gen. Comm. Ad. Proc. 56 (1941), S. Doc. No. 8, 77th Cong., 1st Sess. 56 (1941).\nThe Act before us adopts in general this recommended form of remedial action. A minority of the Committee had, furthermore, urged an even more thoroughgoing *45 separation and supported it with a cogent report. Id. at 203 et seq.\nSuch were the evils found by disinterested and competent students. Such were the facts before Congress which gave impetus to the demand for the reform which this Act was intended to accomplish. It is the plain duty of the courts, regardless of their views of the wisdom or policy of the Act, to construe this remedial legislation to eliminate, so far as its text permits, the practices it condemns.\n\nIII.\nTurning now to the case before us, we find the administrative hearing a perfect exemplification of the practices so unanimously condemned.\nThis hearing, which followed the uniform practice of the Immigration Service,[24] was before an immigrant inspector, who, for purposes of the hearing, is called the \"presiding inspector.\" Except with consent of the alien, the presiding inspector may not be the one who investigated the case. 8 C. F. R. 150.6 (b).[25] But the inspector's duties include investigation of like cases; and while he is today hearing cases investigated by a colleague, tomorrow his investigation of a case may be heard before the inspector whose case he passes on today. An \"examining inspector\" may be designated to conduct the prosecution, 8 C. F. R. 150.6 (n), but none was in this case; and, in any event, the examining inspector also has the same mixed prosecutive and hearing functions. The presiding *46 inspector, when no examining inspector is present, is required to \"conduct the interrogation of the alien and the witnesses in behalf of the Government and shall cross-examine the alien's witnesses and present such evidence as is necessary to support the charges in the warrant of arrest.\" 8 C. F. R. 150.6 (b). It may even become his duty to lodge an additional charge against the alien and proceed to hear his own accusation in like manner. 8 C. F. R. 150.6 (1). Then, as soon as practicable, he is to prepare a summary of the evidence, proposed findings of fact, conclusions of law, and a proposed order. A copy is furnished the alien or his counsel, who may file exceptions and brief, 8 C. F. R. 150.7, whereupon the whole is forwarded to the Commissioner. 8 C. F. R. 150.9.\nThe Administrative Procedure Act did not go so far as to require a complete separation of investigating and prosecuting functions from adjudicating functions. But that the safeguards it did set up were intended to ameliorate the evils from the commingling of functions as exemplified here is beyond doubt. And this commingling, if objectionable anywhere, would seem to be particularly so in the deportation proceeding, where we frequently meet with a vote less class of litigants who not only lack the influence of citizens, but who are strangers to the laws and customs in which they find themselves involved and who often do not even understand the tongue in which they are accused. Nothing in the nature of the parties or proceedings suggests that we should strain to exempt deportation proceedings from reforms in administrative procedure applicable generally to federal agencies.\nNor can we accord any weight to the argument that to apply the Act to such hearings will cause inconvenience and added expense to the Immigration Service. Of course it will, as it will to nearly every agency to which it is applied. But the power of the purse belongs to Congress, and Congress has determined that the price *47 for greater fairness is not too high. The agencies, unlike the aliens, have ready and persuasive access to the legislative ear and if error is made by including them, relief from Congress is a simple matter.\nThis brings us to contentions both parties have advanced based on the pendency in Congress of bills to exempt this agency from the Act. Following an adverse decision,[26] the Department asked Congress for exempting legislation,[27] which appropriate committees of both Houses reported favorably but in different form and substance.[28] Congress adjourned without further action. The Government argues that Congress knows that the Immigration Service has construed the Act as not applying to deportation proceedings, and that it \"has taken no action indicating disagreement with that interpretation\"; that therefore it \"is at least arguable that Congress was prepared to specifically confirm the administrative construction by clarifying legislation.\" We do not think we can draw that inference from incompleted steps in the legislative process. Cf. Helvering v. Hallock, 309 U. S. 106, 119-120.\nOn the other hand, we will not draw the inference, urged by petitioner, that an agency admits that it is acting upon a wrong construction by seeking ratification from Congress. Public policy requires that agencies feel free to ask legislation which will terminate or avoid adverse contentions and litigations. We do not feel justified in holding that a request for and failure to get in a single session of Congress clarifying legislation on a genuinely debatable point of agency procedure admits weakness in the agency's contentions. We draw, therefore, no inference in favor of either construction of the Act—from the *48 Department's request for legislative clarification, from the congressional committees' willingness to consider it, or from Congress' failure to enact it.\nWe come, then, to examination of the text of the Act to determine whether the Government is right in its contentions: first, that the general scope of § 5 of the Act does not cover deportation proceedings; and, second, that even if it does, the proceedings are excluded from the requirements of the Act by virtue of § 7.\n\nIV.\nThe Administrative Procedure Act, § 5, establishes a number of formal requirements to be applicable \"In every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing.\" The argument here depends upon the words \"adjudication required by statute.\" The Government contends that there is no express requirement for any hearing or adjudication in the statute authorizing deportation,[29] and that this omission shields these proceedings from the impact of § 5. Petitioner, on the other hand, contends that deportation hearings, though not expressly required by statute, are required under the decisions of this Court,[30]*49 and the proceedings, therefore, are within the scope of § 5.\nBoth parties invoke many citations to legislative history as to the meaning given to these key words by the framers, advocates or opponents of the Administrative Procedure Act. Because § 5 in the original bill applied to hearings required \"by law,\"[31] because it was suggested by the Attorney General that it should be changed to \"required by statute or Constitution,\"[32] and because it finally emerged \"required by statute,\" the Government argues that the section is intended to apply only when explicit statutory words granting a right to adjudication can be pointed out. Petitioner on the other hand cites references which would indicate that the limitation to statutory hearing was merely to avoid creating by inference a new right to hearing where no right existed otherwise. We do not know. The legislative history is more conflicting than the text is ambiguous.\nBut the difficulty with any argument premised on the proposition that the deportation statute does not require a hearing is that, without such hearing, there would be no constitutional authority for deportation. The constitutional requirement of procedural due process of law derives from the same source as Congress' power to legislate and, where applicable, permeates every valid enactment of that body. It was under compulsion of the Constitution that this Court long ago held that an antecedent deportation statute must provide a hearing at least for aliens who had not entered clandestinely and *50 who had been here some time even if illegally. The Court said:\n\"This is the reasonable construction of the acts of Congress here in question, and they need not be otherwise interpreted. In the case of all acts of Congress, such interpretation ought to be adopted as, without doing violence to the import of the words used, will bring them into harmony with the Constitution.\" The Japanese Immigrant Case, 189 U. S. 86, 101.\nWe think that the limitation to hearings \"required by statute\" in § 5 of the Administrative Procedure Act exempts from that section's application only those hearings which administrative agencies may hold by regulation, rule, custom, or special dispensation; not those held by compulsion. We do not think the limiting words render the Administrative Procedure Act inapplicable to hearings, the requirement for which has been read into a statute by the Court in order to save the statute from invalidity. They exempt hearings of less than statutory authority, not those of more than statutory authority. We would hardly attribute to Congress a purpose to be less scrupulous about the fairness of a hearing necessitated by the Constitution than one granted by it as a matter of expediency.\nIndeed, to so construe the Immigration Act might again bring it into constitutional jeopardy. When the Constitution requires a hearing, it requires a fair one, one before a tribunal which meets at least currently prevailing standards of impartiality. A deportation hearing involves issues basic to human liberty and happiness and, in the present upheavals in lands to which aliens may be returned, perhaps to life itself. It might be difficult to justify as measuring up to constitutional standards of impartiality a hearing tribunal for deportation proceedings *51 the like of which has been condemned by Congress as unfair even where less vital matters of property rights are at stake.\nWe hold that the Administrative Procedure Act, § 5, does cover deportation proceedings conducted by the Immigration Service.\n\nV.\nThe remaining question is whether the exception of § 7 (a) of the Administrative Procedure Act exempts deportation hearings held before immigrant inspectors. It provides:\n\"SEC. 7. In hearings which section 4 or 5 requires to be conducted pursuant to this section—\n\"(a) PRESIDING OFFICERS.—There shall preside at the taking of evidence (1) the agency, (2) one or more members of the body which comprises the agency, or (3) one or more examiners appointed as provided in this Act; but nothing in this Act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute. . . .\" 60 Stat. 237, 241, 5 U. S. C. § 1006.\nThe Government argues that immigrant inspectors are \"specially provided for by or designated pursuant to\" § 16 of the Immigration Act, which, in pertinent part, reads:\n\". . . The inspection . . . of aliens, including those seeking admission or readmission to or the privilege of passing through or residing in the United States, and the examination of aliens arrested within the United States under this Act,[33] shall be conducted by *52 immigrant inspectors, except as hereinafter provided in regard to boards of special inquiry. . . . Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; . . .\" 39 Stat. 874, 885, as amended, 8 U. S. C. § 152.\nCertainly nothing here specifically provides that immigrant inspectors shall conduct deportation hearings or be designated to do so. This language does direct them to conduct border inspections of aliens seeking admission. They may administer oaths and take, record, and consider evidence. But these functions are indispensable to investigations which are concededly within their competence. And these functions are likewise necessary to enable the preparation of complaints for prosecutive purposes. But that Congress by grant of these powers has specially constituted them or provided for their designation as hearing officers in deportation proceedings does not appear.\nSection 7 (a) qualifies as presiding officers at hearings the agency and one or more of the members of the body comprising the agency, and it also leaves untouched any others whose responsibilities and duties as hearing officers are established by other statutory provision. But if hearings are to be had before employees whose responsibility and authority derives from a lesser source, they must be examiners whose independence and tenure are so guarded by the Act as to give the assurances of neutrality which Congress thought would guarantee the impartiality of the administrative process.\nWe find no basis in the purposes, history or text of this Act for judicially declaring an exemption in favor of deportation proceedings from the procedural safeguards *53 enacted for general application to administrative agencies. We hold that deportation proceedings must conform to the requirements of the Administrative Procedure Act if resulting orders are to have validity. Since the proceeding in the case before us did not comply with these requirements, we sustain the writ of habeas corpus and direct release of the prisoner.[*]\nReversed.\nMR. JUSTICE DOUGLAS and MR. JUSTICE CLARK took no part in the consideration or decision of this case.\nMR. JUSTICE REED, dissenting.\nThe Court, it seems to me, has disregarded a congressional exemption of certain agencies, including the Immigration and Naturalization Service, from some of the requirements of the Administrative Procedure Act. Such judicial intrusion into the legislative domain justifies a protest. It may be useful to call attention to the necessity of recognizing specific exceptions to general rules. This protest is rested on the ground that immigrant inspectors performing duties under § 16 of the Immigration Act are within the exception provided by § 7 (a) of the Administrative Procedure Act. The Court's opinion discusses this point under subdivision V. The sections are there set out and can be examined by the reader.\nIn this case no one questions the constitutionality of the hearing Wong received before the immigrant inspector, with administrative review by the Commissioner and the Board of Immigration Appeals. The question on which I disagree with the Court is whether the Administrative Procedure Act permits an inspector of the Immigration and Naturalization Service to serve as a presiding officer at a deportation hearing.\n*54 Section 7 (a) of the Administrative Procedure Act provides that the official presiding at the taking of evidence shall be an agency, an agency member or an examiner appointed under that Act. There is an exception to this requirement. It reads as follows:\n\"but nothing in this Act shall be deemed to supersede the conduct of specified classes of proceedings in whole or part by or before boards or other officers specially provided for by or designated pursuant to statute.\"\nIt is this exception that made it proper for an immigrant inspector to preside at this deportation hearing.\nUnder § 16 of the Immigration Act, 39 Stat. 874, 885, the\n\"inspection . . . of aliens, including those seeking admission or readmission to or the privilege of passing through or residing in the United States, and the examination of aliens arrested within the United States under this Act, shall be conducted by immigrant inspectors, . . . . Said inspectors shall have power to administer oaths and to take and consider evidence touching the right of any alien to enter, reenter, pass through, or reside in the United States, and, where such action may be necessary, to make a written record of such evidence; . . . .\"\nIt seems to me obvious that the exception provided in § 7 (a) covers immigrant inspectors dealing with the arrest of an alien for violation of the Immigration Act. The examination of arrested aliens at a deportation proceeding is surely a specified class of proceedings under § 7 (a) of the Administrative Procedure Act, and it is surely conducted by an officer \"specially provided for by . . . statute.\"\nThe reason for the exception in § 7 (a) was not spelled out in the legislative history or in the Act itself. The *55 exception may have been made to retain smoothness of operation in the several agencies where there were officials specially provided for by statute or designated pursuant to a statute. When making exceptions from the requirements as to separation of the investigatory and adjudicatory functions, it was natural to include officers specially designated by statute to sit in judgment. Agency members are excluded from these requirements of the Administrative Procedure Act. They, too, have investigatory and adjudicatory duties. Since the members of the agency and the statutorily designated officers were specially selected for the functions they were to perform, Congress probably reposed confidence in their experience and expertness. It doubtless did not wish to disorganize administration until time showed whether that confidence was well placed.[1]\nSince the Court does not accept my view of the reach of § 7 (a), it would be useless to undertake an analysis of the other questions presented by the petition for certiorari.\nNOTES\n[1] Particularly invoked are § 5 (c), 60 Stat. 237, 240, 5 U. S. C. § 1004 (c), which provides in part:\n\n\"The same officers who preside at the reception of evidence pursuant to section 7 shall make the recommended decision or initial decision required by section 8 except where such officers become unavailable to the agency. Save to the extent required for the disposition of ex parte matters as authorized by law, no such officer shall consult any person or party on any fact in issue unless upon notice and opportunity for all parties to participate; nor shall such officer be responsible to or subject to the supervision or direction of any officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency. No officer, employee, or agent engaged in the performance of investigative or prosecuting functions for any agency in any case shall, in that or a factually related case, participate or advise in the decision, recommended decision, or agency review pursuant to section 8 except as witness or counsel in public proceedings. . . .\"; and § 11, 60 Stat. at 244, 5 U. S. C. § 1010, which provides in part: \"Subject to the civil-service and other laws to the extent not inconsistent with this Act, there shall be appointed by and for each agency as many qualified and competent examiners as may be necessary for proceedings pursuant to sections 7 and 8, who shall be assigned to cases in rotation so far as practicable and shall perform no duties inconsistent with their duties and responsibilities as examiners. Examiners shall be removable by the agency in which they are employed only for good cause established and determined by the Civil Service Commission (hereinafter called the Commission) after opportunity for hearing and upon the record thereof. Examiners shall receive compensation prescribed by the Commission independently of agency recommendations or ratings and in accordance with the Classification Act of 1923, as amended, except that the provisions of paragraphs (2) and (3) of subsection (b) of section 7 of said Act, as amended, and the provisions of section 9 of said Act, as amended, shall not be applicable. . . .\"\n[2] See e. g., Blachly and Oatman, Administrative Legislation and Adjudication 1 (1934); Landis, The Administrative Process 1 (1938); Pound, Administrative Law 27 (1942); Carrow, The Background of Administrative Law 1 (1948); The Federal Administrative Procedure Act and the Administrative Agencies 4 (N. Y. U. 1947); Final Report of Attorney General's Committee on Administrative Procedure 7 (1941), contained in S. Doc. No. 8, 77th Cong., 1st Sess. (1941); Cushman, The Independent Regulatory Commissions, cc. II-V (1941); Frankfurter, The Task of Administrative Law, 75 U. of Pa. L. Rev. 614 (1927); materials cited in n. 4, infra.\n[3] See e. g., Dickinson, Administrative Justice and the Supremacy of Law, passim (1927); Final Report of Attorney General's Committee on Administrative Procedure, supra, at 11-18, 75-92; and see materials cited in n. 4, infra.\n[4] E. g., Root, Public Service by the Bar, 41 A. B. A. Rep. 355, 368 (1916); Hughes, Some Aspects of the Development of American Law, 39 N. Y. B. A. Rep. 266, 269 (1916); Sutherland, Private Rights and Government Control, 42 A. B. A. Rep. 197, 205 (1917); Address of President Guthrie, 46 N. Y. B. A. Rep. 169, 186 (1923). After 1933, when the American Bar Association formed a Special Committee on Administrative Law, the Bar's concern can be traced in this Committee's reports. E. g., 58 A. B. A. Rep. 197, 407 (1933); 59 A. B. A. Rep. 539 (1934); 61 A. B. A. Rep. 720 (1936); 62 A. B. A. Rep. 789 (1937).\n[5] S. 5154, 70th Cong., 2d Sess. (1929).\n[6] S. 1835, 73d Cong., 1st Sess. (1933); S. 3787, H. R. 12297, 74th Cong., 2d Sess. (1936); S. 3676, 75th Cong., 3d Sess. (1938); H. R. 6324, H. R. 4235, H. R. 4236, S. 915, S. 916, 76th Cong., 1st Sess. (1939); S. 674, S. 675, S. 918, H. R. 3464, H. R. 4238, H. R. 4782, 77th Cong., 1st Sess. (1941); H. R. 4314, H. R. 5081, H. R. 5237, S. 2030, 78th Cong., 2d Sess. (1944); H. R. 1203, S. 7, 79th Cong., 1st Sess. (1945).\n[7] E. g., Benjamin, Administrative Adjudication in the State of New York (1942); Tenth Biennial Report of the Judicial Council to the Governor and Legislature of California (1944). See also Fesler, The Independence of State Regulatory Agencies (1942); Handbook of the National Conference of Commissioners on Uniform State Laws, 226 et seq. (1943); 63 A. B. A. Rep. 623 (1938).\n[8] Administrative Management in the Government of the United States, Report of the President's Committee on Administrative Management 37 (1937).\n[9] The quoted statement is from President Roosevelt's message to Congress of December 18, 1940, vetoing H. R. 6324, the so-called Walter-Logan bill. H. R. Doc. No. 986, 76th Cong., 3d Sess., 3-4 (1940). The origin and orders leading to the creation of the Attorney General's Committee are set out in Appendix A of the Committee's Final Report, supra.\n[10] S. 915, H. R. 6324, 76th Cong., 1st Sess. (1939).\n[11] 86 Cong. Rec. 13942-3 (1940), reprinted in H. R. Doc. No. 986, 76th Cong., 3d Sess. (1940).\n[12] 86 Cong. Rec. 13953 (1940).\n[13] 86 Cong. Rec. at 13943; H. R. Doc. No. 986, supra, 4.\n[14] These bills appear at pp. 192 and 217 of the Committee's Final Report, supra. The majority bill became S. 675, 77th Cong., 1st Sess. (1941) and the majority recommendation was embodied in S. 674, 77th Cong., 1st Sess. (1941).\n[15] The hearings ran from April 2 to July 2, 1941, and, with an appendix, have been collected in four parts and over 1,600 pages. Hearings before Subcommittee of the Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. (1941).\n[16] H. R. 4314, H. R. 5081, H. R. 5237, S. 2030, 78th Cong., 2d Sess. (1944).\n[17] S. 7 and H. R. 1203, 79th Cong., 1st Sess. (1945).\n[18] See H. R. Rep. No. 1980, 79th Cong., 2d Sess. 14-15 (1946); S. Rep. No. 752, 79th Cong., 1st Sess. 4-5 (1945), reprinted in S. Doc. No. 248, 79th Cong., 2d Sess., at 233, 248-249, and 185, 190-191, respectively.\n[19] S. Rep. No. 752, 79th Cong., 1st Sess. 37-45 (1945); 92 Cong. Rec. App. A-2982-5 (1946).\n[20] 92 Cong. Rec. 2167 (1946) (passage by the Senate); 92 Cong. Rec. 5668 (1946) (amended version passed by House); 92 Cong. Rec. 5791 (1946) (House version agreed to by Senate); 92 Cong. Rec. 6706 (1946) (approved by the President).\n[21] H. R. Rep. No. 1980, 79th Cong., 2d Sess. 16 (1946); Final Report of the Attorney General's Committee on Administrative Procedure, 20 (1941); McFarland, Analysis of the Federal Administrative Procedure Act, in Federal Administrative Procedure Act and the Administrative Agencies 16, 22 (N. Y. U. 1947). See also Hearings before Subcommittee No. 4 of the House Committee on the Judiciary on H. R. 4236, H. R. 6198, and H. R. 6324, 76th Cong., 1st Sess. 14, 31 (1939); S. Rep. No. 442, 76th Cong., 1st Sess. 9 (1939); H. R. Rep. No. 1149, 76th Cong., 1st Sess. 2-3 (1939); S. Doc. No. 71, 76th Cong., 1st Sess. 5 (1939).\n[22] 81 Cong. Rec. 187, 191 (1937).\n[23] See n. 14, supra.\n[24] See 8 C. F. R. 150.1 et seq.\n[25] The initial step in a deportation case is the investigation of an alien by an immigrant inspector. 8 C. F. R. 150.1. This is followed by issuance of a warrant of arrest, 8 C. F. R. 150.2-150.4, and incarceration, unless the alien is released under bond. 8 C. F. R. 150.5. The formal hearing follows.\n[26] Eisler v. Clark (D. D. C. 1948), 77 F. Supp. 610.\n[27] S. 2755 and H. R. 6652, 80th Cong., 2d Sess. (1948).\n[28] S. Rep. No. 1588, H. R. Rep. No. 2140, 80th Cong., 2d Sess. (1948).\n[29] Section 19 (a) of the Immigration Act of February 5, 1917, 39 Stat. 874, 889, as amended, 8 U. S. C. § 155 (a), provides in part:\n\n\". . . any alien who shall have entered or who shall be found in the United States in violation of this Act, or in violation of any other law of the United States . . . shall, upon the warrant of the Attorney General, be taken into custody and deported. . . . In every case where any person is ordered deported from the United States under the provisions of this Act, or of any law or treaty, the decision of the Attorney General shall be final.\" See Note 33, infra.\n[30] The Japanese Immigrant Case, 189 U. S. 86, 100, 101; Kwock Jan Fat v. White, 253 U. S. 454, 459, 464; Bridges v. Wixon, 326 U. S. 135, 160 (concurring opinion).\n[31] Section 301 of the bills proposed in the majority and minority recommendations of the Final Report of the Attorney General's Committee on Administrative Procedure, pp. 195, 232-233.\n[32] Hearings before a Subcommittee of the Senate Committee on the Judiciary on S. 674, S. 675 and S. 918, 77th Cong., 1st Sess. 1456 (1941).\n[33] The original Act, 39 Stat. 886, reads \"under this Act,\" although in the codification, 8 U. S. C. § 152, it reads \"under this section.\" The former is controlling. 1 U. S. C. (Supp. II, 1949) §§ 112, 204 (a).\n[*] [For order modifying the judgment, see post, p. 908.]\n[1] Thus the congressional committee warned that should the exception \"be a loophole for avoidance of the examiner system in any real sense, corrective legislation would be necessary. That provision is not intended to permit agencies to avoid the use of examiners but to preserve special statutory types of hearing officers who contribute something more than examiners could contribute and at the same time assure the parties fair and impartial procedure.\" S. Doc. No. 248, 79th Cong., 2d Sess., p. 216.\n\n", "ocr": false, "opinion_id": 104768 } ]

[ "736 F.3d 677" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 12, "download_url": "http://pacer.ca4.uscourts.gov/opinion.pdf/124486.P.pdf", "author_id": null, "opinion_text": " PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 12-4486\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff - Appellee,\n\n v.\n\nJAMAAL ANTONIO ROBERTSON,\n\n Defendant - Appellant.\n\n\n\n\nAppeal from the United States District Court for the Middle\nDistrict of North Carolina, at Greensboro. Thomas D. Schroeder,\nDistrict Judge; Catherine C. Eagles, District Judge. (1:11-cr-\n00296-CCE-1)\n\n\nArgued: September 20, 2013 Decided: December 3, 2013\n\n\nBefore GREGORY and DUNCAN, Circuit Judges, and Samuel G. WILSON,\nUnited States District Judge for the Western District of\nVirginia, sitting by designation.\n\n\nReversed by published opinion. Judge Gregory wrote the majority\nopinion, in which Judge Duncan joined. Judge Wilson wrote a\ndissenting opinion.\n\n\nARGUED: Ronald Cohen, Wilmington, North Carolina, for Appellant.\nMichael A. DeFranco, OFFICE OF THE UNITED STATES ATTORNEY,\nGreensboro, North Carolina, for Appellee. ON BRIEF: Ripley\nRand, United States Attorney, OFFICE OF THE UNITED STATES\nATTORNEY, Greensboro, North Carolina, for Appellee.\n\fGREGORY, Circuit Judge:\n\n This appeal stems from an interaction between\n\nJamaal Robertson and Durham Police Officer Doug Welch in a bus\n\nshelter. Officer Welch had come to the neighborhood around the\n\nbus shelter in response to reports of a foot chase involving a\n\ngun. After some initial investigations, Officer Welch and a\n\ncrew of police officers focused their response on a bus shelter\n\ncontaining six individuals. Among them was Jamaal Robertson.\n\nWhile several officers engaged the other bus shelter denizens,\n\nOfficer Welch approached and eventually searched Mr. Robertson,\n\nwho is a convicted felon and was carrying a firearm.\n\nMr. Robertson pled guilty to violating 18 U.S.C. § 922(g)(1).\n\n Mr. Robertson argues that he never consented to the police\n\nofficer’s search, rendering it presumptively unreasonable absent\n\nprobable cause. We agree with Mr. Robertson. Because we find\n\nthat in submitting to the search, Mr. Robertson merely obeyed\n\nthe police officer’s orders without giving valid consent, we\n\nreverse.\n\n\n\n I.\n\n Because this is a defendant’s appeal from a motion to\n\nsuppress, we construe the facts in the light most favorable to\n\nthe government. United States v. Seidman, 156 F.3d 542, 547\n\n(4th Cir. 1998).\n\n 2\n\f On April 14, 2011, the Durham Police Department received a\n\ncall reporting an altercation in MacDougald Terrace. The caller\n\nstated that three African-American males in white t-shirts were\n\nchasing an individual who was holding a firearm. Officer\n\nDoug Welch drove to the area in his patrol car. After arriving,\n\nhe approached a group of people who were standing near where the\n\nfoot chase was reported. The group was apparently uninvolved in\n\nthe chase, however, and was unable to give Officer Welch any\n\nuseful information.\n\n Officer Welch started to walk back to his patrol car. It\n\nwas then that he noticed a group of six or seven individuals in\n\na sheltered bus stop. Three of the individuals were African-\n\nAmerican males wearing white shirts. Jamaal Robertson was in\n\nthe bus shelter but was wearing a dark shirt.\n\n Officer Welch approached the bus shelter to investigate.\n\nBy the time he arrived, three or four other police officers had\n\nalready converged on the scene. Their patrol cars, like\n\nOfficer Welch’s, were nearby. While the other officers were\n\nalready “dealing with the other subjects at the bus shelter,”\n\n(J.A. 34), Robertson was still seated in the shelter, so\n\nOfficer Welch decided to focus on Mr. Robertson. Officer Welch\n\nstopped about four yards in front of Mr. Robertson, who was\n\nsitting with his back to the shelter’s back wall. Thus,\n\nMr. Robertson was blocked on three sides by walls, faced a\n\n 3\n\fpolice officer directly in front of him, and had another three\n\nor four police officers nearby who were “dealing with” every\n\nother individual in the bus stop. During the suppression\n\nhearing, Officer Welch could not recall if all of these\n\nindividuals were searched, explaining that once he approached\n\nthe bus shelter, he focused entirely on Mr. Robertson.\n\n After approaching Mr. Robertson, Officer Welch first asked\n\nwhether Mr. Robertson had anything illegal on him.\n\nMr. Robertson remained silent. Officer Welch then waved\n\nMr. Robertson forward in order to search Mr. Robertson, while\n\nsimultaneously asking to conduct the search. In response to\n\nOfficer Welch’s hand gesture, Mr. Robertson stood up, walked two\n\nyards towards Officer Welch, turned around, and raised his\n\nhands. During the search, Officer Welch recovered a firearm\n\nfrom Mr. Robertson.\n\n After being indicted for illegal possession of a firearm,\n\nMr. Robertson moved to suppress all evidence seized during the\n\nsearch. Mr. Robertson argued that when he walked towards\n\nOfficer Welch, turned around and raised his hands, he was\n\nobeying an order from Officer Welch. As such, he merely\n\nsubmitted to a search, rather than validly consenting to one.\n\nThe district court denied the motion to suppress, and\n\nMr. Robertson filed a timely appeal.\n\n\n\n 4\n\f II.\n\n The Fourth Amendment protects against “unreasonable\n\nsearches and seizures.” U.S. Const. amend. IV. Searches\n\nwithout probable cause are presumptively unreasonable, but if an\n\nindividual consents to a search, probable cause is unnecessary.\n\nSee Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). We\n\nreview for clear error a district court’s determination that a\n\nsearch is consensual under the Fourth Amendment. See United\n\nStates v. Wilson, 895 F.2d 168, 170 (4th Cir. 1990). We apply a\n\nsubjective test to analyze whether consent was given, looking to\n\nthe totality of the circumstances. Wilson, 895 F.2d at 171–72.\n\nThe government has the burden of proving consent. See United\n\nStates v. Mendenhall, 446 U.S. 544, 557 (1980). Relevant\n\nfactors include the officer’s conduct, the number of officers\n\npresent, the time of the encounter, and characteristics of the\n\nindividual who was searched, such as age and education.\n\nLattimore, 87 F.3d at 650. Whether the individual searched was\n\ninformed of his right to decline the search is a “highly\n\nrelevant” factor. Wilson, 895 F.2d at 172.\n\n At the outset, we emphasize that our ruling is based\n\nexclusively on the facts as taken from Officer Welch’s\n\ntestimony. In the suppression hearing, there were many factual\n\ndiscrepancies between the testimony of Mr. Robertson and Officer\n\nWelch, but our reversal in this case is based entirely on\n\n 5\n\fOfficer Welch’s version of events. We stress this because the\n\ndistrict court credited Officer Welch’s testimony but did not\n\ncredit Mr. Robertson’s. In general, we apply a “particularly\n\nstrong” clear error standard to factual determinations when they\n\nare based on oral testimony. See Lattimore, 87 F.3d at 650–51.\n\nThis stems from district courts’ ability to observe witnesses’\n\ndemeanor firsthand. Id. However, because our reversal stems\n\nfrom Officer Welch’s version of events, credibility\n\ndeterminations play no part in our ruling. Rather, based on the\n\nfacts credited by the district court, we are compelled to\n\nconclude that the government has failed to meet its burden of\n\nproving consent. See Bumper v. North Carolina, 391 U.S. 543,\n\n548–49 (1968) (ruling that the government’s burden of proving\n\nconsent “cannot be discharged by showing no more than\n\nacquiescence to a claim of lawful authority”).\n\n This case turns on the difference between voluntary consent\n\nto a request versus begrudging submission to a command. Here,\n\nMr. Robertson’s behavior was the latter. The area around the\n\nbus shelter was dominated by police officers. See Lattimore, 87\n\nF.3d at 650 (citing number of officers present as a factor\n\nweighing against consent). There were three patrol cars and\n\nfive uniformed officers with holstered weapons. Before the\n\nencounter, Mr. Robertson observed every other individual in the\n\nbus shelter get “handled by” the other police officers. (J.A.\n\n 6\n\f46.) As these individuals were being dealt with, yet another\n\nofficer approached the bus shelter and focused on Mr. Robertson.\n\n The officer’s questioning was immediately accusatory:\n\nOfficer Welch’s first question was whether Mr. Robertson had\n\nanything illegal on him. See Elie, 111 F.3d at 1145 (arguing\n\nthat friendly conversation rather than accusatory questions\n\nmilitates towards consent). When Mr. Robertson responded with\n\nsilence, the officer waved Mr. Robertson forward and asked to\n\nconduct a search. Mr. Robertson’s exit was blocked by\n\nOfficer Welch, who never informed Mr. Robertson that he had the\n\nright to refuse the search. See Lattimore, 87 F.3d at 650\n\n(citing individual’s knowledge of a right to refuse a search as\n\nrelevant to a consent finding). Officer Welch’s initial,\n\naccusatory question, combined with the police-dominated\n\natmostphere, clearly communicated to Mr. Robertson that he was\n\nnot free to leave or to refuse Officer Welch’s request to\n\nconduct a search. Mr. Robertson’s only options were to submit\n\nto the search peacefully or resist violently. Mr. Robertson\n\nchose the sensible route. See United States v. Albrektsen, 151\n\nF.3d 951 (9th Cir. 1998) (“[Defendant] was forced to move so\n\nthat the entering officers would not knock him down. Consent\n\nthat is not.”) (internal quotations omitted).\n\n Further, the police interaction in this case lacks factors\n\nthat indicate consent. In United States v. Elie, involving a\n\n 7\n\fsearch of the defendant’s hotel room, we found it highly\n\nrelevant that the defendant repeatedly asked the police to\n\nsearch and secure the items in his hotel room. 111 F.3d 1135,\n\n1145 (4th Cir. 1997). Similarly, in Lattimore, the defendant\n\ngave verbal consent and also signed a written consent form after\n\nthe police officer carefully explained that he wanted to search\n\nthe defendant’s car. 87 F.3d at 649–50. In this case,\n\nmeanwhile, Mr. Robertson never gave verbal or written consent;\n\nhe merely surrendered to a police officer’s command. Further,\n\nin both Elie and Lattimore, the interactions between the police\n\nand the defendants occurred in broad daylight and were\n\ncharacterized by relaxed, friendly conversation between the two\n\nsides. See Elie, 111 F.3d at 1145 (“nothing in the record\n\nindicates an environment that was coercive or intimidating. In\n\nfact, Elie engaged the officers in friendly conversation”);\n\nLattimore, 87 F.3d at 651 (“at no time did the officer use force\n\nor a threat of force to coerce Lattimore’s consent. In fact,\n\nthe two men engaged in friendly conversation”). The situation\n\nhere, meanwhile, lacks those indicia of consent.\n\nOfficer Welch’s initial question was accusatory and was met with\n\ncold silence. Officer Welch never received verbal or written\n\nconsent. Mr. Robertson’s behavior was not a clear-eyed,\n\nvoluntary invitation to be searched; it was a begrudging\n\nsurrender to Officer Welch’s order.\n\n 8\n\f In sum, the facts as presented by Officer Welch are not\n\nenough for the government to demonstrate valid consent.\n\nSurrounded by police officers, Mr. Robertson watched as every\n\nindividual in a bus shelter next to him was handled by the\n\npolice. Soon thereafter, Mr. Robertson was confronted by a\n\npolice officer who immediately sought to verify whether\n\nMr. Robertson was carrying anything illegal before waving him\n\nforward. Given these facts, we are compelled to conclude that\n\nthe government has failed to meet its burden of demonstrating\n\nconsent. Accordingly, we reverse the district court’s refusal\n\nto suppress evidence.\n\n REVERSED\n\n\n\n\n 9\n\fWILSON, District Judge, dissenting:\n\n There are now two opinions with their own plausible\n\nfindings, one from the district court finding that Mr. Robertson\n\nvoluntarily consented to the search and the other from this\n\ncourt finding the exact opposite. Both opinions purport to be\n\nbased upon all the facts and circumstances. The district\n\ncourt’s findings, which include the determination that Officer\n\nWelch was credible and that Mr. Robertson was not, follow an\n\nevidentiary hearing. This court’s findings follow consideration\n\nof the evidence from the written record. I respectfully dissent\n\nbecause I believe under the circumstances Supreme Court\n\nprecedent requires this court to defer to the district court’s\n\nplausible findings.\n\n In a thorough, well-reasoned written opinion, the district\n\ncourt made its findings of fact, which I distill for brevity’s\n\nsake. Officers respond to a distress call that three men in\n\nwhite t-shirts are chasing another man. According to the\n\ncaller, a firearm is involved. It is a known high crime area,\n\nand it is nighttime. When Officer Doug Welch arrives in the\n\nvicinity, three other officers are speaking with various people.\n\nThere are more non-officers present than officers. Officer\n\nWelch notices Mr. Robertson and asks, “Do you have anything\n\nillegal on you?” Mr. Robertson does not reply. The diminutive\n\nofficer, who is 5'2\" tall, has not drawn his firearm (nor has\n\n 10\n\fany other officer) and simply follows up with a gesture and\n\nquestion, “Do you mind if I search you?” Mr. Robertson, who is\n\nmuch taller than Officer Welch, comes forward, turns, and puts\n\nhis hands above his head. Officer Welch believes Mr.\n\nRobertson’s actions indicate his consent. The resulting search\n\nproduces a firearm. The entire encounter is quite brief,\n\nlasting seconds. The conditions, in the words of the district\n\njudge, “were neither coercive nor intimidating” and\n\n“demonstrate[] by a preponderance of the evidence that Robertson\n\nknowingly and voluntarily consented to the search of his\n\nperson.” (J.A. 88, 93)\n\n “The voluntariness of consent to search is a factual\n\nquestion, and as a reviewing court, we must affirm the\n\ndetermination of the district court unless its finding is\n\nclearly erroneous.” United States v. Lattimore, 87 F.3d 647, 650\n\n(4th Cir. 1996)(en banc). As the Supreme Court has stated in\n\nexplaining this standard:\n\n If the district court’s account of the evidence is\n plausible in light of the record viewed in its\n entirety, the court of appeals may not reverse it even\n though convinced that had it been sitting as the trier\n of fact, it would have weighed the evidence\n differently. Where there are two permissible views of\n the evidence, the factfinder’s choice between them\n cannot be clearly erroneous. This is so even when the\n district court’s findings do not rest on credibility\n determinations, but are based instead on physical or\n documentary evidence or inferences from other facts.\n\n\n\n 11\n\fAnderson, 470 U.S. at 573-74 (internal citations omitted).\n\n Here, the majority emphasizes that its ruling is based\n\nexclusively on the facts as taken from Officer Welch's testimony\n\nand, therefore, is not inconsistent with the “clearly erroneous”\n\nstandard of review. According to the majority, “[t]his case\n\nturns on the difference between voluntary consent to a request\n\nversus begrudging submission to command,” and “Mr. Robertson’s\n\nbehavior was the latter.” The majority then lists those\n\ncircumstances it finds compelling in reaching its conclusion. I\n\ndo not dissent because I find the majority’s findings and\n\nopinion to be illogical or implausible. To the contrary, I find\n\nthem every bit as logical and plausible as I find the district\n\ncourt’s findings and opinion. But as the Supreme Court has\n\ncautioned, the question is not whether the court of appeal’s\n\n“interpretation of the facts [is] clearly erroneous, but whether\n\nthe District Court’s finding [is] clearly erroneous.” Id. at\n\n577. In my view it is not. Consequently, I respectfully\n\ndissent.\n\n\n\n\n 12\n\f", "ocr": false, "opinion_id": 2644727 }, { "author_str": "Gregory", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nReversed by published opinion. Judge GREGORY wrote the majority opinion, in which Judge DUNCAN joined. Judge WILSON wrote a dissenting opinion.\nGREGORY, Circuit Judge:\nThis appeal stems from an interaction between Jamaal Robertson and Durham Police Officer Doug Welch in a bus shelter. Officer Welch had come to the neighborhood around the bus shelter in response to reports of a foot chase involving a gun. After some initial investigations, Officer Welch and a crew of police officers focused their response on a bus shelter containing six individuals. Among them was Jamaal Robertson. While several officers engaged the other bus shelter denizens, Officer Welch approached and eventually searched Mr. Robertson, who is a convicted felon and was carrying a firearm. Mr. Robertson pled guilty to violating 18 U.S.C. § 922(g)(1).\n*679Mr. Robertson argues that he never consented to the police officer’s search, rendering it presumptively unreasonable absent probable cause. We agree with Mr. Robertson. Because we find that in submitting to the search, Mr. Robertson merely obeyed the police officer’s orders without giving valid consent, we reverse.\nI.\nBecause this is a defendant’s appeal from a motion to suppress, we construe the facts in the light most favorable to the government. United States v. Seidman, 156 F.3d 542, 547 (4th Cir.1998).\nOn April 14, 2011, the Durham Police Department received a call reporting an altercation in MacDougald Terrace. The caller stated that three African-American males in white t-shirts were chasing an individual who was holding a firearm. Officer Doug Welch drove to the area in his patrol car. After arriving, he approached a group of people who were standing near where the foot chase was reported. The group was apparently uninvolved in the chase, however, and was unable to give Officer Welch any useful information.\nOfficer Welch started to walk back to his patrol car. It was then that he noticed a group of six or seven individuals in a sheltered bus stop. Three of the individuals were African-American males wearing white shirts. Jamaal Robertson was in the bus shelter but was wearing a dark shirt.\nOfficer Welch approached the bus shelter to investigate. By the time he arrived, three or four other police officers had already converged on the scene. Their patrol cars, like Officer Welch’s, were nearby. While the other officers were already “dealing with the other subjects at the bus shelter,” (J.A. 34), Robertson was still seated in the shelter, so Officer Welch decided to focus on Mr. Robertson. Officer Welch stopped about four yards in front of Mr. Robertson, who was sitting with his back to the shelter’s back wall. Thus, Mr. Robertson was blocked on three sides by walls, faced a police officer directly in front of him, and had another three or four police officers nearby who were “dealing with” every other individual in the bus stop. During the suppression hearing, Officer Welch could not recall if all of these individuals were searched, explaining that once he approached the bus shelter, he focused entirely on Mr. Robertson.\nAfter approaching Mr. Robertson, Officer Welch first asked whether Mr. Robertson had anything illegal on him. Mr. Robertson remained silent. Officer Welch then waved Mr. Robertson forward in order to search Mr. Robertson, while simultaneously asking to conduct the search. In response to Officer Welch’s hand gesture, Mr. Robertson stood up, walked two yards towards Officer Welch, turned around, and raised his hands. During the search, Officer Welch recovered a firearm from Mr. Robertson.\nAfter being indictéd for illegal possession of a firearm, Mr. Robertson moved to suppress all evidence seized during the search. Mr. Robertson argued that when he walked towards Officer Welch, turned around and raised his hands, he was obeying an order from Officer Welch. As such, he merely submitted to a search, rather than validly consenting to one. The district court denied the motion to suppress, and Mr. Robertson filed a timely appeal.\nII.\nThe Fourth Amendment protects against “unreasonable searches and seizures.” U.S. Const, amend. IV. Searches without probable cause are presumptively unreasonable, but if an individual consents to a search, probable cause is unnecessary. See Schneckloth v. Bustamonte, 412 U.S. *680218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). We review for clear error a district court’s determination that a search is consensual under the Fourth Amendment. See United States v. Wilson, 895 F.2d 168, 170 (4th Cir.1990). We apply a subjective test to analyze whether consent was given, looking to the totality of the circumstances. Wilson, 895 F.2d at 171-72. The government has the burden of proving consent. See United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). Relevant factors include the officer’s conduct, the number of officers present, the time of the encounter, and characteristics of the individual who was searched, such as age and education. Lattimore, 87 F.3d at 650. Whether the individual searched was informed of his right to decline the search is a “highly relevant” factor. Wilson, 895 F.2d at 172.\nAt the outset, we emphasize that our ruling is based exclusively on the facts as taken from Officer Welch’s testimony. In the suppression hearing, there were many factual discrepancies between the testimony of Mr. Robertson and Officer Welch, but our reversal in this case is based entirely on Officer Welch’s version of events. We stress this because the district court credited Officer Welch’s testimony but did not credit Mr. Robertson’s. In general, we apply a “particularly strong” clear error standard to factual determinations when they are based on oral testimony. See Lattimore, 87 F.3d at 650-51. This stems from district courts’ ability to observe witnesses’ demeanor firsthand. Id. However, because our reversal stems from Officer Welch’s version of events, credibility determinations play no part in our ruling. Rather, based on the facts credited by the district court, we are compelled to conclude that the government has failed to meet its burden of proving consent. See Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968) (ruling that the government’s burden of proving consent “cannot be discharged by showing no more than acquiescence to a claim of lawful authority”).\nThis case turns on the difference between voluntary consent to a request versus begrudging submission to a command. Here, Mr. Robertson’s behavior was the latter. The area around the bus shelter was dominated by police officers. See Lat-timore, 87 F.3d at 650 (citing number of officers present as a factor weighing against consent). There were three patrol cars and five uniformed officers with holstered weapons. Before the encounter, Mr. Robertson observed every other individual in the bus shelter get “handled by” the other police officers. (J.A. 46.) As these individuals were being dealt with, yet another officer approached the bus shelter and focused on Mr. Robertson.\nThe officer’s questioning was immediately accusatory: Officer Welch’s first question was whether Mr. Robertson had anything illegal on him. See Elie, 111 F.3d at 1145 (arguing that friendly conversation rather than accusatory questions militates towards consent). When Mr. Robertson responded with silence, the officer waved Mr. Robertson forward and asked to conduct a search. Mr. Robertson’s exit was blocked by Officer Welch, who never informed Mr. Robertson that he had the right to refuse the search. See Lattimore, 87 F.3d at 650 (citing individual’s knowledge of a right to refuse a search as relevant to a consent finding). Officer Welch’s initial, accusatory question, combined with the police-dominated atmosphere, clearly communicated to Mr. Robertson that he was not free to leave or to refuse Officer Welch’s request to conduct a search. Mr. Robertson’s only options were to submit to the search peacefully or resist violently. Mr. Robertson chose the *681sensible route. See United States v. Albrektsen, 151 F.3d 951 (9th Cir.1998) (“[Defendant] was forced to move so that the entering officers would not knock him down. Consent that is not.”) (internal quotations omitted).\nFurther, the police interaction in this case lacks factors that indicate consent. In United States v. Elie, involving a search of the defendant’s hotel room, we found it highly relevant that the defendant repeatedly asked the police to search and secure the items in his hotel room. 111 F.3d 1135, 1145 (4th Cir.1997). Similarly, in Lattimore, the defendant gave verbal consent and also signed a written consent form after the police officer carefully explained that he wanted to.search the defendant’s car. 87 F.3d at 649-50. In this case, meanwhile, Mr. Robertson never gave verbal or written consent; he merely surrendered to a police officer’s command. Further, in both Elie and Lattimore, the interactions between the police and the defendants occurred in broad daylight and were characterized by relaxed, friendly conversation between the two sides. See Elie, 111 F.3d at 1145 (“nothing in the record indicates an environment that was coercive or intimidating. In fact, Elie engaged the officers in friendly conversation”); Lattimore, 87 F.3d at 651 (“at no time did the officer use force or a threat of force to coerce Lattimore’s consent. In fact, the two men engaged in friendly conversation”). The situation here, meanwhile, lacks those indicia of consent. Officer Welch’s initial question was accusatory and was met with cold silence. Officer Welch never received verbal or written consent. Mr. Robertson’s behavior was not a clear-eyed, voluntary invitation to be searched; it was a begrudging surrender to Officer Welch’s order.\nIn sum, the facts as presented by Officer Welch are not enough for the government to demonstrate valid consent. Surrounded by police officers, Mr. Robertson watched as every individual in a bus shelter next to him was handled by the police. Soon thereafter, Mr. Robertson was confronted by a police officer who immediately sought to verify whether Mr. Robertson was carrying anything illegal before waving him forward. Given these facts, we. are compelled to conclude that the government has failed to meet its burden of demonstrating consent. Accordingly, we reverse the district court’s refusal to suppress evidence.\n\nREVERSED.\n\n", "ocr": false, "opinion_id": 9798314 }, { "author_str": "Wilson", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWILSON, District Judge,\ndissenting:\nThere are now two opinions with their own plausible findings, one from the district court finding that Mr. Robertson voluntarily consented to the search and the other from this court finding the exact opposite. Both opinions purport to be based upon all the facts and circumstances. The district court’s findings, which include the determination that Officer Welch was credible and that Mr. Robertson was not, follow an evidentiary hearing. This court’s findings follow consideration of the evidence from the written record. I respectfully dissent because I believe under the circumstances Supreme Court precedent requires this court to defer to the district court’s plausible findings.\nIn a thorough, well-reasoned written opinion, the district court made its findings of fact, which I distill for brevity’s sake. Officers respond to a distress call that three men in white t-shirts are chasing another man. According to the caller, a firearm is involved. It is a known high crime area, and it is nighttime. When Officer Doug Welch arrives in thé vicinity, three other officers are speaking with various people. There are more non-officers present than officers. Officer Welch notices Mr. Robertson and asks, “Do you *682have anything illegal on you?” Mr. Robertson does not reply. The diminutive officer, who is 5'2\" tall, has not drawn his firearm (nor has any other officer) and simply follows up with a gesture and question, “Do you mind if I search you?” Mr. Robertson, who is much taller than Officer Welch, comes forward, turns, and puts his hands above his head. Officer Welch believes Mr. Robertson’s actions indicate his consent. The resulting search produces a firearm. The entire encounter is quite brief, lasting seconds. The conditions, in the words of the district judge, “were neither coercive nor intimidating” and “demonstrate[ ] by a preponderance of the evidence that Robertson knowingly and voluntarily consented to the search of his person.” (J.A. 88, 93)\n“The voluntariness of consent to search is a factual question, and as a reviewing court, we must affirm the determination of the district court unless its finding is clearly erroneous.” United States v. Lattimore, 87 F.3d 647, 650 (4th Cir.1996)(en banc). As the Supreme Court has stated in explaining this standard:\nIf the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. This is so even when the district court’s findings do not rest on credibility determinations, but are based instead on physical or documentary evidence or inferences from other facts.\nAnderson, 470 U.S. at 573-74, 105 S.Ct. 1504 (internal citations omitted).\nHere, the majority emphasizes that its ruling is based exclusively on the facts as taken from Officer Welch’s testimony and, therefore, is not inconsistent with the “clearly erroneous” standard of review. According to the majority, “[t]his case turns on the difference between voluntary consent to a request versus begrudging submission to command,” and “Mr. Robertson’s behavior was the latter.” The majority then lists those circumstances it finds compelling in reaching its conclusion. I do not dissent because I find the majority’s findings and opinion to be illogical or implausible. To the contrary, I find them every bit as logical and plausible as I find the district court’s findings and opinion. But as the Supreme Court has cautioned, the question is not whether the court of appeal’s “interpretation of the facts [is] clearly erroneous, but whether the District Court’s finding [is] clearly erroneous.” Id. at 577, 105 S.Ct. 1504. In my view it is not. Consequently, I respectfully dissent.\n", "ocr": false, "opinion_id": 9798315 } ]

[ "737 F.3d 45" ]

[ { "author_str": "Duncan", "per_curiam": false, "type": "010combined", "page_count": 20, "download_url": "http://pacer.ca4.uscourts.gov/opinion.pdf/131134.P.pdf", "author_id": null, "opinion_text": " PUBLISHED\n\n UNITED STATES COURT OF APPEALS\n FOR THE FOURTH CIRCUIT\n\n\n No. 13-1134\n\n\nSANDLANDS C&D LLC; EXPRESS DISPOSAL SERVICE LLC,\n\n Plaintiffs - Appellants,\n\n v.\n\nHORRY, COUNTY OF, a Political Subdivision of the State of\nSouth Carolina acting by and through its duly elected County\nCouncil; HORRY COUNTY SOLID WASTE AUTHORITY INC.,\n\n Defendants – Appellees.\n\n---------------------------\n\nDELAWARE COUNTY SOLID WASTE AUTHORITY; ECOMAINE; CITY AND\nCOUNTY OF HONOLULU; INTERNATIONAL MUNICIPAL LAWYERS\nASSOCIATION; LANCASTER COUNTY SOLID WASTE MANAGEMENT\nAUTHORITY; MARION COUNTY, OREGON; MONTGOMERY COUNTY, OHIO;\nNATIONAL ASSOCIATION OF COUNTIES; SOLID WASTE ASSOCIATION OF\nNORTH AMERICA; SOLID WASTE AUTHORITY OF CENTRAL OHIO; SOLID\nWASTE DISPOSAL AUTHORITY OF THE CITY OF HUNTSVILLE; SOUTH\nCAROLINA ASSOCIATION OF COUNTIES; SOLID WASTE AUTHORITY OF\nPALM BEACH COUNTY; PINE BELT REGIONAL SOLID WASTE MANAGEMENT\nAUTHORITY; SPOKANE REGIONAL SOLID WASTE SYSTEM; WASATCH\nINTEGRATED WASTE MANAGEMENT DISTRICT; YORK COUNTY SOLID\nWASTE AND REFUSE AUTHORITY,\n\n Amici Supporting Appellees.\n\n\n\nAppeal from the United States District Court for the District of\nSouth Carolina, at Florence. Terry L. Wooten, Chief District\nJudge. (4:09-cv-01363-TLW)\n\n\nArgued: October 31, 2013 Decided: December 3, 2013\n\fBefore WILKINSON, DUNCAN, and DIAZ, Circuit Judges.\n\n\nAffirmed by published opinion. Judge Duncan wrote the opinion,\nin which Judge Wilkinson and Judge Diaz joined.\n\n\nARGUED: Vincent Austin Sheheen, SAVAGE, ROYALL & SHEHEEN, LLP,\nCamden, South Carolina, for Appellants. Michael Warner Battle,\nBATTLE & VAUGHT, PA, Conway, South Carolina, for Appellees. ON\nBRIEF: Thomas S. Mullikin, MULLIKIN LAW FIRM, LLC, Camden, South\nCarolina, for Appellants. Emma Ruth Brittain, THOMAS &\nBRITTAIN, P.A., Myrtle Beach, South Carolina; Stan Barnett,\nSMITH, BUNDY, BYBEE & BARNETT, Mt. Pleasant, South Carolina, for\nAppellees. Scott M. DuBoff, Jeffrey C. Young, GARVEY SCHUBERT\nBARER, Washington, D.C., for Amici Curiae. Michael F.X. Gillin,\nMedia, Pennsylvania, for Amicus Curiae Delaware County Solid\nWaste Authority. Nicholas Nadzo, Mark Bower, JENSEN BAIRD\nGARDNER & HENRY, Portland, Maine, for Amicus Curiae ecomaine.\nDana Viola, Deputy Corporation Counsel, Department Of\nCorporation Counsel, CITY AND COUNTY OF HONOLULU, Honolulu,\nHawaii, for Amicus Curiae City and County of Honolulu. Alex\nHenderson, HARTMAN UNDERHILL & BRUBAKER, Lancaster,\nPennsylvania, for Amicus Curiae Lancaster County Solid Waste\nManagement Authority. Scott Norris, Assistant Legal Counsel,\nMarion County, Oregon, for Amicus Curiae Marion County, Oregon.\nMathias H. Heck, Jr., Montgomery County, Ohio Prosecuting\nAttorney, Dayton, Ohio, for Amicus Curiae Montgomery County,\nOhio. Michael Belarmino, Associate General Counsel, NATIONAL\nASSOCIATION OF COUNTIES, Washington, D.C., for Amicus Curiae\nNational Association of Counties. Moran M. Pope, III, POPE &\nPOPE, P.A., Hattiesburg, Mississippi, for Amicus Curiae Pine\nBelt Regional Solid Waste Management Authority. Barry Shanoff,\nRockville, Maryland, for Amicus Curiae Solid Waste Association\nof North America. Michael C. Mentel, Chief Legal Officer, SOLID\nWASTE AUTHORITY OF CENTRAL OHIO, Grove City, Ohio, for Amicus\nCuriae Solid Waste Authority of Central Ohio. M. Clifton Scott\nJr., Senior Staff Attorney, SOUTH CAROLINA ASSOCIATION OF\nCOUNTIES, Columbia, South Carolina, for Amicus Curiae South\nCarolina Association of Counties. Elizabeth Schoedel, Assistant\nCity Attorney, CITY OF SPOKANE, Spokane, Washington, for Amicus\nCuriae Spokane Regional Solid Waste System. Charles H. Younger,\nHuntsville, Alabama, for Amicus Curiae Solid Waste Disposal\nAuthority of the City of Huntsville, Alabama.\n\n\n\n\n 2\n\fDUNCAN, Circuit Judge:\n\n Appellants Sandlands C&D, LLC (“Sandlands”) and Express\n\nDisposal Service, LLC (“EDS”) contest the validity of Horry\n\nCounty’s Flow Control Ordinance, which prohibits disposal of\n\nwaste generated in Horry County at any site other than a\n\ndesignated publicly owned landfill. The district court granted\n\nsummary judgment in favor of Horry County, and appellants\n\nchallenge its determination that the Ordinance violates neither\n\nthe Commerce Clause nor the Equal Protection Clause. For the\n\nreasons that follow, we affirm.\n\n\n I.\n\n A.\n\n Horry County occupies the northernmost coastal section of\n\nSouth Carolina. Because of its sixty-mile coastline, large\n\ngeographic size, seasonal population changes, and high water\n\ntable, landfill waste disposal has been “expensive and\n\ndifficult.” See Horry Co., S.C., Ordinance 60-90, § 1 (Dec. 21,\n\n1990). Consequently, in 1990 the County Council established the\n\nHorry County Solid Waste Authority, Inc. (“SWA”), a nonprofit\n\ncorporation, to manage the county’s solid waste. Id. § 1.4.\n\nAlthough the SWA is a separate legal entity, Horry County\n\nmaintains power over it in multiple ways: approving its budget,\n\nlarge capital expenditures, and real estate transactions;\n\n\n\n\n 3\n\fappointing its board of directors; wielding approval authority\n\nover all bylaw amendments; and requiring that the Horry County\n\nTreasurer hold all its funds and issue its checks. Furthermore,\n\nthe IRS categorizes the SWA as a “governmental unit” or\n\n“affiliate of a governmental unit.” On appeal, it is undisputed\n\nthat the SWA is a public entity.\n\n The SWA owns and operates two landfills (one for municipal\n\nsolid waste and one for construction and demolition (“C&D”)\n\nwaste) and a recycling facility in Horry County. In addition,\n\nthe SWA sponsors educational programs on recycling and runs a\n\ngreen power facility that harnesses the methane gas emitted by\n\nlandfills to generate electricity. The SWA charges haulers and\n\nothers who use its landfills “tipping fees” based on the tonnage\n\nof trash deposited. These fees, which are standard in the\n\nwaste-disposal industry, provide revenue to fund SWA operations.\n\nHaulers who recycle a specified percentage of the waste they\n\ncollect pay a reduced tipping fee through an application-based\n\nrecycling incentive program.\n\n On March 17, 2009, the Horry County Council enacted\n\nOrdinance 02-09 (“Flow Control Ordinance” or “Ordinance”) to\n\ncreate a county-wide plan for solid waste disposal. Horry Co.,\n\nS.C., Ordinance 02-09 (Apr. 7, 2009). The final version of the\n\nFlow Control Ordinance, as amended on April 7, 2009, provides:\n\n\n\n\n 4\n\f The County hereby designates the disposal facilities\n operated by the SWA and/or public owned facilities\n designated by the SWA for the acceptance or disposal\n of acceptable waste. The dumping or depositing by any\n person at any place other than at the designated\n facilities of any acceptable waste generated within\n the County is prohibited.\n\nId. § 2.1.1. By requiring that all acceptable waste be disposed\n\nof at SWA or other designated public landfills, the Ordinance\n\naims to conserve resources, prevent pollution, and protect the\n\npublic health, safety, and well-being. Id. § 1.1. It also\n\nensures the SWA a revenue stream from the tipping fees haulers\n\nmust pay to deliver waste.\n\n To effect its objectives, the Ordinance sets out a detailed\n\nregulatory and enforcement framework. It defines the term\n\n“acceptable waste” as “ordinary household, municipal,\n\ninstitutional, commercial and industrial solid waste” excluding\n\nrecyclables as well as hazardous waste, sewage, agricultural\n\nwaste, biomedical waste, and certain types of nuclear waste.\n\nId. §§ 1.2.1, 1.2.14 (defining acceptable and unacceptable\n\nwaste); §§ 6.1.2, 7.1.2, 8.1.5 (excluding recyclables). It also\n\nsets out rules and licensing requirements for waste haulers.\n\nId. §§ 9–10.\n\n The Flow Control Ordinance has been largely successful in\n\nensuring that waste generated in Horry County is deposited at an\n\napproved landfill within the county. According to the South\n\nCarolina Solid Waste Management Annual Reports from 2009, 2010,\n\n\n\n 5\n\fand 2011, an SWA facility processed 689,708 out of 691,552 tons,\n\nor over 99% of the waste generated in the county during those\n\nyears. J.A. 196–205. 1\n\n The remaining 1,844 tons of waste were taken to four\n\nlandfills outside of the county: the Georgetown County Landfill,\n\nthe Berkeley County W&S Landfill, the Oakridge Landfill, and the\n\nRichland Landfill. Horry County and Georgetown County have an\n\nintergovernmental waste-sharing agreement, predating the\n\nenactment of the Flow Control Ordinance, under which waste\n\ncollected near the counties’ shared border may be taken to the\n\nother county’s government-operated landfills. According to the\n\nSWA, much of the waste taken to the other landfills was not\n\n“acceptable waste” under the Flow Control Ordinance--in other\n\nwords, it was waste, such as the hazardous material asbestos,\n\nthat the SWA landfills cannot process. Horry County also\n\nacknowledged that some waste may have been removed from the\n\ncounty without the SWA’s knowledge or consent.\n\n B.\n\n The enactment of the Flow Control Ordinance altered the\n\nlocal economy of waste management. For example, Sandlands,\n\nwhich operates a private landfill for C&D waste in neighboring\n\nMarion County, South Carolina, saw a significant decrease in its\n\n 1\n References to the Joint Appendix are abbreviated “J.A.”\n\n\n\n\n 6\n\fbusiness. Because the Sandlands landfill is located only two\n\nmiles from the Horry County border, a significant portion of the\n\nwaste deposited there used to originate in Horry County. The\n\nOrdinance now prohibits haulers from bringing Horry County waste\n\nto the Sandlands landfill in order to take advantage of its\n\nlower tipping fees. Sandlands has since struggled financially\n\nbecause of its inability to replace the revenue stream lost as a\n\nresult of the Ordinance.\n\n EDS operates a waste hauling service in southeastern North\n\nCarolina and northeastern South Carolina. Prior to the passage\n\nof the Flow Control Ordinance, EDS transported waste from Horry\n\nCounty to the Sandlands landfill and received certain benefits\n\nas a result, such as increased hours of access and special,\n\nlower tipping fees. EDS has been issued at least seventeen\n\ncitations for violating the Flow Control Ordinance.\n\n As an alternate business strategy, Sandlands attempted to\n\nopen a facility to process recovered materials 2 at its Marion\n\nCounty site, where it would have sorted general C&D debris into\n\nrecyclable materials and landfill-ready waste. When Sandlands\n\nrequested permission from Horry County to remove mixed C&D\n\n 2\n Recovered materials are “materials or substances that\nstill have useful physical or chemical properties after serving\na specific purpose and can be reused or recycled for the same or\nother purposes.” Horry Co., S.C., Ordinance 02-09, § 1.2.11\n(Apr. 7, 2009).\n\n\n\n\n 7\n\fdebris for this purpose, a representative from the Horry County\n\nAttorney’s Office responded, “[D]ebris from a construction site\n\nthat simply contains materials that have not yet been separated\n\nis still solid waste and is subject to the requirements of the\n\nordinance.” J.A. at 69. No company has been allowed to take\n\nmixed waste generated in Horry County outside of the county,\n\nalthough two other companies extract recoverable materials from\n\nacceptable waste at small transfer stations within Horry County.\n\n C.\n\n Appellants brought an action for declaratory judgment,\n\ndamages, and injunctive relief in South Carolina state court,\n\nwhich Horry County removed to federal court. Among other\n\nclaims, appellants argued that the Flow Control Ordinance\n\nviolates the Equal Protection Clauses of the United States and\n\nSouth Carolina Constitutions, the Commerce Clause of the United\n\nStates Constitution, and the Contract Clauses of the United\n\nStates and South Carolina Constitutions. 3 After a hearing, the\n\ndistrict court granted Horry County’s motion for summary\n\n\n\n\n 3\n In their amended complaint, appellants also alleged a\nvariety of constitutional, statutory, and torts claims. In\naddition, appellants argued that the Flow Control Ordinance is\npreempted by the South Carolina Solid Waste Policy and\nManagement Act, S.C. Code Ann. § 44-96-10, et. seq. The\ndistrict court certified that question to the South Carolina\nSupreme Court, which responded that it was not preempted.\n\n\n\n\n 8\n\fjudgment as to each of the causes of action. This appeal\n\nfollowed.\n\n\n II.\n\n Appellants contest the district court’s rulings on the\n\nvalidity of the Flow Control Ordinance under the Commerce Clause\n\nand Equal Protection Clause of the U.S. Constitution. 4 As to the\n\n“Dormant” Commerce Clause, appellants argue that the district\n\ncourt erred by failing to analyze whether the Flow Control\n\nOrdinance is facially discriminatory, by misapplying the test\n\nlaid out in Pike v. Bruce Church, Inc., 397 U.S. 137 (1970),\n\nand by ignoring genuine disputes of material fact at the\n\nsummary-judgment stage. As to the Equal Protection Clause,\n\nappellants contend that summary judgment is not appropriate\n\nbecause there remain genuine disputes of material fact regarding\n\nwhether private companies are subject to differential treatment\n\nunder the Flow Control Ordinance.\n\n We review de novo the district court’s grant of summary\n\njudgment. Building Graphics, Inc. v. Lennar Corp., 708 F.3d\n\n573, 578 (4th Cir. 2013). Summary judgment is appropriate when\n\nthe moving party shows that there is no genuine dispute of\n\n\n 4\n Appellants do not mention a separate South Carolina Equal\nProtection Clause claim in their appellate brief, so they have\nwaived this state law claim. Fed. R. App. P. 28(a)(8).\n\n\n\n\n 9\n\fmaterial fact and it is entitled to judgment as a matter of law.\n\nFed. R. Civ. P. 56(a).\n\n A.\n\n Appellants first argue that the Flow Control Ordinance\n\nviolates the Commerce Clause of the U.S. Constitution, which\n\ngives Congress the power to “regulate Commerce with foreign\n\nNations, and among the several States, and with the Indian\n\nTribes.” U.S. Const. art. I, § 8, cl. 3. The Supreme Court has\n\ninterpreted the Commerce Clause as also having a negative\n\nimplication, often called the “Dormant Commerce Clause”: states\n\ngenerally cannot pass protectionist measures that favor in-state\n\nactors over out-of-state actors. See, e.g., Or. Waste Sys.,\n\nInc. v. Dep’t of Envtl. Quality, 511 U.S. 93, 99 (1994); City of\n\nPhiladelphia v. New Jersey, 437 U.S. 617, 623–24 (1978). The\n\nSupreme Court has also used the Dormant Commerce Clause to\n\ninvalidate locally protectionist measures that target all\n\noutsiders, not just those from other states. See, e.g., Dean\n\nMilk Co. v. City of Madison, 340 U.S. 349, 353 (1951)\n\n(invalidating under the Dormant Commerce Clause a municipal\n\nordinance that forbade the sale of milk unless it was\n\npasteurized within five miles of the city center).\n\n We begin our Dormant Commerce Clause analysis by “ask[ing]\n\nwhether a challenged law discriminates against interstate\n\ncommerce.” Dep’t of Revenue v. Davis, 553 U.S. 328, 338 (2008).\n\n\n\n 10\n\fWhen a restriction on commerce is discriminatory--that is, it\n\nbenefits in-state economic interests while burdening out-of-\n\nstate economic interests--“it is virtually per se invalid.” Or.\n\nWaste Sys., 511 U.S. at 99. The state may only overcome the\n\npresumption of unconstitutionality by showing that the\n\nprotectionist measure serves a legitimate local purpose that\n\ncould not be served by alternate, nondiscriminatory means.\n\nDavis, 553 U.S. at 338; see also Maine v. Taylor, 477 U.S. 131,\n\n138–40 (1986). “Absent discrimination for the forbidden\n\npurpose,” a statute affecting interstate commerce is subject to\n\nthe balancing test laid out in Pike. Davis, 553 U.S. at 338.\n\nIn such a case, the law “will be upheld unless the burden\n\nimposed on such commerce is clearly excessive in relation to the\n\nputative local benefits.” Pike, 397 U.S. at 142.\n\n The recent Supreme Court decision in United Haulers Ass’n\n\nv. Oneida-Herkimer Solid Waste Management Authority, 550 U.S.\n\n330, 346 (2007), is not only instructive, it is largely\n\ndispositive of appellants’ Dormant Commerce Clause claims. In\n\nUnited Haulers, the Court upheld Oneida and Herkimer Counties’\n\nflow control ordinances, which are remarkably similar to the one\n\nat issue here. The Oneida and Herkimer ordinances also\n\n“require[d] haulers to bring waste to facilities owned and\n\noperated by a state-created public benefit corporation.” 550\n\nU.S. at 334. The Court first determined that the challenged\n\n\n\n 11\n\fflow control ordinances are not discriminatory because they\n\nfavor the government while treating all private parties the\n\nsame. Id. at 345. Then, a plurality of the Court determined\n\nthat they withstood the Pike balancing test. Id. at 347. We\n\nnow apply United Haulers to the facts before us.\n\n 1.\n\n First, we must determine whether the Flow Control Ordinance\n\ndiscriminates against interstate commerce. A statute will\n\nalmost always violate the Dormant Commerce Clause if it\n\n“discriminates facially, in its practical effect, or in its\n\npurpose.” McBurney v. Young, 667 F.3d 454, 468 (4th Cir. 2012)\n\n(internal quotations and citations omitted). In United Haulers,\n\nthe Supreme Court determined that flow control ordinances\n\nfavoring the government while “treat[ing] in-state private\n\nbusiness interests exactly the same as out-of-state ones[] do\n\nnot ‘discriminate against interstate commerce’ for purposes of\n\nthe dormant Commerce Clause.” 550 U.S. at 345.\n\n As the Supreme Court reiterated in Davis, “a government\n\nfunction is not susceptible to standard dormant Commerce Clause\n\nscrutiny owing to its likely motivation by legitimate objectives\n\ndistinct from the simple economic protectionism the Clause\n\n\n\n\n 12\n\fabhors.” 553 U.S. at 341. 5 Trash disposal is a traditional\n\nfunction of local government, so county waste-management\n\nordinances can permissibly distinguish between private\n\nbusinesses and those controlled by states, counties, and\n\nmunicipalities. See United Haulers, 550 U.S. at 342, 344. Like\n\nthe ordinances in United Haulers, the Horry County Flow Control\n\nOrdinance “benefit[s] a clearly public facility.” 550 U.S. at\n\n342.\n\n We now consider whether the Flow Control Ordinance treats\n\nall private businesses alike. Appellants argue that it does not\n\nand should thus be subject to the rule of per se invalidity for\n\ndiscriminatory statutes under Oregon Waste Systems, 511 U.S. at\n\n99. We reject each of their arguments because the record does\n\nnot indicate that appellants have been treated differently from\n\nother private businesses.\n\n Appellants contend that the Sandlands landfill has been\n\ntreated differently from the landfill owned by neighboring\n\nGeorgetown County, because that facility has continued to\n\nreceive waste from Horry County, despite not being designated\n\nunder the Ordinance. Under the Dormant Commerce Clause,\n\n\n 5\n We decline appellants’ invitation to hunt for a\ndiscriminatory purpose in the Flow Control Ordinance’s\nlegislative history and County Council members’ post hoc\nstatements.\n\n\n\n\n 13\n\fhowever, the question is whether Sandlands has been treated\n\ndifferently from other private businesses--not other public\n\nentities. Appellants’ argument that there is no justification\n\nfor differential treatment of public and private landfills\n\nmisapprehends the public-private distinction articulated in\n\nUnited Haulers, which definitively distinguished the government-\n\nfavoring Oneida and Herkimer ordinances from an ordinance\n\nfavoring a private facility that was struck down in C&A Carbone,\n\nInc. v. Town of Clarkstown, 511 U.S. 383 (1994). See 550 U.S.\n\nat 341.\n\n Appellants also maintain that Horry County has\n\ndiscriminated against them by not allowing them to process and\n\nsort mixtures of acceptable waste and recyclables at their\n\nfacility in Marion County. The district court rejected this\n\nargument and so do we, because appellants have not been treated\n\ndifferently from other private businesses. Sandlands and EDS\n\ncould choose to separate recyclables and unacceptable waste from\n\nacceptable waste covered by the Flow Control Ordinance, just as\n\nother companies have done within Horry County. The extracted\n\nrecovered materials could then be removed to their facility in\n\nMarion County.\n\n To conclude, because no private landfills can be designated\n\nby the SWA, all private landfills are treated equally.\n\nFurthermore, all private haulers are prohibited from\n\n\n\n 14\n\ftransporting waste from Horry County to landfills not operated\n\nby or designated by the SWA. Under the Ordinance, EDS can still\n\nhaul Horry County waste to the SWA landfills, as do other local\n\nhauling companies. Therefore, the Flow Control Ordinance does\n\nnot discriminate against interstate commerce.\n\n 2.\n\n Because the Flow Control Ordinance is not discriminatory,\n\nwe must consider its burdens and benefits under Pike. 6 In Pike,\n\nthe Supreme Court held that if a “statute regulates even-\n\nhandedly to effectuate a legitimate local public interest, and\n\nits effects on interstate commerce are only incidental, it will\n\nbe upheld unless the burden imposed on such commerce is clearly\n\nexcessive in relation to the putative local benefits.” 397 U.S.\n\nat 142 (internal citations omitted). Even when examining\n\ncounty-level regulations, we focus on burdens to interstate\n\ncommerce by asking whether there exists a “disparate impact on\n\nout-of-state as opposed to in-state businesses.” United\n\nHaulers, 550 U.S. at 346.\n\n 6\n Appellants briefly assert that the trier of fact must make\nits determinations before the application of the Pike test. The\nposture of United Haulers itself belies this position. Although\nUnited Haulers was decided “[a]fter years of discovery” in which\nthe district court judge “could not detect any disparate\nimpact,” 550 U.S. at 346 (emphasis omitted), it too was decided\nat the summary-judgment stage, United Haulers Ass’n v. Oneida-\nHerkimer Solid Waste Mgmt. Auth., 438 F.3d 150, 155 (2d Cir.\n2006).\n\n\n\n\n 15\n\f Here, we need not actually balance the interests laid out\n\nin Pike because the Supreme Court has already done so. See\n\nUnited Haulers, 550 U.S. at 346–47. In United Haulers, the\n\nCourt held that flow control ordinances do address a legitimate\n\nlocal public interest. Id. at 334. It did not “decide whether\n\nthe ordinances impose[d] any incidental burden on interstate\n\ncommerce” because it found that “any arguable burden does not\n\nexceed the public benefits of the ordinances.” Id. at 346. The\n\nsame analysis is applicable to the Horry County Flow Control\n\nOrdinance, because it clearly confers public benefits that\n\noutweigh any conceivable burden on interstate commerce.\n\n To begin, the Flow Control Ordinance has only an arguable\n\neffect on interstate commerce, even if it does affect intrastate\n\ncommerce to some degree. Appellants have only shown that the\n\nFlow Control Ordinance affects them; they have not shown it has\n\nany impact on out-of-state businesses. And contrary to\n\nappellants’ contention that the Flow Control Ordinance only\n\ngenerates revenue and confers no benefits, the record clearly\n\nshows that the Flow Control Ordinance produces the same benefits\n\nthat the Supreme Court plurality recognized in United Haulers.\n\nSee id. at 346–47. Moreover, the Flow Control Ordinance’s\n\nwaste-management program is a quintessential exercise of local\n\npolice power, which courts are loathe to overturn by\n\n\n\n\n 16\n\fsubstituting their judgment for that of local elected officials.\n\nSee id. at 347.\n\n Like the ordinances in United Haulers, the Horry County\n\nOrdinance provides “a convenient and effective way to finance\n\n[an] integrated package of waste disposal services.” Id. at\n\n346. The Ordinance creates a revenue stream through which the\n\ncounty can support waste management, recycling programs, and its\n\n911 calling system. Although revenue generation alone cannot\n\njustify facial discrimination, United Haulers recognized that it\n\ncan constitute a benefit under the Pike test. Id. The\n\nOrdinance also confers other “significant health and\n\nenvironmental benefits.” See id. at 347. Examples include\n\npublic education about recycling, increased opportunities for\n\nrecycling, and the operation of a green power facility that\n\ngenerates electricity using landfill gas. In fact, the SWA has\n\nwon statewide awards for its environmentally friendly waste-\n\nmanagement programs.\n\n In sum, the Horry County Flow Control Ordinance provides\n\nthe same types of benefits and imposes the same types of burdens\n\nas the ordinances upheld in United Haulers. We therefore\n\nconclude that it does not violate the Dormant Commerce Clause.\n\nTo hold otherwise would ignore precedents ensuring that this\n\ncourt does not become a superlegislature that “rigorously\n\n\n\n\n 17\n\fscrutinize[s] economic legislation passed under the auspices of\n\nthe police power.” United Haulers, 550 U.S. at 347.\n\n 3.\n\n Appellants argue that summary judgment is not appropriate\n\nbecause there is a factual dispute about whether the Flow\n\nControl Ordinance discriminates against interstate commerce.\n\nThe record, however, does not reveal any disputes of material\n\nfact. At summary judgment, “[a]lthough the court must draw all\n\njustifiable inferences in favor of the nonmoving party, the\n\nnonmoving party must rely on more than conclusory allegations,\n\nmere speculation, the building of one inference upon another, or\n\nthe mere existence of a scintilla of evidence.” Dash v.\n\nMayweather, 731 F.3d 303, 311 (4th Cir. 2013).\n\n Appellants allege that the SWA discriminates by allowing\n\nsome haulers to take waste to landfills outside of Horry County,\n\nwhile penalizing EDS for attempting to do the same. The only\n\nevidence appellants cite for their argument, however, is that\n\n1,844 tons of waste have left Horry County since 2009. In\n\nresponse, SWA officials testified that all Horry County waste\n\nthat has not been disposed of at an SWA or another public\n\nlandfill has either constituted unacceptable waste falling\n\noutside of the Ordinance or been removed without the SWA’s\n\nknowledge or approval. Sandlands and EDS have presented no\n\nevidence to contradict this testimony, and the record does not\n\n\n\n 18\n\fshow that EDS has been cited for taking trash to a public\n\nlandfill.\n\n B.\n\n Finally, appellants challenge the district court’s\n\ndetermination that the Flow Control Ordinance does not violate\n\nthe Equal Protection Clause of the U.S. Constitution.\n\nAppellants argue that summary judgment is not appropriate\n\nbecause material issues of fact remain regarding whether they\n\nwere in fact treated like similarly situated businesses.\n\nSandlands and EDS allege the same factual disputes under the\n\nEqual Protection Clause that we rejected under the Dormant\n\nCommerce Clause. We reject them here as well.\n\n The Equal Protection Clause prohibits states from\n\n“deny[ing] to any person within its jurisdiction the equal\n\nprotection of the laws.” U.S. Const. amend. XIV, § 1. “To\n\nsucceed on an equal protection claim, a plaintiff must first\n\ndemonstrate that he has been treated differently from others\n\nwith whom he is similarly situated and that the unequal\n\ntreatment was the result of intentional or purposeful\n\ndiscrimination.” Morrison v. Garraghty, 239 F.3d 648, 654 (4th\n\nCir. 2001). If a plaintiff makes this initial showing, the\n\ncourt analyzes the disparity under an appropriate level of\n\nscrutiny. Id. However, we do not reach that level of analysis\n\nbecause Sandlands and EDS have failed to show that they have\n\n\n\n 19\n\fbeen intentionally treated differently from other similarly\n\nsituated companies. Summary judgment is therefore appropriate\n\non appellants’ Equal Protection Clause claim.\n\n\n\n III.\n\n For the foregoing reasons, the judgment of the district\n\ncourt is\n\n AFFIRMED.\n\n\n\n\n 20\n\f", "ocr": false, "opinion_id": 2644732 } ]

[ "953 N.E.2d 679" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": 7264, "opinion_text": "\n953 N.E.2d 679 (2011)\nKERVIN\nv.\nSTATE.\nNo. 79A04-1008-CR-474.\nCourt of Appeals of Indiana.\nSeptember 7, 2011.\nGARRARD, Sr.J.\nDisposition of Case by Unpublished Memorandum Decision Affirmed.\nNAJAM, J., concurs.\nBARNES, J., concurs.\n", "ocr": false, "opinion_id": 2524613 } ]

[ "206 F. App'x 928" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.ca11.uscourts.gov/unpub/ops/200610949.pdf", "author_id": null, "opinion_text": " [DO NOT PUBLISH]\n\n IN THE UNITED STATES COURT OF APPEALS\n\n FOR THE ELEVENTH CIRCUIT FILED\n U.S. COURT OF APPEALS\n ------------------------------------------- ELEVENTH CIRCUIT\n NOV 17, 2006\n No. 06-10949\n THOMAS K. KAHN\n Non-Argument Calendar\n CLERK\n --------------------------------------------\n\n D.C. Docket No. 05-00236-CR-CG\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\n versus\n\nHAROLD SCOTT BAKER,\n\n Defendant-Appellant.\n\n -------------------------------------\n Appeal from the United States District Court\n for the Southern District of Alabama\n --------------------------------------\n\n (November 17, 2006)\n\nBefore EDMONDSON, Chief Judge, DUBINA and HULL, Circuit Judges.\n\nPER CURIAM:\n\n Defendant-Appellant Harold Scott Baker appeals his conviction after a jury\n\ntrial for possession of firearms by an unlawful user of a controlled substance, 18\n\nU.S.C. § 922(g)(3). No reversible error has been shown; we affirm.\n\f During a search of Baker’s house, police officers discovered items including\n\neight firearms (some of which were loaded with ammunition), a marijuana pipe, a\n\nmarijuana grinder, rolling papers, scales, a small amount of marijuana, and\n\nmarijuana stems and seeds. Baker first argues that the district court erred in\n\ndenying his motion to suppress evidence seized by officers from his home. He\n\nasserts that he did not consent voluntarily to the search of his home because (1)\n\nofficers told him that they were not looking for “small stuff” and would be “on\n\ntheir way” if they did not find a methamphetamine lab or marijuana plants and (2)\n\nofficers threatened to obtain a search warrant if he did not consent to the search of\n\nhis home.\n\n We review a district court’s denial of a defendant’s motion to suppress\n\nunder a mixed standard of review, reviewing the district court’s findings of fact for\n\nclear error and its application of law to those facts de novo. See United States v.\n\nGil, 204 F.3d 1347, 1350 (11th Cir. 2000). And we construe the facts in the light\n\nmost favorable to the party prevailing in the district court, in this case the\n\ngovernment. United States v. Santa, 236 F.3d 662, 668 (11th Cir. 2000).\n\n A warrantless search may be conducted in the absence of probable cause or\n\nreasonable suspicion when voluntary consent is obtained. United States v. Blake,\n\n888 F.2d 795, 798 (11th Cir. 1989). “The question of voluntariness is one of fact\n\n 2\n\fto be determined from the totality of the circumstances, and the trial court’s\n\nvoluntariness determination must not be reversed on appeal unless clearly\n\nerroneous.” United States v. Ramirez-Chilel, 289 F.3d 744, 752 (11th Cir. 2002)\n\n(quotation and emphasis omitted). To determine whether consent was given\n\nvoluntarily, we consider (1) whether the defendant was free to leave; (2) whether\n\ncoercive police procedures were used; (3) the extent of the defendant’s\n\ncooperation or awareness of a right to refuse consent; (4) whether the defendant\n\ncould refuse to consent; (5) the extent of the defendant’s education and\n\nintelligence; and (6) the defendant’s belief that no incriminating evidence would\n\nbe found. Id.\n\n After a careful review of the record, we conclude that the district court did\n\nnot clearly err in determining that Baker’s consent to search his home was\n\nvoluntary.1 Baker consented to the search of his home under non-threatening\n\ncircumstances and after consulting with his wife. He was not detained by the\n\npolice when he consented to the search. Baker provided verbal consent to officers\n\nmore than once; and he also signed a consent form. We are not persuaded by\n\nBaker’s argument that officers misled him into consenting to the search based on\n\n\n\n 1\n To the extent that Baker argues that officers lacked authority to approach his house and ask him\nfor consent to enter, we determine that this argument is without merit.\n\n 3\n\fhis belief that officers would arrest him only if they discovered marijuana plants or\n\na methamphetamine operation because they were not looking for “small stuff.”2\n\nAnd Baker’s consent to search was not vitiated because officers told him that they\n\ncould attempt to obtain a search warrant if he did not consent to the search.3 See\n\nUnited States v. Garcia, 890 F.2d 355, 361 (11th Cir. 1989) (concluding that\n\nconsent was given voluntarily when officers told defendant that if he refused to\n\nconsent to a full search, the officers would attempt to obtain a warrant).\n\nTherefore, we affirm the denial of Baker’s motion to suppress evidence.\n\n Section 922(g)(3) provides that “[i]t shall be unlawful for any person . . .\n\nwho is an unlawful user of or addicted to any controlled substance . . . to possess\n\nin or affecting commerce . . . any firearm.” Baker contends that the evidence\n\npresented at trial was insufficient to prove that he was an “unlawful user” of a\n\ncontrolled substance under section 922(g)(3) because no evidence was presented\n\nthat he was using marijuana in an ongoing manner.\n\n 2\n Indeed the discovery of marijuana, drug paraphernalia, and several weapons, some of which were\nloaded with ammunition, would not reasonably be considered insignificant.\n 3\n At the suppression hearing, Officer Patrick Donnelly testified that, after Baker pointed out a bag\nin his house containing marijuana, Officer Donnelly told Baker that Officer Donnelly could go to\na judge and attempt to obtain a search warrant. Officer Benjamin Burke, who also participated in\nthe search of Baker’s house, testified that officers told Baker that they could go talk to a judge about\nobtaining a search warrant. But Baker’s wife testified that officers told Baker that, if he did not\nconsent to a search, the officers would obtain a search warrant. Because we must consider the facts\nin the light most favorable to the government, see Santa, 236 F.3d at 668, we have relied on the\nofficers’ testimony in this instance.\n\n 4\n\f We review challenges to the sufficiency of the evidence de novo, resolving\n\nall reasonable inferences from the evidence in favor of the jury’s verdict. See\n\nUnited States v. Rudisill, 187 F.3d 1260, 1267 (11th Cir. 1999). We must affirm\n\nBaker’s conviction “unless, under no reasonable construction of the evidence,\n\ncould the jury have found [him] guilty beyond a reasonable doubt.” United States\n\nv. Garcia, 405 F.3d 1260, 1269 (11th Cir. 2005).\n\n Here, sufficient evidence was presented at Baker’s trial that he was an\n\nunlawful user of marijuana contemporaneously with his possession of firearms.4\n\nAt Baker’s home, officers discovered marijuana, marijuana seeds and stems,\n\nseveral items of drug paraphernalia -- including pipes, rolling papers, scales, and a\n\ngrinder -- and many firearms. During Baker’s trial, Investigator Clint Cadenhead\n\ntestified that the quantity of marijuana seeds and stems discovered at Baker’s\n\nhouse probably would yield over 100 marijuana cigarettes. Baker admitted to\n\nofficers during the search of his house that he used marijuana to self-medicate; and\n\n\n\n 4\n In reviewing challenges to sentencing enhancements under U.S.S.G. § 2K2.1, which provides,\namong other things, for an enhanced offense level if a defendant was a “prohibited person,” we have\nexplained -- using language from section 922(g)(3) -- that a “prohibited person” includes a person\n“who is an unlawful user of or addicted to any controlled substance.” United States v. Edmonds, 348\nF.3d 950, 953 (11th Cir. 2003). An unlawful user of marijuana includes a person whose marijuana\nuse was “regular, ongoing, and contemporaneous with his firearm possession.” Id. at 953-54; see\nalso United States v. Augustin, 376 F.3d 135, 138-39 (3d Cir. 2004) (defining “unlawful user”\npursuant to section 922(g)(3) as a regular user of a controlled substance for time “proximate to or\ncontemporaneous with the possession of a firearm”).\n\n 5\n\fhe told federal agent Robert Tolbert that he had been smoking marijuana around\n\nthe time that officers searched his home. In addition, Baker’s wife testified that\n\nBaker smoked marijuana because of stress resulting from a friend’s death that\n\noccurred just months before the search of his house. We conclude that Baker’s\n\nconviction was supported by sufficient evidence.\n\n Baker next asserts that 18 U.S.C. § 922(g)(3) is unconstitutionally vague as\n\napplied to him because the statute failed to put him on notice that the manner and\n\nextent to which he used marijuana qualified him as an “unlawful user.” We\n\nreview de novo whether a statute is unconstitutionally vague. See United States v.\n\nBiro, 143 F.3d 1421, 1426 (11th Cir. 1998). “[T]he void-for-vagueness doctrine\n\nrequires that a penal statute define the criminal offense with sufficient definiteness\n\nthat ordinary people can understand what conduct is prohibited and in a manner\n\nthat does not encourage arbitrary and discriminatory enforcement.” Kolender v.\n\nLawson, 103 S.Ct. 1855, 1858 (1983).\n\n As we have discussed, the evidence in this case -- which indicated that\n\nBaker used marijuana on an ongoing basis, including around the time of the search\n\nof his home, and possessed several firearms -- was sufficient to sustain Baker’s\n\nconviction. We reject Baker’s contention that he was not on notice that his\n\nmarijuana use and firearms possession violated section 922(g)(3).\n\n AFFIRMED.\n\n 6\n\f", "ocr": false, "opinion_id": 44873 } ]

[ "92 F.3d 1199" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/92/92.F3d.1199.95-4453.html", "author_id": null, "opinion_text": "92 F.3d 1199\n U.S.v.Grisales-Duque*\n NO. 95-4453\n United States Court of Appeals,Eleventh Circuit.\n July 16, 1996\n \n 1\n Appeal From: S.D.Fla., No. 94-00502-CR-JLK\n \n \n 2\n AFFIRMED.\n \n \n \n *\n Fed.R.App.P. 34(a); 11th Cir.R. 34-3\n \n \n ", "ocr": false, "opinion_id": 724691 } ]

[ "336 F.3d 1293" ]

[ { "author_str": "Black", "per_curiam": false, "type": "010combined", "page_count": 10, "download_url": "http://www.ca11.uscourts.gov/opinions/ops/200213686.pdf", "author_id": null, "opinion_text": "336 F.3d 1293\n UNITED STATES of America, Plaintiff-Appellee,v.Herschel Lavon ROBINSON, Defendant-Appellant.\n No. 02-13686.\n United States Court of Appeals, Eleventh Circuit.\n July 9, 2003.\n \n Frank Louderback, Louderback & Helinger, St. Petersburg, FL, for Robinson.\n Yvette Rhodes Harrison, Tampa, FL, Susan Humes Raab, Jacksonville, FL, for U.S.\n Appeal from the United States District Court for the Middle District of Florida.\n Before DUBINA, BLACK and HULL, Circuit Judges.\n BLACK, Circuit Judge:\n \n \n 1\n Defendant-Appellant Herschel Lavon Robinson appeals his conviction for possession with intent to distribute 500 grams or more of cocaine. Robinson contends the district court erred in denying his motion to suppress evidence recovered from a search of his residence with a warrant issued without probable cause. We conclude, however, that the district court did not err in denying the motion to suppress, because evidence from the search warrant was properly admitted pursuant to the \"good faith\" exception to the exclusionary rule. Therefore, we affirm.1\n \n I.\n \n 2\n A federal grand jury returned an indictment charging Robinson with one count of conspiracy to manufacture 50 grams or more of cocaine base and to possess with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii)(II), and 846; and one count of possession with intent to distribute 500 grams or more of cocaine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(ii)(II), and 18 U.S.C. § 2.\n \n \n 3\n Prior to trial, Robinson filed a motion to suppress evidence recovered during a search of his residence that resulted in the charged offenses. Robinson argued the affidavit filed in support of the warrant for the search did not establish probable cause for its issuance because the affidavit contained stale information. He also contended this information was neither updated nor substantiated by evidence retrieved from more recent \"trash pulls\" from a multi-family trash receptacle.\n \n \n 4\n St. Petersburg Police Detective Paul Cooke declared in his affidavit that, on November 7, 2000, a confidential source (CS) informed him the CS had observed Robinson cooking, packaging, and distributing powder cocaine in Robinson's residence. The affidavit also stated that, on March 12, 2000, Detective Fred Busch of the Pinellas County Sheriff's Office debriefed a different CS, who also stated Robinson was known to cook cocaine in his residence, was a \"big source of supply for crack cocaine,\" and was \"known to have up to kilo quantities at a time.\" Detective Cooke declared he independently verified this information and he discovered Robinson had several prior convictions for the sale and possession of cocaine. Detective Cooke further declared that, on January 11 and January 25, 2001, he conducted two \"trash pulls\" from a multi-family trash receptacle located on the public right-of-way at the rear of Robinson's residence, and recovered mail addressed to Robinson, latex gloves, and a large ziplock baggie with a \"white powdery substance.\" Detective Cooke stated in his affidavit that the gloves and baggie, which he delivered to the Pinellas County Forensic Laboratory, tested positive for trace amounts of cocaine.\n \n \n 5\n The district court conducted a hearing at which Robinson argued the affidavit supporting the search warrant, issued by a Florida Circuit Court on January 29, 2001, did not support a finding of probable cause. Robinson also argued that the good faith exception set forth in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), was not applicable because Detective Cooke had been a member of the search team and should have recognized that his affidavit was so lacking in indicia of probable cause as to make his belief in the existence of probable cause unreasonable. Robinson asserted the district court could only look at the \"four corners of the affidavit.\"\n \n \n 6\n The Government responded the warrant was supported by probable cause, or, in the alternative, Detective Cooke reasonably relied in good faith on the issuance of the warrant in conducting the search. The Government also informed the district court that, if it wished to hear evidence outside of the \"four corners of the affidavit,\" Detective Cooke was in the courtroom and could testify that during both trash pulls, he retrieved evidence from individual trash bags containing items indicating the trash had come from Robinson's residence.\n \n \n 7\n The district court denied the motion to suppress. It determined the affidavit was insufficient to establish probable cause because: (1) the information provided in March and November 2000 was stale; (2) Detective Cooke failed to show how he independently verified the information; and (3) the trash pulls in January 2001 were conducted from a multi-family trash receptacle. The district court went on to conclude, however, that Detective Cooke's reliance on the issuance of the warrant was objectively reasonable because his affidavit was not so lacking in indicia of probable cause that it would render his belief in its existence unreasonable. The case proceeded to trial and the jury found Robinson guilty of possession with intent to distribute 500 or more grams of cocaine.2\n \n II.\n \n 8\n Robinson contends on appeal the district court erred in concluding, pursuant to the good faith exception in Leon, that Detective Cooke's execution of a search warrant issued without probable cause was objectively reasonable.3 We review de novo whether the Leon good faith exception to the exclusionary rule applies to a search, but \"the underlying facts upon which that determination is based are binding on appeal unless clearly erroneous.\" United States v. Martin, 297 F.3d 1308, 1312 (11th Cir.), cert. denied, 537 U.S. 1076, 123 S.Ct. 667, 154 L.Ed.2d 574 (2002) (quotation and citation omitted).\n \n \n 9\n The Supreme Court's decision in Leon \"stands for the principle that courts generally should not render inadmissible evidence obtained by police officers acting in reasonable reliance upon a search warrant that is ultimately found to be unsupported by probable cause.\" Id. at 1313.4 Under this good faith exception to the exclusionary rule, suppression is necessary \"only if the officers were dishonest or reckless in preparing their affidavit or could not have harbored an objectively reasonable belief in the existence of probable cause.\" Id. (quotation and citation omitted).\n \n \n 10\n Under Leon, \"searches pursuant to a warrant will rarely require any deep inquiry into reasonableness, for a warrant issued by a magistrate normally suffices to establish that a law enforcement officer has acted in good faith in conducting the search.\" Leon, 468 U.S. at 922, 104 S.Ct. at 3420 (quotation and citation omitted). Nevertheless, \"it is clear that in some circumstances the officer will have no reasonable grounds for believing that the warrant was properly issued.\" Id. at 922-23, 104 S.Ct. at 3420. Leon's good faith exception, therefore, does not apply to the following situations: (1) where the magistrate or judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard of the truth; (2) where the issuing magistrate wholly abandoned his judicial role; (3) where the affidavit supporting the warrant is so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable; and (4) where, depending upon the circumstances of the particular case, a warrant is so facially deficient — i.e., in failing to particularize the place to be searched or the things to be seized — that the executing officers cannot reasonably presume it to be valid. Martin, 297 F.3d at 1313.\n \n A.\n \n 11\n Robinson argued in the district court the good faith exception did not apply based on the third situation, i.e., Detective Cooke's affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable.5 In Martin, we indicated that, in order to determine whether an affidavit lacked sufficient indicia of probable cause, we must look only at the face of the affidavit. See id.\n \n \n 12\n Here, the affidavit included: (1) statements from two different confidential sources indicating Robinson had cocaine at his residence that he was \"cooking,\" packaging, and distributing; (2) Detective Cooke had independently verified this information; and (3) Detective Cooke had discovered Robinson had several prior convictions for the sale and possession of cocaine. The affidavit also provided that Detective Cooke conducted two trash pulls from a multi-family trash receptacle in January 2001 and recovered mail addressed to Robinson, as well as latex gloves and a ziplock baggie containing trace amounts of cocaine. Notwithstanding the district court's determination that these facts did not support a finding of probable cause, we cannot conclude the affidavit was so lacking in indicia of probable cause as to render official belief in its existence entirely unreasonable. Therefore, the third situation enumerated in Leon does not apply.\n \n B.\n \n 13\n Robinson also argues that, even if none of the four situations enumerated in Leon applies, the Government nevertheless failed to carry its burden in demonstrating the applicability of the good faith exception. Relying on our opinion in Martin, which was issued subsequent to the district court's denial of Robinson's motion to suppress, he contends the Government must present evidence beyond the four corners of the affidavit to demonstrate that Detective Cooke reasonably relied on the search warrant. According to Robinson, the Government failed to satisfy that burden in this case. But neither Martin nor any other relevant precedent of which we are aware supports Robinson's argument.\n \n \n 14\n The question posed in Martin was \"whether the court, in deciding whether the execution of the search warrant was reasonable, may consider information known to [the officer] that was not presented in the initial search warrant application or affidavit.\" Id. at 1318 (emphasis added). Martin held the court \"can look beyond the four corners of the affidavit\" to answer that question. Id. (emphasis added). Martin did not hold, however, that the court must consider evidence beyond the four corners of the affidavit in order to find good faith reliance.6 And although we have indicated the Government bears the burden of demonstrating the applicability of the Leon good faith exception, see United States v. Travers, 233 F.3d 1327, 1331 n. 2 (11th Cir.2000), we discern no reason why that burden cannot be met by reference to facts stated within the affidavit. That the Government did not present extrinsic evidence of Detective Cooke's good faith in this case does not itself vitiate a finding of good faith reliance on the warrant.7\n \n \n 15\n We conclude the information in Detective Cooke's affidavit supported a finding of good faith reliance on the warrant. Detective Cooke relied on information from two confidential sources and independently corroborated that Robinson was involved in drug activities. Moreover, there is nothing in the record to suggest Detective Cooke's reliance on the warrant was objectively unreasonable. Assuming such evidence existed, Robinson would have been free to present it, but he did not. Therefore, the district court did not err in concluding the Leon good faith exception was applicable and in denying Robinson's motion to suppress.\n \n \n 16\n AFFIRMED.\n \n \n \n Notes:\n \n \n 1\n Robinson also asserts on appeal that the district court erred in admitting evidence of prior searches of Robinson's residence pursuant to Fed.R.Evid. 404(b). We have considered Robinson's argument and affirm on this issue without further discussionSee 11th Cir. R. 36-1.\n \n \n 2\n The jury was unable to reach a verdict on the conspiracy count\n \n \n 3\n We conclude evidence from the search was properly admitted under theLeon good faith exception, and we therefore do not decide whether the district court erred in finding no probable cause. See Leon, 468 U.S. at 905, 104 S.Ct. at 3411.\n \n \n 4\n Under the exclusionary rule, evidence seized as a result of an illegal search generally may not be used by the government in a subsequent criminal prosecutionSee Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652 (1914).\n \n \n 5\n Robinson has not argued any of the other three situations enumerated inLeon applies in this case.\n \n \n 6\n The closestMartin comes to supporting Robinson's argument is a statement observing that a previous decision of this Court, United States v. Taxacher, 902 F.2d 867 (11th Cir.1990), \"suggests that facts outside the affidavit should be considered.\" Martin, 297 F.3d at 1319 (citing Taxacher, 902 F.2d at 873). Although this Court in Taxacher reviewed \"all the circumstances\" relevant to good faith — including those not referenced in a police officer's affidavit — before concluding the good faith exception applied, Taxacher, 902 F.2d at 873, Taxacher did not hold the government must present extrinsic evidence of an officer's good faith. Martin and Taxacher simply instruct that facts outside the affidavit may be considered when presented by either the government or the defendant, and the court should consider those facts when presented with them. But this is a different proposition than stating facts outside the affidavit must be presented.\n \n \n 7\n It appears the Government could have presented such evidence in this case, in that Detective Cooke was apparently prepared to testify at the suppression hearing that drug paraphernalia recovered during the trash pulls were found in the same garbage bags as mail addressed to Robinson. But Robinson's counsel argued during the suppression hearing that the district court was confined to looking within the four corners of the affidavit. In any event, we reiterate that the Government was entitled to present this evidence just as Robinson was entitled to present any evidence — assuming such evidence existed — tending to show Detective Cooke's reliance on the affidavit was unreasonable\n \n \n ", "ocr": false, "opinion_id": 76260 } ]

[ "819 F.2d 1147" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/819/819.F2d.1147.85-3917.html", "author_id": null, "opinion_text": "819 F.2d 1147\n U.S.v.Trohimovich\n 85-3917\n United States Court of Appeals,Ninth Circuit.\n 6/8/87\n \n 1\n W.D.Wash.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 489241 } ]

[ "22 A.3d 1082" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n22 A.3d 1082 (2010)\nCOM.\nv.\nGIACOMI.\nNo. 564 MDA 2010.\nSuperior Court of Pennsylvania.\nNovember 30, 2010.\nVacated and Remanded.\n", "ocr": false, "opinion_id": 2423921 } ]

[ "2012 Ohio 3868", "133 Ohio St. 3d 1" ]

[ { "author_str": "Per Curiam", "per_curiam": true, "type": "010combined", "page_count": 24, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/0/2012/2012-ohio-3868.pdf", "author_id": null, "opinion_text": "[Cite as Cincinnati Bar Assn. v. Sigalov, 133 Ohio St. 3d 1, 2012-Ohio-3868.]\n\n\n\n\n CINCINNATI BAR ASSOCIATION v. SIGALOV.\n [Cite as Cincinnati Bar Assn. v. Sigalov, 133 Ohio St. 3d 1, 2012-Ohio-3868.]\nAttorneys—Misconduct—Multiple violations of Code of Professional\n Responsibility and Rules of Professional Conduct—Neglect,\n incompetence, misrepresentation, and causing damage to clients—\n Disbarment.\n (No. 2011-0120—Submitted April 19, 2011—Decided August 28, 2012.)\n ON CERTIFIED REPORT by the Board of Commissioners on Grievances and\n Discipline of the Supreme Court, No. 11-120.\n __________________\n Per Curiam.\n {¶ 1} Respondent, Vlad Sigalov of Cincinnati, Ohio, Attorney\nRegistration No. 0070625, was admitted to the practice of law in Ohio in 1999.\n {¶ 2} Sigalov is a sole practitioner engaged in a practice centering on\npersonal-injury, immigration, and criminal cases. He accepts approximately\n1,000 individual claims per year, and as recently as 2009, earned more than $2.5\nmillion in gross settlement revenues and approximately $800,000 in fees.\n {¶ 3} Relator, Cincinnati Bar Association, filed a second amended\ncomplaint1 with the Board of Commissioners on Grievances and Discipline,\nsetting forth seven counts of misconduct. The seven counts alleged that Sigalov\nviolated the Rules of Professional Conduct and the Code of Professional\nResponsibility in the course of representing five clients in personal-injury matters\nand three clients in immigration cases.\n\n\n\n\n1. The first complaint set forth three counts, but as the scope of Sigalov’s misconduct became\nclear, amended complaints were filed. The amended complaint set forth five counts. The second\namended complaint, which is at issue here, set forth seven counts.\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 4} A panel of the board conducted several hearings on the complaint.\nThe hearings included the testimony of Sigalov, the complainants, and relator’s\nexpert witness on immigration law, Douglas Weigle.\n {¶ 5} Although certain allegations of misconduct were dismissed, the\npanel and board found by clear and convincing evidence that Sigalov had\ncommitted numerous disciplinary violations in the course of representing several\nclients. Specifically, the panel and board concluded that he had violated\nProf.Cond.R. 1.1 (requiring an attorney to provide competent representation to a\nclient), 1.2(a) (requiring a lawyer to abide by the client’s decisions concerning the\nobjectives of the representation and consult with the client as to the means by\nwhich the objectives are pursued), 1.3 (requiring an attorney to act with\nreasonable diligence), 1.4(a)(1) (requiring a lawyer to promptly inform a client of\nany decision or circumstance with respect to which the client’s consent is\nrequired), 1.5(a) (requiring a lawyer not to make an agreement for, or to collect,\nan illegal or clearly excessive fee), 1.5(c)(2) (requiring a lawyer entitled to a\ncontingency fee to provide a closing statement to the client at the time of or prior\nto receipt of that fee), 1.15(b) (prohibiting a lawyer from depositing the lawyer’s\nown funds in a client trust account except to obtain a waiver of a bank service\ncharge), 1.16(a)(3) (requiring a lawyer not to represent a client after the lawyer\nhas been discharged), and 8.4(c) (requiring a lawyer not to engage in conduct\ninvolving dishonesty, fraud, deceit, or misrepresentation), and DR 1-102(A)(4)\n(prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation), 6-\n101(A)(3) (prohibiting neglect of an entrusted legal matter), 7-101(A)(1)\n(prohibiting a lawyer from intentionally failing to seek the lawful objectives of his\nclient), 7-101(A)(2) (prohibiting a lawyer from intentionally failing to carry out a\ncontract of employment for legal services), and 7-101(A)(3) (prohibiting a lawyer\nfrom damaging or prejudicing a client during representation).\n {¶ 6} In light of the number and seriousness of the violations, the panel\nand board recommended that Sigalov be disbarred. For the reasons that follow,\n\n\n 2\n\f January Term, 2012\n\n\n\n\nwe adopt the board’s findings of fact, conclusions of law, and recommended\nsanction.\n Misconduct\n Count I\n {¶ 7} In April 2007, one of respondent’s employees, who was not\nlicensed to practice law, met with a man who was receiving treatment at a\nchiropractic clinic for injuries sustained in a motor-vehicle accident. The client\nsigned a written contingency-fee agreement stating that Sigalov would represent\nthe client in a claim for damages sustained as a result of the accident in exchange\nfor 24 percent of any amount Sigalov recovered. The client claimed that he had\nnever received a copy of the agreement.\n {¶ 8} Sigalov did not personally meet the client at any point during the\nrepresentation. He made a settlement demand of $21,500, which the client did not\nauthorize. The demand included nearly $4,000 for medical expenses, but did not\ninclude a claim for lost wages, even though Sigalov’s records clearly showed that\nthe client had missed work due to his injuries.\n {¶ 9} Sigalov settled the claim for $8,200. He paid himself $2,658, a\nfigure that represents more than 32 percent of the settlement and $690 more than\nthe 24 percent to which he was entitled under the fee agreement.\n {¶ 10} Sigalov testified that the client had given him oral authorization to\nsign the client’s name to the settlement check. But the client denied having\napproved the settlement. A schedule of expenses and deductions that Sigalov\nclaims was approved by the client contains only the initials “OS” on the signature\nline, which are not the client’s initials.\n {¶ 11} Sigalov issued the client a check for $2,884 after paying himself\nand the chiropractic clinic $2,658 each. Sigalov, however, did not pay the\nmedical expenses that the client had incurred in seeking treatment for his injuries.\nAs a result, the client was responsible for those bills.\n\n\n\n 3\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 12} The client refused to cash the settlement check. He retained new\ncounsel, who was able to reopen the settlement and obtain an additional $3,800\nfrom the insurer. New counsel requested that Sigalov return the excess fees\ncollected from the client. Sigalov testified that he did so, but new counsel never\nreceived that check. The client died before receiving any benefits from the\nsettlement.\n {¶ 13} The panel found by clear and convincing evidence that Sigalov’s\nmisconduct in Count I violated Prof.Cond.R. 1.2(a), 1.4(a), and 1.5. The panel\nnoted that it would have also found a violation of Prof.Cond.R. 1.5(a) had Sigalov\nbeen provided with notice in the complaint of that charge.\n Count II\n {¶ 14} The allegations in the second count arise from Sigalov’s\nrepresentation of a client who is a citizen of the Republic of Uzbekistan. The\nclient wanted to obtain legal status to remain in the United States after she\nmarried an American citizen.\n {¶ 15} Because the client’s notice of her change of address was not\nreceived by proper immigration authorities, the client missed a mandatory status\nhearing that had been set for December 7, 2006. In May 2007, the client was\narrested and detained, and an order of removal from the United States was issued\nbased on her failure to appear at the December hearing. The client’s husband\nretained Sigalov on May 7, 2007, to obtain her release by filing a motion to\nreopen.\n {¶ 16} The motion to reopen was vital because it serves as an automatic\nstay of the deportation order and ensures that the client was not kept in\nconfinement and deported. Sigalov accepted a $500 retainer fee and secured the\nclient’s release by advising the immigration authorities that he represented her.\n {¶ 17} On May 9, 2007, Sigalov mailed a document purporting to be a\nmotion to reopen to the immigration court. The “motion,” however, was fatally\ndefective. Consisting of only three sentences, the motion failed to include certain\n\n\n 4\n\f January Term, 2012\n\n\n\n\nessential elements, such as an affidavit from the client attesting that she had not\nattended the hearing because she had not received notice. As the panel explained:\n\n\n To call Sigalov’s Motion to Reopen “bare bones” is to give it too\n much credit. The motion contained no meaningful statement of\n facts, background, or procedural history. The motion contained no\n legal analysis or research. It did not discuss the necessary legal\n issues in order to obtain the reopening of the case. Further, the\n Motion to Reopen did not contain any of the necessary affidavits\n or exhibits to support it. Finally, Sigalov’s motion was\n procedurally defective for several reasons, including no proof of\n service on the adverse party.\n\n\n {¶ 18} The immigration court refused to accept the motion because it did\nnot comply with local rules of the court. In fact, the immigration court cited\nseveral rules that were not followed, including the rule requiring service of the\nmotion on the opposing party, the Department of Homeland Security (“DHS”).\n {¶ 19} Sigalov testified before the panel in this case that he knew that the\nmotion to reopen had to include an explanation for his client’s failure to appear at\nthe status hearing, evidence such as affidavits, and a legal argument. He also\nadmitted that he was unsure whether he had ever reviewed his client’s\nimmigration file, which was available to him. Thus, the panel concluded that\nSigalov had either intentionally ignored the requirements for the motion or had\nlied to the panel when he said he knew what the requirements were when he filed\nthe motion.\n {¶ 20} In any event, upon the court’s refusal to accept the motion, Sigalov\ndid not act appropriately. Despite the need for a timely refiling, he neither\naddressed the deficiencies in the motion nor informed the client that the motion\nhad been rejected. In fact, when questioned by the client several times about the\n\n\n 5\n\f SUPREME COURT OF OHIO\n\n\n\n\nmotion between May and August 2007, Sigalov falsely informed the client that\nthe motion had been filed and was pending.\n {¶ 21} The client grew increasingly concerned about Sigalov’s candor and\ncontacted another immigration attorney. That lawyer checked with the\nimmigration court, learned that no motion was pending, and informed the client of\nthat information. The client immediately contacted Sigalov, who only then\nacknowledged that the motion had been rejected. But he falsely claimed that\nanother motion had been filed and thereafter misrepresented to the client that he\nhad checked on the motion at the court and that it was pending. The client\nterminated Sigalov’s representation.\n {¶ 22} Despite having been informed by his client that she was seeking\nand retaining new counsel, Sigalov mailed a second motion to reopen to the\nimmigration court, which received it on September 6, 2007. The second motion\nwas almost identical to the rejected motion, including the failure to properly serve\ncounsel for DHS. The motion was again returned to Sigalov without being filed\nby the court.\n {¶ 23} About ten days later, the client retained new counsel. New counsel\ninformed Sigalov in writing that she had been retained and requested a copy of the\ncomplete case file. Sigalov complied with new counsel’s request on September\n19, 2007, but nevertheless, a week later, he mailed a third motion to reopen to the\nimmigration court. Neither the client nor her new attorney was aware of the\nfiling.\n {¶ 24} Unfortunately for the client, even though this motion was as\ndeficient as the two prior motions to reopen, the court accepted it for filing. In\nless than two weeks, the immigration court ruled on the motion. The\nmemorandum order summarily stated: “Since [the client’s] motion to reopen\ncontains no evidentiary support beyond her attorney’s assertions, the Court is\nprecluded from addressing its merits.” Accordingly, the immigration court denied\nthe client’s motion to reopen.\n\n\n 6\n\f January Term, 2012\n\n\n\n\n {¶ 25} The Code of Federal Regulations states that a party may file only\none motion to reopen. 8 C.F.R. 1003.23(b)(1). Thus, when the client’s new\nattorney attempted to file a proper motion to reopen, it was denied. Within days,\nthe client was detained by immigration officials. Only through the extraordinary\nefforts of new counsel was this matter favorably resolved with the release of the\nclient from detention.\n {¶ 26} The panel found by clear and convincing evidence that Sigalov had\nviolated Prof.Cond.R. 1.1, 1.3, 1.16(a)(3), and 8.4(c).\n Count III\n {¶ 27} Count III of the complaint requires a more complicated analysis\nthan the other counts.\n {¶ 28} The panel found that Sigalov had violated Prof.Cond.R. 8.4(c) in\ntwo ways: by telling relator and the panel that he had notified the client of the new\nhearing when he had not and by telling the client that he had not received notice\nof the hearing when in fact he had. Sigalov argues that these findings are fatally\ntainted by the panel’s improper granting of relator’s motion to recall him as a\nwitness after relator had rested its case, which he contends violated his procedural\ndue process rights. We need not reach the constitutional issue, however, insofar\nas it relates to his misconduct toward his client, because even without the\nevidence obtained on recall, the record contains clear and convincing evidence of\nSigalov’s dishonesty with his client, which is more than sufficient to support the\npanel’s finding on this count. As we shall see, however, the matter is more\ncomplicated as it relates to Sigalov’s misconduct toward the panel.\n Sigalov’s Misconduct with the Client\n {¶ 29} The third count arises from an immigration matter in which\nSigalov was retained by a client in August 2006. The client, who spoke little\nEnglish and communicated with Sigalov in Russian, sought assistance with his\nasylum claims in the immigration court in Arlington, Virginia. On August 18,\n\n\n\n 7\n\f SUPREME COURT OF OHIO\n\n\n\n\n2006, Sigalov filed a notice of appearance with the immigration court, and from\nthat point onward, the court notified only Sigalov of the client’s hearings.\n {¶ 30} On March 27, 2007, Sigalov and the client appeared for a master\nhearing at the immigration court in Cincinnati, which had video conferencing with\nthe immigration court in Virginia. Because the video equipment was not\nfunctioning properly, however, the hearing did not take place on that date.\n {¶ 31} A new hearing date was set for June 26, 2007, but notice of the\nnew date was sent to Sigalov only. Although Sigalov testified that his practice\nwas to notify clients of all court dates by letter, the client in this case never\nreceived a letter from Sigalov with the June 26 date. And although Sigalov\nproduced a copy of a letter, dated June 12, 2007, that he claims was sent to the\nclient, relator contends that the letter is a fabrication.\n {¶ 32} When Sigalov was recalled as a witness, relator presented evidence\nthat the letterhead on Sigalov’s copy was in a style that had not been produced by\nhis printing company until August 13, 2007, two months after the date on the\nletter. When Sigalov offered no evidence in response, relator concluded that the\nletter was a fabrication designed to cover up Sigalov’s failure to notify the client\nof the new hearing date.\n {¶ 33} The client’s lack of notice of the hearing date is significant.\nBecause the client was not informed of the date, he did not appear. Instead,\nSigalov appeared at the hearing alone, did not seek a continuance, informed the\njudge that the client was likely at home, and claimed that he had “no excuse” for\nhis client’s absence. Due to the client’s failure to appear, the immigration court\nordered that the client be detained and removed from the United States. The court\nsent notice to Sigalov, stating that the decision was final unless a motion to\nreopen was filed.\n {¶ 34} The day after the hearing, the client learned that the hearing had\nalready taken place. When the client called Sigalov, Sigalov told him that he\nwould file an appeal. Sigalov’s promise to appeal was inappropriate because the\n\n\n 8\n\f January Term, 2012\n\n\n\n\nnotice from the court clearly stated that a motion to reopen was the proper\nmechanism to avoid detention and deportation. In any event, no timely appeal or\nmotion to reopen was filed.\n {¶ 35} It was not until eight months later that Sigalov filed what he\npurported to be an appeal. The substance of the “appeal,” however, was two\nsentences stating merely that the client “did not receive notice of the master\nhearing[.] He did appear at all other scheduled hearings.” No evidence or legal\nargument was included.\n {¶ 36} Federal agents from Immigration and Customs Enforcement\n(“ICE”) went to the client’s home in January 2008, demanding to see his\ndocuments. The agents then escorted him to an immigration building in\nColumbus, fingerprinted and photographed him, gave him an additional 30 days\nto file a motion to reopen, and instructed him to return to the ICE office on March\n3.\n {¶ 37} The client immediately contacted Sigalov, who had him sign some\nnew papers, which the client believed were for an appeal. Sigalov promised to\nappear at the immigration building in Columbus on March 3. When the client\nreturned to the ICE office on that date, Sigalov did not appear, no motion to\nreopen had been filed, and the client was arrested immediately. The client spent\nthe next five and a half months in detention.\n {¶ 38} After being incarcerated, the client retained another lawyer. That\nattorney had to secure dismissal of the appeal, which had deprived the\nimmigration court of jurisdiction, so that a motion to reopen could be filed.\n {¶ 39} The panel found by clear and convincing evidence that Sigalov had\nviolated Prof.Cond.R. 1.1, 1.2(a), 1.3, 1.4(a), and 8.4(c). The panel explained that\nthe finding of a violation of Prof.Cond.R. 8.4(c) was based on misconduct other\nthan the fabrication of the June 12 letter, which was not charged as misconduct in\nthe complaint. The panel did conclude, however, without finding a violation, that\nthe June 12 letter was a fabrication by Sigalov to conceal his failure to notify the\n\n\n 9\n\f SUPREME COURT OF OHIO\n\n\n\n\nclient of the new hearing date and relied on that fact in considering aggravation.\nThe finding that Sigalov had violated Prof.Cond.R. 8.4(c) was based on the fact\nthat Sigalov had told the client that he had not received notice of the hearing date\nwhen in fact he had and that he had told relator and the panel that he had notified\nthe client of the hearing when he had not.\n Sigalov’s Misconduct with the Panel\n and His Due Process Claim\n {¶ 40} As noted above, the panel declined to find that Sigalov’s\nfabrication of the letter violated Prof.Cond.R. 8.4(c) on the basis that the\ncomplaint had not provided notice of such a violation. But in recommending a\nsanction, the panel cited fabrication of evidence as a “significant” aggravating\nfactor that “greatly exacerbate[s]” Sigalov’s conduct. Sigalov contends that the\npanel’s reliance on evidence of fabrication, which was introduced upon reopening\nafter relator had rested its case, denied him his due process rights. Relator\ncounters that it was proper to use that evidence to assess Sigalov’s credibility and\nto determine the appropriate sanction.\n {¶ 41} In considering Sigalov’s claims, we begin with the law.\n {¶ 42} In any disbarment proceeding, an attorney accused of misconduct\nis “entitled to procedural due process, which includes fair notice of the charge.”\nIn re Ruffalo, 390 U.S. 544, 550, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (1968), citing In\nre Oliver, 333 U.S. 257, 273, 68 S. Ct. 499, 92 L. Ed. 682 (1948). “The charge\nmust be known before the proceedings commence. They become a trap when,\nafter they are underway, the charges are amended on the basis of testimony of the\naccused. He can then be given no opportunity to expunge the earlier statements\nand start afresh.” Ruffalo at 551. The “absence of fair notice as to the reach of the\ngrievance procedure and the precise nature of the charges deprive[d] [the attorney\nfacing discipline] of procedural due process.” Id. at 552.\n {¶ 43} Sigalov contends that the panel’s consideration of the letter\nviolated due process because the complaint gave no notice that the letter’s\n\n\n 10\n\f January Term, 2012\n\n\n\n\nauthenticity was at issue. We reject this broad proposition insofar as it is directed\ntoward the portion of Count III that arises from Sigalov’s misconduct with the\nclient, but we agree with Sigalov to the extent that it is aimed at the allegations\narising from Sigalov’s misconduct before the panel.\n {¶ 44} Procedural due process requires only notice of the charges before\nthe proceedings commence and an opportunity to be heard. It does not require\nthat an attorney charged with misconduct be given notice, prior to presenting false\nevidence, that if he does present such false evidence, additional evidence will be\nsubmitted to the panel to impeach him.\n {¶ 45} Moreover, Sigalov was clearly on notice that his failure to inform\nthe client of the rescheduled hearing date was at issue in this case from the\nallegations set forth in the original complaint, which he received in October\n2008—more than a year prior to the first hearing in this matter.2 Sigalov is also\nspecifically charged with violating Prof.Cond.R. 1.4(a) by failing to inform the\nclient of his June 26, 2007 hearing date. There is no question that Sigalov was on\nnotice that the failure to inform the client was at issue in this case, and no\nprocedural due process right is violated by the panel’s pursuit of that claim.\n {¶ 46} Sigalov also contends that the panel violated his due process rights\nby finding a violation of Prof.Cond.R. 8.4(c) based on his dishonest statement to\nthe panel and relator. Here, Sigalov’s contention has merit. Additional charges of\nmisconduct for violating Prof.Cond.R. 8.4(c) cannot be premised on an attorney’s\nmisleading disciplinary authorities during the investigation or proceedings unless\nthe complaint makes such an allegation. Disciplinary Counsel v. Simecek, 83\nOhio St. 3d 320, 322, 699 N.E.2d 933 (1998), quoting In re Ruffalo, 390 U.S. at\n551, 88 S. Ct. 1222, 20 L. Ed. 2d 117 (disciplinary charges “ ‘must be known\nbefore the proceedings commence’ ”).\n\n\n2. Paragraph 34 of the original complaint states, “Sigalov did not mail a copy of the notice to [the\nclient], but did send him a letter notifying him of the hearing date two weeks before the hearing.\n[The client] did not receive the letter.”\n\n\n 11\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 47} The complaint did not charge Sigalov with dishonest statements to\nthe panel. Thus, as Sigalov asserts, under Ruffalo and Simecek, the requisite\nnotice was lacking, and relator cannot bring a new Prof.Cond.R. 8.4(c) charge of\ndishonesty.\n {¶ 48} But relator asserts that the evidence of dishonesty represented by\nthe fabricated letter can still be considered for impeachment purposes, in\nassessing Sigalov’s credibility, and as a factor in aggravation for purposes of any\nsanction imposed. Because even without the evidence of fabrication, the record\namply supports by clear and convincing evidence the panel’s finding that Sigalov\nviolated Prof.Cond.R. 8.4(c), we need not address the constitutionality of the\npanel’s distinction between bringing a new charge against Sigalov and using\nSigalov’s attempts to conceal his misconduct to impeach his credibility. This is\nconsistent with our mandate that “[c]ourts decide constitutional issues only when\nabsolutely necessary.” State ex rel. Essig v. Blackwell, 103 Ohio St. 3d 481, 2004-\nOhio-5586, 817 N.E.2d 5, at ¶ 34, quoting State ex rel. DeBrosse v. Cool, 87 Ohio\nSt.3d 1, 7, 716 N.E.2d 1114 (1999). And because Sigalov’s fabrication of\nevidence does not enter into our Prof.Cond.R. 8.4(c) violation analysis, his\nconstitutional due process claim does not affect our ruling. Instead, our decision\non the third count is premised on Sigalov’s misconduct relating to his client.3\n {¶ 49} Sigalov undoubtedly violated his obligations to his client not only\nby failing to inform him of an important court date, but also by explicitly, and\nrepeatedly, lying to him. We find that the record supports the panel’s finding by\n\n\n3. During the disciplinary hearing, the panel found by clear and convincing evidence that Sigalov\nhad continually lied to the client by telling him that he had not received notice of a rescheduled\nhearing date, when in fact he had. When asked if his client had ever explained to Sigalov why he\ndid not show up for the hearing, Sigalov admitted that the client “obviously didn’t know about the\nhearing.” Furthermore, Sigalov conceded that the client called him “at least once every two\nweeks” to find out if a new hearing date had been scheduled. Sigalov admits that the client had\ncalled “quite a few times” after he had received notice that the master hearing had been scheduled\non June 26. Despite his knowledge of the June 26 hearing date, all the client heard from Sigalov\nwas that “nothing is known yet.”\n\n\n\n 12\n\f January Term, 2012\n\n\n\n\nclear and convincing evidence that Sigalov violated Prof.Cond.R. 8.4(c) with\nrespect to Sigalov’s dishonesty towards his client.\n Count IV\n {¶ 50} The fourth count of the complaint arises from Sigalov’s\nrepresentation of a client who had been injured in a motor-vehicle accident.\nRelator alleged that although the representation was on a contingency-fee basis,\nSigalov did not provide the required written agreement to that effect. Sigalov\nfurther failed to truthfully update the client about the status of the case, neglected\nher case, and made a settlement demand without her permission. Sigalov was\nunable to produce a copy of the contingency-fee agreement, but the client did not\ntestify before the panel. The panel concluded that the relator had failed to\ndemonstrate by clear and convincing evidence that Sigalov engaged in the\nmisconduct alleged in the fourth count and recommended that it be dismissed.\nWe accept that finding and do not consider the allegations set forth in Count IV in\nfashioning our sanction.\n Count V\n {¶ 51} The fifth count alleges that Sigalov committed misconduct in his\nrepresentation of clients who had been injured when a taxi struck their motor\nvehicle. At the time of the accident, the vehicle carried a grandmother, her two\nadult daughters, and her grandchild.\n {¶ 52} The grandmother and one of her daughters retained Sigalov in late\n2002 on a contingency-fee basis. Sigalov could not produce a copy of the\nagreement.\n {¶ 53} After two years of minimal activity on the case, Sigalov sent a\ndemand letter to the taxi’s insurer on September 27, 2004. At that time, the\nstatute of limitations was about to expire. Approximately two weeks later, the\ninsurer offered $20,300 to settle the grandmother’s claim and $7,000 to settle her\ndaughter’s claim. Without discussing the matter with his clients, Sigalov entered\ninto settlement discussions, and the insurer then raised the settlement amounts to\n\n\n 13\n\f SUPREME COURT OF OHIO\n\n\n\n\n$33,000 and $10,000, respectively. Although the record is not perfectly clear, it\nappears that the proposed settlement agreements were drafted without the clients’\nknowledge and approved without their permission. In any event, the settlement\nagreements and checks were sent to Sigalov. When Sigalov called the\ngrandmother, she unequivocally rejected the settlement and subsequently\ninformed him, in writing, of her refusal to settle for anything less than six figures.\n {¶ 54} Sigalov sued the insurer shortly before the limitations period was\nto expire. But he informed the clerk of court that the claims had been settled and\ninstructed the clerk not to serve the complaint because he did not want to disturb\nthe alleged “settlement.” Sigalov continued to block any effort to serve the\ncomplaint.\n {¶ 55} In 2005, Sigalov dismissed the grandmother’s suit without her\nknowledge or permission. He continued for some time to discuss the matter with\nthe client without telling her that her claims had been extinguished. On June 16,\n2008, Sigalov finally informed the client, via letter, that he had missed the statute\nof limitations and that she should proceed against his malpractice insurer.\n {¶ 56} The panel found by clear and convincing evidence that Sigalov had\nviolated DR 1-102(A)(4), 6-101(A)(3), 7-101(A)(1), 7-101(A)(2), and 7-\n101(A)(3), and Prof.Cond.R. 1.2(a), 1.3, 1.4(a), 1.16(a)(3), and 8.4(c). But the\npanel did not find clear and convincing evidence that Sigalov had violated DR 2-\n106(A) (prohibiting a lawyer from charging or collecting an illegal or clearly\nexcessive fee) or Prof.Cond.R. 1.5(c)(1) (requiring a lawyer to put a contingency-\nfee agreement in writing) or 1.5(c)(2). The board adopted the panel’s findings.\n {¶ 57} We agree that there is clear and convincing evidence of the\nmisconduct found by the panel and the board, and we adopt their findings.\n Count VI\n {¶ 58} The sixth count arises from Sigalov’s representation of a client\nwho had fled the Republic of Georgia to seek asylum in the United States.\n\n\n\n\n 14\n\f January Term, 2012\n\n\n\n\n {¶ 59} The client testified that acting in his official capacity in his native\nGeorgia, he had stopped a robbery in progress. Several of the perpetrators were\nformer KGB agents, who threatened the client and his family with retaliation if\nthe client called the police and testified against them. The client nevertheless\ntestified. After he did so, his son was kidnapped and beaten and tortured for three\ndays before being released. The client and his family subsequently fled Georgia.\n {¶ 60} After arriving in this country in September 2002, the client sought\nasylum. Initially, he represented himself.\n {¶ 61} Sigalov agreed to represent the client in November 2006. From the\noutset, Sigalov’s performance was problematic.\n {¶ 62} The client testified that he had paid Sigalov $1,400 as a retainer.\nSigalov contended that the client paid him $1,100, out of which Sigalov paid a\n$110 filing fee for the appeal. But Sigalov acknowledged that he could not be\ncertain of the amounts, because he had no receipts or other documentation.\n {¶ 63} At some point, the immigration authorities issued an order of\nremoval for the client and his family. After Sigalov assumed representation of the\nclient, the immigration court set the case for an evidentiary hearing in September\n2007. Despite the fact that Sigalov had approximately ten months to prepare for\nthe hearing, he failed to do so.\n {¶ 64} Sigalov raised three defenses to the order of removal: asylum,\nwithholding of removal, and the United Nations Convention Against Torture and\nOther Cruel, Inhuman or Degrading Treatment or Punishment. But he did not\nperform legal research to prepare for the hearing, did not explain to the client\nwhat documentation would be needed to prevail on his claim, and did not discuss\nany theories with the client. In fact, Sigalov met with the client only twice—\nincluding a meeting on the morning of the hearing. On that day, the client\npresented Sigalov with documents supporting his claims, but the documents were\nwritten in Georgian and could not be translated in time for the hearing. The only\nevidence Sigalov presented at the evidentiary hearing was the client’s\n\n\n 15\n\f SUPREME COURT OF OHIO\n\n\n\n\nuncorroborated testimony. Not surprisingly, the immigration court deemed that\ntestimony insufficient and denied the application for asylum and for withholding\nof the removal order.\n {¶ 65} In affirming the immigration court’s ruling, the Board of\nImmigration Appeals reached a similar conclusion, noting in its opinion that little\nhad been done to challenge the immigration court’s decision and that the case for\nasylum had not been proved. The panel hearing this case reached the same\nconclusion, that is, that “Sigalov did little besides collecting a retainer, showing\nup for the hearing, and winging it.” Indeed, Sigalov’s appellate brief was a mere\nthree paragraphs, repeating a few facts and describing the client’s fears, with no\nlegal analysis whatsoever. When asked about the sufficiency of Sigalov’s appeal,\nthe relator’s immigration expert responded:\n\n\n I’m not sure I would dignify calling that a brief. It cites no\n law. It doesn’t go into a discussion of the facts. It doesn’t try to\n link a nexus between one of the enumerated grounds. I’m not sure,\n looking at it again, I don’t think it even has any discussion as to the\n one-year requirement. And certainly it doesn’t differentiate\n between the various forms of relief of asylum, withholding or [the]\n Convention Against Torture.\n\n\nThe expert appropriately summarized Sigalov’s representation: “It is not diligent\nfor the same reasons I have said. Certainly, the submission of exhibits and\ndocuments for the case were sparse and then the appeal brief was perfunctory\nalmost to the point of insult.”\n {¶ 66} Sigalov’s breathtakingly poor representation was fatal to his\nclient’s claims. As relator’s expert explained:\n\n\n\n\n 16\n\f January Term, 2012\n\n\n\n\n A brief on an asylum case like [this one] would have, of\n course, just the summary of the procedural posture, how it got\n there; a statement of the issues, which basically in that case were\n the one-year filing deadline and then the qualification of the relief;\n legal argument as to why, in fact, the immigration judge erred in\n not giving enough weight to the credible testimony and holding\n that person had a well-founded fear of persecution and that is why\n citing Cardoza-Fonseca [Immigration & Naturalization Serv. v.\n Cardoza-Fonseca, 480 U.S. 421, 107 S. Ct. 1207, 94 L. Ed. 2d 434\n (1987)] and the 10 percent rule would be hammered inasmuch as\n possible.\n Then, of course, you know, at the conclusion trying to\n convince the board—or certainly the staff attorneys who read it\n first at the board that you have got something there worthy to look\n at.\n\n\n {¶ 67} The panel found by clear and convincing evidence that Sigalov had\nviolated Prof.Cond.R. 1.1, 1.3, and 1.5(a). We agree and adopt the panel’s\nfinding.\n Count VII\n {¶ 68} The last count arises from Sigalov’s representation of a client who\nhad been injured in a motor-vehicle accident on November 30, 2007. The client\nretained Sigalov on a contingency-fee basis in early December 2007. Nearly a\nyear later, without discussing it with the client, Sigalov wrote the other driver’s\ninsurer, asserting that liability was clear and should not be contested. Although\nthe client was in dire financial need and had told Sigalov that she had lost wages\nas a result of the accident, Sigalov did not seek recovery for lost wages and sought\nonly $6,135.75 in damages for medical bills associated with treatment for injuries\nsustained from the accident. When Sigalov informed the client that the insurer\n\n\n 17\n\f SUPREME COURT OF OHIO\n\n\n\n\nhad offered $5,800 to settle all claims, the client stated that the offer was too low.\nWhen Sigalov informed her that the offer was all she could get, the client\naccepted a $4,000 check from Sigalov.\n {¶ 69} The check was written on Sigalov’s IOLTA account, as were two\nothers—one to Sigalov himself and the other to one of the client’s medical\nproviders. The three checks totaled $5,800—the full amount of the settlement—\nbut Sigalov had not yet received any settlement proceeds from the insurance\ncarrier when he issued the checks. Sigalov testified that he keeps personal funds\nin his IOLTA account to cover checks he writes before he actually receives\nsettlement proceeds.\n {¶ 70} When Sigalov gave the client her settlement check, he also\npresented her with a number of other papers that were stapled together. The client\ndid not focus on those papers at the time, but later realized that the papers may\nhave included a schedule of expenses and deductions. The schedule accurately\nindicated that the client, one medical provider, and Sigalov had been paid from a\ngross settlement amount of $5,800. Although the schedule also included a\nsignature that was purported to be hers, the client testified that it was a forgery.\nShe also testified that her signature had been forged on a power of attorney that\nwas used by Sigalov to settle the case and that her signature was forged on a\ndocument stating that she would be responsible for the outstanding medical bills.\n {¶ 71} In addition, the client testified that Sigalov had lied to her when he\nstated that a mediation had been canceled due to a death in the mediator’s family.\nThat statement was not true, as Sigalov admitted.\n {¶ 72} The panel did not find clear and convincing evidence that Sigalov\nhad violated Prof.Cond.R. 8.4(c) by lying about the cancellation of the mediation.\nNor did it find by clear and convincing evidence that he had violated\nProf.Cond.R. 1.15(a) by improperly disbursing funds from the IOLTA to the\nclient. But it did find by clear and convincing evidence that Sigalov had violated\nProf.Cond.R. 1.15(b) by depositing his own funds into a client trust account. The\n\n\n 18\n\f January Term, 2012\n\n\n\n\npanel stated that it would have found a violation of Prof.Cond.R. 8.4(c) for\nforging the client’s signature if the complaint had provided notice of any such\ncharge.\n {¶ 73} We now turn to the legal ramifications of Sigalov’s misconduct.\n Mitigation\n {¶ 74} In considering any sanction, we consider the aggravating and\nmitigating factors listed in BCGD Proc.Reg. 10(B). The panel found a single\nfactor in favor of mitigation: pursuant to BCGD Proc.Reg. 10(B)(2), Sigalov has\nno prior disciplinary record. The board adopted that finding, as do we.\n {¶ 75} The panel rejected Sigalov’s suggestions of additional mitigating\nfactors. First, Sigalov contends that he made a full and voluntary disclosure to the\npanel and board and had a cooperative attitude toward the proceedings. But as the\npanel recognized, despite Sigalov’s superficially cooperative attitude, he gave\nfalse testimony and submitted false evidence in these proceedings. That\nmisconduct cannot be depicted as full and free disclosure or as cooperative with\nthe process. To the contrary, the misconduct impeded, rather than assisted, the\npanel in reaching a full and fair understanding of the incidents and representation\nat issue here. Sigalov’s actions in providing false testimony and evidence are\nplainly aggravating rather than mitigating. His assertions to the contrary border\non the preposterous.\n {¶ 76} Next, Sigalov asserts that he has suffered the imposition of other\npenalties or sanctions outside the disciplinary process because he was sued for\nmalpractice by one of the clients at issue in this case. The panel found that the\ncases cited by Sigalov in an effort to support his contention, Disciplinary Counsel\nv. Gittinger, 125 Ohio St. 3d 467, 2010-Ohio-1830, 929 N.E.2d 410, and\nCleveland Metro. Bar Assn. v. Nance, 124 Ohio St. 3d 57, 2009-Ohio-5957, 918\nN.E.2d 1000, were not apposite. The board adopted that conclusion, and we\nagree.\n\n\n\n 19\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 77} In Gittinger, there were multiple mitigating factors, including\nevidence of good character, full cooperation in the disciplinary process, lack of\npersonal gain, and a one-time violation rather than a pattern of misconduct. Id. at\n¶ 41, 47. In Nance, mitigating factors included the imposition of other penalties\nor sanctions and the lack of prejudice to the respondent’s clients. Id. at ¶ 13.\nHere, Sigalov’s clients were all seriously harmed by his misconduct, and his\nmisconduct continued over the course of many years. Furthermore, Sigalov\nprofited through his misconduct by accepting his clients’ fees and doing little to\nno work on their cases.\n {¶ 78} Moreover, although his clients may obtain restitution through a\nmalpractice action, the public is still left unprotected. We reject the notion that a\nmalpractice claim is a punishment or sanction that somehow operates to mitigate\nSigalov’s misconduct.\n {¶ 79} Finally, Sigalov states that he intends to cease practicing\nimmigration law. This professed moratorium is specious. It is proffered only in\nthe wake of what is at best grossly negligent conduct. We do not believe that the\npublic will be protected by Sigalov’s promise to stop practicing immigration law.\nAnd the pledge to give up his immigration practice does nothing to address\nSigalov’s repeated misconduct in personal-injury cases, which comprise an even\nmore substantial portion of his practice.\n Aggravation\n {¶ 80} Pursuant to BCGD Proc.Reg. 10(B)(1), the panel found six\naggravating factors: (1) a dishonest or selfish motive, (2) a pattern of misconduct,\n(3) multiple offenses, (4) the submission of false evidence, false statements, or\nother deceptive practices during the disciplinary process, (5) a refusal to\nacknowledge the wrongful nature of the misconduct, and (6) the vulnerability of\nand resulting harm to victims of the misconduct. The board adopted these\nfindings, and we agree.\n\n\n\n\n 20\n\f January Term, 2012\n\n\n\n\n {¶ 81} Much of Sigalov’s misconduct resulted from accepting clients’\nfees and then doing little or nothing to earn the fee. Sigalov filed inadequate\nbriefs, pursued incorrect legal action, and routinely neglected cases. He\nrepeatedly lied to clients about the progress or status of their cases and conducted\nsettlement discussions on their cases without their knowledge or consent.\n {¶ 82} Furthermore, Sigalov committed multiple offenses over a long\nperiod of time, from a personal-injury case in 2002 to an immigration case in\n2007. During that time, he violated multiple rules of professional conduct with a\nvariety of different clients. One of Sigalov’s clients died before ever seeing the\nproceeds that resulted from his case. Almost all of Sigalov’s clients eventually\nsought new counsel to help them recover from the array of additional legal\nproblems they faced due to his significant misconduct.\n {¶ 83} During the proceedings before the panel, Sigalov showed no\nremorse for his misconduct, maintaining even now that the complaint should be\ndismissed with prejudice. Furthermore, Sigalov submitted false evidence to the\npanel in an effort to remove the blame from himself and place it on his clients.\n {¶ 84} We are also mindful that many of Sigalov’s clients were unusually\nvulnerable. Our sister courts have recognized that immigration clients often have\na heightened susceptibility to attorney misconduct due to language barriers and\nunfamiliarity with the legal system. See, e.g., People v. Beasley, 241 P.3d 548,\n553 (Colo.2010). As further explained by the Tennessee high court in Flowers v.\nBd. of Professional Responsibility, 314 S.W.3d 882, 899 (Tenn.2010), clients in\nimmigration proceedings often face a variety of special difficulties due not only to\nlanguage problems, but also to limited financial means, lengthy work hours, lack\nof transportation, and ignorance of the larger culture. “The importance of quality\nrepresentation is especially acute to immigrants, a vulnerable population who\ncome to this country searching for a better life, and who often arrive unfamiliar\nwith our language and culture, in economic deprivation and in fear.” Aris v.\nMukasey, 517 F.3d 595, 600 (2d Cir.2008).\n\n\n 21\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 85} Russian-speaking immigrants sought out Sigalov because he\nspeaks Russian. Instead of helping them, he took their money and did nothing,\nleaving them to deal with the consequences, including arrest and detention.\n {¶ 86} Here, Sigalov selfishly took advantage of immigrant clients who\nwere particularly susceptible to victimization. He repeatedly assured his clients\nthat he was filing motions on their behalf or otherwise working on their cases\nwhen in fact he was doing nothing. Because Sigalov’s clients were immigrants,\ntwo of whom barely spoke English, their understanding of the legal process was\nminimal, and they were forced to rely entirely on Sigalov’s false representations\nthat he was doing what was necessary for their cases. One of Sigalov’s clients\nwas almost deported, and another was unnecessarily incarcerated for five and a\nhalf months.\n {¶ 87} Sigalov’s other clients were often vulnerable as well. Sigalov\nadmitted that many of his clients are people of limited financial means. In Count\nVII, the client was about to lose her house and desperately needed money.\nSigalov pressured her into settling for an amount that she did not approve and that\ndid not include compensation for wages lost. Another client died before receiving\none penny of a settlement to which he was lawfully entitled.\n {¶ 88} The evidence of mitigation in this case consists only of Sigalov’s\nlack of a prior disciplinary record. Given the severity of the multiple offenses at\nissue in this case, see BCGD Proc.Reg. 10(B)(1)(d), that mitigation is minimal at\nbest.\n {¶ 89} Conversely, the weight of aggravation is substantial. Not only did\nSigalov act with a dishonest or selfish motive, BCGD Proc.Reg. 10(B)(1)(b), but\nhe also presented false evidence and false testimony to the panel. BCGD\nProc.Reg. 10(B)(1)(f).\n {¶ 90} The egregiousness of Sigalov’s misconduct is plain. But even after\nthe extent of his derelictions was brought to light, he continued to insist that he\n\n\n\n\n 22\n\f January Term, 2012\n\n\n\n\nhas done little wrong, going so far as to request that the complaint be dismissed\nwith prejudice.\n {¶ 91} Like the panel and board, we are troubled by Sigalov’s failure to\nappreciate the gravity of his misconduct. His refusal to acknowledge the harm he\ncaused his clients is appalling. When an attorney engages in multiple wanton acts\nof misconduct for years, lies to multiple clients about their cases, falsifies\ndocuments in a cover-up effort during the disciplinary proceeding, and then\ndenies the wrongful nature of his misconduct, the aggravating factors greatly\noutweigh those in mitigation.\n Sanction\n {¶ 92} When imposing sanctions for attorney misconduct, we consider\nrelevant factors, including the ethical duties that the lawyer violated and the\nsanctions imposed in similar cases. Stark Cty. Bar Assn. v. Buttacavoli, 96 Ohio\nSt.3d 424, 2002-Ohio-4743, 775 N.E.2d 818, ¶ 16. In making a final\ndetermination, we also weigh evidence of the aggravating and mitigating factors\nlisted in BCGD Proc.Reg. 10(B). Disciplinary Counsel v. Broeren, 115 Ohio\nSt.3d 473, 2007-Ohio-5251, 875 N.E.2d 935, ¶ 21. Because each disciplinary\ncase is unique, we are not limited to the factors specified in the rule but may take\ninto account “all relevant factors” in determining what sanction to impose.\nBCGD Proc.Reg. 10(B); Ohio State Bar Assn. v. Peskin, 125 Ohio St. 3d 244,\n2010-Ohio-1811, 927 N.E.2d 598, ¶ 11.\n {¶ 93} The primary purpose of the disciplinary process in Ohio is to\n“protect clients and the public, to ensure the administration of justice, and to\nmaintain the integrity of the legal profession.” Disciplinary Counsel v. Hunter,\n106 Ohio St. 3d 418, 2005-Ohio-5411, 835 N.E.2d 707, ¶ 32. Our goal in\nimposing disciplinary sanctions is not to punish the offender but to protect the\npublic. Disciplinary Counsel v. O’Neill, 103 Ohio St. 3d 204, 2004-Ohio-4704,\n815 N.E.2d 286, ¶ 53. Our disciplinary action in this case bears that purpose in\nmind.\n\n\n 23\n\f SUPREME COURT OF OHIO\n\n\n\n\n {¶ 94} The scope and magnitude of Sigalov’s misconduct, encompassing\nfraud, gross neglect, duplicity, incompetence, and the fleecing of clients, are truly\negregious. We have little trouble concluding that nothing less than Sigalov’s\ndisbarment will protect the public and maintain the integrity of the profession.\n {¶ 95} Accordingly, Sigalov is hereby permanently disbarred from the\npractice of law in Ohio. Costs are taxed to Sigalov.\n Judgment accordingly.\n O’CONNOR, C.J., and PFEIFER, LUNDBERG STRATTON, O’DONNELL,\nLANZINGER, CUPP, and MCGEE BROWN, JJ., concur.\n __________________\n Gerhardstein & Branch Co., L.P.A., and Jennifer L. Branch; and Graydon,\nHead & Ritchey, L.L.P., and John B. Pinney, for relator.\n Dinsmore & Shohl, L.L.P., Mark A. Vander Laan, and Mark G. Arnzen\nJr., for respondent.\n ______________________\n\n\n\n\n 24\n\f", "ocr": false, "opinion_id": 2690736 } ]

[ "165 A.2d 341", "122 Vt. 121" ]

[ { "author_str": "Shangraw", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n165 A.2d 341 (1960)\nMURPHY MOTOR SALES, INC.\nv.\nFIRST NATIONAL BANK OF ST. JOHNSBURY.\nNo. 272.\nSupreme Court of Vermont.\nNovember 1, 1960.\nJohn A. Swainbank, St.Johnsbury, for plaintiff.\nArthur L. Graves, James B. Campbell, St. Johnsbury, for defendant.\nBefore HULBURD, C. J., and HOLDEN, SHANGRAW, BARNEY and SMITH, JJ.\nSHANGRAW, Justice.\nThis is a suit in equity seeking to restrain the defendant from moving a diner which it owns onto the premises of Sherman R. Warren, and his wife Thea R. Warren, at 69 Portland Street in the Village of St. Johnsbury, Vermont. The bill of complaint alleges that the Warren property is located in a residential zone, and that the operation of the diner in such residential zone is contrary to the force, effect, intent and *342 spirit of the zoning regulations of the Village. One phase of this case was before this court at the January Term, 1960 on another issue, and the appeal was dismissed for jurisdictional reasons. 121 Vt. 403, 159 A.2d 94.\nThe defendant filed its answer and demurrer. A temporary restraining order was issued and upon hearing was dissolved June 23, 1959. On March 18, 1960 the chancellor made a decree sustaining the demurrer and dismissing the complaint. While several grounds were set forth in the demurrer the principal issue presented is the question of whether the zoning regulations restrict the placing of a restaurant, diner or eating establishment in the area in question.\nThe plaintiff owns and operates a motel on the south side of Portland Street immediately west of the house lot of Sherman R. Warren and Thea R. Warren. The plaintiff's motel is not in a residential zone. Plaintiff makes no claim that the operation of the diner will be a nuisance per se, or that it will be operated contrary to the standards of the State Board of Health. Since the bringing of this bill of complaint the diner has been moved to the Warren premises.\nThe zoning ordinances under consideration were originally enacted by the village December 12, 1930, and subsequently amended and effective June 24, 1953. There are three residential zones and seven industrial zones set up by the regulations. All other sections of the village are trading zones. The Warren property is in an area designated as a residential zone.\nSection 1 of the zoning regulations declares that the territory within the corporate limits \"is divided into use districts or zones\" and subsequent sections set forth the bounds of the residential and other zones. Section 13 is specific as to the prohibited uses, describing them, of property within a residential zone. It is a prohibitive form of a zoning regulation, and contains no prohibition or reference to a restaurant, diner, or quick-lunch room.\nThe plaintiff's contention is that section 13 excludes all business activity whatsoever from a residential zone, and that a diner or quick-lunch room is a non-residential or commercial enterprise.\nSection 13 does not contain a general exclusion, or saving clause, such as stating at the outset that no business or manufacturing establishment, etc., or other appropriate words, shall be maintained or conducted within a residential area. The types of business prohibited are clear. The prohibited uses are set forth clearly, and there is no room for construction of this zoning regulation. Had the village intended to prohibit a diner in a residential zone it could have said so. There are many business activities that are not mentioned in section 13 some of which are equally as objectionable as those prohibited.\nQuoting from 58 Am.Jur. Zoning, § 73, page 988, \"The rule has been laid down that where a zoning ordinance provides merely that certain specified trades, businesses, or uses shall not be permitted in a specified zone any business other than those expressly excluded may be conducted therein, provided it is so carried on as not to be in and of itself a nuisance.\" Citing Kirk v. Mabis, 215 Iowa 769, 246 N.W. 759, 87 A.L.R. 1055. A court may not legislate in the guise of construction, and may not insert in a zoning regulation a provision not included by the legislative body. Glass v. Zoning Board of Appeals, City of Yonkers, 5 A.D.2d 991, 173 N.Y.S. 2d 448, 450.\nZoning laws which curtail and limit uses of real property must be given a strict construction, since they are in derogation of common law rights, and provisions thereof may not be extended by implication. In re Willey, 120 Vt. 359, 365, 140 A.2d 11; 440 E. 102nd St. Corp. *343 v. Murdock, 285 N.Y. 298, 34 N.E.2d 329; Toulouse v. Board of Zoning Adjustment, 147 Me. 387, 87 A.2d 670, 673; 8 McQuillin Municipal Corporations (3rd Ed.) 25, 72 p. 162. Any ambiguity or uncertainty must be decided in favor of the property owner. Kubby v. Hammond, 68 Ariz. 17, 22, 198 P.2d 134; City of Little Rock v. Williams, 206 Ark. 861, 177 S.W.2d 924.\nWe have here a zoning regulation having the force and effect of a legislative enactment. Village of St. Johnsbury v. Aron, 103 Vt. 22, 151 A. 650. In construing such a regulation the general rule applicable to the construction of statutes applies. 101 C.J.S. Zoning § 128, p. 881. Where the meaning of a statute is plain, courts have the duty to enforce the statute according to its obvious terms, and there is no necessity for construction. Blanchard v. Blanchard's Est., 109 Vt. 454, 199 A. 233. Furthermore, great care should be exercised by the court not to expand proper construction of a statute into judicial legislation. State v. Reynolds, 109 Vt. 308, 310, 1 A.2d 730.\nThe bill of complaint alleges that the Warrens intend to operate the diner when moved. Therefore, going to the heart of the controversy, we have considered the case in this light, rather than merely passing upon the limited question as to whether the mere moving of the diner by the defendant was prohibited by the zoning regulations. In view of the governing principles stated in this opinion, and applicable here, we hold that the operation of the diner in question on the Warren premises located in a residential zone is not prohibited by section 13 of the zoning regulations of the Village of St. Johnsbury. With this view of the case it is not necessary to pass upon the indispensability of Mr. and Mrs. Warren as parties in this proceeding.\nThe decretal order sustaining the demurrer and dismissing the bill of complaint is affirmed.\n", "ocr": false, "opinion_id": 2201009 } ]

[ "188 F. App'x 277" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\05/05-41256-CR0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT July 10, 2006\n\n Charles R. Fulbruge III\n Clerk\n No. 05-41256\n Summary Calendar\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\nversus\n\nJAMES ROBERT ALLEN,\n\n Defendant-Appellant.\n\n --------------------\n Appeal from the United States District Court\n for the Southern District of Texas\n USDC No. 2:05-CR-154\n --------------------\n\nBefore HIGGINBOTHAM, BENAVIDES, and OWEN, Circuit Judges.\n\nPER CURIAM:*\n\n James Robert Allen was convicted by a jury of possession\n\nwith intent to distribute approximately 40 kilograms of cocaine.\n\nAllen was sentenced to 151 months of imprisonment and to a five-\n\nyear term of supervised release. On appeal, he argues that there\n\nwas insufficient evidence to prove that he knew the cocaine was\n\nin the gas tank of his vehicle.\n\n Because Allen moved for a judgment of acquittal at the close\n\nof the Government’s case and the close of all evidence, the issue\n\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined that\nthis opinion should not be published and is not precedent except\nunder the limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\f No. 05-41256\n -2-\n\nis preserved for review. See FED. R. CRIM. P. 29. Therefore, the\n\nstandard of review in assessing the sufficiency challenge is\n\n“whether, considering all the evidence in the light most\n\nfavorable to the verdict, a reasonable trier of fact could have\n\nfound that the evidence established guilt beyond a reasonable\n\ndoubt.” United States v. Mendoza, 226 F.3d 340, 343 (5th Cir.\n\n2000). The evidence need not exclude every reasonable hypothesis\n\nof innocence or be inconsistent with every conclusion except that\n\nof guilt. United States v. Resio-Trejo, 45 F.3d 907, 911 (5th\n\nCir. 1995). In the instant case, there was sufficient evidence\n\nfrom which the jury could infer that Allen knew the cocaine was\n\nhidden in his vehicle’s gas tank. See United States v.\n\nVillarreal, 324 F.3d 319, 324 (5th Cir. 2003); United States v.\n\nOrtega Reyna, 148 F.3d 540, 544 (5th Cir. 1998).\n\n Allen also argues that the district court abused its\n\ndiscretion in allowing certain opinion evidence by a federal law\n\nenforcement agent. The law enforcement agent’s drug trafficking\n\ntestimony was offered as a “mere explanation of [his] analysis of\n\nthe facts,” rather than a “forbidden opinion” regarding an\n\nultimate issue in the case. See United States v. Gutierrez-\n\nFarias, 294 F.3d 657, 663 (5th Cir. 2002) (internal quotation\n\nmarks and citations omitted). However, the law enforcement agent\n\ndid offer an improper opinion regarding Allen’s knowledge of the\n\ndrugs when the agent testified that he was not telling the jury\n\nthat he did not believe that Allen had no knowledge of the drugs.\n\f No. 05-41256\n -3-\n\nSee id. Nevertheless, any error by the district court in\n\nallowing the testimony was harmless because the agent’s statement\n\n“constituted only a small portion of an otherwise strong case.”\n\nId.1\n\n Lastly, Allen argues that his sentence must be vacated\n\nbecause the district court failed to articulate any application\n\nof the factors set out in 18 U.S.C. § 3553(a) to the facts of his\n\ncase. At sentencing, the district court noted that it considered\n\nthe factors set forth in § 3553(a), including Allen’s past\n\nrecord. The district court imposed a sentence within the\n\nproperly calculated guidelines range. Accordingly, the sentence\n\nis presumed reasonable. See United States v. Alonzo, 435 F.3d\n\n551, 553 (5th Cir. 2006). Allen fails to rebut the presumption\n\nthat the sentence imposed was reasonable. See id. Accordingly,\n\nAllen’s conviction and sentence are AFFIRMED.\n\n\n\n\n 1\n Moreover, as a matter of logic, the agent stated he was “not saying he\nthought Allen had knowledge,” a statement favorable to Allen. Of course,\ngiven the confusion of the statement and its context, the jury likely thought\nit unfavorable to Allen. Yet its confusing nature buttresses our conclusion\nthat the statement was only a “small part” of an otherwise strong case.\n\f", "ocr": false, "opinion_id": 44244 } ]

[ "48 So. 3d 60" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n48 So. 3d 60 (2010)\nCABRERA\nv.\nFLORIDA PENINSULA INS. CO.\nNo. 3D10-1330.\nDistrict Court of Appeal of Florida, Third District.\nNovember 4, 2010.\n\nDECISION WITHOUT PUBLISHED OPINION\nAppeal dismissed.\n", "ocr": false, "opinion_id": 2533587 } ]

[ "981 A.2d 217" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n981 A.2d 217 (2009)\nCOM.\nv.\nHILLS.\nNo. 824 MAL (2008).\nSupreme Court of Pennsylvania.\nJuly 29, 2009.\nDisposition of Petition for Allowance of Appeal Denied.\n", "ocr": false, "opinion_id": 1914521 } ]

[ "575 S.E.2d 683", "258 Ga. App. 884" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n575 S.E.2d 683 (2002)\n258 Ga. App. 884\nWABASH METAL PRODUCTS, INC.\nv.\nAT PLASTICS CORPORATION.\nNo. A02A1262.\nCourt of Appeals of Georgia.\nNovember 26, 2002.\nReconsideration Denied December 16, 2002.\n*684 Shapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Tracey Walker, for appellant.\nMcKenna, Long & Aldridge, David N. Stern, Atlanta, Russell J. Rogers, Jeremy M. Moeser, for appellee.\nSMITH, Presiding Judge.\nBrent Mitchell Dyer was injured while attempting to install a piece of heavy machinery at the partially completed manufacturing facility belonging to AT Plastics Corporation (AT Plastics). Dyer sued AT Plastics, the owner of the premises, and Wabash Metal Products, Inc. (Wabash), the manufacturer of the machine press that tipped over. Both defendants filed separate motions for summary judgment. Finding genuine issues of disputed fact remaining as to Wabash's negligence, the trial court denied Wabash's motion. The trial court, however, granted summary judgment to AT Plastics, finding that its failure to provide Wabash's installation instructions to Dyer was not the proximate cause of Dyer's injuries.\nIn this appeal, Wabash contends that, in the absence of evidence that the machine press was top-heavy or unstable, it had no duty to warn Dyer that the press could be tipped over. Alternatively, Wabash argues that if it breached a duty to warn Dyer, then AT Plastics likewise did so since AT Plastics failed to provide Dyer with Wabash's shop manual, which included instructions and warnings pertaining to the installation of the press. We find no merit in either argument and affirm.\nWhen viewed in the light most favorable to Dyer, as the nonmovant, the evidence shows that Dyer was injured when he and his supervisor, Hubert Rozier, were trying to install the machine press manufactured by Wabash and purchased by AT Plastics. At the time of the incident, Dyer was an employee of Mann Mechanical Company. KW&P, as the general contractor for the construction project, had engaged Mann Mechanical to serve as the subcontractor for the mechanical work. In its role as subcontractor, Mann Mechanical was responsible for the installation of all heavy machinery. Mann Mechanical received its instructions from KW&P, not AT Plastics.\nBefore shipping the press, Wabash had sent its customer, AT Plastics, a copy of the \"Operation and Installation Manual\" (O&I manual) for this particular machine press. Peter Connelly, the project manager for AT Plastics, received a copy of that O&I manual. However, it is undisputed that this manual gives no warning that the press is top-heavy or otherwise unstable. Nor does the O&I manual warn against the use of \"cribbing\" or recommend not using that method to move the press into position.[1] It is also undisputed *685 that Wabash did not attach any warnings or affix any instructions to the press about proper moving or installation.\nThe machine press arrived in May, and Dyer and Rozier tried to install it in August. In the meantime, the press was moved several times without incident. On August 2, 1998, Dyer and Rozier were working overtime at AT Plastics's facility, which was still under construction. Both men were licensed journeyman pipefitters, and both had extensive experience in installing heavy equipment. Dyer testified that during his work as a pipefitter, he had helped lift, move, or transport thousands of pieces of heavy machinery. By Dyer's own calculation, he had previously moved over 100 similar pieces of equipment in his 25-year career.\nRozier asked Dyer to assist him with setting the Wabash press into its designated location in a laboratory. At that time, the press was situated on a pallet jack. Dyer and Rozier then set about to remove the press from the pallet jack and to place the press into its intended location. The press weighed 1,597.2 pounds and had the shape of a rectangular box, standing approximately 74 inches high, 36 inches wide, and 23 inches deep. The press was designed to sit flush on the floor and did not have legs.\nThe O&I manual was not with the press, and neither man sought to secure a copy of it or to consult with Wabash about how to move the press safely. Noting nothing unusual, Dyer and Rozier discussed the method they would use and decided to use cribbing to raise the machine, allow the removal of the pallet jack, and then lower the machine to the floor.\nDyer and Rozier raised the pallet jack and placed cribbing underneath each of the four corners of the press. Their plan was to move the press to the floor by gradually removing the wooden blocks, first on one end and then the other. Rozier had a seven-foot pinch bar, a device similar to an extremely long crowbar. Rozier succeeded in lifting the press enough to permit Dyer to remove the cribbing at one side, with the result that the press was no longer level. Intending to repeat the process on the opposite side, Rozier tried twice without success to step on the pinch bar to lift the press high enough to allow Dyer to remove the cribbing. Dyer asked Rozier to try a third time. Using an adjacent cabinet to brace himself, Rozier turned his back to the press and to Dyer and stepped down onto the pinch bar with his feet and \"mashed it all the way down with my total weight.\" Both Dyer and Rozier testified that at that point, the press suddenly toppled over, trapping Dyer's right leg underneath.\nDyer sued Wabash, claiming that the press was defectively designed, and alleging that the press \"was top-heavy and/or had a high center of gravity which caused it to fall on plaintiff during the installation process.\" Dyer also alleged that Wabash was negligent in failing to adequately warn him about the danger inherent in moving and tilting the press during installation. Dyer sued AT Plastics for failing to warn him of the dangers and for failing to supply him with a copy of the O&I manual.\n1. Wabash contends that the trial court erred in denying its motion for summary judgment. Wabash claims that the evidence shows that the press was not top-heavy, unstable, or an inherently dangerous piece of equipment to install. \"[A] duty to warn can arise even if a product is not defective.\" Battersby v. Boyer, 241 Ga.App. 115, 117, 526 S.E.2d 159 (1999).\nA product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use, he may be required to give adequate warning of the danger, and a product sold without such warning is in a defective condition.\n(Citations omitted.) Id. \"Whether a duty to warn exists thus depends upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user's knowledge of the danger. Such matters generally are not susceptible to summary adjudication and should be resolved by a trial in the ordinary manner.\" (Citations and punctuation omitted.) Yaeger v. Stith Equip. Co., *686 177 Ga.App. 835, 836, 341 S.E.2d 492 (1986). Moreover, the right to draw an inference of negligence lies peculiarly within the exclusive province of the jury. See Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 647, 522 S.E.2d 467 (1999).\nHere, both Wabash and Dyer offered conflicting testimony as to whether the press was stable and, therefore, safe for normal handling. Wabash's director of engineering, Steven Michael, testified that nearly two-thirds of the weight of the press was located below its mid-point and that the vertical center of gravity was in the bottom of the machine. Michael specifically testified that the top half of the press weighed 596.2 pounds and the bottom half weighed 1,001 pounds. He concluded that the press was not top-heavy.\nDyer, however, presented expert testimony to support his claims that the press was unstable and that Wabash should have affixed a warning to it. Dyer submitted the expert affidavits from two engineers, who relied upon drawings of the press and the depositions of witnesses, including Dyer and Rozier, to conclude that the press was unstable and dangerous to move or lift on one end. Both affidavits gave expert opinion that warnings were necessary, that the warnings provided by Wabash in its manual were inadequate, and that such warnings should have been placed on the side of the press and been provided to Dyer.\nWhether the press was defectively designed and unsafe for normal handling and whether Wabash breached a duty to warn Dyer remain disputed issues requiring jury resolution. See Ogletree, supra. If, in fact, the press was top-heavy or unbalanced, then Wabash may have breached a duty to warn by not placing a warning or instructions on the press about moving and installing it or by not inserting a warning in the O & I manual for this piece of equipment. In light of the disputed evidence as to whether the press was top-heavy or a dangerous piece of equipment to move and install, summary judgment was properly denied to Wabash.\n2. Wabash appeals the award of summary judgment to its co-defendant AT Plastics, but we find that the trial court did not err in granting summary judgment to AT Plastics, for two reasons. First, it appears likely that, in accordance with the terms of its construction contract, AT Plastics had fully surrendered use and control over the construction site to its general contractor, KW&P at the time of the incident. From the record provided to this Court, it appears that KW&P had control of AT Plastics's facility in August 1998 at the time of the incident and that no employees of AT Plastics were involved in the decision-making process of moving the press. See Torrington Co. v. Hill, 219 Ga.App. 453, 455-456, 465 S.E.2d 447 (1995) (owner's surrender of work site to independent contractor absolved it of liability).\nSecond, even assuming without deciding that AT Plastics owed a duty to Dyer and further assuming that AT Plastics breached that duty to Dyer, no evidence shows that AT Plastics's breach, if any, was the cause of Dyer's injuries. Dyer's claim against AT Plastics hinges solely on AT Plastics's failure to provide a copy of the O&I manual for this machine press to him or his supervisor. But it is undisputed that the manual gives no warning that the press is top-heavy or otherwise unstable. And Wabash vigorously denies that the press was either top-heavy or unstable and did not state anything to the contrary in the O&I manual that Wabash provided to AT Plastics. Although the O & I manual does describe the procedure for installing the press by using a crane and rigging to lift and lower it into position, it also provides instructions for using a forklift.\nNothing in the installation instructions warns against the use of cribbing, the method being used by Dyer and Rozier to move the press into place when Dyer was injured. In fact, nowhere does the manual advise against the use of cribbing or even suggest that cribbing not be used. Rozier testified that, even if he had read the manual, he would not have done anything differently. When asked if he would install the machine in the exact same way, even today, Rozier answered in the affirmative.\nDyer's own testimony about the handling of the press is even more compelling. Dyer *687 testified that he had used the same method— the use of cribbing to remove heavy machines from a pallet jack—\"many, many, many times.\" During his work as a pipefitter, Dyer had helped lift, move, or transport thousands of pieces of machinery weighing more than the piece of equipment here. As to this particular piece of machinery, Dyer testified, \"It was stable when we set it down on the cribbing. It was stable when we were bringing it down.\" Dyer testified that even if he had received the general warnings about using caution and not tilting the press on one end that are contained in the O&I manual sent by Wabash to AT Plastics, he would not have installed the press in a different manner. While it is true that Dyer did testify that he would have heeded the warnings in the manual to the extent possible, Dyer also testified that he would have installed the press exactly as he and Rozier were doing at the time that it tipped.\nFinally, although Dyer originally alleged that AT Plastics was negligent in failing to provide a copy of the O&I manual to him, Dyer apparently has conceded that the information in that manual would not have been helpful. Page 8 of Dyer's supplemental appellate brief states the following:\nDyer agrees with AT Plastics that the manual sent by Wabash to AT Plastics contained no statements prohibiting the use of cribbing or requiring an alternative method of installation. Dyer also agrees with AT Plastics that there were no statements in the manual that the Wabash press might be top-heavy, had a high center of gravity, or may have been otherwise unstable.\nPage 10 of the same brief says that \"Dyer agrees with AT Plastics that the information contained in the manual is inadequate as a matter of law.\" Dyer goes on to concede that, if this is the case, \"summary judgment in favor of AT Plastics should likely be affirmed.\"\nBased upon these facts and Dyer's concessions, even had AT Plastics provided the O & I manual to Dyer or Rozier, the outcome would have been the same. See Beman v. Kmart Corp., 232 Ga.App. 219, 221(3), 501 S.E.2d 580 (1998) (plaintiff must establish a causal link between defective condition and the injury). Because Dyer's claim against AT Plastics hinges solely on AT Plastics's failure to provide the O&I manual to him, no evidence shows that AT Plastics did anything or failed to do anything that caused the press to fall onto Dyer and injure him. Or stated another way, the record contains no evidence that AT Plastics's failure to provide the O&I manual to Dyer proximately caused Dyer's injuries. See Shadburn v. Whitlow, 243 Ga. App. 555, 556-557, 533 S.E.2d 765 (2000) (absent some evidence affording a reasonable basis for establishing causation, defendant entitled to summary judgment). For these reasons, AT Plastics was entitled to judgment as a matter of law. See id.\nJudgment affirmed.\nRUFFIN, P.J., and ELLINGTON, J., concur.\nANDREWS, P.J., ELDRIDGE, BARNES, JJ., and POPE, Senior Appellate Judge, concur in part and dissent in part.\nANDREWS, Presiding Judge, concurring specially in part and dissenting in part.\nI respectfully dissent from the majority's conclusion that Wabash Metal Products, Inc. was not entitled to summary judgment. Wabash was entitled to summary judgment on Dyer's design defect claim because the record shows that a pipefitter hired by AT Plastics Corporation to move the subject hydraulic press used grossly excessive force to lift the press by standing on top of a lever with his entire body weight to force the press off its base. This unforeseeable application of extreme force to the press caused the press to topple off its base and was the sole proximate cause of the injury sustained by Dyer when the press fell on his leg. As to the claim that the press was defective because Wabash failed to give adequate warning of the danger involved in moving the press, Wabash was entitled to summary judgment because it was not necessary to warn Dyer or his co-workers, who were all licensed journeyman pipefitters experienced in the movement of heavy machinery and aware of the dangers, that tilting the heavy *688 press was dangerous and could cause it to fall over. Because there was no duty to warn Dyer, I concur specially in the majority's conclusion that AT Plastics was entitled to summary judgment on Dyer's claim that it negligently failed to provide him with warnings contained in the installation manual provided by Wabash with the press.\nWabash manufactured the press and sold it to AT Plastics, and Mann Mechanical Company, a mechanical contractor, was hired to install the press at the AT Plastics facility. Dyer and his foreman, Rozier, both of whom were licensed journeyman pipefitters, were working for Mann installing the press when it fell on Dyer's leg while they were moving it into position.\nDyer sued Wabash for his injuries claiming the press was defectively designed, alleging in his complaint that it was \"top-heavy and/or had a high center of gravity which caused it to fall on Plaintiff during the installation process.\" Dyer also alleged the press was defective because Wabash failed to adequately warn him of the danger inherent in moving and tilting the press during installation. Dyer named AT Plastics as a defendant claiming it negligently failed to provide him with a copy of the manual Wabash sent to AT Plastics along with the press which contained warnings and recommendations for installation.\nWabash moved for summary judgment and submitted an expert affidavit from its director of engineering, a mechanical engineer, who examined the press. The press was in the shape of a rectangular box standing 74 inches high and having a flat base 36 and three-quarter inches wide and 22 and one-half inches deep. The engineer measured the material used in the construction of the press and calculated that the total weight of the press was 1,597.2 pounds. He found that the weight of all the material above the vertical mid-point of the press was 596.2 pounds, and the weight of all the material below the vertical mid-point was 1,001 pounds. In other words, the bottom half of the press was about twice as heavy as the top half of the press. The affidavit demonstrated that the press was not top-heavy and had a vertical center of gravity in its bottom half.\nIn response to these undisputed facts, Dyer amended his complaint adding allegations that the press was \"extremely unstable\" and that, unknown to him, the press \"could not be lifted from one end only as such lifting may cause the machine to fall over,\" and that the press \"could not be lifted and installed in the normal, customary and ordinary way such equipment is generally installed by his profession....\" Dyer also submitted expert affidavits from two engineers in opposition to summary judgment. Based upon a review by the engineers of the press manual, drawings of the press, and depositions of nonexpert witnesses including Dyer and Rozier, these affidavits concluded the press was unstable and dangerous to move or lift on one end. One of the affidavits apparently reached the conclusion that, despite having a vertical center of gravity below its mid-point, the press was unstable and dangerous to move or lift because its side-to-side and front-to-back centers of gravity were off center. Both affidavits also gave expert opinion that warnings were necessary and that the warnings given by Wabash in the manual it provided with the press were inadequate because warnings should have been placed on the exterior of the press. The trial court denied summary judgment to Wabash concluding that issues of fact remained.\n1. The undisputed facts showing how this accident occurred demonstrate that the trial court erred by denying summary judgment to Wabash on the defective design claim. Dyer and his foreman, Rozier, were the only persons present when the press fell on Dyer's leg. Both Dyer and Rozier testified that they are licensed journeyman pipefitters and that moving heavy machinery is a common part of their work. Dyer testified that he had moved thousands of pieces of machinery weighing in excess of 2,000 pounds. Both Dyer and Rozier were experienced in moving heavy machinery like the press at issue. According to Rozier, his pipefitting crew had already moved the press several times prior to the accident using the same method being employed by him and Dyer when the accident occurred. Rozier said the base of the press was \"as flat as my bank account,\" and that, in order to get the press *689 off the floor to move it by means of a pallet jack or forklift, they had to place and remove pieces of wood known as \"cribbing\" under the base of the press. As described by Dyer and Rozier, removal of cribbing was a process that required tilting the press in one direction, then another, to lift the base to remove the cribbing from under the press. Rozier testified that, when the press was moved prior to the accident, it was not top-heavy, or side-heavy, nor did it tilt when placed level on the floor. Dyer admitted that in moving the press to remove cribbing, the press did not appear top-heavy or dangerous. In short, all of the testimony from pipefitters who moved and tilted the press to place or remove cribbing on several occasions prior to the accident was that it was not top-heavy, excessively heavy to one side, or otherwise unstable.\nDyer and Rozier testified that the accident occurred as they were attempting to remove wooden cribbing from under the press. Standing on one foot and using his other foot to press down on a seven-foot-long pipe inserted as a lever under the base of the press, with a block of wood as a fulcrum under the pipe, Rozier had successfully tilted up one side of the base of the press while Dyer removed the cribbing, then lowered the base down leaving that side of the press about two inches lower than the other side. Moving over to the high side of the tilted press, Rozier again inserted the lever under the base and pushed down with one foot to tilt up the base of the press. Rozier said he was only trying to raise the base a fraction of an inch to allow Dyer to remove the cribbing. Unfortunately, two attempts by Rozier to tilt the press by pushing down on the lever with his foot were unsuccessful. Rozier then turned his back to the press and to Dyer, who was leaning down by the cribbing. Using an adjacent cabinet to balance himself, Rozier stepped up on top of the lever with both feet, thereby forcing the lever down and exerting leverage up on the base of the press with the entire weight of his body. Both Dyer and Rozier testified that the press suddenly fell over at that point, trapping Dyer's right leg underneath.\nThe record shows that the press fell on Dyer only when grossly excessive force was applied to lift the base of the press when Rozier stood on top of the lever with his entire body weight. It was not foreseeable that an experienced pipefitter installing the press would deviate from otherwise safe and effective methods of moving and lifting the press and suddenly apply extreme force to lift the base of the press. Even assuming the expert affidavits produced by Dyer created a factual issue as to whether the press was imbalanced from side to side, the undisputed facts in this case show that, whatever that imbalance may have been, it had no practical effect on the ability of the pipefitters to tilt and move the press using the methods they employed prior to standing on the lever to tilt the base of the press. All of the evidence from the experienced pipefitters who handled, moved, and tilted the press prior to the accident was that it was not top-heavy, side-heavy, or otherwise unstable. Under these facts, it is clear that the alleged design defect played no significant role in causing the accident. Rather, the grossly excessive force applied with the lever to the base of the press was an intervening act that forcefully toppled the press off its base onto Dyer and constituted the sole proximate cause of the accident. Ogletree v. Navistar Intl. Transp. Corp., 245 Ga.App. 1, 535 S.E.2d 545 (2000).\nIt is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by [the] defendant, was not triggered by defendant's act, and which was sufficient of itself to cause the injury.\n(Citation and punctuation omitted.) Jones v. Central of Ga. R. Co., 192 Ga.App. 806, 807, 386 S.E.2d 386 (1989); McAuley v. Wills, 251 Ga. 3, 7, 303 S.E.2d 258 (1983). Although a determination as to proximate cause is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law. Id.; Southern Bell Tel. &c. Co. v. Dolce, 178 Ga.App. 175, 176, 342 S.E.2d 497 (1986).\n*690 This is such a plain and indisputable case. Any product having a shape similar to the subject press, whether it be a refrigerator, file cabinet, or chest of drawers, will fall over if enough force is applied to make it fall. These products are not defective because they will fall over under the application of extreme force. \"[A] manufacturer is not an insurer that its product is, from a design viewpoint, incapable of producing injury.\" Banks v. ICI Americas, 264 Ga. 732, 737, 450 S.E.2d 671 (1994). Common sense compels the conclusion that Wabash cannot be held liable for failing to design a press which would remain upright despite the grossly excessive force applied to it in this case.\n2. The trial court also erred by denying summary judgment to Wabash on Dyer's claim that the press was defective because Wabash failed to warn him and other pipefitters of the danger inherent in moving and installing the press.\nA failure to warn claim is distinct from a design defect claim and can arise even if a product is not defective. Battersby v. Boyer, 241 Ga.App. 115, 117, 526 S.E.2d 159 (1999). Where a manufacturer has reason to know that danger may result from a particular use of the product, it may be required to give adequate warning of the danger, and failure to do so, where required, renders the product defective. Id. Dyer claims Wabash should have warned that the press was unstable and dangerous to move, could not be safely lifted from one end, and could not be safely moved by the usual methods used in the pipefitting profession. He claims the failure to adequately warn him was the proximate cause of the injury he suffered when the press fell on his leg.\nFailure to warn claims are subject, however, to the well-recognized exception that manufacturers have no duty to warn of danger which is obvious or generally known. Daniels v. Bucyrus-Erie Corp., 237 Ga.App. 828, 829, 516 S.E.2d 848 (1999). Related to this exception is the rule that, where a product is used by members of a particular group or profession, there is no duty to warn against risks generally known to such group or profession. Id.; Exxon Corp. v. Jones, 209 Ga.App. 373, 375, 433 S.E.2d 350 (1993). The record shows that Dyer and his foreman, Rozier, who were moving the press when it fell over, were licensed journeyman pipefitters who moved heavy machinery for a living and had experience in moving and installing thousands of pieces of heavy machinery like the subject press. Rozier testified that moving the press was \"nothing out of the ordinary.\" We found in Moore v. ECI Mgmt., 246 Ga.App. 601, 607, 542 S.E.2d 115 (2000), that the trial court properly granted summary judgment to a manufacturer on a failure to warn claim because \"[t]he danger of electrocution from miswiring an electrical appliance should be both open and obvious to an experienced installer.\" Similarly, the danger that a piece of heavy machinery could be unstable and fall over when moved or tilted is a risk generally known to experienced pipefitters. It follows that Wabash had no duty to warn Dyer and other pipefitters of that danger, even though Wabash nevertheless provided warnings in the manual it sent with the press to AT Plastics. Moreover, \"[w]hen the injured party is aware of the danger, failure to warn of that danger cannot be the proximate cause of the injury.\" Royal v. Ferrellgas, Inc., 254 Ga.App. 696, 705, 563 S.E.2d 451 (2002).\nBecause there was no duty under the circumstances to warn Dyer, it follows that AT Plastics was also entitled to summary judgment on Dyer's claim that it negligently failed to pass on the warnings contained in the installation manual provided by Wabash with the press.\nELDRIDGE, Judge, concurring in part and dissenting in part.\nI concur fully in Division 1 of the majority opinion, but respectfully dissent to Division 2. As the majority correctly points out, an owner's surrender of the worksite to an independent contractor will absolve it of liability. Torrington Co. v. Hill, 219 Ga.App. 453, 455-456, 465 S.E.2d 447 (1995). Nonetheless, I am unconvinced that no issue of fact remains on such issue, i.e., the record shows that the work of general contractor KW&P proceeded in the presence of senior AT Plastics personnel; that, among other responsibilities, AT Plastics' site manager had overall responsibility *691 for safety on the work site; and that questions concerning the installation of the press, whether from the general contractor or its subcontractors, were directed to AT Plastics' site manager or his on-site engineering process manager. Rozier, in effect, corroborated such a standard operating procedure, deposing that he and one of KW&P's site supervisors had approached AT Plastics about the desirability of putting feet on the press.\nNeither am I able to conclude that no issue of fact remains as to whether the accident could have been prevented if Dyer had read Wabash's operating instructions and warnings. While Dyer's extensive deposition testimony may be deemed contradictory as to whether and to what extent he would have heeded the installation instructions for the press had AT Plastics provided them to him, Dyer ultimately deposed that he would have done so to the extent possible. Such response from Dyer, a reluctant witness who obviously took pride in his considerable experience as a pipefitter, reasonably explained the whole of his testimony as contradictory. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 343 S.E.2d 680 (1986) (if reasonable explanation offered for contradictory testimony, such testimony not construed against the party-witness). Therefore, AT Plastics' failure to provide Dyer the operation and installation manual for the press cannot, as a matter of law, be foreclosed as concurrently causing Dyer's injuries.\nIn sum, the grant of summary judgment to AT Plastics, in my view, was error and must be reversed. \"A de novo standard of review applies from a grant of summary judgment, and we view the evidence, and all conclusions and inferences drawn from it, in the light most favorable to the nonmovant.\" Matjoulis v. Integon Gen. Ins. Corp., 226 Ga.App. 459(1), 486 S.E.2d 684 (1997).\nI am authorized to state that Judge BARNES and Senior Appellate Judge POPE join in this opinion.\nNOTES\n[1] Cribbing involves the placing of pieces of wood or wooden blocks to raise an object from the ground.\n\n", "ocr": false, "opinion_id": 1252421 }, { "author_str": "Smith", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSmith, Presiding Judge.\nBrent Mitchell Dyer was injured while attempting to install a piece of heavy machinery at the partially completed manufacturing facility belonging to AT Plastics Corporation (AT Plastics). Dyer sued AT Plastics, the owner of the premises, and Wabash Metal Products, Inc. (Wabash), the manufacturer of the machine press that tipped over. Both defendants filed separate motions for summary judgment. Finding genuine issues of disputed fact remaining as to Wabash’s negligence, the trial court denied Wabash’s motion. The trial court, however, granted summary judgment to AT Plastics, finding that its failure to provide Wabash’s installation instructions to Dyer was not the proximate cause of Dyer’s injuries.\nIn this appeal, Wabash contends that, in the absence of evidence that the machine press was top-heavy or unstable, it had no duty to warn Dyer that the press could be tipped over. Alternatively ¿ Wabash argues that if it breached a duty to warn Dyer, then AT Plastics like*885wise did so since AT Plastics failed to provide Dyer with Wabash’s shop manual, which included instructions and warnings pertaining to the installation of the press. We find no merit in either argument and affirm.\nWhen viewed in the light most favorable to Dyer, as the nonmov-ant, the evidence shows that Dyer was injured when he and his supervisor, Hubert Rozier, were trying to install the machine press manufactured by Wábash and purchased by AT Plastics. At the time of the incident, Dyer was an employee of Mann Mechanical Company. KW&P, as the general contractor for the construction project, had engaged Mann Mechanical to serve as the subcontractor for the mechanical work. In its role as subcontractor, Mann Mechanical was responsible for the installation of all heavy machinery. Mann Mechanical received its instructions from KW&P, not AT Plastics.\nBefore shipping the press, Wabash had sent its customer, AT Plastics, a copy of the “Operation and Installation Manual” (O&I manual) for this particular machine press. Peter Connelly, the. project manager for AT Plastics, received a copy of that O&I manual. However, it is undisputed that this manual gives no wárning that the press is top-heavy or otherwise unstable. Nor does the O&I manual warn against the use of “cribbing” or recommend not using that method to move the press into position.1 It is also undisputed that Wabash did not attach any warnings or affix any instructions to the press about proper moving or installation.\nThe machine press arrived in May, and Dyer and Rozier tried to install it in August. In the meantime, the press was moved several times without incident. On August 2, 1998, Dyer and Rozier were working overtime at AT Plastics’s facility, which was still under construction. Both men were licensed journeyman pipefitters, and both had extensive experience in installing heavy equipment. Dyer testified that during his work as a pipefitter, he had helped lift, move, or transport thousands of pieces of heavy machinery. By Dyer’s own calculation, he had previously moved over 100 similar pieces of equipment in his 25-year career.\nRozier asked Dyer to assist him with setting the Wabash press into its designated location in a laboratory. At that time, the press was situated on a pallet jack. Dyer and Rozier then set about to remove the press from the pallet jack and to place the press into its intended location. The press weighed 1,597.2 pounds and had the shape of a rectangular box, standing approximately 74 inches high, 36 inches wide, and 23 inches deep. The press was designed to sit flush on the floor and did not have legs.\n*886The O&I manual was not with the press, and neither man sought to secure a copy of it or to consult with Wabash about how to move the press safely. Noting nothing unusual, Dyer and Rozier discussed the method they would use and decided to use cribbing to raise the machine, allow the removal of the pallet jack, and then lower the machine to the floor.\nDyer and Rozier raised the pallet jack and placed cribbing underneath each of the four corners of the press. Their plan was to move the press to the floor by gradually removing the wooden blocks, first on one end and then the other. Rozier had a seven-foot pinch bar, a device similar to an extremely long crowbar. Rozier succeeded in lifting the press enough to permit Dyer to remove the cribbing at one side, with the result that the press was no longer level. Intending to repeat the process on the opposite side, Rozier tried twice without success to step on the pinch bar to lift the press high enough to allow Dyer to remove the cribbing. Dyer asked Rozier to try a third time. Using an adjacent cabinet to brace himself, Rozier turned his back to the press and to Dyer and stepped down onto the pinch bar with his feet and “mashed it all the way down with my total weight.” Both Dyer and Rozier testified that at that point, the press suddenly toppled over, trapping Dyer’s right leg underneath.\nDyer sued Wabash, claiming that the press was defectively designed, and alleging that the press “was top-heavy and/or had a high center of gravity which caused it to fall on plaintiff during the installation process.” Dyer also alleged that Wabash was negligent in failing to adequately warn him about the danger inherent in moving and tilting the press during installation. Dyer sued AT Plastics for failing to warn him of the dangers and for failing to supply him with a copy of the O&I manual.\n1. Wabash contends that the trial court erred in denying its motion for summary judgment. Wabash claims that the evidence shows that the press was not top-heavy, unstable, or an inherently dangerous piece of equipment to install. “[A] duty to warn can arise even if a product is not defective.” Battersby v. Boyer, 241 Ga. App. 115, 117 (526 SE2d 159) (1999).\nA product is not in a defective condition when it is safe for normal handling and consumption. If the injury results from abnormal handling, the seller is not liable. Where, however, he has reason to anticipate that danger may result from a particular use, he may be required to give adequate warning of the danger, and a product sold without such warning is in a defective condition.\n(Citations omitted.) Id. “Whether a duty to warn exists thus depends *887upon foreseeability of the use in question, the type of danger involved, and the foreseeability of the user’s knowledge of the danger. Such matters generally are not susceptible to summary adjudication and should be resolved by a trial in the ordinary manner.” (Citation and punctuation omitted.) Yaeger v. Stith Equip. Co., 177 Ga. App. 835, 836 (341 SE2d 492) (1986). Moreover, the right to draw an inference of negligence lies peculiarly within the exclusive province of the jury. See Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 647 (522 SE2d 467) (1999).\nHere, both Wabash and Dyer offered conflicting testimony as to whether the press was stable and, therefore, safe for normal handling. Wabash’s director of engineering, Steven Michael, testified that nearly two-thirds of the weight of the press was located below its mid-point and that the vertical center of gravity was in the bottom of the machine. Michael specifically testified that the top half of the press weighed 596.2 pounds and the bottom half weighed 1,001 pounds. He concluded that the press was not top-heavy.\nDyer, however, presented expert testimony to support his claims that the press was unstable and that Wabash should have affixed á warning to it. Dyer submitted expert affidavits from two engineers, who relied upon drawings of the press and the depositions of witnesses, including Dyer and Rozier, to conclude that the press was unstable and dangerous to move or lift on one end. Both affidavits gave expert opinion that warnings were necessary, that the warnings provided by Wabash in its manual were inadequate, and that such warnings should have been placed on the side of the press and been provided to Dyer.\nWhether the press was defectively designed and unsafe for normal handling and whether Wabash breached a duty to warn Dyer remain disputed issues requiring jury resolution. See Ogletree, supra. If, in fact, the press was top-heavy or unbalanced, then Wabash may have breached a duty to warn by not placing a warning or instructions on the press about moving and installing it or by not inserting a warning in the O&I manual for this piece of equipment. In light of the disputed evidence as to whether the press was top-heavy or a dangerous piece of equipment to move and install, summary judgment was properly denied to Wabash.\n2. Wabash appeals the award of summary judgment to its co-defendant AT Plastics, but we find that the trial court did not err in granting summary judgment to AT Plastics, for two reasons. First, it appears likely that, in accordance with the terms of its construction contract, AT Plastics had fully surrendered use and control over the construction site to its general contractor, KW&P at the time of the incident. From the record provided to this Court, it appears that KW&P had control of AT Plastics’s facility in August 1998 at the *888time of the incident and that no employees of AT Plastics were involved in the decision-making process of moving the press. See Tor-rington Co. v. Hill, 219 Ga. App. 453, 455-456 (465 SE2d 447) (1995) (owner’s surrender of work site to independent contractor absolved it of liability).\nSecond, even assuming without deciding that AT Plastics owed a duty to Dyer and further assuming that AT Plastics breached that duty to Dyer, no evidence shows that AT Plastics’s breach, if any, was the cause of Dyer’s injuries. Dyer’s claim against AT Plastics hinges solely on AT Plastics’s failure to provide a copy of the O&I manual for this machine press to him or his supervisor. But it is undisputed that the manual gives no warning that the press is top-heavy or otherwise unstable. And Wabash vigorously denies that the press was either top-heavy or unstable and did not state anything to the contrary in the O&I manual that Wabash provided to AT Plastics. Although the O&I manual does describe the procedure for installing the press by using a crane and rigging to lift and lower it into position, it also provides instructions for using a forklift.\nNothing in the installation instructions warns against the use of cribbing, the method being used by Dyer and Rozier to move the press into place when Dyer was injured. In fact, nowhere does the manual advise against the use of cribbing or even suggest that cribbing not be used. Rozier testified that, even if he had read the manual, he would not have done anything differently. When asked if he would install the machine in the exact same way, even today, Rozier answered in the affirmative.\nDyer’s own testimony about the handling of the press is even more compelling. Dyer testified that he had used the same method — the use of cribbing to remove heavy machines from a pallet jack — “many, many, many times.” During his work as a pipefitter, Dyer had helped lift, move, or transport thousands of pieces of machinery weighing more than the piece of equipment here. As to this particular piece of machinery, Dyer testified, “It was stable when we set it down on the cribbing. It was stable when we were bringing it down.” Dyer testified that even if he had received the general warnings about using caution and not tilting the press on one end that are contained in the O&I manual sent by Wabash to AT Plastics, he would not have installed the press in a different manner. While it is true that Dyer did testify that he would have heeded the warnings in the manual to the extent possible, Dyer also testified that he would have installed the press exactly as he and Rozier were doing at the time that it tipped.\nFinally, although Dyer originally alleged that AT Plastics was negligent in failing to provide a copy of the O&I manual to him, Dyer apparently has conceded that the information in that manual would *889not have been helpful. Page 8 of Dyer’s supplemental appellate brief states the following:\nDyer agrees with AT Plastics that the manual sent by Wabash to AT Plastics contained no statements prohibiting the use of cribbing or requiring an alternative method of installation. Dyer also agrees with AT Plastics that there were no statements in the manual that the Wabash press might be top-heavy, had a high center of gravity, or may have been otherwise unstable.\nPage 10 of the same brief says that “Dyer agrees with AT Plastics that the information contained in the manual is inadequate as a matter of law.” Dyer goes on to concede that, if this is the case, “summary judgment in favor of AT Plastics should likely be affirmed.”\nBased upon these facts and Dyer’s concessions, even had AT Plastics provided the O&I manual to Dyer or Rozier, the outcome would have been the same. See Beman v. Kmart Corp., 232 Ga. App. 219, 221 (3) (501 SE2d 580) (1998) (plaintiff must establish a causal link between defective condition and the injury). Because Dyer’s claim against AT Plastics hinges solely on AT Plastics’s failure to provide the O&I manual to him, no evidence shows that AT Plastics did anything or fáiled to do anything that caused the press to fall onto Dyer and injure him. Or stated another way, the record contains no evidence that AT Plastics’s failure to provide the O&I manual to Dyer proximately caused Dyer’s injuries. See Shadburn v. Whitlow, 243 Ga. App. 555, 556-557 (533 SE2d 765) (2000) (absent some evidence affording a reasonable basis for establishing causation, defendant entitled to summary judgment). For these reasons, AT Plastics was entitled to judgment as a matter of law. See id.\n\nJudgment affirmed.\n\n\nRuffin, P. J., and Ellington, J., concur. Eldridge, Barnes, JJ, and Pope, Senior Appellate Judge, concur in part and dissent in part. Andrews, P. J., concurs specially in part and dissents in part,\n\n\n Cribbing involves the placing of pieces of wood or wooden blocks to raise an object from the ground.\n\n", "ocr": false, "opinion_id": 9584417 }, { "author_str": "Eldridge", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nEldridge, Judge,\nconcurring in part and dissenting in part.\nI concur fully in Division 1 of the majority opinion, but respectfully dissent to Division 2. As the majority correctly points out, an owner’s surrender of the work site to an independent contractor will absolve it of liability. Torrington Co. v. Hill, 219 Ga. App. 453, 455-456 (465 SE2d 447) (1995). Nonetheless, I am unconvinced that no issue of fact remains on such issue, i.e., the record shows that the work of general contractor KW&P proceeded in the presence of senior AT Plastics personnel; that, among other responsibilities, AT Plastics’ site manager had overall responsibility for safety on the work *890site; and that questions concerning the installation of the press,, whether from the general contractor or its subcontractors, were directed to AT Plastics’ site manager or his on-site engineering process manager. Rozier, in effect, corroborated such a standard operating procedure, deposing that he and one of KW&P’s site supervisors had approached AT Plastics about the desirability of putting feet on the press.\nNeither am I able to conclude that no issue of fact remains as to whether the accident could have been prevented if Dyer had read Wabash’s operating instructions and warnings. While Dyer’s extensive deposition testimony may be deemed contradictory as to whether and to what extent he would have heeded the installation instructions for the press had AT Plastics provided them to him, Dyer ultimately deposed that he would have done so to the extent possible. Such response from Dyer, a reluctant witness who obviously took pride in his considerable experience as a pipefitter, reasonably explained the whole of his testimony as contradictory. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) (if reasonable explanation offered for contradictory testimony, such testimony not construed against the party-witness). Therefore, AT Plastics’ failure to provide Dyer the operation and installation manual for the press cannot, as a matter of law, be foreclosed as concurrently causing Dyer’s injuries.\nIn sum, the grant of summary judgment to AT Plastics, in my view, was error and must be reversed. “A de novo standard of review applies from a grant of summary judgment, and we view the evidence, and all conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).\nI am authorized to state that Judge Barnes and Senior Appellate Judge Pope join in this opinion.\n", "ocr": false, "opinion_id": 9584418 }, { "author_str": "Andrews", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nAndrews, Presiding Judge,\nconcurring specially in part and dissenting in part.\nI respectfully dissent from the majority’s conclusion that Wabash Metal Products, Inc. was not entitled to summary judgment. Wabash was entitled to summary judgment on Dyer’s design defect claim because the record shows that a pipefitter hired by AT Plastics Corporation to move the subject hydraulic press used grossly excessive force to lift the press by standing on top of a lever with his entire body weight to force the press off its base. This unforeseeable application of extreme force to the press caused the press to topple off its base and was the sole proximate cause of the injury sustained by Dyer when the press fell on his leg. As to the claim that the press was defective because Wabash failed to give adequate warning of the dan*891ger involved in moving the press, Wabash was entitled to summary judgment because it was not necessary to warn Dyer or his coworkers, who were all licensed journeyman pipefitters experienced in the movement of heavy machinery and aware of the dangers, that tilting the heavy press was dangerous and could cause it to fall over. Because there was no duty to warn Dyer, I concur specially in the majority’s conclusion that AT Plastics was entitled to summary judgment on Dyer’s claim that it negligently failed to provide him with warnings contained in the installation manual provided by Wabash with the press.\nWabash manufactured the press and sold it to AT Plastics, and Mann Mechanical Company, a mechanical contractor, was hired to install the press at the AT Plastics facility. Dyer and his foreman, Rozier, both of whom were licensed journeyman pipefitters, were working for Mann installing the press when it fell on Dyer’s leg while they were moving it into position.\nDyer sued Wabash for his injuries claiming the press was defectively designed, alleging in his complaint that it was “top-heavy and/ or had a high center of gravity which caused it to fall on Plaintiff during the installation process.” Dyer also alleged the press was defective because Wabash failed to adequately warn him of the danger inherent in moving and tilting the press during installation. Dyer named AT Plastics as a defendant claiming it negligently failed to provide him with a copy of the manual Wabash sent to AT Plastics along with the press which contained warnings and recommendations for installation.\nWabash moved for summary judgment and submitted an expert affidavit from its director of engineering, a mechanical engineer, who examined the press. The press was in the shape of a rectangular box standing 74 inches high and having a flat base 36 and three-quarter inches wide and 22 and one-half inches deep. The engineer measured the material used in the construction of the press and calculated that the total weight of the press was 1,597.2 pounds. He found that the weight of all the material above the vertical mid-point of the press was 596.2 pounds, and the weight of all the material below the vertical mid-point was 1,001 pounds. In other words, the bottom half of the press was about twice as heavy as the top half of the press. The affidavit demonstrated that the press was not top-heavy and had a vertical center of gravity in its bottom half.\nIn response to these undisputed facts, Dyer amended his complaint adding allegations that the press was “extremely unstable” and that, unknown to him, the press “could not be lifted from one end only as such lifting may cause the machine to fall over,” and that the press “could not be lifted and installed in the normal, customary and ordinary way such equipment is generally installed by his profes*892sion. . . .” Dyer also submitted expert affidavits from two engineers in opposition to summary judgment. Based upon a review by the engineers of the press manual, drawings of the press, and depositions of nonexpert witnesses including Dyer and Rozier, these affidavits concluded the press was unstable and dangerous to move or lift on one end. One of the affidavits apparently reached the conclusion that, despite having a vertical center of gravity below its mid-point, the press was unstable and dangerous to move or lift because its side-to-side and front-to-back centers of gravity were off center. Both affidavits also gave expert opinion that warnings were necessary and that the warnings given by Wabash in the manual it provided with the press were inadequate because warnings should have been placed on the exterior of the press. The trial court denied summary judgment to Wabash concluding that issues of fact remained.\n1. The undisputed facts showing how this accident occurred demonstrate that the trial court erred by denying summary judgment to Wabash on the defective design claim. Dyer and his foreman, Rozier, were the only persons present when the press fell on Dyer’s leg. Both Dyer and Rozier testified that they are licensed journeyman pipefitters and that moving heavy machinery is a common part of their work. Dyer testified that he had moved thousands of pieces of machinery weighing in excess of 2,000 pounds. Both Dyer and Rozier were experienced in moving heavy machinery like the press at issue. According to Rozier, his pipefitting crew had already moved the press several times prior to the accident using the same method being employed by him and Dyer when the accident occurred. Rozier said the base of the press was “as flat as my bank account,” and that, in order to get the press off the floor to move it by means of a pallet jack or forklift, they had to place and remove pieces of wood known as “cribbing” under the base of the press. As described by Dyer and Rozier, removal of cribbing was a process that required tilting the press in one direction, then another, to lift the base to remove the cribbing from under the press. Rozier testified that, when the press was moved prior to the accident, it was not top-heavy, or side-heavy, nor did it tilt when placed level on the floor. Dyer admitted that in moving the press to remove cribbing, the press did not appear top-heavy or dangerous. In short, all of the testimony from pipefitters who moved and tilted the press to place or remove cribbing on several occasions prior to the accident was that it was not top-heavy, excessively heavy to one side, or otherwise unstable.\nDyer and Rozier testified that the accident occurred as they were attempting to remove wooden cribbing from under the press. Standing on one foot and using his other foot to press down on a seven-foot-long pipe inserted as a lever under the base of the press, with a block of wood as a fulcrum under the pipe, Rozier had successfully tilted up *893one side of the base of the press while Dyer removed the cribbing, then lowered the base down leaving that side of the press about two inches lower than the other side. Moving over to the high side of the tilted press, Rozier again inserted the lever under the base and pushed down with one foot to tilt up the base of the press. Rozier said he was only trying to raise the base a fraction of an inch to allow Dyer to remove the cribbing. Unfortunately, two attempts by Rozier to tilt the press by pushing down on the lever with his foot were unsuccessful. Rozier then turned his back to the press and to Dyer, who was leaning down by the cribbing. Using an adjacent cabinet to balance himself, Rozier stepped up on top of the lever with both feet, thereby forcing the lever down and exerting leverage up on the base of the press with the entire weight of his body. Both Dyer and Rozier testified that the press suddenly fell over at that point, trapping Dyer’s right leg underneath. . .\nThe record shows that the press fell on Dyer only when grossly excessive force was applied to lift the base of the press when Rozier stood on top of the lever with his entire body weight. It was not foreseeable that an experienced pipefitter installing the press would deviate from otherwise safe and effective methods of moving and lifting the press and suddenly apply extreme force to lift the base of the press. Even assuming the expert affidavits produced by Dyer created a factual issue as to whether the press was imbalanced from side to side, the undisputed facts in this case show that, whatever that imbalance may have been, it had no practical effect on the ability of the pipefitters to tilt and move the press using the methods they employed prior to standing on the lever to tilt the base of the press. All of the evidence from the experienced pipefitters who handled, moved, and tilted the press prior to the accident was that it was not top-heavy, side-heavy, or otherwise unstable. Under these facts, it is clear that the alleged design defect played no significant role in causing the accident. Rather, the grossly excessive force applied with the lever to the base of the press was an intervening act that forcefully toppled the press off its base onto Dyer and constituted the sole proximate cause of the accident. Ogletree v. Navistar Intl. Transp. Corp., 245 Ga. App. 1 (535 SE2d 545) (2000).\nIt is well settled that there can be no proximate cause where there has intervened between the act of the defendant and the injury to the plaintiff, an independent, intervening, act of someone other than the defendant, which was not foreseeable by [the] defendant, was not triggered by defendant’s act, and which was sufficient of itself to cause the injury.\n(Citation and punctuation omitted.) Jones v. Central of Ga. R. Co., *894192 Ga. App. 806, 807 (386 SE2d 386) (1989); McAuley v. Wills, 251 Ga. 3, 7 (303 SE2d 258) (1983). Although a determination as to proximate cause is usually left to a jury, in plain and undisputed cases the court may make the determination as a matter of law. Id.; Southern Bell Tel. &c. Co. v. Dolce, 178 Ga. App. 175, 176 (342 SE2d 497) (1986).\nThis is such a plain and indisputable case. Any product having a shape similar to the subject press, whether it be a refrigerator, file cabinet, or chest of drawers, will fall over if enough force is applied to make it fall. These products are not defective because they will fall over under the application of extreme force. “[A] manufacturer is not an insurer that its product is, from a design viewpoint, incapable of producing injury.” Banks v. ICI Americas, 264 Ga. 732, 737 (450 SE2d 671) (1994). Common sense compels the conclusion that Wabash cannot be held liable for failing to design a press which would remain upright despite the grossly excessive force applied to it in this case.\n2. The trial court also erred by denying summary judgment to Wabash on Dyer’s claim that the press was defective because Wabash failed to warn him and other pipefitters of the danger inherent in moving and installing the press.\nA failure to warn claim is distinct from a design defect claim and can arise even if a product is not defective. Battersby v. Boyer, 241 Ga. App. 115, 117 (526 SE2d 159) (1999). Where a manufacturer has reason to know that danger may result from a particular use of the product, it may be required to give adequate warning of the danger, and failure to do so, where required, renders the product defective. Id. Dyer claims Wabash should have warned that the press was unstable and dangerous to move, could not be safely lifted from one end, and could not be safely moved by the usual methods used in the pipefitting profession. He claims the failure to adequately warn him was the proximate cause of the injury he suffered when the press fell on his leg.\nFailure to warn claims are subject, however, to the well-recognized exception that manufacturers have no duty to warn of danger which is obvious or generally known. Daniels v. Bucyrus-Erie Corp., 237 Ga. App. 828, 829 (516 SE2d 848) (1999). Related to this exception is the rule that, where a product is used by members of a particular group or profession, there is no duty to warn against risks generally known to such group or profession. Id.; Exxon Corp. v. Jones, 209 Ga. App. 373, 375 (433 SE2d 350) (1993). The record shows that Dyer and his foreman, Rozier, who were moving the press when it fell over, were licensed journeyman pipefitters who moved heavy machinery for a living and had experience in moving and installing thousands of pieces of heavy machinery like the subject press. Rozier testified that moving the press was “nothing out of the *895ordinary.” We found in Moore v. ECI Mgmt., 246 Ga. App. 601, 607 (542 SE2d 115) (2000), that the trial court properly granted summary judgment to a manufacturer on a failure to warn claim because “[t]he danger of electrocution from miswiring an electrical appliance should be both open and obvious to an experienced installer.” Similarly, the danger that a piece of heavy machinery could be unstable and fall over when moved or tilted is a risk generally known to experienced pipefitters. It follows that Wabash had no duty to warn Dyer and other pipefitters of that danger, even though Wabash nevertheless provided warnings in the manual it sent with the press to AT Plastics. Moreover, “[w]hen the injured party is aware of the danger, failure to warn of that danger cannot be the proximate cause of the injury.” Royal v. Ferrellgas, Inc., 254 Ga. App. 696, 705 (563 SE2d 451) (2002).\nDecided November 26, 2002\nReconsideration denied December 16, 2002.\nShapiro, Fussell, Wedge, Smotherman & Martin, Robert B. Wedge, Tracey Walker, for appellant.\nMcKenna, Long & Aldridge, David N. Stern, Russell J. Rogers, Jeremy M. Moeser, for appellee.\nBecause there was no duty under the circumstances to warn Dyer, it follows that AT Plastics was also entitled to summary judgment on Dyer’s claim that it negligently failed to pass on the warnings contained in the installation manual provided by Wabash with the press.\n", "ocr": false, "opinion_id": 9584419 } ]

[ "99 F.3d 1146" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/99/99.F3d.1146.95-70508.html", "author_id": null, "opinion_text": "99 F.3d 1146\n NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.Grace V. STARR, formerly Grace V. Hensel, Petitioner-Appellant,v.COMMISSIONER OF INTERNAL REVENUE, Respondent-Appellee.\n No. 95-70508.\n United States Court of Appeals, Ninth Circuit.\n Argued and Submitted Oct. 10, 1996.Decided Oct. 15, 1996.\n \n Before: WOOD*, SCHROEDER, and HALL, Circuit Judges.\n \n \n 1\n MEMORANDUM**\n \n \n 2\n We AFFIRM the United States Tax Court for the reasons stated in its Memorandum Decision 1995-190 filed April 27, 1995.\n \n \n \n *\n Hon. Harlington Wood, Jr., Senior United States Circuit Judge for the Seventh Circuit, sitting by designation\n \n \n **\n This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3\n \n \n ", "ocr": false, "opinion_id": 729358 } ]

[ "966 S.W.2d 467" ]

[ { "author_str": "Owen", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n966 S.W.2d 467 (1998)\nSOUTHWESTERN ELECTRIC POWER COMPANY, Petitioner,\nv.\nBURLINGTON NORTHERN RAILROAD COMPANY, Respondent.\nNo. 96-0684.\nSupreme Court of Texas.\nArgued October 8, 1997.\nDecided March 13, 1998.\n*468 Ferd C. Meyer, Jr., Kenneth C. Raney, Jr., Dallas, David E. Keltner, Fort Worth, Michael V. Powell, Margaret Donahue Hall, Morris Harrell, Orrin L. Harrison, III, Thomas S. Leatherbury, Dallas, G. William Lavender, Texarkana, David R. Taggart Shreveport, LA, Harry M. Reasoner, Houston, for Petitioner.\nJohn R. Mercy, Texarkana, Janice G. Barber, Fort Worth, William G. Gooding, Texarkana, Michael A. Hatchell, Tyler, Martin D. Schneiderman, Washington, DC, Victor Hlavink, Norman C. Russell, John L. Tidwell, Texarkana, Molly H. Hatchell, Tyler, for Respondent.\nOWEN, Justice, delivered the opinion for a unanimous Court.\nSouthwestern Electric Power Company (SWEPCO) brought suit to recover alleged overcharges under long-term coal transportation contracts with Burlington Northern Railroad Company. Two theories of recovery were submitted to the jury. One was based on a contractual provision that addressed \"gross inequity,\" and the second theory was based on unjust enrichment. The jury failed to find gross inequity but answered issues favorably to SWEPCO on unjust enrichment. We agree with the court of appeals that the judgment for SWEPCO based on unjust enrichment cannot be sustained. We further hold that the court of appeals did not err in its disposition of SWEPCO's other points of error, and we affirm the judgment of the court of appeals.\n\nI\nSWEPCO is a public utility company. Two of its electric generating plants, the \"Welsh\" plant in Texas and the \"Flint Creek\" plant in Arkansas, are fueled by coal mined in Wyoming. In 1974, SWEPCO entered into a long-term agreement with Burlington Northern for the transportation of coal by rail from Wyoming to these plants. When this agreement was executed, the rates *469 charged for this transportation were regulated by the Interstate Commerce Commission, and the contract consisted of a two-page letter agreement attached to a tariff. The agreement contains an initial \"base cost\" rate that has been periodically adjusted under a formula set forth in the contract that is tied to a published index. The contract also contains a clause entitled \"Formula Intent\" which provides:\nIt is the intent of [the parties] that the formula described above will compensate [Burlington Northern] for any changes in the cost of transporting SWEPCO's coal tonnages above or below the 1971 base cost level. If any one of the parties should suffer a gross inequity as a result of unusual economic conditions, which result in the formula failing to fairly cover cost changes, such inequities will be resolved by mutual agreement among [the parties]. Pending such agreement, no party shall be relieved of its obligations as outlined in the effective tariff.\nA few years after the contract was executed, disputes arose regarding the transportation rates, and litigation ensued. As part of a settlement of that prior litigation, a new contract was executed in 1984 for shipments to the Welsh plant. The 1974 agreement continued to govern shipments to Flint Creek. The 1984 agreement, like the 1974 agreement, provides for periodic adjustment of rates based on a formula, and it also contains a clause entitled \"Gross Inequity\" that is virtually identical to the \"Formula Intent\" clause in the 1974 agreement.\nIn the mid-80's, railway rates were deregulated, and Burlington Northern achieved cost savings. SWEPCO contended that Burlington Northern's rates were increasing under the adjustment clauses of the contracts well in excess of actual costs and sought to renegotiate the rates. When those efforts failed, SWEPCO filed this suit. SWEPCO requested a declaratory judgment to determine the rates that should have been charged under the gross inequity clauses of the contracts, and SWEPCO sued to recover for the amounts it had allegedly overpaid. It also sought a declaratory judgment regarding the determination of future rates.\nThe case was tried to a jury, which failed to find that SWEPCO suffered \"a gross inequity as a result of unusual economic conditions.\" However, the jury answered \"yes\" in response to issues submitted on a theory of unjust enrichment and found damages of $100 million. The trial court rendered judgment for SWEPCO based on these findings, but pursuant to a pretrial agreement, the amount of damages and prejudgment interest were limited to a total of $71,663,258. With regard to rates to be charged in the future, the trial court rendered a declaratory judgment that the rates would be set at an amount necessary to compensate Burlington Northern for changes in its costs of transporting coal above or below the base levels specified in the contracts.\nBurlington Northern appealed. SWEPCO filed a conditional cross-appeal claiming that it was entitled to a new trial on the gross inequity issue because the trial court had erred in admitting evidence of SWEPCO's financial condition and had erred in excluding certain testimony as a discovery sanction. The court of appeals reversed and rendered judgment that SWEPCO take nothing. Burlington Northern Railroad Co. v. Southwestern Elec. Co., 925 S.W.2d 92 (Tex.App.— Texarkana). The court of appeals reasoned that because the jury had failed to find gross inequity under the contracts, the express provisions of the contract governed the rates to be paid and accordingly, that submission of unjust enrichment to the jury was improper. 925 S.W.2d at 97. The court of appeals also reversed the declaratory judgment regarding future rates and overruled SWEPCO's cross-points regarding the trial court's evidentiary rulings.\nFor the reasons we discuss below, we affirm the judgment of the court of appeals. We first consider the issues surrounding SWEPCO's unjust enrichment claim.\n\nII\nSWEPCO is correct in its assertion that in some circumstances, overpayments under a valid contract may give rise to a claim for restitution or unjust enrichment. See, e.g., Staats v. Miller, 150 Tex. 581, 243 S.W.2d 686, 687-88 (1951) (allowing restitution for *470 excess money held by defendant after selling plaintiffs' cotton harvester pursuant to oral contract); Bowers v. Missouri, Kan. & Tex. Ry. Co., 241 S.W. 509, 510-11 (Tex.Civ. App.—Texarkana 1922, no writ) (allowing restitution for freight charges paid in excess of rates specified in shipping contract); see also Gulf Oil Corp. v. Lone Star Producing Co., 322 F.2d 28, 31-33 (5th Cir.1963) (holding that plaintiff could recover money mistakenly paid in excess of contract price); Natural Gas Pipeline Co. v. Harrington, 246 F.2d 915, 921 (5th Cir.1957) (holding that gas company was entitled to restitution of difference between contract rate and price paid under invalid rate order set by regulatory board). SWEPCO complains that the court of appeals held that the existence of a contract precludes all claims for unjust enrichment or restitution. We do not read the opinion of the court of appeals to include such a holding. The court correctly observed that if the contract rates were paid under the transportation agreements, there could be no recovery of \"overcharges\" under a theory of unjust enrichment. The court reasoned that since the jury failed to find that there was a gross inequity, the rates established by the formulas in the contract were the proper charges.\nThe court of appeals accurately perceived that SWEPCO's unjust enrichment claim is dependent upon a revision of the contract rates pursuant to the \"Formula Intent\" and \"Gross Inequity\" provisions of the transportation agreements. Those provisions are the only contractual mechanism for altering the rates derived under the adjustment formulas.\nSWEPCO maintains that even though the jury failed to find in its favor in answering issues based on the gross inequity clauses, the jury nevertheless found that Burlington Northern charged more than it should in answering the unjust enrichment issues. SWEPCO's argument is circular, which becomes apparent when the jury's verdict is analyzed.\nSWEPCO's gross inequity claim under the 1974 contract was submitted to the jury as follows:\nQUESTION NO. 1\nDo you find that SWEPCO has suffered a gross inequity as a result of unusual economic conditions resulting in the escalation formula in the Flint Creek Contract (Plaintiff's Exhibit No. 1) failing to fairly cover changes in the Railroads' cost of transporting SWEPCO's coal tonnages from Wyoming to Flint Creek above or below the 1971 base cost level?\nThe same question was submitted regarding the 1984 contract, and the jury answered \"no\" to both questions.\nThe gross inequity issues were followed by an instruction and a series of questions that submitted the unjust enrichment claim:\nAs you consider Questions 7 through 10, you are instructed that the term \"unjust enrichment\" means the unjust retention of a benefit to the loss of another, or the retention of money or property of another against the fundamental principles of justice or equity and good conscience.\nQUESTION NUMBER 7\nDid the Railroads receive an unjust enrichment by retaining all or a part of the difference, if any, between the rate actually charged for shipping SWEPCO's coal tonnages from Wyoming to Flint Creek and the rates that should have been charged?\nThe trial court submitted the same question regarding the 1984 contract. The unjust enrichment issues do not, as SWEPCO now contends, inquire about overcharges under the contracts. The jury was asked only if there was unjust enrichment, as defined in the instruction, based on the difference between what Burlington Northern charged and what it \"should have charged.\" The jury was accordingly asked to determine what it thought Burlington Northern should have charged, not what rate was to be paid under the \"Formula Intent\" and \"Gross Inequity\" clauses of the contracts. The jury had already considered those contractual claims and had failed to find that there had been a gross inequity resulting from unusual economic conditions. Because the jury failed to find that SWEPCO had suffered a gross *471 inequity, the rates established under the contract escalation formulas remained in effect. It is undisputed that SWEPCO paid the rates established in accordance with those formulas. Thus, there were no overcharges under the contracts to support SWEPCO's claim for unjust enrichment. SWEPCO's contention that in answering \"yes\" to the unjust enrichment issues, the jury found that Burlington Northern Charged more than the contracts permitted cannot be sustained.\nSWEPCO asserts in the alternative that it is entitled to recover under a theory of \"money had and received.\" However, SWEPCO recognizes that this claim is likewise dependent on its contention that the jury found that there had been overcharges under the contract. As long as the rates SWEPCO paid were the contract rates, there was no \"money had\" by Burlington Northern that should be returned to SWEPCO. The distinction SWEPCO attempts to draw between its unjust enrichment and \"money had and received\" theories is thus illusory.\nWe note that in our discussion of the submission of the gross inequity theory to the jury, we are not deciding whether the \"Formula Intent\" and \"Gross Inequity\" clauses permit a court to set rates when the parties have failed to agree or whether the clauses are unenforceable agreements to agree. That issue was not before the court of appeals or this Court, and we do not address it. SWEPCO maintained that the effect of the gross inequity clause was a question for the jury to decide, and the jury failed to find for SWEPCO. Accordingly, the rates established under the adjustment clauses were the contract rates, and there were no overcharges that would be recoverable under a theory of unjust enrichment.\n\nIII\nSWEPCO contends that it is entitled to a new trial because of the admission of evidence of its financial condition and the exclusion of testimony from a former Burlington Northern officer. We agree with the court of appeals that the judgment should not be reversed on either of these points, but our conclusions are based on grounds that differ from those of the court of appeals. We first address the admission of evidence regarding SWEPCO's financial condition.\nThis Court has long recognized the potential for undue prejudice in allowing the jury to consider a litigant's financial status. See Eckman v. Centennial Sav. Bank, 784 S.W.2d 672, 675 (Tex.1990); Texas Co. v. Gibson, 131 Tex. 598, 116 S.W.2d 686, 687 (1938). Because this evidence is often irrelevant and highly prejudicial, Texas courts historically have been extremely cautious in admitting evidence of a party's wealth. See, e.g., Wal-Mart Stores, Inc. v. Cordova, 856 S.W.2d 768, 774 (Tex.App.—El Paso 1993, writ denied); Murphy v. Waldrip, 692 S.W.2d 584, 588 (Tex.App.—Fort Worth 1985, writ ref'd n.r.e.); First Nat'l Bank of Amarillo v. Bauert, 622 S.W.2d 464, 469 (Tex.App.—Amarillo 1981, no writ); Wilmoth v. Limestone Prods. Co., 255 S.W.2d 532, 534 (Tex.Civ.App.—Waco 1953, writ ref'd n.r.e.). There are instances, however, when evidence of this nature is admissible and highly probative. Burlington Northern contends that SWEPCO's financial condition was relevant in determining whether SWEPCO suffered a gross inequity under the terms of the contracts.\nBoth contracts between SWEPCO and Burlington Northern provide that \"[i]f any one of the parties [to this Agreement] should suffer a gross inequity as a result of unusual economic conditions, which result in the escalation formulas failing to fairly cover cost changes, such inequities will be resolved by mutual agreement among [the parties].\" Under this express language, three elements must be present: (1) unusual economic conditions, (2) that cause the escalation formula to fail to cover changes in the cost of hauling coal, and (3) this failure must cause one party to suffer a gross inequity or condition of unfairness. See generally Marvin O. Young, Construction and Enforcement of Long-Term Coal Supply Agreements—Coping with Conditions Arising from Foreseeable and Unforeseeable Events—Force Majeure and Gross Inequities Clauses, in 27A Rocky Mtn. Min. L. Inst. 127, 143 (1982).\nIn an effort to demonstrate that SWEPCO was financially sound and had suffered no *472 gross inequity, Burlington Northern introduced charts showing that SWEPCO was more profitable than the average electric utility in the United States and that SWEPCO's earnings exceeded those of other utilities in Texas and Arkansas. Additionally, Burlington Northern's expert witness testified that SWEPCO had a higher bond rating than Burlington Northern and also hypothesized that if SWEPCO were suffering a gross inequity, that would be reflected in SWEPCO's financial condition.\nCommentators on long-term contracts of the type involved in the present case have opined that a party's financial condition is not relevant to the question of whether one party suffers a gross inequity. See, e.g., Victor P. Goldberg, Price Adjustment in Long-Term Contracts, 1985 Wis. L.Rev. 527, 541 (1985). Rather, the relevant inquiry is \"whether the difference between the contract price and the aggrieved party's next best option is large enough to warrant relief.\" See id. We are in general agreement with that analysis. We are not persuaded that evidence of SWEPCO's overall financial strength was calculated to shed light on gross inequity, and there is no indication that this evidence was relevant to whether there were unusual economic conditions or whether the formulas failed to cover changes in costs.\nSWEPCO is a large corporation with substantial net income and a large asset base. A company the size of SWEPCO could be precluded from demonstrating a gross inequity under a particular contract if proof of that inequity depended on the relative economic strength of the contracting parties. It is conceivable that a large company such as SWEPCO could lose tens of millions of dollars under a given contract, yet nonetheless remain a financially strong entity because of substantial returns from other areas of its business.\nThe question of whether financial strength or ability to pay should bear on gross inequity is particularly troublesome when dealing with a regulated entity. A substantial portion, if not all, of the transportation costs incurred by SWEPCO under these contracts is passed through to SWEPCO's customers as part of a \"fuel factor\" that is added to customers' electric bills. See 16 TEX. ADMIN. CODE § 23.23 (1986). Thus, changes in the cost of coal transportation would have little direct effect on SWEPCO's profitability.\nHowever, the error in admitting evidence of SWEPCO's overall financial condition was not harmful in this case because SWEPCO invited that error. SWEPCO was the first to adduce evidence of overall financial condition in an effort to persuade the jury that a gross inequity had resulted. SWEPCO offered evidence that Burlington Northern had enjoyed substantial annual earnings, inferring that those earnings were at least in part due to the excessive rates it charged SWEPCO. An expert for SWEPCO who testified extensively regarding the gross inequity issue was asked by counsel for SWEPCO to describe Burlington Northern's overall financial condition and its profitability:\nQ Tell us, Mr. Crowley, how much money they [Burlington Northern] have put in the pockets of their shareholders, their owners, during this same time period that you have described.\nA Approximately four and a half billion dollars.\nQ That's a \"B?\"\nA \"B.\" Billion. Yes.\nQ Do I have enough zeroes (indicating)?\nA Do you have nine of them? Okay.\n* * *\nQ What did Burlington Northern announce last Thursday that they earned in the third quarter of this year, for three months?\nA \"Burlington Northern, Inc., announced Thursday it earned a hundred and fifteen million or $1.18 a share in the third quarter, compared with income of twenty-four million or twenty-one cents a share in the flood effect of 1993 third quarter.\"\n* * *\nA \"Revenue and operating income were both third quarter records.\"\n*473 SWEPCO \"opened the door\" regarding the relationship between the financial condition of the parties and whether there had been a gross inequity under the contracts. \"A party on appeal should not be heard to complain of the admission of improper evidence offered by the other side, when he, himself, introduced the same evidence or evidence of a similar character.\" McInnes v. Yamaha Motor Corp., 673 S.W.2d 185, 188 (Tex.1984); see also Evans v. Covington, 795 S.W.2d 806, 809 (Tex. App.—Texarkana 1990, no writ) (holding that error in admitting settlement negotiations was invited).\nSWEPCO argues that it did not invite error because it adduced evidence of Burlington Northern's financial condition only in response to the cross-examination of its expert by Burlington Northern. The record does not bear out that assertion.\nThe expert witness called by SWEPCO had been retained by SWEPCO in the past on other rate matters involving Burlington Northern. During this trial, Burlington Northern attempted to discredit SWEPCO's witness during cross-examination with prior criticisms from his own client. In one of the prior rate disputes in which SWEPCO had consulted this same expert, a SWEPCO representative indicated that the rates the expert said Burlington Northern should charge were well below a reasonable rate. These statements were in an internal SWEPCO memorandum that said if Burlington Northern used the rates suggested by SWEPCO's expert, the \"railroads would probably go broke.\"\nDuring re-direct, SWEPCO referred its expert back to the memorandum and asked whether Burlington Northern was in fact \"going broke.\" This was not particularly relevant to what was said in the memorandum because Burlington Northern never actually charged the rates proposed by the expert. The fact that Burlington Northern had not gone broke was thus no indication that it would not have done so if it charged the rates that had been proposed by this witness. In any event, SWEPCO did not limit its questions to whether Burlington Northern was \"going broke.\" SWEPCO proceeded, over the objection of Burlington Northern, to probe into specifics regarding Burlington Northern's financial condition and profitability. That evidence went far beyond any legitimate attempt to rehabilitate the expert witness. Evidence of Burlington Northern's financial condition was totally unrelated to whether the rates proposed by SWEPCO's witness in this trial would remedy a gross inequity. SWEPCO's assertion that these questions were justified in light of Burlington Northern's cross-examination are thus unfounded.\nFinally, SWEPCO contends that the trial court erred in finding that SWEPCO had abused the discovery process and then sanctioning SWEPCO by excluding testimony of a former Burlington Northern officer. We do not reach the propriety of the discovery sanction because any error in excluding the evidence was harmless. SWEPCO claims that the excluded testimony would have shown that in the past, before this dispute arose, Burlington Northern had construed the gross inequity clauses to apply the same way that SWEPCO was asking the jury to apply them in this case. SWEPCO further contends that it \"had no [Burlington Northern] documents or testimony from other [Burlington Northern] witnesses\" regarding this issue. However, SWEPCO introduced other evidence from high-ranking Burlington Northern officers that addressed the same issue as the evidence excluded by the trial court:\nQ I'm going to display on the screen the document that has been marked ... as Exhibit Twenty-eight. Do you recall, Mr. Crowley, this is one that the Burlington admitted was written by a man named Scanland to a man named Lawrenson, of the railroad.\nA Yes.\nQ Can you tell us who Mr.—do you know who Mr. Lawrenson was?\nA He was one of the top executives with the railroad; might have been even the President of the company.\n\n*474 * * *\nQ All right, Mr. Crowley, I want to focus you on the first two sentences. They say, \"The escalator is designed to maintain the ratio of revenue to cost. This means that the profit margin in cents per ton goes up at the same percentage rate as the costs.\" And then it goes on one more sentence. \"When costs double, for example, the rate doubles and the cents per ton profit doubles.\" Do you agree with what that man in the Burlington Northern told one of the highest executives in the railroad?\nA I do agree, and that coincides exactly with the example that you put on the chart.\nQ Is that the way that you have applied the language of the gross inequity clause to the facts of this case?\nA Yes, it is.\nIn light of this testimony and other similar evidence in the record, the testimony excluded by the trial court would have been cumulative. Under Texas Rule of Appellate Procedure 44.1, wrongfully admitted evidence is harmful only if it \"probably caused the rendition of an improper judgment.\" TEX.R.APP. P. 44.1(a)(1). We cannot say that the exclusion of this evidence met that standard.\n\n* * * * *\nFor the foregoing reasons, we affirm the judgment of the court of appeals.\n", "ocr": false, "opinion_id": 2377707 } ]

[ "985 So. 2d 549" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n985 So.2d 549 (2008)\nTONDEE\nv.\nSTATE.\nNo. 5D08-199.\nDistrict Court of Appeal of Florida, Fifth District.\nJuly 1, 2008.\nDecision without published opinion. Affirmed.\n", "ocr": false, "opinion_id": 1666069 } ]

[ "62 F.3d 374" ]

[ { "author_str": "Kravitch", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/62/62.F3d.374.91-7406.html", "author_id": null, "opinion_text": "62 F.3d 374\n 68 Fair Empl. Prac. Cas. (BNA) 990,66 Empl. Prac. Dec. P 43,709, 64 USLW 2179,130 Lab.Cas. P 33,278\n Becky WALLACE, Plaintiff,Annette Neal, Plaintiff-Appellee,v.DUNN CONSTRUCTION COMPANY, INC., Defendant-Appellant.\n No. 91-7406.\n United States Court of Appeals,Eleventh Circuit.\n Aug. 30, 1995.\n \n Peyton Lacy, Thomas F. Campbell, Lange, Simpson, Robinson & Somerville, Birmingham, AL, for appellant.\n Marvin L. Stewart, Jr., Najjar, Denaburg, Meyerson, Zarzaur, Max, Wright & Schwartz, P.C., Birmingham, AL, for appellee.\n Appeal from the United States District Court for the Northern District of Alabama.\n Before TJOFLAT, Chief Judge, KRAVITCH, HATCHETT, ANDERSON, EDMONDSON, COX, BIRCH, DUBINA, BLACK, CARNES and BARKETT, Circuit Judges, and GODBOLD*, Senior Circuit Judge.\n KRAVITCH, Circuit Judge:\n \n \n 1\n In this appeal, we address the role that after-acquired evidence of an employee's fraud in a job application plays in actions brought pursuant to Title VII of the Civil Rights Act of 1964 (\"Title VII\")1 and the Equal Pay Act of 1963 (\"Equal Pay Act\").2 Specifically, we hold that the Supreme Court's recent decision, McKennon v. Nashville Banner Publishing Co.,3 applies to cases brought under Title VII and the Equal Pay Act. We also hold that the reasoning underlying McKennon applies with equal force when the after-acquired evidence concerns an employee's fraud in the application process, rather than an employee's wrongful conduct during employment.\n \n I. Background\n \n 2\n Appellee Joyce Annette Neal filed suit against Dunn Construction Company, Inc. (\"Dunn\"), alleging that: (1) she was not paid the same as her male coworkers,4 in violation of the Equal Pay Act, (2) she was subject to retaliatory discharge in violation of the Equal Pay Act, (3) she was sexually harassed in violation of Title VII, and (4) she was subject to retaliatory discharge in violation of Title VII. Neal also raised Alabama state law claims for assault and battery and invasion of privacy. During one of Neal's depositions, Dunn learned that Neal had pleaded guilty to possession of marijuana and cocaine in state court in 1987. In her job application, filled out on April 13, 1988, however, Neal had answered \"no\" to the question, \"Have you ever been convicted of a crime?\"\n \n \n 3\n Dunn moved for partial summary judgment on the federal claims contending, inter alia, that Dunn \"discovered that [Neal] falsified her employment application and that she has violated company policy against convictions for drug offenses which are legitimate, non-discriminatory reasons for which she would have been terminated in any event, without regard to sex or retaliation.\"\n \n \n 4\n The district court denied summary judgment, noting that the Eleventh Circuit had never held that after-acquired evidence bars recovery in a discrimination case. Neal and Dunn jointly filed a motion to certify the order denying Dunn's motion for partial summary judgment for an interlocutory appeal. See 28 U.S.C. Sec. 1292(b). The district court granted the motion and a panel of this court granted Dunn permission to appeal.\n \n \n 5\n In Wallace v. Dunn Constr. Co., 968 F.2d 1174 (11th Cir.1992), a panel of this court addressed the effect of after-acquired evidence of an employee's fraud in a job application and in a split decision, affirmed the denial of summary judgment. We granted Dunn's suggestion for rehearing en banc, vacating the panel opinion. Wallace v. Dunn Constr. Co., 32 F.3d 1489 (11th Cir.1994). During the pendency of the en banc proceedings, the Supreme Court rendered its decision in McKennon.\n \n II. McKennon\n \n 6\n In McKennon v. Nashville Banner Publishing Co., --- U.S. ----, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995), a case involving an alleged violation of the Age Discrimination in Employment Act of 1967 (\"ADEA\"), the Supreme Court held that after-acquired evidence of wrongful conduct during employment that would have resulted in termination does not \"operate[ ], in every instance, to bar all relief for an earlier violation of the Act.\" Id. at ----, 115 S.Ct. at 884. The Court held, however, that \"the after-acquired evidence of the employee's wrongdoing bears on the specific remedy to be ordered.\" Id. at ----, 115 S.Ct. at 885. The Court determined that in cases in which an employee commits an act during employment that would lead to termination and the employer finds out about the act during the course of litigation, \"neither reinstatement nor front pay is an appropriate remedy.\" Id. at ----, 115 S.Ct. at 886. The Court then discussed backpay, holding that it should be calculated \"from the date of the unlawful discharge to the date the new information was discovered,\" with the court \"taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party.\" Id.\n \n \n 7\n Our task today is to determine the impact of McKennon when an employee who has falsified her job application brings a lawsuit under Title VII and the Equal Pay Act.\n \n III. Title VII and The Equal Pay Act\n \n 8\n At the outset, we must determine whether the Supreme Court's decision in McKennon applies to actions brought pursuant to Title VII and the Equal Pay Act. The Supreme Court noted in McKennon that the ADEA, Title VII, and the Equal Pay Act all are \"part of a wider statutory scheme to protect employees in the workplace nationwide.\" Id. at ----, 115 S.Ct. at 884. All three statutes share \"a common purpose: 'the elimination of discrimination in the work place.' \" McKennon, --- U.S. at ----, 115 S. Ct. at 884 (referring to Title VII and the ADEA) (quoting Oscar Mayer & Co. v. Evans, 441 U.S. 750, 756, 99 S. Ct. 2066, 2071, 60 L. Ed. 2d 609 (1979)); see also Miranda v. B & B Cash Grocery Store, Inc., 975 F.2d 1518, 1527 (11th Cir.1992) (\"Title VII and the Equal Pay Act exist side by side in an effort to rid the workforce of gender-based discrimination.\"). Additionally, the ADEA and Title VII share common substantive features, and the ADEA and the Equal Pay Act share common remedial provisions. McKennon, --- U.S. at ----, 115 S. Ct. at 884.\n \n \n 9\n Based upon the similarities among the statutes, we conclude that the holding of McKennon is applicable to claims brought under Title VII and the Equal Pay Act. See O'Driscoll v. Hercules Inc., 52 F.3d 294 (10th Cir.1995) (remanding ADEA, Title VII and Fair Labor Standards Act claims to district court for reconsideration in light of McKennon ); Wehr v. Ryan's Family Steak Houses, Inc., 49 F.3d 1150, 1153 (6th Cir.1995) (\"While McKennon involved an ADEA claim, we are persuaded by its language that it applies equally to a Title VII claim.\"); Manard v. Fort Howard Corp., 47 F.3d 1067, 1067 (10th Cir.1995) (applying McKennon, without discussion, to Title VII case).\n \n IV. Fraud in a Job Application\n \n 10\n Dunn argues that McKennon is not applicable to this case because the petitioner in McKennon had committed wrongful acts during employment, whereas Neal lied on her job application. Dunn urges the conclusion that \"one who obtains a job or employment contract by misrepresentation has no employment contract, no employee status and no standing to sue for alleged employment-related wrongs.\" We cannot agree.\n \n \n 11\n Title VII and the Equal Pay Act, like the ADEA, serve to deter discriminatory conduct in the workplace and to compensate for injuries caused by the prohibited discrimination.5 Each of these statutes thus \"grants an injured employee a right of action to obtain the authorized relief.\" McKennon, --- U.S. at ----, 115 S. Ct. at 884; see also 29 U.S.C. Sec. 216(b) (authorizing private actions under the Equal Pay Act); 29 U.S.C. Sec. 626(c) (authorizing private actions under the ADEA); 42 U.S.C. Sec. 2000e-5(f)(1) (authorizing private right of action under Title VII). Moreover, \"[t]he private litigant who seeks redress for his or her injuries vindicates both the deterrence and the compensation objectives of the [Acts].\" McKennon, --- U.S. at ----, 115 S. Ct. at 884.\n \n \n 12\n In McKennon, the Supreme Court explained that these twin objectives of the ADEA would not be served if an employer were free to discriminate against an employee merely because the employer learned of that employee's wrongdoing:\n \n \n 13\n The objectives of [ADEA] are furthered when even a single employee establishes that an employer has discriminated against him or her. The disclosure through litigation of incidents or practices which violate national policies respecting nondiscrimination in the work force is itself important, for the occurrence of violations may disclose patterns of noncompliance resulting from a misappreciation of the Act's operation or entrenched resistance to its commands, either of which can be of industry-wide significance.\n \n \n 14\n McKennon, --- U.S. at ----, 115 S. Ct. at 885.\n \n \n 15\n Likewise, the objectives of deterrence and compensation would not be served if an employee lacked standing to seek relief under these statutes because he or she misrepresented information on his or her job application. We therefore hold that the after-acquired evidence rule announced in McKennon applies to cases in which the after-acquired evidence concerns the employee's misrepresentations in a job application or resume, as well as cases in which the after-acquired evidence relates to employee wrongdoing during employment. See Shattuck v. Kinetic Concepts, Inc., 49 F.3d 1106 (5th Cir.1995) (applying McKennon to case in which the employer discovered that plaintiff had lied about his education on his resume); Ryan's Family Steak Houses, Inc., 49 F.3d at 1150 (applying McKennon to case in which employer discovered that plaintiff had lied about employment background and medical history on resume); Hercules Inc., 52 F.3d at 294 (remanding fraud-in-application case for proceedings \"consistent with the Supreme Court decision in McKennon \").6\n \n V. Remedies7\n A.\n \n 16\n In order to benefit from the after-acquired evidence rule announced in McKennon, Dunn must prove that \"the misconduct revealed by the deposition was so grave that [Neal's] immediate discharge would have followed its disclosure in any event.\" --- U.S. at ----, 115 S. Ct. at 883.8\n \n \n 17\n Our review of the record convinces us that there is no genuine issue of material fact that Neal would have been fired when Dunn learned that Neal had lied on her job application about her prior conviction. The Employee Handbook, a copy of which Neal received when she began work, states that falsification of records is conduct for which the company will impose a penalty that may include termination. Two defense witnesses, Tina Fuller and Becky Wallace, stated at their depositions that if someone lied on a job application and Dunn found out, the person could be fired. Dunn's Accountant and Manager for Administration and its Safety Training Director submitted affidavits that Dunn would have fired Neal upon learning that she lied on her application about her drug conviction. In the face of this evidence, Neal provided only her own testimony that she thought that there was a woman who lied on her job application and kept her job. She submitted no proof that anyone who lied on the application about a drug offense was retained after Dunn learned of the misrepresentation. We therefore hold that Dunn has sufficiently demonstrated that Neal would have been fired when it learned of her misrepresentation.\n \n B.\n \n 18\n We now set forth some general principles to assist the district court in fashioning a remedy in the event that Neal prevails on her claims under the Equal Pay Act and Title VII.9 With respect to Neal's inadequate compensation claim,10 the after-acquired evidence will be irrelevant to her recovery of unpaid wages or liquidated damages because a plaintiff only recovers unpaid wages for the allowable statutory period11 and does not recover any unpaid wages or liquidated damages after termination.\n \n \n 19\n Assuming that Neal prevails on her retaliation claim under the Equal Pay Act12 or her Title VII claims, \"neither reinstatement nor front pay [will be] an appropriate remedy\" because Dunn would have fired Neal upon learning that she lied about her drug conviction. McKennon, --- U.S. at ----, 115 S. Ct. at 886. Injunctive relief also will not be appropriate, as Neal will no longer be employed at Dunn. See Henson v. City of Dundee, 682 F.2d 897, 905 (11th Cir.1982) (in the absence of reinstatement, injunctive relief is \"unlikely\").\n \n \n 20\n With respect to backpay under Title VII and lost wages under the Equal Pay Act, if Neal prevails on her claims, \"[t]he beginning point in the trial court's formulation of a remedy should be calculation of backpay from the date of the unlawful discharge to the date the new information was discovered.\" --- U.S. at ----, 115 S. Ct. at 886. The Supreme Court has also made clear that although this is the usual method for calculating damages in an after-acquired evidence case, \"[i]n determining the appropriate order for relief, the court can consider taking into further account extraordinary equitable circumstances that affect the legitimate interests of either party.\" Id.\n \n \n 21\n We also note that unless Dunn can show that it acted in good faith and with a reasonable belief that it was not violating the Equal Pay Act, Neal will be able to collect liquidated damages for her retaliation claim. See E.E.O.C. v. White & Son Enters., 881 F.2d 1006, 1012 (11th Cir.1989). The after-acquired evidence is irrelevant to Dunn's mental state and thus does not bar these liquidated damages under the Equal Pay Act. The evidence is relevant for the purpose of calculating the award, as it may, as explained above, mandate an early end to the period of liquidated damages.\n \n VI. Conclusion\n \n 22\n Because reinstatement, front pay, and injunctive relief are unavailable to Neal under the facts of this case, the district court erred in not granting partial summary judgment in favor of Dunn with respect to these remedies. The district court, however, correctly denied summary judgment as to backpay, unpaid wages and liquidated damages, as the after-acquired evidence does not bar recovery, but merely affects the remedy. We therefore REVERSE the district court's denial of summary judgment with respect to front pay, reinstatement, and injunctive relief, and REMAND to the district court for proceedings consistent with this opinion.\n \n \n 23\n AFFIRMED IN PART, REVERSED AND REMANDED IN PART.\n \n \n \n *\n Senior U.S. Circuit Judge John C. Godbold elected to participate in this decision pursuant to 28 U.S.C. Sec. 46(c)\n \n \n 1\n 42 U.S.C. Sec. 2000e et seq\n \n \n 2\n 29 U.S.C. Sec. 206(d)(1). The Equal Pay Act is an amendment to the Fair Labor Standards Act of 1938\n \n \n 3\n --- U.S. ----, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995)\n \n \n 4\n Neal was employed as a flag person on highway construction\n \n \n 5\n See Virgo v. Riviera Beach Ass'n, 30 F.3d 1350, 1363 (11th Cir.1994) (\"The purpose of Title VII is to 'make whole' victims of unlawful discrimination.\"); Durrett v. Jenkins Brickyard, Inc., 678 F.2d 911, 917 (11th Cir.1982) (discussing the deterrent purpose of Title VII); 29 U.S.C. Secs. 206(d)(3), 216 (providing for liquidated and compensatory damages for violation of the Equal Pay Act); Thompson v. Commissioner of Internal Revenue, 866 F.2d 709, 712 (4th Cir.1989) (noting that liquidated damage award under Equal Pay Act serves, in part, as \"a deterrent to ensure compliance with the Act\")\n \n \n 6\n Our conclusion is bolstered by the Supreme Court's vacating and remanding two fraud-in-application cases for reconsideration in light of McKennon. See O'Driscoll v. Hercules Inc., --- U.S. ----, 115 S. Ct. 1086, 130 L. Ed. 2d 1056 (1995); Harleysville Life Ins. Co. v. Mardell, --- U.S. ----, 115 S. Ct. 1397, 131 L. Ed. 2d 286 (1995)\n \n \n 7\n Neal's suit was commenced prior to the passage of the Civil Rights Act of 1991. We do not consider the effect of after-acquired evidence on the remedies available under that Act, as they are unavailable to Neal. See Curtis v. Metro Ambulance Service, Inc., 982 F.2d 472, 473-74 (11th Cir.1993) (Civil Rights Act of 1991 does not apply retroactively)\n \n \n 8\n We join the Fifth Circuit in concluding that \"the pertinent inquiry, except in refusal-to-hire cases, is whether the employee would have been fired upon discovery of the wrongdoing, not whether he would have been hired in the first instance.\" Kinetic Concepts, Inc., 49 F.3d at 1108\n This approach is consistent with the Supreme Court's acknowledgement that the two dates which are relevant for the purpose of calculating backpay are the date of termination and the date that the employer discovered the fraud. See McKennon, --- U.S. at ----, 115 S. Ct. at 886. It also recognizes that the purpose of considering the after-acquired evidence in fashioning a remedy is \"to take due account of the lawful prerogatives of the employer\" and not to \"punish the employee.\" Id. Finally, this approach acknowledges that \"[m]erely asking whether the employee would have been hired fails to recognize that an employer may retain an individual, who has performed successfully.\" Shattuck, 49 F.3d at 1109.\n \n \n 9\n We stress that we express no opinion about the merits of any of Neal's claims\n \n \n 10\n See 29 U.S.C. Sec. 206(d)(1)\n \n \n 11\n Pursuant to the Portal-to-Portal Act, an action under the Equal Pay Act must be commenced within two years after the cause of action accrues, \"except that a cause of action arising out of a willful violation may be commenced within three years.\" 29 U.S.C. Sec. 255\n \n \n 12\n See 29 U.S.C. Sec. 215(a)(3)\n \n \n ", "ocr": false, "opinion_id": 701378 } ]

[ "161 F. App'x 424" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\05/05-50016.0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n Fifth Circuit\n F I L E D\n IN THE UNITED STATES COURT OF APPEALS\n FOR THE FIFTH CIRCUIT January 10, 2006\n\n Charles R. Fulbruge III\n Clerk\n No. 05-50016\n Summary Calendar\n\n\n\nUNITED STATES OF AMERICA,\n\n Plaintiff-Appellee,\n\nversus\n\nWILLIAM RODRIGUEZ-GONZALEZ, also know as Jose Luis Sanchez-\nFlores,\n\n Defendant-Appellant.\n\n --------------------\n Appeal from the United States District Court\n for the Western District of Texas\n USDC No. 3:04-CR-1770-ALL\n --------------------\n\nBefore JOLLY, DAVIS, and OWEN, Circuit Judges.\n\nPER CURIAM:*\n\n William Rodriguez-Gonzalez appeals his 27-month sentence\n\nfollowing his guilty-plea conviction for being unlawfully present\n\nin the United States after having been deported, a violation of\n\n8 U.S.C. § 1326. The indictment did not allege that Rodriguez-\n\nGonzalez’s deportation was subsequent to a felony or aggravated-\n\nfelony conviction, and it did not specifically cite to any\n\nsubsection of 18 U.S.C. § 1326. In pertinent part, the\n\nsentencing guideline base offense level was increased twelve\n\n *\n Pursuant to 5TH CIR. R. 47.5, the court has determined that\nthis opinion should not be published and is not precedent except\nunder the limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\f No. 05-50016\n -2-\n\nlevels pursuant to U.S.S.G. § 2L1.2(b)(1)(A) because Rodriguez-\n\nGonzalez was previously deported after a conviction for a felony\n\ndrug-trafficking offense for which the sentence imposed was 13\n\nmonths or less. Rodriguez-Gonzalez objected to this increase on\n\nthe basis of Apprendi v. New Jersey, 530 U.S. 466 (2000), and\n\nBlakely v. Washington, 124 S. Ct. 2531 (2004).\n\n Rodriguez-Gonzalez argues that because the indictment did\n\nnot allege a prior conviction, it charged only a violation of\n\n§ 1326(a) and under Apprendi his sentence violated due process\n\nbecause it exceeded the two-year maximum punishment for the\n\n§ 1326(a) offense charged. This argument is foreclosed by\n\nAlmendarez-Torres v. United States, 523 U.S. 224, 235, 239-47\n\n(1998). Although Rodriguez-Gonzalez contends that\n\nAlmendarez-Torres was incorrectly decided and that a majority of\n\nthe Supreme Court would overrule Almendarez-Torres in light of\n\nApprendi, we have repeatedly rejected such arguments on the basis\n\nthat Almendarez-Torres remains binding. See United States v.\n\nGarza-Lopez, 410 F.3d 268, 276 (5th Cir.), cert. denied, 126 S.\n\nCt. 298 (2005). Rodriguez-Gonzalez properly concedes that his\n\nargument is foreclosed in light of Almendarez-Torres and circuit\n\nprecedent, but he raises it here to preserve it for further\n\nreview.\n\n Rodriguez-Gonzalez also argues that the district court\n\ncommitted reversible error when it sentenced him pursuant to the\n\nmandatory sentencing guidelines system held unconstitutional in\n\f No. 05-50016\n -3-\n\nUnited States v. Booker, 125 S. Ct. 738 (2005). Because the\n\ndistrict court sentenced Rodriguez-Gonzalez under a mandatory\n\nguidelines regime, it committed Fanfan error. See United States\n\nv. Valenzuela-Quevado, 407 F.3d 728, 733 (5th Cir.), cert.\n\ndenied, 126 S. Ct. 267 (2005); see also United States v. Walters,\n\n418 F.3d 461, 463 (5th Cir. 2005)(discussing the difference\n\nbetween Sixth Amendment Booker error and Fanfan error). “[I]f\n\neither the Sixth Amendment issue presented in Booker or the issue\n\npresented in Fanfan is preserved in the district court by an\n\nobjection, we will ordinarily vacate the sentence and remand,\n\nunless we can say the error is harmless under Rule 52(a) of the\n\nFederal Rules of Criminal Procedure.” United States v. Pineiro,\n\n410 F.3d 282, 284-85 (5th Cir. 2005) (internal quotation marks\n\nand citation omitted). The Government concedes that Rodriguez-\n\nGonzalez’s objection on the basis of Blakely, was sufficient to\n\npreserve his Fanfan claim and that it cannot show that the error\n\nwas harmless. The sentencing transcript supports the\n\nGovernment’s concession. Accordingly, we VACATE Rodriguez-\n\nGonzalez’s sentence and REMAND to the district court for re-\n\nsentencing.\n\f", "ocr": false, "opinion_id": 40523 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 6, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/TCA/PDF/042/Hopmay.pdf", "author_id": 8270, "opinion_text": " IN THE COURT OF APPEALS OF TENNESSEE\n AT NASHVILLE\n March 18, 2004 Session\n\n JEFFREY P. HOPMAYER v. ALADDIN INDUSTRIES, LLC\n\n Direct Appeal from the Chancery Court for Davidson County\n No. 02-85-I Irvin Kilcrease, Chancellor\n\n\n\n No. M2003-01583-COA-R3-CV - Filed June 9, 2004\n\n\nPlaintiff filed suit alleging Defendant breached its employment contract by failing to provide\nPlaintiff with phantom units when Plaintiff was terminated without cause. Defendant denied that\nPlaintiff’s phantom units had vested, and therefore, Plaintiff was not entitled to any phantom units\nat the time of his termination. The trial court found that the letter memorializing the Defendant’s\noffer of employment was sufficiently definite and met the other requirements for a valid contract,\nincluding mutual assent. The trial court also found that the terms of the employment contract did\nnot include any vesting requirements for Plaintiff’s phantom units. As a result, the trial court found\nthat Defendant had breached its employment contract and awarded Plaintiff the value of his phantom\nunits contained in the employment agreement plus pre-judgment interest dating back to Plaintiff’s\ntermination. Defendant appeals. We affirm.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed; and\n Remanded\n\nDAVID R. FARMER , J., delivered the opinion of the court, in which W. FRANK CRAWFORD , P.J., W.S.,\nand ALAN E. HIGHERS, J., joined.\n\nWilliam N. Ozier, Nashville, Tennessee, for the appellant, Aladdin Industries, LLC.\n\nGeorge H. Nolan and Jonathan D. Rose, Nashville, Tennessee, for the appellee, Jeffrey S. Hopmayer.\n\n OPINION\n\n In May of 1999, Defendant, Aladdin Industries (Aladdin) hired Ari Chaney (Chaney) as\nits new Chief Executive Officer. One of his duties was to hire a new management team for\nAladdin. In December of 1999, Aladdin mailed an offer of employment (agreement) to Plaintiff,\nJeffrey Hopmayer (Hopmayer). The agreement provided in pertinent part:\n\n [Aladdin company logo]\n December 21, 1999\n\f Jeffrey S. Hopmayer\n 751 Waterford Drive\n Des Plaines, Illinois 60016\n\n Dear Jeffrey:\n\n It is with a great deal of pleasure that I offer to you employment on behalf of\n Aladdin Industries, LLC, effective January 5, 2000.\n\n Position: Vice President, Sales\n Salary: ...\n\n In addition to your base salary . . . .\n\n A phantom unit1 plan will be adopted by the Board of Managers in which you will\n be granted 4,000 phantom units with an initial value of $40.00 per unit.\n\n ....\n\n In the event you should leave Aladdin for reasons other than through your own\n volition, you will receive a severance package equal to your last 12 months salary\n and bonus.\n\n ....\n\n Jeff, all of us who have spoken with you are very excited about you joining us.\n We feel certain the professional and personal goals you seek will be achieved here\n at Aladdin.\n\n Sincerely,\n /s/ Ari Chaney\n Ari Chaney\n CEO\n\n\n 1\n Appellee’s brief contains the following description of phantom units:\n\n Phantom units are a type of executive compensation used by limited liability companies like Aladdin\n in order to provide their executives with the equivalent of an equity stake in the company. The\n advantage of using phantom units to compensate executives is that those units provide the monetary\n equivalent of equity in the company without providing voting rights or corporate dividends to the\n executive employee.\n\n(Citing David S. Foster & W alter M. Kollings, Compensation Planning for Executives in a New Environment:\nPromoting a Sense Ownership, 329 PLI/Tax 339, 376 (1992)).\n\n -2-\n\f(Emphasis added.) Hopmayer signed the agreement, subsequently moved to Nashville from\nChicago, and began working for Aladdin on January 3, 2000. In December of 2000, Aladdin\nterminated Hopmayer as part of a corporate reorganization. In his termination letter, Aladdin\ntold Hopmayer that his phantom units had neither vested nor appreciated. Hopmayer brought\nsuit against Aladdin for breach of contract based on the agreement. Hopmayer amended his\ncomplaint to add a claim that Hopmayer was induced to work for Aladdin by false and deceptive\nrepresentations in violation of Tenn. Code Ann. § 50-1-102 (1999). The case was tried on March\n12, 2003. On May 6, 2003, the court entered a memorandum decision finding that the phantom\nunit provision of the agreement was sufficiently definite and met the other requirements for a\nvalid contract, including mutual assent. The trial court further found that Hopmayer was to\nreceive 4,000 phantom units without any conditions, such as appreciation or vesting\nrequirements. As a result, the trial court awarded Hopmayer damages in the amount of $160,000\nand prejudgment interest (10%) dating back to his December of 2000 termination. The court\ndenied Hopmayer’s claim that he was induced to work for Aladdin by false and deceptive\nrepresentations in violation of Tenn. Code Ann. § 50-1-102 (1999). Aladdin timely filed its\nnotice of appeal. The trial court approved a supersedeas bond in the amount of $230,000 on\nJune 25, 2003.\n\n Issues Presented\n\n Aladdin appeals and raises the following issues, as we restate them, for our review:\n\n 1. Whether the trial court erred in holding that the offer of 4,000\n phantom units to Hopmayer pursuant to the agreement was\n sufficiently definite to be enforceable.\n\n 2. Whether the trial court erred in holding that the 4,000 phantom\n units were not subject to vesting requirements and if so, whether\n Hopmayer failed to meet those vesting requirements before his\n termination.\n\n 3. Whether the trial court erred in holding that Hopmayer was to\n receive the initial value, $160,000, rather than the appreciation\n value of the phantom units.\n\n Hopmayer raises the additional issue, as we restate it, for our review:\n\n 1. Whether the trial court erred by holding that Aladdin did not\n violate Tenn. Code Ann. § 50-1-102 and whether Hopmayer is\n entitled to reasonable attorney’s fees pursuant to Tenn. Code Ann.\n § 50-1-102(c)(2).\n\n\n\n\n -3-\n\f Standard of Review\n\n Our review of a trial court’s conclusions on issues of law is de novo, with no presumption\nof correctness. Kendrick v. Shoemake, 90 S.W.3d 566, 569 (Tenn. 2002). Our review of a trial\ncourt’s finding on issues of fact is de novo upon the record, accompanied by a presumption of\ncorrectness unless the evidence preponderates otherwise. Tenn. R. App. P. 13(d); Kendrick, 90\nS.W.3d at 569. Where the trial court makes no specific findings of fact on a matter, we must\nreview the record to determine where the preponderance of the evidence lies and accord no\npresumption of correctness to the conclusion of the court below. Kendrick, 90 S.W.3d at 569.\n\n Sufficiently Definite and Mutual Assent\n\n Aladdin appeals and contends that the trial court committed error by enforcing the\nagreement when there was no mutual assent between the parties and the agreement was not\nsufficiently definite to be enforceable. In Higgins v. Oil, Chemical and Atomic Workers\nInternational Union, Local #3-677, 811 S.W.2d 875 (Tenn. 1991), the court stated:\n\n The requirements for a valid contract are well-settled:\n While a contract may be either expressed or implied, or written or oral, it must result\n from a meeting of the minds of the parties in mutual assent to the terms, must be\n based upon a sufficient consideration, free from fraud or undue influence, not against\n public policy and sufficiently definite to be enforced.\n\nHiggins, 811 S.W.2d at 879 (quoting Johnson v. Cent. Nat’l Ins. Co., 356 S.W.2d 277, 281\n(Tenn. 1962) (citing Am. Lead Pencil Co. v. Nashville, Chattanooga & St. Louis Ry. Co., 134\nS.W. 613, 613 (Tenn. 1911))). In determining whether mutual assent exists, “the inquiry will\nfocus not on the question of whether the subjective minds of the parties have met, but on whether\ntheir outward expression of assent is sufficient to form a contract.” Samuel Williston, A Treatise\non the Law of Contracts § 4:1 (4th ed. 1990).\n\n Aladdin contends that the agreement that “[a] phantom unit plan will be adopted by the\nBoard of Managers in which you will be granted 4,000 phantom units with an initial value of\n$40.00 per unit” could not be mutually assented to because “many details associated with those\nunits had to be fleshed out in the ‘plan.’” Aladdin contends that, because the new plan had not\nbeen adopted at the time of the agreement, the issuance of phantom units would be under the\nterms of Aladdin’s previous phantom unit plan. Under that plan, the phantom units would not\nvest until three completed years of employment, and the redemption of those units would be the\ndifference between the initial value of the units and any appreciation. However, there is nothing\nin the record to indicate that Hopmayer was ever informed of either form of the plan, the vesting\nrequirements, or that he would only be entitled to the appreciation of the unit’s value. To the\ncontrary, Hopmayer testified that he was told nothing about a plan for the phantom units and his\nunderstanding was that he would receive $160,000 representing the value of the phantom units.\nFurther, Aladdin’s Vice President for Human Resources, Lillian Jenkins (Jenkins), testified that\n\n\n -4-\n\fshe did not know whether Hopmayer received a copy of an Aladdin phantom unit plan. Aladdin\nrelies upon deposition testimony given by Chaney concerning his discussions with Hopmayer,\nbut the Chaney deposition is not contained in the record. “The appellant has the primary burden\nto see that a proper record is prepared on appeal and filed in this Court.” McDonald v. Onoh,\n772 S.W.2d 913, 914 (Tenn. Ct. App. 1989) (citing Tenn. R. App. P. 24).\n\n The “secret, unexpressed intent of one party to a contract is not binding upon the other\nparty who has no notice of the secret intent.” Cone Oil Co. v. Green, 669 S.W.2d 662, 664\n(Tenn. Ct. App. 1983) (citing Ward v. Berry & Assocs., Inc., 614 S.W.2d 372 (Tenn. Ct. App.\n1981)). “[T]he outward expression” of Hopmayer’s and Aladdin’s assent is that contained in the\nagreement:\n\n A phantom unit plan will be adopted by the Board of Managers in which you will\n be granted 4,000 phantom units with an initial value of $40.00 per unit.\n\nThe trial court stated that “[a]fter careful consideration of the entire record, including the\narguments of counsel and the credibility of the testimony presented at trial, this Court holds that\nthe Agreement includes [the requirements as enumerated in Higgins], including mutual assent . . .\nand holds the Agreement sufficiently definite to be an enforceable contract.” We agree. The\nphantom unit provision of the agreement is sufficiently definite and a result of mutual assent\nbetween the parties.\n\n Vesting and Appreciation Requirements\n\n Aladdin contends that if this Court is to hold that the phantom unit provision is\nenforceable, the trial court still erred in finding that Aladdin breached the agreement because the\nphantom units had not vested upon Hopmayer’s termination and the trial court awarded the initial\nrather than the appreciation phantom unit value. The phantom unit provision provides:\n\n A phantom unit plan will be adopted by the Board of Managers in which you will be\n granted 4,000 phantom units with an initial value of $40.00 per unit.\n\nThere is nothing from the language in the agreement, drafted by Aladdin, to indicate that the\nphantom units are subject to any vesting requirements. Aladdin contends that the language\n“initial value” means that Hopmayer would only receive the value of the appreciation of the\nphantom units. However, we read the provision the same as if Aladdin promised that Hopmayer\n“would receive a salary with an initial value of $100.” Aladdin, “as the drafter of the\nEmployment Agreement . . . must take responsibility for its allegedly ambiguous provision[].”\nB & L Corp. v. Thomas & Thorngren, Inc., 917 S.W.2d 674, 678 (Tenn. Ct. App. 1995). Aladdin\ncould have clearly stated that the phantom units were subject to vesting requirements and that\nHopmayer was entitled only to the appreciation value of the phantom units, but it did not.\nFurther, as previously stated, there is nothing in the record to indicate that Hopmayer had any\nother understanding of the phantom unit plan than that embodied in the agreement. Accordingly,\n\n\n -5-\n\fwe affirm the decision of the trial court finding that the terms of the agreement were that\nHopmayer was to receive 4,000 phantom units with a value of $40.00 each without any\nadditional vesting or appreciation requirements and that Aladdin breached that agreement by not\npaying Hopmayer the value of the phantom units upon his termination.\n\n Tenn. Code Ann. § 50-1-102\n\n Hopmayer raises the additional issue of whether the trial court erred in denying his claim\nfor damages under Tenn. Code Ann. § 50-1-102 and attorney’s fees pursuant to that section. In\nhis brief, Hopmayer concedes that his claim under this section only applies if we held that the\nagreement was insufficiently definite. In view of our holding that the phantom unit provision is\nsufficiently definite to be enforceable, this issue is pretermitted. Accordingly, we affirm the\ndecision of the trial court denying Hopmayer’s claim under § 50-1-102.\n\n Conclusion\n\n In light of the foregoing, we affirm the decision of the trial court holding that the phantom\nunit provision of the agreement is sufficiently definite and a result of mutual assent to be\nenforceable, that Aladdin breached the phantom unit provision, that Hopmayer is entitled to\ndamages in the amount of $160,000 plus prejudgment interest dating back to his December of\n2000 termination, and that Hopmayer is not entitled to relief under Tenn. Code Ann. § 50-1-102.\nCosts of this appeal are taxed to the Appellant, Aladdin Industries, LLC, and its surety, for which\nexecution may issue if necessary.\n\n\n\n ___________________________________\n DAVID R. FARMER, JUDGE\n\n\n\n\n -6-\n\f", "ocr": false, "opinion_id": 1055639 } ]

[ "477 F.3d 833" ]

[ { "author_str": "Tarnow", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/477/477.F3d.833.05-6792.html", "author_id": null, "opinion_text": "477 F.3d 833\n John T. GORE, Plaintiff-Appellant,v.EL PASO ENERGY CORPORATION LONG TERM DISABILITY PLAN and El Paso Energy Corporation, Defendants-Appellees.\n No. 05-6792.\n United States Court of Appeals, Sixth Circuit.\n Argued: October 24, 2006.\n Decided and Filed: February 23, 2007.\n \n 1\n ARGUED: Bynum E. Tudor III, Tudor Law Firm P.C., Nashville, Tennessee, for Appellant. Mark W. Peters, Waller, Lansden, Dortch & Davis, Nashville, Tennessee, for Appellees. ON BRIEF: Bynum E. Tudor III, Tudor Law Firm P.C., Nashville, Tennessee, for Appellant. Mark W. Peters, Waller, Lansden, Dortch & Davis, Nashville, Tennessee, for Appellees.\n \n \n 2\n Before GIBBONS and McKEAGUE, Circuit Judges; TARNOW, District Judge.*\n \n OPINION\n \n 3\n ARTHUR J. TARNOW, District Judge.\n \n \n 4\n Plaintiff, John T. Gore appeals the district court's grant of summary judgment in which all claims were dismissed in favor of the employer/ERISA plan administrator El Paso Energy Corporation (\"El Paso\") and ERISA plan manager/adjudicator Liberty Life Insurance Company of Boston (\"Liberty\").\n \n \n 5\n Gore raises the following issues on appeal: (1) whether the district court erred in dismissing Gore's claim of breach of fiduciary duty against El Paso, pursuant to 29 U.S.C. § 1132(a)(3); and (2) whether the district court erred in disposing of Gore's claim for civil penalties against El Paso, pursuant to 29 U.S.C. § 1132(c). Gore does not appeal the district court's affirmance of Liberty's denial of Gore's claim for long-term disability benefits.\n \n \n 6\n For the reasons that the follow, we AFFIRM the district court's dismissal of Gore's claim for civil penalties but REVERSE the district court's dismissal of Gore's claim of breach of fiduciary duty against El Paso and REMAND the case for further proceedings consistent with this ruling.\n \n I. Factual and Procedural History\n \n 7\n Plaintiff John T. Gore began working for Tennessee Gas Pipeline Company (\"Tennessee Gas\"), a subsidiary of Tenneco, Inc. (\"Tenneco\") in 1974. As an employee, Gore participated in Tenneco's long-term disability (\"LTD\") plan, which provided for \"own occupation\" disability benefits for a period of 24 months and \"any occupation\" disability benefits thereafter until the age of 65.\n \n \n 8\n In 1996, El Paso acquired Tennessee Gas. Shortly thereafter, El Paso's area manager and HR manager met with El Paso's new employees from former Tenneco Gas. The employees were told that their benefits at El Paso would remain the same as they were at Tenneco. According to Gore, at no time during his employment with El Paso did he receive a summary plan description, nor was he informed of any changes to the plan.\n \n \n 9\n Tenneco's LTD plan was in effect until December 31, 1997. On January 1, 1998, a new Group Disability or Income Policy began to cover the company's employees, including Gore. This new policy, governed by the Employee Retirement Income Security Act (\"ERISA\"), 29 U.S.C. §§ 1001 et seq., is the subject of this dispute.\n \n \n 10\n Under the terms of the new policy, Liberty was required to both manage and adjudicate claims for El Paso. The plan itself was different from the previous plan in that it provided for \"own occupation\" disability benefits for only 12 months after an elimination period, as opposed to the 24 months of the Tenneco Plan. After 12 months under the new plan, an employee would be required to demonstrate that his injury prevented him from working \"any occupation\" for which he is qualified.\n \n \n 11\n In late November 2000, Gore was injured in a natural gas explosion at the El Paso facility and has not worked there since. In June of 2001, Gore filed a claim for LTD benefits with Liberty. Liberty retroactively extended disability benefits to him from May 21, 2001 to May 20, 2002 because it was determined that he was unable to perform his \"own occupation.\"\n \n \n 12\n In October 2001, a vocational case manager conducted a Transferable Skills Analysis to determine whether occupational alternatives were available to Gore, based on his medical/functional and education/vocational capacities. The case manager determined that occupational alternatives were available to Gore within the petroleum industry involving either sedentary work or work light in physical demand. These occupational alternatives were Control Panel Operator, Dispatcher, or Title Clerk.\n \n \n 13\n In December 2001, a physician conducted an Independent Medical Examination of Gore in connection with his Worker's Compensation claims. The physician recommended that Gore have certain restrictions placed on his work activities. This report was forwarded to another physician who essentially agreed with its evaluation of Gore's condition.\n \n \n 14\n In February 2002, Liberty informed Gore that in order to remain eligible for benefits after May 21, 2002, Gore would have to meet the \"any occupation\" standard.\n \n \n 15\n That next month, Liberty ordered a Labor Market Survey to be conducted concerning the three occupational alternatives identified by the vocational case manager. The survey was sent to nine different employers in Texas and Louisiana concerning nine available positions. Eight of the nine employers determined, based on Gore's restrictions, that Gore was qualified for the specified job.\n \n \n 16\n In April 2002, Gore submitted his own Vocational Evaluation based on his medical records, academic testing, and a clinical interview with Gore. This personal Vocational Evaluation determined that the types of jobs that Gore could perform were not available in Tennessee.\n \n \n 17\n In May 2002, Liberty notified Gore by letter that it had denied his claim for LTD because he did not meet El Paso's definition of disability. The denial was based on the finding that other occupational alternatives were available to Gore accounting for his restrictions, limitations, and transferable skills in the petroleum industry.\n \n \n 18\n Gore appealed and requested to \"review pertinent claim file documents upon which the denial of benefits was based.\" After securing an attorney, the attorney requested from Liberty: (1) the administrative record of Gore's claim; (2) a written explanation of the claims and appeals procedures applicable to Gore's claim; (3) an additional 90 days to submit proof; and (4) a written explanation of Liberty's reasons for relying on the Labor Market Survey.\n \n \n 19\n Liberty denied the appeal on July 23, 2002 by letter. The letter also noted that Mr. Gore had already been forwarded a copy of both the administrative file and a copy of El Paso's LTD Group Contract. As a result, Liberty denied his request for a copy.\n \n \n 20\n In October of 2003, Gore filed a complaint against both Liberty and El Paso in the United States District Court for the Middle District of Tennessee asserting wrongful denial of long-term disability benefits under El Paso's LTD plan, pursuant to 29 U.S.C. § 1132(a)(1)(B). Gore also asserted a claim for civil penalties due to defendants' failure or refusal to provide certain documents within 30 days after written request. Gore finally asserted that both Liberty and El Paso breached their fiduciary duties and requested \"other appropriate equitable relief to redress violations of the Plan and/or ERISA,\" pursuant to 29 U.S.C. § 1132(a)(3). In addition to \"benefits\" and \"civil penalty\" damages, Gore requested an injunction, fees and costs.\n \n \n 21\n The parties conferred, drafted, and submitted a proposed Initial Case Management Order that the district court then entered in February 2003. The order structured the case in two stages. The first stage concerned Gore's claims for wrongful denial of benefits, while the second stage dealt with both Gore's breach of fiduciary duty claims and civil penalty claims.\n \n \n 22\n In early 2003, Gore moved to supplement the administrative record. In May 2003, the district court granted Gore's Motion to Supplement the Administrative Record with the July 23, 2002 medical examination report and remanded the case to Liberty for reconsideration of Gore's claim for LTD benefits.\n \n \n 23\n Liberty then commissioned a peer review of Gore's medical files, which came to the consensus that Gore was at the time \"capably and gainfully employed of being fit for full duty\" of \"light to medium duty\" with certain restrictions and limitations. After the peer review, Liberty sought an updated Vocational Review, which determined that Gore could earn between $24,000 and $42,000 a year for the previously identified alternative occupations in the Tennessee area and roughly the same for the national economy.\n \n \n 24\n In December 2003, Liberty determined that Gore's medical restrictions and limitations \"do not prevent him from returning to . . . alternative sedentary to light occupations.\" Thus, Liberty again determined that Gore did not meet the policy's definition of disability.\n \n \n 25\n After the case was reopened by the district court, a second Case Management Order was entered in March 2004. The only relevant change was that the parties agreed to include both the benefits and civil penalties claims in the first stage of the litigation, leaving only the breach of fiduciary duties claims under § 1132(a)(3) for the second stage. This Second Case Management Order discussed the relationship between Gore's claim for benefits and breach of fiduciary duties claim:\n \n \n 26\n To the extent that the Order ruling on Plaintiff's and Liberty's cross motions for judgment awards full benefits to Plaintiff from the date of curtailment of benefit payments through his attainment of 65, the second stage of the case becomes moot.\n \n \n 27\n Once the discovery for the first stage of the litigation was complete, Liberty moved for summary judgment on Gore's claim for civil penalties. Gore moved for partial summary judgment on his civil penalty claims.\n \n \n 28\n In December 2004, the district court entered an order denying Gore's motion and dismissed his claims for benefits and civil penalties. The court determined that El Paso, not Liberty, was the Plan Administrator. Though the Policy itself was silent as to the Plan Administrator, the 2000 Long Term Disability Plan Summary Description stated that El Paso was the Plan Administrator. Furthermore, the parties stipulated that \"El Paso is the `administrator' of the LTD Plan\" within the meaning of ERISA in the Initial Case Management Order. In addition, the district court further found that Gore requested information about the plan from Liberty only. Relying on this circuit's case law, the district court declined in its discretion to impose statutory penalties against El Paso.\n \n \n 29\n In early December 2004, the district court ordered another case management conference and required the parties to confer, draft, and submit position statements on the status of the case. In January 2005, the district court ordered Gore to file a brief \"that supports the survival of his fiduciary duty claim after the Court's prior ruling.\" Gore submitted his brief and El Paso responded.\n \n \n 30\n In October 2005, the district court dismissed Gore's § 1132(a)(3) claim for breach of fiduciary duty and request for equitable relief. The district court held:\n \n \n 31\n In light of these facts [i.e., the fact that § 1132(a)(1)(B) provided an adequate remedy], as well as the aforementioned [Gore's] admissions, the court finds that the plaintiff's remaining claim against El Paso for breach of fiduciary duty is nothing more than a repackaged denial of benefits claim, precisely the type of claim expressly rejected by the Supreme Court in Varity, and the Sixth Circuit in Wilkins. Equitable relief under § 1132(a)(3) is, therefore, not \"appropriate,\" and Gore's breach of fiduciary duty claims against El Paso must be dismissed.\n \n \n 32\n The district court also rejected Gore's equitable estoppel argument on the grounds that it was not preserved, calling it an \"eleventh-hour claim.\" As a result, the case was dismissed.\n \n \n 33\n Gore appealed raising two separate issues: first, whether the district court erred by denying his claim against El Paso for equitable relief; and second, whether the district court erred by denying his claim for civil penalties against El Paso. Gore has subsequently settled his claims against Liberty, and Liberty has been dismissed from the appeal.\n \n II. Standard of Review\n \n 34\n The district court in its orders dismissing the claims for civil penalties and breach of fiduciary duty accepted \"all the allegations pleaded in the Complaint as true.\" The district court then dismissed the claims presumably under Federal Rule of Civil Procedure 12(b)(6). We review de novo the district court's dismissal of Plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). Hill v. Blue Cross and Blue Shield of Michigan, 409 F.3d 710, 716 (6th Cir.2005). The district court's order will not be affirmed unless it appears beyond doubt that the plaintiff \"can prove no set of facts in support of his claims that would entitle him to relief.\" Marks v. Newcourt Credit Group, Inc., 342 F.3d 444, 452-53 (6th Cir.2003)(quotation and citation omitted).1\n \n \n 35\n We review the district court's decision on the imposition of penalties under § 1132(c) for abuse of discretion. Hiney Printing Co. v. Brantner, 243 F.3d 956, 960 (6th Cir.2001) (citing Bartling v. Fruehauf Corp., 29 F.3d 1062, 1068 (6th Cir. 1994)).\n \n \n 36\n III. Fiduciary-Duty Claims as \"Repackaged Individual Benefits Claims\"\n \n \n 37\n Gore contends that he is entitled to equitable relief for El Paso's breach of fiduciary duty, pursuant to 29 U.S.C. § 1132(a)(3). Specifically, Gore claims that El Paso breached its duty by \"misrepresenting the duration of his `own occupation' long term disability benefits,\" citing Varity Corp. v. Howe, 516 U.S. 489, 116 S. Ct. 1065, 134 L. Ed. 2d 130 (1996), for support. As a result of this alleged breach, Gore argues that he should be awarded compensatory damages in the form of one year's worth of compensation, i.e., the difference between Tenneco's LTD plan's \"own occupation\" benefits (2 years) and El Paso's LTD plan's \"own occupation\" benefits (1 year).\n \n \n 38\n Section § 502(a) of ERISA, 29 U.S.C. § 1132(a), provides that:\n \n \n 39\n A civil action may be brought —\n \n \n 40\n (1) by a participant or beneficiary\n \n \n 41\n (A) for the relief provided in subsection (c) of this section [providing for liquidated damages for failure to provide certain information on request], or\n \n \n 42\n (B) to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan;\n \n \n 43\n (2) by the Secretary, or by a participant, beneficiary or fiduciary for appropriate relief under section 1109 of this title;\n \n \n 44\n (3) by a participant, beneficiary, or fiduciary\n \n \n 45\n (A) to enjoin any act or practice which violates any provision of this subchapter or the terms of the plan, or\n \n \n 46\n (B) to obtain other appropriate equitable relief\n \n \n 47\n (i) to dress such violations or\n \n \n 48\n (ii) to enforce any provisions of this subchapter or the terms of the plan; . . .\n \n \n 49\n The district court determined that Plaintiff was barred from pursuing equitable relief under the catch-all provision of § 1132(a)(3) because Gore's breach of fiduciary duty claim \"was nothing more than a repackaged denial of benefits claim,\" similar to the type warned about in Varity, 516 U.S. at 515, 116 S. Ct. 1065, and determined to be barred in Wilkins v. Baptist Healthcare System Inc., 150 F.3d 609, 615 (6th Cir.1998).\n \n \n 50\n In Varity, an employer reorganized, combining some of its divisions into a new subsidiary corporation. 516 U.S. at 493, 116 S. Ct. 1065. The employer also administered its employees' original welfare benefit plan. Id. During the reconfiguration, the employer convinced many of the employees to transfer their benefits plan to a plan offered by the new subsidiary, assuring them that the benefits would remain secure. Id. at 494, 116 S. Ct. 1065. However, the employer was aware that the new entity was insolvent from its inception. Id. At the end of the corporation's second year, the new entity went into receivership, resulting in the loss of the employees' nonpension benefits. Id. A group of those employees brought suit seeking the benefits they would have been paid had they not transferred to the new entity's plan. Id. Agreeing with the district court and the Eighth Circuit, the Supreme Court found that ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3), gave the employees a right to appropriate equitable relief to redress the harm that the original deception had caused them individually. Id. at 515, 116 S. Ct. 1065. The Supreme Court determined that while there is a remedy for a breach of fiduciary duty related to the interpretation of plan documents and payment of claims under ERISA § 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), the remedy for \"other breaches of other sorts of fiduciary obligation\" may be sought under § 1 132(a)(3).\n \n \n 51\n ERISA specifically provides a remedy for breaches of fiduciary duty with respect to interpretation of plan documents and the payment of claims, one that is outside the framework of the second subsection and cross-referenced [§ 1109], and one that runs directly to the injured beneficiary [§ 1132(a)(1)(B)]. Why should we not conclude that Congress provided yet other remedies for yet other breaches of other sorts of fiduciary obligation in another, \"catchall\" remedial section?\n \n \n 52\n Id. at 512, 116 S. Ct. 1065 (internal citations omitted). The Supreme Court concluded that it \"should expect that where Congress elsewhere provided adequate relief for a beneficiary's injury, there will likely be no need for further equitable relief, in which case such relief would normally not be appropriate.\" Id. at 515, 116 S. Ct. 1065. The plaintiffs in Varity qualified for this catchall because they had no remedy under § 1132(a)(1)(B) or § 1132(a)(2).\n \n \n 53\n With this guidance, the Sixth Circuit in Wilkins v. Baptist Healthcare System Inc., 150 F.3d 609 (6th Cir.1998), first addressed § 1132(a)(3) as interpreted by Varity. In Wilkins, the plaintiff contended that he was entitled to compensatory damages, pursuant to 29 U.S.C. § 1132(a)(3), based on the defendant's breach of fiduciary duty to act solely in Wilkins' interest for the exclusive purpose of providing benefits to him. Id. at 615. This Court interpreted Varity as clearly limiting \"the applicability of § 1132(a)(3) to beneficiaries who may not avail themselves of § 1132's other remedies.\" Id. (citing Varity, 516 U.S. at 512, 116 S. Ct. 1065). Because § 1132(a)(1)(B) provided a remedy for Wilkins' alleged injury and allowed him to bring a lawsuit to challenge the Plan Administrator's denial of benefits, a cause of action for breach of fiduciary duty pursuant to § 1132(a)(3) was not appropriate. Id. In further distinguishing Wilkins from the plaintiffs in Varity, this Court noted that the employer-insurer in Varity misled the employees, causing them to lose their non-pension benefits. Id.\n \n \n 54\n Several subsequent Sixth Circuit decisions that have addressed § 1 132(a)(3) claims suggest that a plaintiff who is permitted to bring a § 1 132(a)(1)(B) claim for denial of benefits and does so is under no circumstance permitted to also bring a § 1132(a)(3) claim. See Marks v. Newcourt, 342 F.3d 444, 454 (6th Cir.2003); Julia v. Bridgestone/Firestone, Inc., 101 Fed.Appx. 27, 30 (6th Cir.2004); Putney v. Medical Mutual of Ohio, 111 Fed.Appx. 803, 806 (6th Cir.2004).\n \n \n 55\n This misunderstanding was dispelled by this Court's decision in Hill v. Blue Cross and Blue Shield of Mich., 409 F.3d 710 (6th Cir.2005). The Hill decision clarified that under some circumstances an ERISA plaintiff may simultaneously bring claims under both § 1132(a)(1)(B) and § 1 132(a)(3). Id. at 718. In Hill, participants in an employer-sponsored health plan filed a putative class action against the plan's third party administrator. Id. at 715. The suit alleged that the third party administrator's handling of the plaintiffs' claims for emergency medical treatment expenses resulted in the wrongful denial of benefits, pursuant to § 1132(a)(1)(B), and constituted a breach of the administrator's fiduciary duties to the program participants, pursuant to § 1132(a)(3). Id. at 715-16. Relying on Wilkins and its progeny, the district court dismissed the breach of fiduciary duty claim as a repackaged claim for individual benefits. The Sixth Circuit reversed the district court, determining that Wilkins did not apply:\n \n \n 56\n In this case, an award of benefits to a particular Program participant based on an improperly denied claim for emergency-medical-treatment expenses will not change the fact that BCBSM is using an allegedly improper methodology for handling all of the Program's emergency-medical-treatment claims. Only injunctive relief of the type available under § 1132(a)(3) will provide the complete relief sought by Plaintiffs by requiring BCBSM to alter the manner in which it administers all the Program's claims for emergency-medical-treatment expenses.\n \n \n 57\n Id. at 718. Because an award of individual benefits pursuant to § 1132(a)(1)(B) could not provide an adequate remedy for the alleged injury to the plaintiffs caused by the breach of fiduciary duties, outright dismissal of the plaintiffs' § 1132(a)(3) claims was in error. Id.\n \n \n 58\n In reviewing the Sixth Circuit's jurisprudence relating to Varity, the district court in this case determined that the line of cases stood for the proposition that dismissal of the § 1132(a)(3) claim is appropriate\n \n \n 59\n only if the alleged injury to the plaintiff may be completely remedied under the asserted § 1132(a)(1)(B) claim for benefits, or any other § 1132 provision for that matter. The availability of an adequate remedy for the alleged injury, rather than the actual substance of the claim, was the very essence of the Supreme Court's concern in Varity.\n \n \n 60\n Gore v. El Paso Energy Corp. Long Term Disability Plan, 2005 WL 2738918, *6, 2005 U.S. Dist. LEXIS 26591, *20 (M.D.Tenn.2005).\n \n \n 61\n Relying on Gore's admission that the injury caused by El Paso's alleged breach of fiduciary duties may have been adequately remedied under his § 1132(a)(1)(B) denial of benefits claim and because the parties agreed to structure the case in two stages as a result, the district court concluded that Gore was attempting a second bite of the apple.\n \n \n 62\n [P]roceeding with stage two is inappropriate, because, as the plaintiff himself admits, 29 U.S.C. § 1132(a)(1)(B), of which Gore has availed himself, provided an adequate remedy covering the full extent of his alleged injuries.\n \n \n 63\n Id. at *6, 2005 U.S. Dist. LEXIS 26591 at *21.\n \n \n 64\n El Paso contends that this case falls under the Wilkins line of cases, as opposed to the Hill and Varity decisions. This Court disagrees. An examination of the specifics of Gore's alleged injuries will show why.\n \n \n 65\n In his complaint, Gore has alleged two separate and distinct injuries. First, Gore alleges that Liberty's \"any occupation\" determination was wrongly decided and that as a result he is entitled to LTD benefits. Second, he alleges that even if he is not entitled to the \"any occupation\" determination, he should receive \"own occupation\" benefits for two years rather than one based on El Paso's misrepresentation. The district court is correct when it states that 29 U.S.C. § 1132(a)(1)(B) provides Gore a remedy for Liberty's denial of benefits claim under the \"any occupation\" determination. But neither 29 U.S.C. § 1132(a)(1)(B) nor 29 U.S.C. § 1132(a)(2) provides Gore a remedy for El Paso's alleged misrepresentation.\n \n \n 66\n Had Gore alleged that Liberty breached its fiduciary duty, pursuant to § 1132(a)(3), for wrongful denial of benefits, under Wilkins the claim would be duplicative of his § 1132(a)(1)(B) claim. Gore cannot claim that Liberty breached its fiduciary duty pursuant to § 1132(a)(1)(B) or § 1132(a)(3), for misrepresenting the scope of the policy coverage because Gore alleges that El Paso, not Liberty, misrepresented the scope of the policy.\n \n \n 67\n The injury of which Gore complains is different than both of these. Instead, Gore complains that El Paso breached its fiduciary duty by leading Gore to believe that he had two years of \"own occupation\" benefits. Assuming that he could not seek relief from El Paso pursuant to § 1132(a)(1)(B) or § 1132(a)(2) (see discussion supra), Gore's only remedy against El Paso would be under § 1132(a)(3). The two claims are distinct and unrelated to each other.\n \n \n 68\n The reason why the district court and the Defendant confuse Gore's argument is because the remedy available to Gore if he had succeeded in his \"any occupation\" claim would have rendered the \"own occupation\" misrepresentation moot. Both the district court and the Defendant believe that this settles the issue. But an examination of the reason why Gore's § 1132(a)(3) misrepresentation claim against El Paso would be moot is necessary.\n \n \n 69\n If Gore received LTD benefits under the \"any occupation\" coverage, Gore would no longer suffer any injury from El Paso's misrepresentation of the \"own occupation\" benefit. Gore would receive payment for the second year regardless of whether El Paso should have told him that the \"own occupation\" benefits only lasted a year. However, the opposite result is not true. When Gore did not receive the \"any occupation\" wages, his misrepresentation claim was not moot because his injury from the misrepresentation was not eliminated.\n \n \n 70\n That Gore's \"own occupation\" injury would be rendered moot if remedied by the \"any occupation\" determination does not mean that the Plaintiff's alleged injury is \"a repackaged denial of benefits claim.\" The fact that Plaintiff's claim for an equitable remedy \"could have been\" resolved if his § 1132(a)(1)(B) claim was resolved in his favor, does not mean that his claim is the same as the one barred in Wilkins.\n \n \n 71\n As in Varity, an award of benefits to Gore under the \"any occupation\" examination would not have changed the alleged fact that El Paso misrepresented the policy's coverage to Gore. The award of benefits would have merely made the need for relief in the form of injunction or damages moot, but it would not have addressed the question of whether Gore was entitled to another year of \"own occupation\" benefits.\n \n \n 72\n The question that remains is whether the claim for breach of fiduciary duty based on El Paso's misrepresentation, pursuant to § 1132(a)(3), is more properly construed as a claim for equitable estoppel/misrepresentation under § 1132(a)(1)(B). The district court refused to substantively address this question because it believed that the claim was an eleventh-hour claim. The district court did however note the confusion about whether such a claim may be properly asserted under § 1132(a)(1)(B).\n \n \n 73\n In the unpublished case Julia v. Bridgestone/Firestone, the plaintiff sought recovery of benefits according to the plan terms as they were represented to her by the defendant rather than according to the actual terms of the plan. 101 Fed.Appx. at 31. The question raised was whether the action should have been brought under § 1132(a)(1)(B), rather than as an action for equitable relief under § 1132(a)(3). Id. at 30-32. After surveying the legal landscape, this Court remarked that \"[s]ome courts have construed § 1132(a)(1)(B) strictly and refused recovery under that section.\" Id. at 30 (citing Flint v. ABB, Inc., 337 F.3d 1326, 1329-30 (11th Cir. 2003)). However, because the plaintiff could not show she reasonably relied on Bridgestone's misrepresentation, the Julia Court declined to \"wade too deeply into the morass\" of whether the plaintiff properly sought to recover under § 1132(a)(1)(B) and estop the defendant from deviating from its misrepresentation to the plaintiff, or sought equitable estoppel under § 1132(a)(3) for breach of fiduciary duty. Id. at 31.\n \n \n 74\n A similar predicament is present here since Plaintiff \"is not seeking to recover benefits due under the terms of the plan.\" Id. Yet, we need not wade too deeply into this morass either. \"Unless an employer is shown to control administration of a plan, it is not a proper party defendant in an action concerning benefits.\" Daniel v. Eaton Corp., 839 F.2d 263, 266 (6th Cir.1988) (citation omitted), cert. denied, 488 U.S. 826, 109 S. Ct. 76, 102 L. Ed. 2d 52 (1988). El Paso cannot be sued under 29 U.S.C. § 1132(a)(1)(B) because Liberty was solely responsible for the denial of benefits. Moreover, the policy clearly states that Liberty is the proper party in a denial of benefits case. The question would be different had Gore brought his misrepresentation claim under 29 U.S.C. § 1132(a)(3) for breach of fiduciary duty based on a misrepresentation by Liberty, the fiduciary who controlled the claims. However, in this case the § 1132(a)(3) action based on misrepresentation was brought against a fiduciary, El Paso, who did not control the claims. Thus, Gore properly brought his claim of misrepresentation under § 1132(a)(3), since § 1132(a)(1)(B) requires a beneficiary \"to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan,\" and it is undisputed that Gore is not entitled to the benefit under the terms of the plan.\n \n \n 75\n It should also be noted that this Court in Marks acknowledged in dicta that this circuit will recognize a § 1132(a)(3) claim as separate from a § 1132(a)(1)(B) claim even against the same fiduciary. \"Even if Marks could bring a breach-of-fiduciary-duty claim, we have recognized such claims only where the misrepresentation in question involves the availability or extent of plan benefits.\" Marks, 342 F.3d at 454 n. 2 (citations omitted).\n \n \n 76\n In each case where this circuit has found that a plaintiff's § 1132(a)(3) claim of breach of fiduciary duty is merely a repackaged § 1132(a)(1)(B) claim, the claims could have been brought under § 1132(a)(1)(B). Here, Gore's claim of breach of fiduciary duty could not have been characterized as a denial of benefits claim, thus the district court's dismissal of Plaintiff's § 1132(a)(3) claim was in error. The ruling must be reversed and the case remanded for further proceedings.2\n \n IV. Civil Penalties\n \n 77\n ERISA imposes particular duties on a plan administrator to provide information to a plan participant. See 29 U.S.C. § 1024(b)(4). Specifically, a plan administrator shall upon written request of any participant or beneficiary, furnish a copy of the latest updated summary plan description, plan description, and the latest annual report, any terminal report, the bargaining agreement, trust agreement, contract, or other instrument under which the plan is established or operated.\n \n \n 78\n Id. An administrator who fails to comply within thirty days with a request for information from a plan participant\n \n \n 79\n may in the court's discretion be personally liable to such participant . . . in the amount of $100 a day from the date of such failure or refusal, and the court may in its discretion order such relief as it deems proper.\n \n \n 80\n 29 U.S.C. § 1132(c). ERISA defines the plan administrator as \"the person specifically so designated by the terms of the instrument under which the plan is operated.\" 29 U.S.C. § 1002(16)(A).\n \n \n 81\n \"It is well established that only plan administrators are liable for statutory penalties under § 1132(c).\" Caffey v. Unum Life Ins. Co., 302 F.3d 576, 584 (6th Cir.2002)(citing Hiney, 243 F.3d at 960; VanderKlok v. Provident Life & Accident Ins. Co., 956 F.2d 610, 618 (6th Cir.1992)). In Hiney, the Sixth Circuit reiterated that it was clear that a plan administrator cannot be liable for statutory penalties if the request for information was not directed to it. 243 F.3d at 961.\n \n \n 82\n The court in Hiney also rejected an agency theory when confronting a claim for civil penalties brought pursuant to § 1132(c) for violations of § 1024(b). The Master Document Plan of Hiney Printing Company stated that the Plan was to be administered by Administrative Service Consultants. Id. at 958. The plaintiff requested plan information from Administrative Service Consultants but did not receive the information. Id. The plaintiff claimed that Hiney Printing was liable for Administrative Service Consultants' failure to produce the requested information because Administrative Service Consultants was the \"de facto\" administrator, without citing any case law. Id. at 960. This Court stated that \"[t]he law in this Circuit is clear that `only a plan administrator can be held liable under section § 1132(c).'\" Id. at 961 (quoting VanderKlok, 956 F.2d at 617). The Court found that given \"the lack of precedent for expanding the statutory definition of the plan administrator under ERISA, we find that the district court did not abuse its discretion in refusing to impose statutory penalties on Hiney Printing.\" Id.\n \n \n 83\n Plaintiff argues that the district court erred in determining that El Paso was the exclusive administrator of the plan. The parties in the initial case management order stipulated that \"El Paso is the `administrator' of the LTD plan . . . and that El Paso has delegated all duties of the administrator to Liberty.\" This is also supported by the LTD Plan's Summary Plan Description. Although the Plan itself did not designate the plan administrator, the district court relied on the stipulation as well as the Plan's Summary to find that El Paso was the administrator of the plan.\n \n \n 84\n Gore argues this Court changed course from Hiney in Minadeo v. ICI Paints, 398 F.3d 751 (6th Cir.2005). In Minadeo, an ERISA claimant had addressed document requests to her employer as opposed to her plan administrator, the Pension Committee. Id. at 755-56. The Sixth Circuit remanded the case to the lower court because the record did not sufficiently explain the relationship between the employer and the plan administrator for it to determine liability. Id. at 759. Unlike here, the evidence available to the Sixth Circuit in Minadeo suggested that the employer participated in the administration of benefits under the pension plan. Id. Moreover, the Court did not renounce but instead reiterated the holding of both Hiney and VanderKlok. Id.\n \n \n 85\n Relying upon the case law and the fact that Gore requested plan materials from Liberty even though El Paso was the exclusive plan administrator according to both the Summary Plan Description and the parties' stipulation in the initial case management order, we conclude the district court did not abuse its discretion when it declined to impose civil penalties pursuant to § 1132(c).\n \n V. Conclusion\n \n 86\n The decision of the lower court is REVERSED IN PART and AFFIRMED IN PART. The case shall be REMANDED and Plaintiff's § 1132(a)(3) claim of breach of fiduciary duty against El Paso shall be REINSTATED. The district court's decision dismissing Plaintiff's claim for civil penalties against El Paso for failure to provide information to a plan participant, pursuant to § 1024(b)(4) and § 1132(c) is AFFIRMED.\n \n \n \n Notes:\n \n \n *\n The Honorable Arthur J. Tarnow, United States District Judge for the Eastern District of Michigan, sitting by designation\n \n \n 1\n Gore argues that the district courtsua sponte granted summary judgment on his breach of fiduciary duties claim because the parties briefed the legal, but not the factual, issues relating to the claim. The district court's order requesting briefing on the issue did not preclude facts from being argued. The district court took all of Plaintiff's allegations pled in the Complaint as true. Finally, the issue itself was a purely legal question based on the analysis and interpretation of law rather than the facts of the case. The Court reviews the district court's dismissal of Gore's breach of fiduciary duties claims de novo.\n \n \n 2\n Plaintiff notes that the appropriate equitable relief under § 1132(a)(3) could come in the form of five different equitable remedies: 1) Reformation; 2) Rescission; 3) Reinstatement; 4) Equitable Estoppel; and 5) Promissory Estoppel. At this point, we need not determine what remedy is required to address the possible misrepresentation since the district court did not determine whether any misrepresentation in fact took place\n \n \n ", "ocr": false, "opinion_id": 796900 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "http://www.tsc.state.tn.us/sites/default/files/OPINIONS/TCA/PDF/042/Thomask.pdf", "author_id": null, "opinion_text": " IN THE COURT OF APPEALS OF TENNESSEE\n AT NASHVILLE\n February 19, 2004 Session\n\n KAREN THOMAS v. ROBERT D. MAYFIELD, M.D., ET AL.\n\n Appeal from the Circuit Court for Montgomery County\n No. C13-175 James E. Walton, Judge\n\n\n\n No. M2000-02533-COA-R3-CV - Filed April 27, 2004\n\n\nThis appeal challenges the trial court’s dismissal of the Plaintiff’s action, re-filed after the expiration\nof the initial statutory period of limitation. We affirm the trial court and deny Appellant’s Motion\nfor Transfer pursuant to Tennessee Code Annotated section 16-1-116.\n\n Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court\n Affirmed as Modified\n\nWILLIAM B. CAIN , J., delivered the opinion of the court, in which PATRICIA J. COTTRELL, and FRANK\nG. CLEMENT , JR., JJ., joined.\n\nDonna Keene Holt, Knoxville, Tennessee, for the appellant, Karen Thomas.\n\nDaniel Lynch Nolan, Jr., Jason Matthew Miller, Clarksville, Tennessee, for the appellee, Robert D.\nMayfield, MD, Robert D. Mayfield, MD, PC.\n\n OPINION\n\n This appeal results from a medical malpractice claim originally filed in Cumberland County,\nTennessee in 1993. The suit remained pending in Cumberland County Circuit Court until July of\n1997 when the plaintiff voluntarily nonsuited the claim. Pursuant to Tennessee Code Annotated\nsection 28-1-105, the plaintiff had one year from the nonsuit to refile before the cause was time-\nbarred. On the last day of the statutory period, July 1, 1998, the plaintiff filed suit in Montgomery\nCounty Circuit Court alleging the same previously nonsuited cause of action against Robert D.\nMayfield, M.D. and Robert D. Mayfield, M.D., P.C. At the time the suit was refiled, Dr. Mayfield’s\npractice had relocated to Erin, Tennessee in Houston County. The defendants filed a Motion to\nDismiss for Improper Venue and answered, relying on improper venue. The trial court granted the\nmotion on June 18, 1999.\n\f The plaintiff filed motions to alter or amend and for additional factual findings which\nmotions were denied by the trial court by order entered June 12, 2000.1 The plaintiff filed her notice\nof appeal on October 9, 2000. Thirty-seven months after filing her notice of appeal Appellant, on\nNovember 3, 2003, filed her “Motion for Remand with Directions to Transfer” seeking to have this\nCourt remand the case to the trial court with orders to transfer the case to the Circuit Court of\nCumberland County pursuant to Tennessee Code Annotated section 16-1-116 (Supp. 2000).\n\n This statute, effective May 23, 2000, was apparently passed in response to the invitation of\nthe supreme court in Norton v. Everhart, 895 S.W.2d 317 (Tenn. 1995); see Hawkins v. Dep’t of\nCorrections, 127 S.W.3d 749 (Tenn.Ct.App. 2002). Both Norton and Hawkins were cases involving\nlack of subject matter jurisdiction. In Norton, plaintiff had filed a pro se petition for writ of habeas\ncorpus in the Morgan County Criminal Court. Subject matter jurisdiction of cases seeking to review\nthe actions of a state agency is localized in the courts of Davidson County. Tennessee Real Estate\nComm’n v. Potts, 428 S.W.2d 794 (Tenn. 1968). Norton held that no power existed in the Circuit\nCourt of Morgan County to transfer the case to Davidson County. Hawkins involved a petition for\nwrit of certiorari filed by an inmate of the West Tennessee State Penitentiary at Henning with the\npetition being filed in the Davidson County Circuit Court. The petition was dismissed by the Circuit\nCourt of Davidson County for lack of subject matter jurisdiction under Tennessee Code Annotated\nsection 41-21-801, et seq. with this Court affirming the action of the trial court on the basis that\nsection 41-21-801 effectively localized transitory actions filed by state prisoners to the county in\nwhich the prison facility was located. Since Mr. Hawkins had filed his petition on November 8,\n2000, subsequent to the effective date of Tennessee Code Annotated section 16-1-116, this Court\nchose to remand the case to the Circuit Court of Davidson County with instructions to transfer it to\nthe appropriate court in the county in which the West Tennessee State Penitentiary was located.\n\n Tennessee Code Annotated section 16-1-116 provides:\n\n Transfer of actions or appeals. -Notwithstanding any other provision\n of law or rule of court to the contrary, when an original civil action,\n an appeal from the judgment of a court of general sessions, or a\n petition for review of a final decision in a contested case under the\n Uniform Administrative Procedures Act, compiled in title 4, chapter\n 5, is filed in a state or county court of record or a general sessions\n court and such court determines that it lacks jurisdiction, the court\n shall, if it is in the interest of justice, transfer such action or appeal to\n any other such court in which the action or appeal could have been\n brought at the time it was originally filed. Upon such a transfer, the\n action or appeal shall proceed as if it had been originally filed in the\n court to which it is transferred on the date upon which it was actually\n filed in the court from which it was transferred.\n\n\n 1\n The trial court rendered an opinion on May 12, 2000 requesting the defendant to draft the final order. That\norder was entered on June 12.\n\n -2-\n\fTenn.Code Ann. § 16-1-116 (Supp. 2000).\n\n The statute does not distinguish between subject matter jurisdiction, in personam jurisdiction,\nand venue. In cases where venue has been localized in a particular county, the courts of Tennessee\nhave long held that venue and subject matter jurisdiction are synonymous. Inter-Southern Life Ins.\nCo. v. Pierce, 161 Tenn. 346, 31 S.W.2d 692 (1930); Nashville v. Webb, 114 Tenn. 432, 85 S.W. 404\n(1905); Curtis v. Garrison, 364 S.W.2d 933 (Tenn. 1963); Norton v. Everhart, 895 S.W.2d 317\n(Tenn. 1995).\n\n In general terms, our courts have maintained the clear distinction between subject matter\njurisdiction, jurisdiction of the person and venue. See Meighan v. U.S. Sprint Communications Co.,\n924 S.W.2d 632 639 (Tenn. 1996); Davis v. Mitchell, 178 S.W.2d 889, 900 (Tenn.Ct.App. 1943).\n\n Whether or not, in this case involving a transitory action not localized, the word\n“jurisdiction,” as used in Tennessee Code Annotated section 16-1-116, is construed to mean both\nin personam jurisdiction and venue, is not necessary to a decision in this case though the separate\nnature of in personam jurisdiction as opposed to venue is very much alive and well. See Leroy v.\nGreat Western United Corp., 443 U.S. 173, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (U.S. 1979).\n\n In this case, despite the fact that Tennessee Code Annotated section 16-1-116 became\neffective while this case was still in the bosom of the trial court,2 no effort was ever made by\nAppellant to bring the statute to the attention of the trial court prior to filing of the notice of appeal\non October 9, 2000 and, indeed, the statute is not relied upon by Appellant until the filing in this\nCourt of her “Motion for Remand with Direction to Transfer” on November 3, 2003. The motion\nseeks transfer of the case to the Circuit Court of Cumberland County which, by the very allegations\nof the complaint, does not have venue since, on July 1, 1998, Robert D. Mayfield was admittedly not\na resident of Cumberland County, Tennessee and, indeed, alleged by the complaint to be a resident\nof Montgomery County, Tennessee. This case was, for all practical purposes, concluded in the trial\ncourt before section 16-1-116 was enacted. No reason is evidenced by this record as to why the\nmatter was not timely brought to the attention of the trial court which had the primary responsibility\nunder Tennessee Code Annotated section 16-1-116 to determine whether or not any transfer would\nbe “in the interest of justice” to be allowed to make such determination. Finally, the motion\nbelatedly filed in this Court does not seek transfer to Houston County, where Dr. Mayfield insists\nthat he resided on July 1, 1998, but rather seeks a transfer to Cumberland County, the one place in\nwhich venue cannot lie under the very allegations of the complaint.\n\n If Tennessee Code Annotated section 16-1-116 were otherwise applicable under the time\nsequence in this case, Appellant has effectively waived her right to rely on the statute. Tenn. R. App.\nP. 36.\n\n\n\n 2\n The trial court had pronounced its judgment on May 12, 2000, but same was not entered until June 12, 2000.\nTennessee Code Annotated section 16-1-116 became effective May 23, 2000.\n\n -3-\n\f The motion to remand is respectfully denied.\n\n We must now determine whether or not the trial court erred in granting Appellee’s Motion\nto Dismiss because of improper venue. Venue generally is governed by Tennessee Code Annotated\nsection 20-4-101, et seq. Appellant asserts venue based on the alternative assertions that:\n\n1. At the time of filing suit in Montgomery County on July 1, 1998, Defendant was in fact a\n resident of Montgomery County.\n2. That if Defendant was not in fact a resident of Montgomery County, Tennessee on July 1,\n 1998, he was in fact “found” in Montgomery County, Tennessee at the time process was\n alleged to have been personally served upon Robert D. Mayfield on July 24, 1998.\n\n Defendants, by both answer and Tenn. R. Civ. P. Rule 12.02(3) motion, challenge venue in\nMontgomery County.\n\n It is first necessary to settle the standards to be applied in the trial court and on appeal when\ndisposing of a Tennessee Rule of Civil Procedure 12.02(3) motion challenging venue. We start with\nthe observation that a Rule 12.02(3) motion, unlike a Rule 12.02(6) motion to dismiss for failure to\nstate a claim upon which relief can be granted, is not converted into a Tennessee Rule of Civil\nProcedure rule 56 motion by the receipt of extraneous evidence. McKinney v. Widner, 746 S.W.2d\n699 (Tenn.Ct.App. 1987). While authority in Tennessee is sparse relative to this matter, Tennessee\nRule of Civil Procedure 12.02(3) and Federal Rule of Civil Procedure 12(b)(1) are identical, thus\nmaking federal law persuasive in construing the Tennessee rule. Gamble v. HCA, 676 S.W.2d 340,\n341 note 1 (Tenn.Ct.App. 1984); March v. Levine, 115 S.W.3d 892 (Tenn.Ct.App. 2003).\n\n Two federal opinions are enlightening. First is Osburn v. U.S., 918 F.2d 724 (8th Cir. 1990).\nThis was a case involving subject matter jurisdiction in which the court on appeal held:\n\n Arguing that the court lacked subject matter jurisdiction, the government moved for\n summary judgment under Fed.R.Civ.P. 56 and so captioned its motion. In supporting\n exhibits and memoranda, the government urged that the statute of limitations barred\n the Osburns’ claim. On appeal the government renewed, with the Osburns’\n concurrence, its argument that summary judgment standards should be applied to the\n review of the district court’s decision.\n The district court rejected the government’s characterization of its motion and\n explicitly treated the motion as one to dismiss for lack of subject matter jurisdiction\n under Fed.R.Civ.P. 12(b)(1). 713 F.Supp. At 341 n. 2. The court did not restrict\n itself to deciding whether or not the jurisdictional issue presented a question for the\n trier of fact. Rather, the court carefully considered the whole record, consisting of\n numerous depositions and exhibits, then decided by a preponderance of the evidence\n that the Osburns’ claim accrued more than two years before its filing and therefore\n failed to satisfy the jurisdictional requirement.\n\n\n\n -4-\n\f Because the district court looked to matters outside the pleadings on a motion\n that it construed as one for dismissal under Rule 12(b)(1), two questions arise: (1)\n What standard governs the district court’s determination of a motion under Rule\n 12(b)(1) when matters outside the pleadings are considered; and, (2) What is the\n proper standard of review on appeal?\n The district court was correct in recognizing the critical differences between\n Rule 12(b)(1), which governs challenges to subject matter jurisdiction, and Rule 56,\n which governs summary judgment. Rule 12 requires that Rule 56 standards be\n applied to motions to dismiss for failure to state a claim under Rule 12(b)(6) when\n the court considers matters outside the pleadings. Fed.R.Civ.P. 12(b) & (c);\n Mortensen v. First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977)\n (Motion under Rule 12(b)(6) raising matters outside pleadings is converted to a Rule\n 56 motion). Rule 12 does not prescribe, however, summary judgment treatment for\n challenges under 12(b)(1) to subject matter jurisdiction where a factual record is\n developed. Nonetheless, some courts have held that Rule 56 governs a 12(b)(1)\n motion when the court looks beyond the complaint. In re Swine Flu Immunization\n Prod. Liab. Litig., 880 F.2d 1439, 1442-43 (D.C. Cir. 1989); In re Swine Flu Prod.\n Liab. Litig., 764 F.2d 647, 642 (9th Cir. 1985). We agree, however, with the majority\n of circuits that have held to the contrary. See, e.g., Mortensen, 549 F.2d at 891\n (disputed issues of material fact will not prevent trial court from deciding for itself\n merits of jurisdictional claims); Mims v. Kemp, 516 F.2d 21, 23 (4th Cir. 1975) (only\n motion under Rule 12(b) that can properly be converted to one for summary\n judgment is a motion filed under 12(b)(6)); Williamson v. Tucker, 645 F.2d 404, 413\n (5th Cir.) (district court has power to decide disputed factual issues in a motion under\n Rule 12(b)(1)), cert. denied, 454 U.S. 897, 102 S. Ct. 396, 70 L. Ed. 2d 212 (1981);\n Crawford v. United States, 796 F.2d 924, 928 (7th Cir. 1986) (jurisdictional issue\n must be resolved before trial); Wheeler v. Main Hurdman, 825 F.2d 257, 259 (10th\n Cir.) (as a general rule, 12(b)(1) motion may not be converted to one for summary\n judgment), cert. denied, 484 U.S. 986, 108 S. Ct. 503, 98 L. Ed. 2d 501 (1987).\n\nOsburn v. U.S., 918 F.2d 724, 728-29 (8th Cir. 1990) (footnotes omitted).\n\n The discussion by the Sixth Circuit Court of Appeals in Ohio Nat. Life Ins. Co. v. U.S. is\nlikewise explanatory. This case also involved subject matter jurisdiction relative to a statute of\nlimitations defense. Said the court:\n\n However we characterize the IRS’s motion to dismiss, it is apparent that the\n district court resolved the factual issue of whether a waiver had been filed. Rule\n 12(b)(1) motions to dismiss based upon subject matter jurisdiction generally come\n in two varieties. A facial attack on the subject matter jurisdiction alleged by the\n complaint merely questions the sufficiency of the pleading. In reviewing such a\n facial attack, a trial court takes the allegations in the complaint as true, which is a\n similar safeguard employed under 12(b)(6) motions to dismiss. On the other hand,\n\n\n -5-\n\f when a court reviews a complaint under a factual attack, as here, no presumptive\n truthfulness applies to the factual allegations. Such a factual attack on subject matter\n jurisdiction commonly has been referred to as a “speaking motion.” See generally\n C. Wright & A. Miller, Federal Practice and Procedure § 1364, at 662-64 (West\n 1969). When facts presented to the district court give rise to a factual controversy,\n the district court must therefore weigh the conflicting evidence to arrive at the factual\n predicate that subject matter jurisdiction exists or does not exist. In reviewing these\n speaking motions, a trial court has wide discretion to allow affidavits, documents and\n even a limited evidentiary hearing to resolve disputed jurisdictional facts. See\n Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981); Mortensen v. First Fed. Sav.\n & Loan Ass’n, 549 F.2d 884, 891 (3rd Cir. 1977).\n Motions to dismiss under 12(b)(6) for failure to state a claim generally are\n distinct, procedurally and substantively, from motions to dismiss under 12(b)(1).\n When a party files a motion to dismiss under 12(b)(6), the district court is instructed\n to treat the motion as one for summary judgment if either party submits additional\n materials “outside the pleadings.” The court therefore must take the plaintiff’s\n allegations as true, and must also determine that no genuine issue of material fact\n exists when a Rule 56 motion is granted. Since a 12(b)(6) motion operates as a\n ruling on the merits, the Rule 56 conversion provides the non-moving party an\n additional safeguard.\n\nOhio Nat. Life Ins. Co. v. U.S., 922 F.2d 320, 325 (6th Cir. 1990).\n\n While both Osburn and Ohio Nat. Life Ins. Co. dealt with subject matter jurisdiction, it is\nclear that the same rules apply to both in personam jurisdiction and venue. In Leroy v. Great\nWestern United Corp., 443 U.S. 173, 61 L. Ed. 2d 464, 99 S. Ct. 2710 (U.S. 1979), the defendant\nappeared specially to contest both in personam jurisdiction and venue. Said the United States\nSupreme Court:\n\n Without reaching either the merits or the constitutional question arising out of the\n attempt to assert personal jurisdiction over appellants, we now reverse because venue\n did not lie in the Northern District of Texas.\n I\n The question of personal jurisdiction, which goes to the court’s power to\n exercise control over the parties, is typically decided in advance of venue, which is\n primarily a matter of choosing a convenient forum. See generally C. Wright, A.\n Miller, & E. Cooper, Federal Practice and Procedure § 3801, pp 5-6 (1976)\n (hereafter Wright, Miller & Cooper). On the other hand, neither personal jurisdiction\n nor venue is fundamentally preliminary in the sense that subject-matter jurisdiction\n is, for both are personal privileges of the defendant, rather than absolute strictures on\n the court, and both may be waived by the parties. See Olberding v. Illinois Central\n R. Co., 346 U.S. 338, 340, 98 L. Ed. 39, 74 S. Ct. 83; Neirbo Co. v. Bethlehem Corp.,\n 308 U.S. 165, 167-168, 84 L. Ed. 167, 60 S. Ct. 153, 128 A.L.R. 1437. Accordingly,\n\n\n -6-\n\f when there is a sound prudential justification for doing so, we conclude that a court\n may reverse the normal order of considering personal jurisdiction and venue.\n Such a justification exists in this case. Although for the reasons discussed in\n Part II, infra, it is clear that § 27 of the 1934 Act does not provide a basis for personal\n jurisdiction, the question whether personal jurisdiction was properly obtained\n pursuant to the Texas long-arm statute is more difficult. Indeed, because the Texas\n Supreme Court has construed its statute as authorizing the exercise of jurisdiction\n over nonresidents to the fullest extent permitted by the United States Constitution,\n resolution of this question would require the Court to decide a question of\n constitutional law that it has not heretofore decided. As a prudential matter it is our\n practice to avoid the unnecessary decision of novel constitutional questions. We find\n it appropriate to pretermit the constitutional issue in this case because it is so clear\n that venue was improper under either § 27 of the 1934 Act or under § 1391(b) of the\n Judicial Code.\n\n443 U.S. 173, 180-181, 61 L. Ed. 2d 464, 471-72 (footnotes omitted).\n\n The only apparent difference in the application of these rules as to the question of venue\nrather than in personam jurisdiction is the question of where the burden of proof lies. Moore’s\nFederal Practice asserts a division of authority on this question.\n\n Plaintiff is not required to include in his complaint an allegation showing proper\n venue. Venue, unlike jurisdiction, involves a privilege personal to one defending a\n claim; and is waived unless timely objection is made. If the matter is properly raised\n who has the burden of establishing that venue is proper? Improper venue is an\n affirmative dilatory defense, and authority supporting this position places the burden\n of establishing improper venue upon the defendant. There is, however, authority that\n once the defendant has properly challenged venue, the burden of establishing proper\n venue is upon the plaintiff. This result is often reached without distinguishing\n between jurisdiction and venue. With deference, we suggest that this latter line of\n authority is unsound, except in limited situations. The Rules, as we have seen, treat\n improper venue as an affirmative dilatory defense; and, to our mind, properly so, as\n a general proposition. Normally, it is not too much to require one who would abate\n an action because of a privilege personal to himself to establish his privilege.\n\nMoore’s Federal Practice, Vol. 1A, sec. 0.340 [1.-4] (2nd ed.) (footnotes omitted).3\n\n\n\n 3\n Professor Moore does not distinguish between subject matter jurisdiction and in personam jurisdiction in this\ndiscussion. If his observations are sound then such observations should apply with equal vigor to both venue and in\npersonam jurisdiction, since Leroy v. Great Western United Corp. observes that “neither personal jurisdiction nor venue\nis fundamentally preliminary in the sense that subject-matter is, for both are personal privileges of the defendant, rather\nthan absolute strictures on the court, and both may be waived by the parties.” 61 L.Ed.2d at 472.\n\n -7-\n\f While Professor Moore prefers to cast the burden of proof upon the defendant as to venue\nit is to be noted that the division of authority on this question is wide spread with Tennessee Federal\ncases apparently joining those jurisdictions placing the burden of proof on the plaintiff. Fayette v.\nVolkswagen of America, Inc., 273 F. Supp. 323 (W.D. Tenn. 1967); Dixie Portland Flower Mills, Inc.\nv. Dixie Feed and Seed Co., 272 F. Supp. 826 (W.D. Tenn. 1965), aff’d 382 F.2d 830 (6th Cir. 1967).\n\n The burden of proof question is academic in this case as the trial court accepted the proof\noffered by the defendant that he was not a resident of Montgomery County on July 1, 1998, and that\nhe was not “found” in Montgomery County on July 24, 1998 when Plaintiff alleges that he was\nserved with process while on the property of Robert K. Mayfield. Even if the defendant was in\nMontgomery County on July 24, 1998, this would not suffice to vest venue in the courts of\nMontgomery County.\n\n This was a transitory action, and section 8640 [T.C.A. 20-4-101] of the Code\n provides that such right of action “follows the person of the defendant, unless\n otherwise expressly provided.” The chancery court in Hamilton county had no\n jurisdiction of this action until the defendant came into that county. His presence in\n the county conferred jurisdiction upon the court. It has been repeatedly said by this\n court that, under section 8640 [T.C.A. 20-4-101] of the Code, a transitory right of\n action follows the person of defendant into a particular jurisdiction–does not precede\n the defendant into that jurisdiction. If the defendant, instead of coming into\n Hamilton county from Georgia, had come into Hamilton county from another county\n of Tennessee, it is conceded the plea in abatement herein would have been good.\n Carlisle v. Cowan, 85 Tenn. 165, 2 S.W. 26, 28; Haynes v. Woods, 151 Tenn. 163,\n 268 S.W. 632; Inter-Southern Life Insurance Co. v. Pierce, 161 Tenn. 346, 31\n S.W.2d 692.\n It is urged, however, that a different rule should be applied to nonresidents of\n the state. We cannot follow this argument. It is the presence of a defendant in the\n county that confers jurisdiction of such actions on the courts of that county. It is\n immaterial where the defendant comes from–whether another state or another county.\n If not in the county when sued, service of process on him at some later date, when he\n may come into the county, does not help the plaintiff. This is true because “the\n service of the summons relates back to the date of the issuance of the writ, and he is\n sued as of the day of the institution of the suit.” Carlisle v. Cowan, supra.\n\nHamilton Nat. Bank v. Watkins, 110 S.W.2d 311, 312 (Tenn. 1937).\n\n Contrary to Appellant’s argument, the limited appearance filed on the defendants’ behalf, the\nanswer’s assertions regarding residence and the motion to dismiss with supportive affidavits left no\ndoubt that the venue of the Montgomery County Circuit Court was squarely at issue. Appellant cites\nFaulks v. Crowder, 99 S.W.3d 116, 126 (Tenn.Ct.App. 2002) for the proposition that the defense\nof insufficiency of process must be timely raised just as the venue objection must be timely asserted.\nSee also Tenn.R.Civ.P. 12.02 and 12.08. However, the two year delay taken by the defendant in\n\n\n -8-\n\fFaulks is distinguishable from the facts at bar. In his answer, Dr. Mayfield affirmatively pled his\nresidence in Houston County. By motion only sixty days later, the defendant Mayfield specifically\nraised improper venue as ground for dismissal. See Toller v. City of Cookeville, 952 S.W.2d 831,\n835 (Tenn.Ct.App. 1997). Under the circumstances the trial court correctly concluded that the venue\nobjection was raised in a timely fashion.\n\n The trial court specifically found that Defendant’s practice was outside of Montgomery\nCounty and that the defendant did not reside in Montgomery County. These findings were amply\nsupported by the affidavits of the defendant as well as his testimony in the deposition taken for the\nlimited purpose of determining propriety of venue. Despite Appellant’s argument that the affidavit\nof independent service processor Joe Heatherly was not properly considered as establishing personal\nservice, the trial court considered that affidavit as well as the affidavit and deposition testimony of\nRobert D. Mayfield, and determined, as is his province, the credibility to be assessed to each witness\nrendering testimony directly and by affidavit before the court. Consistent with our standard of\nreview as established under Tenn. R. App. P. Rule 13(d), we cannot reverse these amply supported\nfactual findings. See Airline Constr. v. Barr, 807 S.W.2d 247 (Tenn.Ct.App. 1990). The evidence\ndoes not preponderate against the finding of the trial court that the defendants were neither residents\nof Montgomery County nor found in Montgomery County on July 1, 1998. The case was properly\ndismissed because of improper venue. The decision of the trial court is affirmed in all respects.\nAppellant’s renewed motion to amend the record is denied. Costs on appeal are taxed against\nAppellant for which execution may issue.\n\n\n ___________________________________\n WILLIAM B. CAIN, JUDGE\n\n\n\n\n -9-\n\f", "ocr": false, "opinion_id": 1055771 } ]

[ "736 F.3d 1139" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": 7, "download_url": "http://media.ca8.uscourts.gov/opndir/13/12/123165P.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n For the Eighth Circuit\n ___________________________\n\n No. 12-3165\n ___________________________\n\n United States of America\n\n lllllllllllllllllllll Plaintiff - Appellee\n\n v.\n\n Jonathan P. Simmons\n\n lllllllllllllllllllll Defendant - Appellant\n ____________\n\n Appeal from United States District Court\n for the Western District of Missouri - Kansas City\n ____________\n\n Submitted: November 8, 2013\n Filed: December 6, 2013\n [Published]\n ____________\n\nBefore LOKEN, BOWMAN, and COLLOTON, Circuit Judges.\n ____________\n\nPER CURIAM.\n\f Jonathan Simmons pleaded guilty to drug and firearm offenses, and the District\nCourt sentenced him to two consecutive sixty-month prison terms. Simmons appeals,\nchallenging the validity of his guilty plea.1 We affirm.\n\n In September 2010, Simmons was indicted by a grand jury on three counts:\nCount One charged that Simmons knowingly possessed with intent to distribute one\nhundred or more marijuana plants, a violation of 21 U.S.C. § 841(a)(1), (b)(1)(B);\nCount Two charged that Simmons, “during and in relation to a drug-trafficking crime,\nto wit: possession with the intent to distribute marijuana as alleged in Count One, did\nknowingly and intentionally possess firearms,” a violation of 18 U.S.C.\n§ 924(c)(1)(A)(i); and Count Three charged that Simmons possessed the firearms\nafter a prior felony conviction, a violation of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).\n\n At a February 2012 change-of-plea hearing, the parties notified the District\nCourt that they had reached an oral agreement for Simmons to plead guilty to Count\nOne, modified to charge possession with intent to distribute less than one hundred\nmarijuana plants, and to Count Two. In exchange, the government agreed to dismiss\nCount Three at sentencing. The parties further agreed to jointly recommend that the\nsentence on these charges run concurrently with a sentence Simmons was serving on\nan unrelated drug conviction.\n\n The government then described the offenses to which Simmons was pleading\nguilty and the respective ranges of punishment. As relevant, the government recited\nthe Count Two charge as it was stated in the indictment, namely, that Simmons,\n\n\n 1\n In his Second Supplemental Brief (the fifth counseled or pro se brief filed on\nSimmons’s behalf), Simmons concedes that he received proper sentencing credit for\nthe time he spent in custody. Second Supp. Br. at 11. To the extent Simmons\nattempts to raise a new argument regarding the calculation of his sentence, we refuse\nto consider it. See, e.g., United States v. McLain, 709 F.3d 1198, 1200 n.1 (8th Cir.\n2013) (noting that claims not raised in an opening brief are deemed waived).\n\n -2-\n\f“during and in relation to” the drug-trafficking crime charged in Count One, “did\nknowingly and intentionally possess firearms.” Tr. of Change of Plea Hr’g at 4. The\ngovernment also summarized the evidence it would have presented at trial. Law\nenforcement officers executing a warrant on an unrelated drug charge arrested\nSimmons at a Kansas City residence and observed numerous potted plants in the\nbasement while conducting a protective sweep of the residence. The officers\nobtained a search warrant for the residence and thereafter recovered 119 marijuana\nplants and three firearms. The government also stated that in a later interview,\nSimmons admitted that he possessed the marijuana plants seized from the residence;\nthat he trafficked cocaine from Kansas City, Kansas, to Columbia, Missouri; that he\npossessed or owned the three guns found in the residence; and that he had “bought\n[the three guns] for home protection . . . regarding the cocaine transactions.” Id. at\n15. When questioned by the court, Simmons confirmed that the government’s\nsummary “sound[ed] like what happened that day,” id. at 16, and repeatedly admitted\nthat he had knowingly and intentionally possessed the three guns, id. at 17–18.\n\n The court thereafter accepted Simmons’s guilty pleas to Count One, as\nmodified, and Count Two and ordered preparation of a presentence report (PSR). As\nrelevant, the PSR stated that Simmons had “admitted that the handguns recovered\nfrom his residence were both owned and purchased by him” and that “he owned them\nfor home protection, since he was buying cocaine from dealers.” PSR ¶ 11. Simmons\ndid not object to this portion of the PSR. In addition, the PSR noted that by pleading\nguilty to Count One, as modified to reflect fewer than 100 marijuana plants, Simmons\nhad avoided the statutory imprisonment range of 60–480 months applicable for 100\nor more marijuana plants, 21 U.S.C. § 841(b)(1)(B)(vii); the advisory U.S. Sentencing\nGuidelines range of 188–235 months for the greater drug amount, see PSR ¶ 66\n(describing Guidelines sentencing range of 188–235 months for Total Offense Level\nof 31 and Criminal History Category of VI); and a maximum possible sentence of 120\nmonths on the dismissed Count Three, 18 U.S.C. § 924(a)(2).\n\n\n\n -3-\n\f At the September 2012 sentencing hearing, the District Court noted, and\nSimmons agreed, that on “Count Two, [Simmons] pled guilty to being in possession\nof firearms during a drug-trafficking crime.” Tr. of Sent. Hr’g at 2–3. The court then\nturned to a pro se motion that Simmons had filed seeking to withdraw his guilty plea\nbecause, in pertinent part, defense counsel had “failed to recognize the crucial error\nin [the] indictment, this being the improper wording of Count Two.” Id. at 5.\nSimmons explained that his plea was not valid because he had misunderstood Count\nTwo and that at the time of his plea, he was unaware of the error in the indictment.\nId. at 9–11. During a lengthy discussion of Simmons’s motion, the government\ninformed the court that it had considered “fil[ing] a motion . . . agreeing to allow him\nto withdraw his plea,” reinstating the original three Counts of the indictment, and\nthereby subjecting Simmons to the potential prison terms described above. Id. at 17.\nThe District Court then addressed Simmons, noting that it, too, had considered\nallowing him to withdraw his guilty plea “and we’ll go to trial and the whole thing.\nAnd . . . if we went to trial and a jury agreed that you had the 119 plants and you had\nall these weapons, your Sentencing Guideline range starts at about 180 months,\ndoesn’t it?” Id. at 18. Simmons acknowledged that he faced this potential sentencing\nexposure, and when the court then observed that withdrawing the guilty plea and\ngoing to trial “doesn’t sound very wise to me,” Simmons agreed and stated that “in\nlight of the comments that [the government] just made, I would like to tell you, I\nappreciate [the government] not filing that motion.” Id. The court then denied\nSimmons’s request to withdraw his guilty plea and imposed two consecutive sixty-\nmonth sentences to run concurrently with a sentence Simmons was already serving\non the unrelated drug charge.\n\n On appeal, Simmons first argues that because Count Two of the indictment\nmisstated the elements of § 924(c) and because the District Court failed to properly\ninform him of the elements of the offense as required by Rule 11, his guilty plea was\ninvalid and he should be “permitted to withdraw his plea of guilty to Count [Two].”\nSecond Supp. Br. of Appellant at 22; see United States v. Todd, 521 F.3d 891, 895\n\n -4-\n\f(8th Cir. 2008) (noting that a challenge to an indictment is waived by a valid guilty\nplea). Simmons did not raise his Rule 11 argument before the District Court, so we\nreview only for plain error. See United States v. Vonn, 535 U.S. 55, 58–59 (2002).\nUnder this standard, Simmons must show not only that the District Court committed\na plain error in complying with Rule 11, but also that any such error affected his\nsubstantial rights. A Rule 11 violation “affects substantial rights only where the\ndefendant shows a reasonable probability that but for the error, he would not have\nentered a guilty plea.” Todd, 521 F.3d at 896.\n\n As noted above, Count Two of the indictment charged that Simmons “did\nknowingly and intentionally possess firearms” “during and in relation to a\ndrug-trafficking crime.” Section 924(c), however, applies to any person who (1)\n“uses or carries a firearm” “during and in relation to any . . . drug trafficking crime”\nor (2) “possesses a firearm” “in furtherance of any such crime.” 18 U.S.C. § 924(c).\nThe government concedes that the indictment was defective and should have charged\nSimmons with possessing firearms “in furtherance of” a drug-trafficking offense.2\nSupp. Br. of Appellee at 10. And we agree with Simmons that because the District\nCourt did not accurately inform him of the elements of the § 924(c) offense at the\nchange-of-plea hearing, the court violated Rule 11 of the Federal Rules of Criminal\nProcedure. See Fed. R. Crim. P. 11(b)(1)(G) (instructing that a district court must\n\n\n 2\n Once again, we find ourselves expending considerable judicial resources\nresolving this conflation issue when it could have been avoided altogether if the\nlanguage in Count Two of the indictment had carefully adhered to the statutory\nlanguage of § 924(c). This is not, as the government argues, “a virtually\nimperceptible distinction” or a “seemingly metaphysical distinction.” Supp. Br. of\nAppellee at 15, 8; see United States v. Gamboa, 439 F.3d 796, 809–10 (8th Cir.)\n(noting that proof for an “in furtherance of” charge under § 924(c) differs from that\nfor a “during and in relation to” charge), cert. denied, 549 U.S. 1042 (2006).\nAccordingly, we again caution the government against “conflat[ing] the two\nalternative offenses defined in § 924(c).” United States v. Todd, 521 F.3d 891, 895\n(8th Cir. 2008).\n\n -5-\n\finform the defendant of “the nature of each charge to which” he is pleading before\naccepting a guilty plea). Accordingly, Simmons has shown an error that was plain.\nBut to obtain relief, he must also show a reasonable probability that but for the error,\nhe would not have entered a guilty plea.\n\n Simmons argues that the government could not prove that he possessed the\nfirearms in furtherance of his drug-trafficking activity in violation of § 924(c) because\nthe firearms recovered at the residence were locked in a safe. According to Simmons,\nthe government therefore could not have established the requisite nexus between the\nfirearms and the drug-trafficking activity, and had the court complied with Rule 11\nby properly informing him of the elements of the § 924(c) charge, he would have\nrecognized this shortcoming in the government’s case and would have put the\ngovernment to its burden of proof at trial.\n\n To be sure, evidence of “simultaneous possession of drugs and . . . firearm[s]”\nis, by itself, insufficient to sustain a conviction for possessing a firearm in furtherance\nof drug-trafficking activity. United States v. Hamilton, 332 F.3d 1144, 1150 (8th Cir.\n2003). Instead, the government must establish a nexus between the possession of the\nfirearm and the drug-trafficking offense. Id. This nexus may be established, for\nexample, when a firearm and drugs are discovered in close proximity “so as to\nsupport an inference that the firearm is for the protection of the drugs.” United States\nv. Saddler, 538 F.3d 879, 888 (8th Cir.) (citation to quoted case omitted), cert. denied,\n555 U.S. 1088 (2008). In this case, however, no such inference is required.\nAlthough the government’s evidence did not show that the drugs and firearms were\nin close proximity when they were discovered and seized, Simmons admitted that he\npossessed the firearms specifically to protect the drugs he kept at the residence.\nPSR ¶ 11 (stating that Simmons admitted that “he owned [the firearms] for home\nprotection, since he was buying cocaine from dealers”); United States v. Paz, 411\nF.3d 906, 909 (8th Cir. 2005) (“Facts presented in a PSR are deemed admitted unless\nthe defendant objects to those facts.”); Tr. of Change of Plea Hr’g at 15 (describing\n\n -6-\n\fSimmons’s admission that he bought the firearms “for home protection . . . regarding\ncocaine transactions”).\n\n Moreover, when the court and the government addressed Simmons regarding\nthe consequences of withdrawing his guilty plea, namely, that the government would\nreinstate the original three charges and Simmons would face a Guidelines “range\nstart[ing] at about 180 months,” Simmons acknowledged that it would not be “very\nwise” to withdraw his plea and expressed relief that the government had not conceded\nto his motion to withdraw and refiled the original charges. Tr. of Sent. Hr’g at 18.\nAnd even now, Simmons does not seek to withdraw his guilty plea in its entirety.\nRather, he seeks only to withdraw his plea to Count Two, thereby avoiding the\nconsequences of his guilty plea to Count Two but retaining the benefits of his guilty\nplea to the reduced charge under Count One and the government’s dismissal of Count\nThree. See Todd, 521 F.3d at 897 (stating that under the plain-error rule in the\ncontext of a Rule 11 violation, a defendant must show a reasonable probability that\nhe would have relinquished the benefits of his plea agreement and stood trial on all\ncounts charged in the original indictment).\n\n In sum, we conclude that Simmons has not shown a reasonable probability that\nhe would have declined to plead guilty, relinquished the substantial benefits of his\nplea agreement, and insisted on proceeding to trial on all three original Counts of the\nindictment had the court accurately advised him of the elements of the § 924 violation\ncharged in Count Two. Accordingly, Simmons is not entitled to relief, and we affirm\nthe judgment of the District Court.\n ______________________________\n\n\n\n\n -7-\n\f", "ocr": false, "opinion_id": 2645087 } ]

[ "456 F.2d 799" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/456/456.F2d.799.71-2772.html", "author_id": null, "opinion_text": "456 F.2d 799\n *Mosesv.Wainwright\n 71-2772\n UNITED STATES COURT OF APPEALS Fifth Circuit\n Jan. 21, 1972\n \n 1\n M.D.Fla.\n \n \n 2\n ---------------\n \n \n \n * Summary Calendar cases; Rule 18, 5 Cir.,; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of\n \n \n ", "ocr": false, "opinion_id": 301994 } ]

[ "737 F.3d 116" ]

[ { "author_str": "Lynch", "per_curiam": false, "type": "010combined", "page_count": 27, "download_url": "http://media.ca1.uscourts.gov/pdf.opinions/13-1088P-01A.pdf", "author_id": null, "opinion_text": " United States Court of Appeals\n For the First Circuit\n\nNo. 13-1088\n\n UNITED STATES ex rel. HELEN GE, M.D.,\n\n Relator, Appellant,\n\n STATE OF CALIFORNIA; STATE OF DELAWARE; STATE OF FLORIDA;\n STATE OF GEORGIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF\n LOUISIANA; STATE OF INDIANA; STATE OF MICHIGAN; STATE OF\n MINNESOTA; STATE OF MONTANA; STATE OF NEVADA; STATE OF NEW\nHAMPSHIRE; STATE OF NEW JERSEY; STATE OF NEW MEXICO; STATE OF NEW\n YORK; STATE OF NORTH CAROLINA; STATE OF OKLAHOMA; STATE OF RHODE\n ISLAND; STATE OF TENNESSEE; STATE OF TEXAS; STATE OF WISCONSIN;\n COMMONWEALTH OF MASSACHUSETTS; COMMONWEALTH OF VIRGINIA;\n DISTRICT OF COLUMBIA,\n\n Plaintiffs,\n\n v.\n\n TAKEDA PHARMACEUTICAL COMPANY LIMITED;\n TAKEDA PHARMACEUTICAL NORTH AMERICA, INC.,\n\n Defendants, Appellees.\n\n\nNo. 13-1089\n\n UNITED STATES ex rel. HELEN GE, M.D.,\n\n Relator, Appellant,\n\n STATE OF CALIFORNIA; STATE OF DELAWARE; STATE OF FLORIDA; STATE\n OF GEORGIA; STATE OF HAWAII; STATE OF ILLINOIS; STATE OF\n LOUISIANA; STATE OF INDIANA; STATE OF MINNESOTA; STATE OF\n MONTANA; STATE OF NEVADA; STATE OF NEW HAMPSHIRE; STATE OF NEW\n JERSEY; STATE OF NEW MEXICO; STATE OF NEW YORK; STATE OF NORTH\n CAROLINA; STATE OF OKLAHOMA; STATE OF RHODE ISLAND; STATE OF\n TENNESSEE; STATE OF TEXAS; STATE OF WISCONSIN; COMMONWEALTH OF\n MASSACHUSETTS; COMMONWEALTH OF VIRGINIA; DISTRICT OF COLUMBIA,\n\n Plaintiffs,\n\n v.\n\f TAKEDA PHARMACEUTICAL COMPANY LIMITED;\n TAKEDA PHARMACEUTICAL NORTH AMERICA, INC.,\n\n Defendants, Appellees.\n\n\n APPEALS FROM THE UNITED STATES DISTRICT COURT\n FOR THE DISTRICT OF MASSACHUSETTS\n\n [Hon. F. Dennis Saylor IV, U.S. District Judge]\n\n\n Before\n\n Lynch, Chief Judge,\n Stahl and Howard, Circuit Judges.\n\n\n Michael Sullivan, with whom The Ashcroft Group, Michael L.\nBaum, Bijan Esfandiari, R. Brent Wisner, and Baum, Hedlund, Aristei\n& Goldman, P.C. were on brief, for appellant.\n Brian J. Murray, with whom Morgan R. Hirst, Marron A. Mahoney,\nChristopher M. Morrison, Joseph B. Sconyers, and Jones Day were on\nbrief, for appellees.\n Melissa N. Patterson, Attorney, Appellate Staff, Civil\nDivision, with whom Stuart F. Delery, Acting Assistant Attorney\nGeneral, Carmen M. Ortiz, United States Attorney, and Michael S.\nRabb, Attorney, Appellate Staff, Civil Division, were on brief, for\nthe United States of America as Amicus Curiae.\n\n\n December 6, 2013\n\f LYNCH, Chief Judge. In June 2010 Dr. Helen Ge originally\n\nfiled these two qui tam actions against her former employer, Takeda\n\nPharmaceutical Company Ltd. and its subsidiary Takeda\n\nPharmaceutical North America, Inc. (collectively, \"Takeda\"), under\n\nthe federal False Claims Act (\"FCA\"), 31 U.S.C. § 3729 et seq., and\n\nvarious analogous state statutes. The two actions concern\n\ndifferent drugs. She has since amended each of her complaints\n\ntwice. The United States has declined to enter the case as a\n\nparty. In a successful qui tam action, the relator collects a\n\nportion of the award to the government regardless of whether the\n\ngovernment intervenes. See United States ex rel. Duxbury v. Ortho\n\nBiotech Prods., L.P. (\"Duxbury I\"), 579 F.3d 13, 16 (1st Cir.\n\n2009).\n\n Dr. Ge has alleged in her second amended complaints that\n\nTakeda had failed to disclose adequately the risks associated with\n\nfour of its drugs and generally that this failure resulted in the\n\nsubmission of false claims by various third-party patients and\n\nphysicians for government payment through, for example, Medicare or\n\nMedicaid reimbursement.\n\n On Takeda's motions to dismiss, the district court\n\ndismissed both of Dr. Ge's actions under Federal Rule of Civil\n\nProcedure 9(b) for failure to plead fraud with particularity and,\n\nin addition, under Federal Rule of Civil Procedure 12(b)(6) for\n\nfailure to state a claim. United States ex rel. Ge v. Takeda\n\n\n -3-\n\fPharm. Co. Ltd., Nos. 10-11043-FDS, 11-10343-FDS, 2012 WL 5398564\n\n(D. Mass. Nov. 1, 2012). Dr. Ge proposed to amend the second\n\namended complaint yet again, asserting still more theories of FCA\n\nliability. The district court declined to allow further amendment.\n\n Dr. Ge now appeals, making three levels of arguments:\n\n(1) as to the Rule 9(b) dismissal, that her complaints contain\n\nsufficient allegations concerning \"the who, what, where, and when\"\n\nof Takeda's misconduct to satisfy Rule 9(b)'s particularity\n\nrequirement, see Duxbury I, 579 F.3d at 30 (quoting Rodi v. S. New\n\nEng. Sch. of Law, 389 F.3d 5, 15 (1st Cir. 2004)) (internal\n\nquotation mark omitted), (2) the district court abused its\n\ndiscretion in rejecting without opinion two requests, one pre-\n\njudgment and one post-judgment, by Dr. Ge to amend her complaints\n\nagain, and (3) as to Rule 12(b)(6), that the district court's\n\nanalysis relies on an overly restrictive conception of FCA\n\nliability.\n\n This opinion concerns the first two arguments. We affirm\n\nthe district court on its Rule 9(b) and denial of amendment\n\nrulings, and do not reach the 12(b)(6) issue.\n\n I.\n\n In September 2008, Dr. Ge took a position with Takeda as\n\na contract physician, contracting to perform medical reviews of\n\nadverse event reports. Dr. Ge was responsible for reports of\n\nadverse events, including those concerning four specific drugs for\n\n\n -4-\n\fspecific diseases: Actos (type 2 diabetes), Uloric (gout),\n\nKapidex/Dexilant (gastroesophageal reflux disease), and Prevacid\n\n(same). Takeda sells all four drugs and each required Food and\n\nDrug Administration (\"FDA\") approval for these uses. Dr. Ge's\n\ntasks included ascertaining the seriousness of a reported event,\n\ndetermining whether the associated drug was causally responsible\n\nfor that event, and determining whether that event constituted a\n\n\"safety signal,\" that is whether the reported event signaled the\n\nneed for additional safety warnings. Dr. Ge worked for Takeda\n\nuntil January 2010. She asserts that when she complained about\n\nimproper reporting at Takeda, her contract was summarily\n\nterminated.\n\n On June 18, 2010, Dr. Ge filed an FCA complaint under\n\nseal against Takeda pertaining to Actos. United States ex rel.\n\nHelen Ge v. Takeda Pharmaceutical Co., et al, 10-11043-FDS. On\n\nMarch 1, 2011, Dr. Ge filed a second complaint under seal\n\npertaining to Uloric, Kapidex/Dexilant, and Prevacid. United\n\nStates ex rel. Helen Ge v. Takeda Pharmaceutical Co., et al,\n\n11-10343-FDS. In Dr. Ge's complaints, she alleged on behalf of the\n\nUnited States1 that three FCA sections were violated: (a) 31 U.S.C.\n\n\n 1\n Dr. Ge's complaints also brought claims on behalf of\nCalifornia, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana,\nLouisiana, Massachusetts, Michigan, Minnesota, Montana, Nevada, New\nHampshire, New Jersey, New Mexico, New York, North Carolina,\nOklahoma, Rhode Island, Tennessee, Texas, Virginia, Wisconsin, and\nthe District of Columbia, alleging violations by Takeda of similar\nstate statutes. Michigan is only a party to the Actos appeal.\n\n -5-\n\f§ 3729(a)(1)(A), which imposes liability on any person who\n\n\"knowingly presents, or causes to be presented, a false or\n\nfraudulent claim for payment or approval,\" (b) § 3729(a)(1)(B),\n\nwhich imposes liability on any person who \"knowingly makes, uses,\n\nor causes to be made or used, a false record or statement material\n\nto a false or fraudulent claim,\" and (c) § 3729(a)(1)(C), which\n\nimposes liability on any person who conspires to commit a violation\n\nof, among other things, § 3729(a)(1)(A) or § 3729(a)(1)(B).\n\n In late 2011 and early 2012, Dr. Ge filed amended\n\ncomplaints in both cases while both complaints were still under\n\nseal. Between late March and early April 2012, Dr. Ge filed a\n\nsecond set of amended complaints after the complaints were\n\nunsealed. Dr. Ge's second amended complaints are the ones directly\n\nat issue on appeal.\n\n Dr. Ge alleged Takeda had failed to report promptly and\n\naccurately to the FDA a number of post-approval adverse events\n\nassociated with the four subject drugs. The FDA is responsible for\n\nthe approval of drugs for commercial marketing. See 21 U.S.C.\n\n§ 355. The FDA is authorized after approval to continue to\n\nevaluate the safety and effectiveness of the drug and, where\n\nappropriate, to withdraw approval or require a change in labeling.\n\nSee id. § 355(k). FDA regulations require prompt, accurate reports\n\nof adverse drug events by drug manufacturers. 21 C.F.R. §§ 314.80,\n\n314.81. The receipt of an adverse report does not in and of itself\n\n\n -6-\n\fshow a causal relationship between a drug and the illness mentioned\n\nin a report. N.J. Carpenters Pension & Annuity Funds v. Biogen\n\nIdec, Inc., 537 F.3d 35, 53 (1st Cir. 2008).\n\n It is undisputed that Takeda did submit adverse event\n\nreports and there is no specific allegation that any of the events\n\nwhich are the subject of the complaint were not eventually reported\n\nin some form to the FDA. As to the drug Actos, Dr. Ge alleged that\n\nshe was asked by Takeda to misreport adverse events including\n\nincidences of heart failure, renal failure, pancreatic cancer, and,\n\nmost notably, bladder cancer. Dr. Ge alleged that she complied\n\nwith those directions on certain occasions after having made known\n\nher objections. In addition, Dr. Ge alleged that she had\n\ndiscovered systematic under-reporting by Takeda of the incidence of\n\nbladder cancer in adverse event reports.\n\n The FDA did receive information on bladder cancer risk\n\nbecause in June 2011, the FDA issued an official warning \"that use\n\nof the diabetes medication Actos (pioglitazone) for more than one\n\nyear may be associated with an increased risk of bladder cancer.\"\n\nFDA Drug Safety Communication: Update to ongoing safety review of\n\nActos (pioglitazone) and increased risk of bladder cancer (June 15,\n\n2011), http://www.fda.gov/Drugs/DrugSafety/ucm259150.htm. The FDA\n\nalso mandated a label change. FDA Drug Safety Communication:\n\nUpdated drug labels for pioglitazone-containing medicines (Aug. 4,\n\n2011), http://www.fda.gov/drugs/drugsafety/ucm266555.htm. But it\n\n\n -7-\n\falso issued a supplemental approval of Actos after knowing of the\n\nbladder cancer risk. Dr. Ge alleges that after the labeling change\n\nthe sales of Actos plummeted.\n\n As to the drugs Uloric, Kapidex/Dexilant, and Prevacid,\n\nDr. Ge alleged that Takeda pressured her to falsify her medical\n\nconclusions, asking her to classify events as \"non-serious\" or to\n\nchange her causality assessment to \"unrelated\" so as to avoid\n\n\"reporting within 15 days\" as required by FDA regulation. See 21\n\nC.F.R. § 314.80(c)(1)(i) (requiring report of \"serious and\n\nunexpected\" adverse event within 15 days). Specifically, Dr. Ge\n\nalleged that she was directed to alter her analysis of reported\n\nadverse events involving the interactions between the three drugs\n\nand other medications likely to be taken by senior citizens. Dr.\n\nGe did not clearly allege that she complied with Takeda's\n\ndirections. Dr. Ge did allege, however, that on various occasions\n\nTakeda officials altered her assessments directly.\n\n As to Uloric, at some point Takeda submitted a\n\nSupplemental New Drug Application to update the Adverse Reactions\n\nsection of the Uloric label. The FDA approved this supplemental\n\napplication on January 28, 2011.2\n\n\n\n\n 2\n At times Dr. Ge's complaint appears to be directed against\nthe FDA for its failure to require greater warnings on labels, such\nas for Prevacid.\n\n -8-\n\f As to all four drugs Dr. Ge asserts that Takeda should\n\nhave reported adverse events earlier, and that Takeda consistently\n\ntook actions to resist label changes through under-reporting.\n\n On May 11, 2012, Takeda filed its motion to dismiss. Dr.\n\nGe filed a memorandum in opposition on July 17, 2012. At the end\n\nof her memorandum but not as a separate motion, Dr. Ge requested\n\nleave to amend her complaints a third time, if the court was\n\ninclined to dismiss, and supported it with a declaration from one\n\nof her attorneys that included an attachment providing the total\n\nexpenditures by the federal government for Actos. On August 27,\n\n2012, Takeda filed a motion to strike that declaration.\n\n On November 1, 2012, the district court dismissed in a\n\nwritten order Dr. Ge's claims under Rule 9(b), reasoning that\n\n\"although relator has alleged facts that would demonstrate a\n\n'fraud-on-the-FDA' with respect to intentional under-reporting of\n\nadverse events, she has failed to allege the specific details of\n\nany claims that were allegedly rendered 'false' as a result.\"\n\nTakeda, 2012 WL 5398564, at *4. The district court noted that Dr.\n\nGe had attempted to cure this defect by referring to her attorney's\n\ndeclaration, which attached the total aggregate expenditure data by\n\nthe government for Actos. Id. The district court held, however,\n\nthat even assuming it was permissible for the court to consider the\n\nActos data, such aggregate expenditure data did not satisfy Rule\n\n9(b)'s particularity requirement. Id. The district court\n\n\n -9-\n\fcontrasted Dr. Ge's pleadings with the pleadings of the relator in\n\nDuxbury I, which identified eight specific medical providers who\n\nallegedly submitted false claims, the rough time periods,\n\nlocations, and amounts of the claims, and the specific government\n\nprograms to which the claims were made. Takeda, 2012 WL 5398564,\n\nat *4 (citing Duxbury I, 579 F.3d at 29-30).\n\n From the absence of such specifics in Dr. Ge's\n\ncomplaints, the district court inferred that Dr. Ge meant to assert\n\nthat all claims for the subject drugs during the relevant time\n\nperiod were rendered false by Takeda's alleged misconduct. Id. at\n\n*5. The district court held that Dr. Ge had not provided the\n\nspecific factual allegations necessary to support the inference\n\nthat the FDA would have withdrawn approval from all four drugs\n\nimmediately upon receiving the withheld information. Id.; see also\n\n21 C.F.R. §§ 314.80(j), 314.81(d) (\"If an applicant fails to\n\nestablish and maintain records and make reports required under this\n\nsection, FDA may withdraw approval of the application and, thus,\n\nprohibit continued marketing of the drug product that is the\n\nsubject of the application.\") (emphasis added). The district court\n\nwent beyond that to point out that even were it to accept the\n\nunsubstantiated premise that drugs would have been taken off the\n\nmarket, there were still no allegations about how the fraudulent\n\nreporting would render false those claims which were filed before\n\nthe adverse events occurred.\n\n\n -10-\n\f In the same November 1, 2012 order, the district court\n\nalso dismissed Dr. Ge's claims under Rule 12(b)(6) for failure to\n\nstate a claim, holding that Dr. Ge had not adequately established\n\nthat compliance with adverse-event reporting requirements was a\n\n\"material precondition\" to the payment of the claims at issue.\n\nTakeda, 2012 WL 5398564, at *6; see also United States ex rel.\n\nHutcheson v. Blackstone Med., Inc., 647 F.3d 377, 392 (1st Cir.\n\n2011) (holding that FCA liability exists where claims submitted\n\n\"misrepresented compliance with a precondition of payment so as to\n\nbe false or fraudulent\" and where \"those misrepresentations were\n\nmaterial\"). The district court observed that it is within the\n\nFDA's discretion to respond to violations of adverse-event\n\nreporting requirements in a number of ways, only the harshest of\n\nwhich is the withdrawal of drug approval. Takeda, 2012 WL 5398564,\n\nat *6. The district court noted in addition that the FDA's\n\nenforcement procedures provide the opportunity for citizens to\n\npetition the FDA to bring action against specific violators. Id.\n\n(citing 21 C.F.R. § 10.30). The district court reasoned that \"[i]t\n\nis through that mechanism, rather than an FCA lawsuit, that relator\n\nshould have brought the reporting issues illuminated in the\n\ncomplaints to the attention of the FDA.\" Id.\n\n Finally, the district court dismissed in that same order\n\nDr. Ge's various state-law claims both because they failed to state\n\na claim under state law and because they failed to plead with\n\n\n -11-\n\fspecificity the details of any claims for payment made to any of\n\nthe states. Id. The district court did not address Dr. Ge's\n\nrequest for leave to amend. Judgment was entered for defendants on\n\nNovember 1, 2012.\n\n On November 29, 2012, Dr. Ge filed a formal motion for\n\nreconsideration pursuant to Rule 59(e) along with a motion for\n\nleave to amend her complaint. Dr. Ge's motions were supported by\n\n(a) an economic model constructed by a pharmaceutical economics\n\nprofessor from the School of Pharmacy at the University of Southern\n\nCalifornia purporting to show the amount of claims for Actos that\n\nwould not have been submitted for government payment but for\n\nTakeda's alleged misconduct, and (b) the declarations of eight\n\nindividuals attesting that an individual patient would not have\n\nsubmitted his or her claim if Takeda had promptly and accurately\n\ndisclosed the link between Actos and bladder cancer. On December\n\n18, 2012, the district court denied Dr. Ge's motions without\n\nopinion. On January 14, 2013, Dr. Ge filed a timely notice of\n\nappeal.3\n\n\n 3\n Appearing as amicus curiae in support of neither party, the\nUnited States makes a limited argument that the district court\nerred in its Rule 12(b)(6) analysis to the extent that it reasoned\n(1) the availability of alternative administrative remedies\nprecludes FCA liability, and (2) the failure to comply with FDA\npost-approval reporting requirements is per se immaterial to the\nGovernment's decision whether to reimburse a claim and hence could\nunder no circumstances serve as a basis for FCA liability.\nAccording to the United States, failure to comply with FDA post-\napproval reporting requirements could serve as a basis for FCA\nliability only in \"rare circumstances.\" It was objecting only to\n\n -12-\n\f II.\n\n We review de novo the district court's dismissal order\n\nfor failure to comply with Rule 9(b). United States ex rel. Gagne\n\nv. City of Worcester, 565 F.3d 40, 45 (1st Cir. 2009). Rule 9(b)\n\nprovides: \"In alleging fraud or mistake, a party must state with\n\nparticularity the circumstances constituting fraud or mistake.\"\n\nFed. R. Civ. P. 9(b).\n\n The district court correctly cited the relevant pleading\n\nrequirements: Relators are required to set forth with\n\nparticularity the \"'who, what, when, where, and how' of the alleged\n\nfraud.\" United States ex. rel Walsh v. Eastman Kodak Co., 98 F.\n\nSupp. 2d 141, 147 (D. Mass. 2000) (quoting United States ex rel.\n\nThompson v. Columbia/HCA Healthcare Corp., 125 F.3d 899, 903 (5th\n\nCir. 1997)); see also Arruda v. Sears, Roebuck & Co., 310 F.3d 13,\n\n18-19 (1st Cir. 2002).\n\n As we noted a few months ago in United States ex rel.\n\nDuxbury v. Orthobiotech Products, L.P. (\"Duxbury II\"), 719 F.3d 31,\n\n33 (1st Cir. 2013):\n\n \"Although [the FCA's] financial incentive\n encourages would-be relators to expose fraud,\"\n United States ex rel. Poteet v. Bahler Med.,\n Inc., 619 F.3d 104, 107 (1st Cir. 2010), it\n also attracts \"'parasitic' relators who bring\n\n\na per se approach. The United States takes no position as to\nwhether Dr. Ge's complaints contain sufficient allegations to state\na claim for purposes of Rule 12(b)(6). Nor does the United States\ntake a position as to whether Dr. Ge's pleadings satisfy the\nparticularity requirement of Rule 9(b).\n\n -13-\n\f FCA damages claims based on information within\n the public domain or that the relator did not\n otherwise discover,\" United States ex rel.\n Rost v. Pfizer, Inc., 507 F.3d 720, 727 (1st\n Cir. 2007).\n\nFor those reasons, there are a number of limitations on qui tam\n\nactions, including the particularity requirements of Rule 9(b).\n\n As we explained in United States ex rel. Karvelas v.\n\nMelrose-Wakefield Hospital, 360 F.3d 220 (1st Cir. 2004):\n\n [A] relator must provide details that identify\n particular false claims for payment that were\n submitted to the government. In a case such\n as this, details concerning the dates of the\n claims, the content of the forms or bills\n submitted, their identification numbers, the\n amount of money charged to the government, the\n particular goods or services for which the\n government was billed, the individuals\n involved in the billing, and the length of\n time between the alleged fraudulent practices\n and the submission of claims based on those\n practices are the types of information that\n may help a relator to state his or her claims\n with particularity. These details do not\n constitute a checklist of mandatory\n requirements that must be satisfied by each\n allegation included in a complaint. However,\n . . . we believe that \"some of this\n information for at least some of the claims\n must be pleaded in order to satisfy Rule\n 9(b).\"\n\nId. at 232-33 (quoting United States ex rel. Clausen v. Lab. Corp.\n\nof Am., 290 F.3d 1301, 1312 n.21 (11th Cir. 2002)). Karvelas also\n\nrejects the notion that the Rule 9(b) pleading standard is relaxed\n\nfor FCA claims. See id. at 228-31.\n\n In a qui tam action in which the defendant is alleged to\n\nhave induced third parties to file false claims with the\n\n -14-\n\fgovernment, a relator can satisfy this requirement by \"providing\n\n'factual or statistical evidence to strengthen the inference of\n\nfraud beyond possibility' without necessarily providing details as\n\nto each false claim.\" Duxbury I, 579 F.3d at 29 (quoting Rost, 507\n\nF.3d at 733).\n\n Because FCA liability attaches only to false claims,\n\nKarvelas, 360 F.3d at 225, merely alleging facts related to a\n\ndefendant's alleged misconduct is not enough, Rost, 507 F.3d at\n\n732-33. Rather, a complaint based on § 3729(a)(1)(A) must\n\n\"sufficiently establish that false claims were submitted for\n\ngovernment payment\" as a result of the defendant's alleged\n\nmisconduct. Rost, 507 F.3d at 733.\n\n We will assume that the district court was correct that,\n\nas to the allegations of fraud on the FDA, the alleged misconduct\n\nsuffices. Dr. Ge has, however, alleged next to no facts in support\n\nof the proposition that Takeda's alleged misconduct resulted in the\n\nsubmission of false claims or false statements material to false\n\nclaims for government payment. Dr. Ge alleges a conclusion that\n\nnumerous claims for the four subject drugs would not have been\n\nsubmitted for government payment but for Takeda's misconduct, but\n\nalleges no more than that. What is missing are any supporting\n\nallegations upon which her conclusion rests and any particulars.\n\nDr. Ge's pleadings fall far short of what was found barely adequate\n\nin Duxbury I, see 579 F.3d at 29-30, and are far less particular\n\n\n -15-\n\fthan those there whose sufficiency was deemed a \"close call,\" id.\n\nat 30.\n\n There, this court reversed the district court's dismissal\n\nunder Rule 9(b) of some of the relator's claims, reasoning that the\n\nrelator's identification of eight specific medical providers who\n\nallegedly submitted false claims, plus rough time periods,\n\nlocations, and amounts of the claims, and the specific government\n\nprograms to which the claims were made, were just enough to\n\nconstitute a pleading of fraud with particularity. Id. at 30.4\n\nHere, by contrast, Dr. Ge provided in response to the motions to\n\ndismiss, at most, aggregate expenditure data for one of the four\n\nsubject drugs, with no effort to identify specific entities who\n\nsubmitted claims or government program payers, much less times,\n\namounts, and circumstances.\n\n Dr. Ge thus made no attempt in her complaints to allege\n\nfacts that would show that some subset of claims for government\n\npayment for the four subject drugs was rendered false as a result\n\nof Takeda's alleged misconduct. And any theory that all claims\n\nsubmitted during this period were false has even less basis to\n\nsurvive. Dr. Ge attempts to satisfy the Rule 9(b) requirements\n\nwith a per se rule that if sufficient allegations of misconduct are\n\n\n\n 4\n After discovery, those very claims were dismissed on\nsummary judgment as unsupported. United States ex rel. Duxbury v.\nOrtho Biotech Prods., L.P., No. 03-12189-RWZ, 2012 WL 3292870 (D.\nMass. Aug. 13, 2012), aff'd, 719 F.3d 31 (1st Cir. 2013).\n\n -16-\n\fmade, it necessarily follows that false claims and/or material\n\nfalse information were filed. We reject that approach, which\n\nviolates the specificity requirements of Rule 9(b).\n\n On appeal, Dr. Ge articulates three new theories\n\npurporting to support the notion that all claims submitted during\n\nthe relevant period for the four subject drugs must have been\n\nrendered false by Takeda's alleged misconduct; and that allegations\n\nof falsity would per se suffice to constitute compliance with Rule\n\n9(b). All three theories are waived, however, not having been\n\nraised properly before the district court.\n\n We do not rule on whether, had they not been waived, any\n\nof these theories under any subsection would have added the needed\n\nspecificity under Rule 9(b), and merely say it is doubtful.5 See\n\nClausen, 290 F.3d at 1311 (commenting that Rule 9(b) does not\n\npermit an FCA plaintiff \"merely to describe a private scheme in\n\ndetail but then to allege simply and without any stated reason for\n\nhis belief that claims requesting illegal payments must have been\n\nsubmitted, were likely submitted or should have been submitted to\n\n\n\n 5\n We recognize that, under Allison Engine Co. v. United\nStates ex rel. Sanders, 553 U.S. 662 (2008), as construed in Gagne,\n565 F.3d at 46 & n.7, the \"presentment\" requirement applies only to\nher subsection (a)(1)(A) claims and not her subsection (a)(1)(B) or\nsubsection (a)(1)(C) claims. However, Rule 9(b)'s particularity\nrequirement applies with full force to all three subsections. See\nGagne, 565 F.3d at 42, 45. Here, Dr. Ge has not alleged in her\nsecond amended complaints, with specificity, facts that comply with\nRule 9(b) as to any of her claims. In any event, as discussed\ninfra, her new theories of FCA liability were waived.\n\n -17-\n\fthe [g]overnment\"); see also United States ex rel. Nathan v. Takeda\n\nPharm. N. Am., Inc., 707 F.3d 451, 457 (4th Cir. 2013) (\"[We] hold\n\nthat when a defendant's actions, as alleged and as reasonably\n\ninferred from the allegations, could have led, but need not\n\nnecessarily have led, to the submission of false claims, a relator\n\nmust allege with particularity that specific false claims actually\n\nwere presented to the government for payment.\" (emphasis added));\n\nUnited States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1359 (11th\n\nCir. 2006) (\"[Relator] has described in detail what he believes is\n\nan elaborate scheme for defrauding the government by submitting\n\nfalse claims. . . . [Relator] fails to provide the next link in the\n\nFCA liability chain: showing that the defendants actually submitted\n\nreimbursement claims for the services he describes.\").\n\nA. Implied Warranty\n\n Dr. Ge's first additional theory of per se ineligibility\n\nfor federal reimbursement of all claims for the four drugs rests on\n\nthe assertion that the subject drugs were not \"as safe as Takeda\n\npurported them to be.\" Dr. Ge contends that through labels and\n\nparticipation in the adverse event reporting process, Takeda\n\nrepresented to all patients, doctors, and the government that the\n\nsubject drugs possessed certain risks and benefits. Dr. Ge\n\nalleges, however, that the subject drugs \"did not possess the\n\nsafety profile Takeda claimed they would.\" And from this Dr. Ge\n\n\n\n\n -18-\n\finfers that she has adequately stated that all claims submitted to\n\nthe government for those drugs were false.\n\n Dr. Ge's first theory is waived, having been raised only\n\nin \"cursory fashion\" before the district court. See Rodríguez v.\n\nMunicipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011) (\"It\n\nshould go without saying that we deem waived claims not made or\n\nclaims adverted to in a cursory fashion, unaccompanied by developed\n\nargument.\"). Dr. Ge asserted to the district court only that\n\nTakeda's alleged fraudulent conduct led to the submission of claims\n\nthat would not have otherwise occurred, without providing any\n\nspecificity, and alleging nothing more. But that is inadequate;\n\ncourts should not be asked to guess the contents of a theory of\n\nliability. \"[I]ssues adverted to in a perfunctory manner,\n\nunaccompanied by some effort at developed argumentation, are deemed\n\nwaived.\" United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).\n\n Dr. Ge did offer a bit more argumentation in her Rule\n\n59(e) motion for reconsideration. That was too late. \"To the\n\nextent that appellants' reconsideration motion sought to raise an\n\nargument waived at the trial stage, it must necessarily fail.\"\n\nDiMarco-Zappa v. Cabanillas, 238 F.3d 25, 34 (1st Cir. 2001).\n\nB. \"Reasonable and Necessary\"\n\n Dr. Ge on appeal invokes 42 U.S.C. § 1395y(a)(1)(A),\n\nwhich prohibits Medicare payments for treatments that are not\n\n\n\n\n -19-\n\f\"reasonable and necessary.\"6 According to Ge, as a result of\n\nTakeda's alleged misconduct, certain reimbursement claims were\n\nrendered false under the FCA because they impliedly -- and\n\nincorrectly -- certified that the subject drugs were \"reasonable\n\nand necessary.\"\n\n No such theory was properly presented to the district\n\ncourt before dismissal. Dr. Ge concedes that she did not cite or\n\ndiscuss 42 U.S.C. § 1395y(a)(1)(A) before the district court in her\n\nmemorandum in opposition to Takeda's motions to dismiss. Dr. Ge\n\ndid provide a bare citation of § 1395y(a)(1)(A) in her second\n\namended complaints. However, Dr. Ge did not allege in those\n\ncomplaints that Takeda's alleged misconduct rendered claims for the\n\nfour subject drugs \"[un]reasonable\" or \"[un]necessary.\" Nor did\n\nshe make any effort to explain why that would be so. See Pan v.\n\nGonzales, 489 F.3d 80, 87 (1st Cir. 2007) (\"We long have held that\n\nlegal theories advanced in skeletal form, unaccompanied by some\n\ndeveloped argumentation, are deemed abandoned.\").\n\nC. \"Misbranded\"\n\n On appeal Dr. Ge newly argues that false claims must have\n\nbeen submitted to the government for the four drugs on the theory\n\nthat Takeda's failure to properly update the subject drugs' labels\n\n\n 6\n Various state statutes and regulations governing Medicaid\nreimbursement impose similar restrictions. See, e.g., 130 Mass.\nCode Regs. 450.204 (\"The MassHealth agency will not pay a provider\nfor services that are not medically necessary . . . .\") (emphasis\nadded).\n\n -20-\n\fcaused those drugs to be \"misbranded\" for purposes of the federal\n\nFood, Drug, and Cosmetics Act (\"FDCA\"), 21 U.S.C. § 352(a), and so\n\nthey were ineligible to enter interstate commerce, id. § 331(a).\n\nConsequently, she now says they were ineligible for reimbursement.\n\nAt best, there was a gesture to Dr. Ge's \"misbranding\" theory\n\nbefore the trial court, and it is waived.\n\n Dr. Ge rejoins that she did adequately raise a\n\n\"misbranding\" argument before the district court. Her second\n\namended complaints alleged that Takeda failed to update the label\n\nfor Actos to accurately reflect the drug's risks, as required by\n\nthe FDCA. However, as to ineligibility, Dr. Ge's complaints state\n\nonly: \"[The FDCA] forbids 'misbranding' and provides a range of\n\ncivil and criminal enforcement mechanisms against inaccurate\n\nproduct labeling.\" Dr. Ge made no mention of ineligibility for\n\ninterstate commerce, let alone of ineligibility for reimbursement\n\non that basis. At most, a footnote in her memorandum opposing\n\ndismissal referred to misbranding but nothing more. The argument\n\nwas waived. See City of Bangor v. Citizens Commc'ns Co., 532 F.3d\n\n70, 95 n.11 (1st Cir. 2008) (deeming waived argument \"presented\n\nonly in a passing fashion in a footnote\"). The mention of\n\nmisbranding in Dr. Ge's Rule 59(e) motion was too little, too late.\n\nSee Cochran v. Quest Software, Inc., 328 F.3d 1, 11 (1st Cir. 2003)\n\n(\"Litigation is not a game of hopscotch. It is generally accepted\n\nthat a party may not, on a motion for reconsideration, advance a\n\n\n -21-\n\fnew argument that could (and should) have been presented prior to\n\nthe district court's original ruling.\").\n\n To sum up: Dr. Ge waived all of her new arguments to the\n\neffect that the four subject drugs were per se ineligible for\n\ngovernment reimbursement during the relevant period on these\n\nvarying theories. Dr. Ge's claims on all theories which were\n\npresented fail under Rule 9(b).\n\n III.\n\n This court reviews the district court's denial of an\n\nappellant's motion to amend and for reconsideration for abuse of\n\ndiscretion. Fábrica de Muebles J.J. Álvarez, Incorporado v.\n\nInversiones Mendoza, Inc., 682 F.3d 26, 31 (1st Cir. 2012);\n\nTorres-Alamo v. Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007).\n\n Dr. Ge argues that she could have cured any defects in\n\nher complaints had she been provided with leave to amend the two\n\ntimes she asked. She had already twice amended both of her\n\ncomplaints in the 21 months after the filing of her initial\n\ncomplaint. The first request, after Takeda filed its motion to\n\ndismiss in 2012, was in her memorandum in opposition to Takeda's\n\nmotion to dismiss and conditionally did state that if the court was\n\ninclined to dismiss, then she would like to amend.7 The district\n\n\n 7\n There, Dr. Ge's conditional request to amend consisted just\nof two sentences:\n If the Court were to determine that Relator's\n Complaints are deficient in any regard, Relator\n respectfully requests that this Court afford her an\n\n -22-\n\fcourt did not explicitly discuss the request, but did discuss the\n\nadditional appended material on Actos and said it did not cure the\n\ndeficiencies in the pleading.\n\n The second of her requests came in the form of a motion\n\nto amend, filed post-judgment on November 29, 2012 in conjunction\n\nwith her motion for reconsideration under Rule 59(e) of the\n\njudgment of dismissal. The district court dismissed this late\n\nmotion without opinion in its December 18, 2012 order.\n\n When a motion to amend is properly made before entry of\n\njudgment, the district court is to evaluate that motion under the\n\n\"liberal standard of Fed. R. Civ. P. 15(a).\" Palmer v. Champion\n\nMortg., 465 F.3d 24, 30 (1st Cir. 2006). \"Amendments may be\n\npermitted pre-judgment, even after a dismissal for failure to state\n\na claim, and leave to amend is 'freely given when justice so\n\nrequires.'\" Id. (quoting Fed. R. Civ. P. 15(a)). The \"request\"\n\nwas not properly made.\n\n By contrast, as to post-judgment motions \"a district\n\ncourt cannot allow an amended pleading where a final judgment has\n\n\n\n opportunity to amend her complaint. Federal Rule\n of Civil Procedure 15(a) provides that leave to\n amend a pleading \"shall be freely given when\n justice so requires,\" and reflects a liberal\n amendment policy. O'Connell v. Hyatt Hotels of\n P.R., 357 F.3d 152, 154 (1st Cir. 2004); Rost, 507\n F.3d at 733-34 (same); see also Foman v. Davis, 371\n U.S. 178, 182 (1962) (leave to amend should be\n \"freely given\").\n\n\n -23-\n\fbeen rendered unless that judgment is first set aside or vacated\n\npursuant to Fed. R. Civ. P. 59 or 60.\" Maldonado v. Dominguez, 137\n\nF.3d 1, 11 (1st Cir. 1998). \"The granting of a motion for\n\nreconsideration is 'an extraordinary remedy which should be used\n\nsparingly.'\" Palmer, 465 F.3d at 30 (quoting 11 Charles Alan\n\nWright et al., Federal Practice and Procedure § 2810.1 (2d ed.\n\n1995)). The moving party \"must 'either clearly establish a\n\nmanifest error of law or must present newly discovered evidence.'\"\n\nMarie v. Allied Home Mortg. Corp., 402 F.3d 1, 7 n.2 (1st Cir.\n\n2005) (quoting Pomerleau v. W. Springfield Pub. Schs., 362 F.3d\n\n143, 146 n.2 (1st Cir. 2004)). A motion for reconsideration\n\n\"certainly does not allow a party to introduce new evidence or\n\nadvance arguments that could and should have been presented to the\n\ndistrict court prior to the judgment.\" Aybar v. Crispin–Reyes, 118\n\nF.3d 10, 16 (1st Cir. 1997) (quoting Moro v. Shell Oil Co., 91 F.3d\n\n872, 876 (7th Cir. 1996)).\n\n Dr. Ge relies on Foman v. Davis, 371 U.S. 178 (1962),\n\nwhich stated:\n\n Of course, the grant or denial of an\n opportunity to amend is within the discretion\n of the District Court, but outright refusal to\n grant the leave without any justifying reason\n appearing for the denial is not an exercise of\n discretion; it is merely abuse of that\n discretion and inconsistent with the spirit of\n the Federal Rules.\n\nId. at 182. Dr. Ge contends that the district court's denials\n\nwithout a statement of reasons for her two requests amounted to\n\n -24-\n\fjust the sort of \"outright refusal . . . without any justifying\n\nreason\" that Foman proscribes.\n\n As explained in Silverstrand Investments v. AMAG\n\nPharmaceuticals, Inc., 707 F.3d 95, 107-08 (1st Cir. 2013), where,\n\nas here, a request to file an amended complaint consists of nothing\n\nmore than \"boilerplate sentences stating the well-settled 'freely\n\ngiven' standard under which a request for leave to amend is\n\ngenerally analyzed,\" a district court \"act[s] well within its\n\ndiscretion when completely disregarding the request.\"8 Indeed, in\n\nGray v. Evercore Restructuring LLC, 544 F.3d 320 (1st Cir. 2008),\n\na case involving a nearly identical request, this court explained\n\nthat except perhaps in \"exceptional circumstances,\" a bare request\n\nin an opposition to a motion to dismiss does not constitute a\n\nmotion to amend for purposes of Rule 15(a). Id. at 327 (\"Although\n\na court's denial of a motion to amend is typically reviewed for an\n\nabuse of discretion, in this case the district court neither\n\ngranted nor denied a motion to amend. . . . As [plaintiff] failed\n\nto request leave to amend, the district court cannot be faulted for\n\nfailing to grant such leave sua sponte.\"); accord Fisher v. Kadant,\n\n\n\n 8\n Dr. Ge argues that Silverstrand is inapposite because her\npost-dismissal request for leave to amend consisted of several\npages of argument and was accompanied by two proposed amended\ncomplaints and statistical and anecdotal evidence of the effects of\nTakeda's alleged misconduct. Dr. Ge's second request is neither\nhere nor there with respect to whether the district court's\nrejection of her first, \"boilerplate\" request amounted to an abuse\nof discretion.\n\n -25-\n\fInc., 589 F.3d 505, 509-10 (1st Cir. 2009). And even at that,\n\nFoman identifies \"repeated failure to cure deficiencies by\n\namendments previously allowed\" as reason for denying a motion for\n\nleave to amend under the permissive Rule 15(a) standard. 371 U.S.\n\nat 182.\n\n There was also no abuse in denying Dr. Ge's second\n\nrequest. It came after judgment, when the liberal leave to amend\n\nlanguage of Rule 15(b) does not apply. Id. In order to grant Dr.\n\nGe's second request, the district court would have had first to set\n\naside its judgment pursuant to Dr. Ge's motion to reconsider under\n\nRule 59(e). It did not and did not abuse its discretion.\n\n Her argument, in any event, has no legs. Dr. Ge could\n\nhardly contend that the so-called \"newly discovered evidence\"\n\naccompanying her second request was \"not previously available.\"\n\nPalmer, 465 F.3d at 30. Dr. Ge could have sought the testimony of\n\nan expert witness and/or subject drug users much earlier. Nor\n\ncould Dr. Ge plausibly identify some \"manifest error of law\"\n\ncommitted by the district court. Id.\n\n The district court's dismissal order identified the\n\nevidentiary defects in Dr. Ge's complaints after Dr. Ge had twice\n\namended her complaints and after having considered arguendo Dr.\n\nGe's contested declaration and accompanying expenditure data. As\n\nthis court has stated previously:\n\n To require the district court to permit\n amendment here would allow plaintiffs to\n\n -26-\n\f pursue a case to judgment and then, if they\n lose, to reopen the case by amending their\n complaint to take account of the court's\n decision. Such a practice would dramatically\n undermine the ordinary rules governing the\n finality of judicial decisions, and should not\n be sanctioned in the absence of compelling\n circumstances.\n\nJames v. Watt, 716 F.2d 71, 78 (1st Cir. 1983) (Breyer, J.). So\n\ntoo, here.\n\n IV.\n\n We affirm the district court's orders dismissing relator\n\nDr. Ge's claims and denying leave to amend her second amended\n\ncomplaints. Costs are awarded to Takeda.\n\n\n\n\n -27-\n\f", "ocr": false, "opinion_id": 2645134 } ]

[ "461 F.2d 657" ]

[ { "author_str": "Per Curiam", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/461/461.F2d.657.29747.html", "author_id": null, "opinion_text": "461 F.2d 657\n UNITED STATES ex rel. George WHITE, Petitioner-Appellant,v.C. Murray HENDERSON, Warden, Respondent-Appellee.\n No. 29747.\n United States Court of Appeals,Fifth Circuit.\n June 20, 1972.\n \n Richard A. Buckley, Robert Glass, New Orleans, La., for petitioner-appellant.\n Jack P. F. Gremillion, Atty. Gen., Jack E. Yelverton, Stacey Moak, Asst. Attys. Gen., Baton Rouge, La., for respondent-appellee.\n Before RIVES, AINSWORTH and MORGAN, Circuit Judges.\n PER CURIAM:\n \n \n 1\n Appellant was convicted in Louisiana State Court for selling and delivering marihuana in violation of La.R.S. 40:962. He brought this habeas corpus petition under 28 U.S.C. Sec. 2254 raising the issue that he was denied his right to a jury trial since he was convicted in the Louisiana State Court, as provided by the law of that State by a vote of 9 for conviction and 3 for acquittal. See La.Const. art. VII, Sec. 41; La.Code Crim. Pro. art. 782.\n \n \n 2\n On appeal we withheld action on appellant's contention until the Supreme Court of the United States could decide the identical issue in Johnson v. Louisiana. That case has now been decided by the Supreme Court adverse to the contention of appellant and accordingly the denial of habeas corpus was proper in this case though appellant was convicted by less than a unanimous verdict of a jury and by a 9-to-3 verdict as authorized by Louisiana law. See Johnson v. Louisiana, 406 U.S. 356, 92 S. Ct. 1620, 32 L. Ed. 2d 152 (1972).\n \n \n 3\n Affirmed.\n \n ", "ocr": false, "opinion_id": 303844 } ]

[ "105 F.3d 656" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/105/105.F3d.656.96-60422.html", "author_id": null, "opinion_text": "105 F.3d 656\n U.S.v.Howard*\n NO. 96-60422\n United States Court of Appeals,\n Fifth Circuit.\n Dec 26, 1996\n \n 1\n Appeal From: S.D.Miss., No. 3:96-CV-279-BN\n \n \n 2\n AFFIRMED.\n \n \n \n *\n Fed.R.App.P. 34(a); 5th Cir.R. 34.2\n \n \n ", "ocr": false, "opinion_id": 733703 } ]

[ "575 F.3d 861" ]

[ { "author_str": "Colloton", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n575 F.3d 861 (2009)\nUNITED STATES of America, Appellee,\nv.\nCameron FOSTER, Appellant.\nNo. 08-2344.\nUnited States Court of Appeals, Eighth Circuit.\nSubmitted: April 15, 2009.\nFiled: August 14, 2009.\nDavid Earl Woods, argued, O'Fallon, MO, for appellant.\nReginald L. Harris, AUSA, argued, St. Louis, MO, for appellee.\nBefore LOKEN, Chief Judge, COLLOTON, Circuit Judge, and ROSENBAUM,[1] District Judge.\nCOLLOTON, Circuit Judge.\nCameron Foster moved for a reduction of his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the sentencing guidelines. The district court granted the motion in part, reducing Foster's sentence from 162 months to 137 months' imprisonment. On appeal, Foster argues that the district court erred by refusing to appoint counsel to represent him and by failing to order a new presentence investigation report (\"PSR\") or to hold a hearing on his motion. He also contends that the district court abused its discretion by failing to consider Foster's post-sentencing conduct. As explained below, we conclude that a remand for further proceedings is warranted under the unusual circumstances of this case, based on a procedural flaw that came to light only during the proceedings in this court.\n\n\n*862 I.\nIn December 2002, Foster was convicted of possessing with intent to distribute cocaine base, commonly known as \"crack cocaine,\" in violation of 21 U.S.C. § 841(a)(1). See United States v. Foster, 344 F.3d 799 (8th Cir.2003). At sentencing in February 2003, the district court found that Foster was responsible for at least 20 grams but less than 35 grams of cocaine base, calculated a guideline range of 130 to 162 months' imprisonment under the then-mandatory sentencing guidelines, and sentenced Foster to 162 months' imprisonment. Foster was represented at sentencing and on direct appeal by the federal public defender.\nIn January 2008, Foster moved pro se for a reduction in his sentence pursuant to 18 U.S.C. § 3582(c)(2) and Amendment 706 to the sentencing guidelines, which was declared retroactive by the Sentencing Commission. Amendment 706, as modified by Amendment 711, changed the drug quantity table set forth at USSG § 2D 1.1 to reduce by two levels the base offense levels for offenses involving cocaine base. Foster also sought the appointment of counsel to represent him in the § 3582(c) proceeding.\nOn January 15, 2008, the same day that Foster's motion was docketed, the Chief Judge of the Eastern District of Missouri entered an administrative order appointing the federal public defender to represent any defendant, like Foster, \"previously determined to have been entitled to appointment of counsel, to determine whether or not that defendant may qualify to seek reduction of sentence and to present any motions or applications for reduction\" arising out of the amendments to the crack-cocaine guidelines. The order also provided for alternative appointments if the federal public defender determined that a conflict of interest prevented its representation of a defendant.\nIn response to Foster's motion, the government acknowledged that Foster was eligible for a reduced sentence, calculated an amended guideline range of 120 to 137 months' imprisonment, and recommended that the district court resentence Foster to 137 months' imprisonment. Foster filed a pro se reply, arguing that a 120-month sentence was appropriate, in light of the sentencing factors set forth in 18 U.S.C. § 3553(a) and his post-sentencing rehabilitation while incarcerated. See USSG § 1B1.10, comment. (n. 1(B)). He submitted a twelve-page appendix to support his claims of rehabilitation, and requested that the court hold an evidentiary hearing. Apparently unbeknownst to Foster, the district court also received a memorandum from the probation office summarizing Foster's initial sentence, the calculation of his amended guideline range, and his \"institutional adjustment\" while incarcerated. The record reflects that the memorandum was transmitted to the federal public defender's office, which represented Foster in his underlying case.\nOn May 20, 2008, the district court granted Foster's motion in part. The court calculated an amended guideline range of 120 to 137 months' imprisonment, and resentenced Foster to 137 months' imprisonment. The court also denied Foster's motion for appointment of counsel and his request for a hearing.\n\nII.\nFoster challenges, among other things, the procedures used by the district court in considering his § 3582(c) motion. Because a sentence reduction proceeding is not a full resentencing, see United States v. Starks, 551 F.3d 839 843 (8th Cir.2009), cert. denied, ___ U.S. ___, 129 S. Ct. 2746, 174 L. Ed. 2d 257 (2009), a district court has \"considerable leeway\" in determining the appropriate procedures. *863 United States v. Young, 555 F.3d 611, 615 (7th Cir.2009). We agree with other circuits that challenges to the procedures used by the district court to adjudicate motions under § 3582(c)(2) should be reviewed for abuse of discretion. See United States v. Styer, 573 F.3d 151, 153 (3d Cir.2009); Young, 555 F.3d at 615.\nOne of Foster's specific complaints is that the district court should have ordered the preparation of a new presentence report before ruling on the motion. It turns out, however, that the United States Probation Office (\"USPO\") did prepare a memorandum regarding Foster's request for reduction of sentence, and the memorandum was provided to the court for use in the § 3582(c) proceeding. Foster evidently was unaware of this memorandum because the probation office transmitted the document only to the federal public defender and not to Foster directly. The federal public defender represented Foster in the underlying criminal case, but never appeared on behalf of Foster in the § 3582(c) proceeding.[2]\nThe district court, having received the USPO memorandum, relied on certain derogatory information about Foster's behavior in prison as a basis to limit the extent of the reduction granted pursuant to § 3582(c), saying that Foster's institutional adjustment was \"mixed at best.\" In another quirk of procedure, however, Foster was unaware that the district court had relied on a memorandum from the USPO in resolving the § 3582(c) motion, because the district court's order of May 20, 2008, which explained the court's rationale for its decision, was not docketed by the clerk of the district court.\nOnly after oral argument in this court did the district court learn that its explanatory order was not docketed. The order was finally docketed on April 15, 2009, and transmitted to this court. The district court explained in this order that while it granted Foster's motion under § 3582(c), the court was not persuaded to reduce his sentence to the bottom of the amended guideline range. Rather, the court stated that it had \"carefully considered the matter and [was] persuaded again to sentence defendant at the top of the now-applicable Guidelines range, in view of all appropriately considered factors, including [Foster's] institutional adjustment after sentencing, which is mixed at best.\" (R. Doc. 104, at 3) (emphasis added).\nThe district court has considerable discretion in deciding how to evaluate a § 3582(c) motion, but the procedure used in this case violates the generally accepted principle that a criminal defendant should have access to the material on which the court will base its sentencing decision and an opportunity to respond to information that is prejudicial to the defendant's cause. This principle is embodied in Federal Rule of Criminal Procedure 32 with respect to original sentencing proceedings, see United States v. Lovelace, 565 F.3d 1080, 1091-93 (8th Cir.2009); United States v. Hayes, 171 F.3d 389, 392 (6th Cir.1999), and although Rule 32 does not by its terms apply to a § 3582(c) proceeding, the basic right to be apprised of information on which the court will rest its decision should be incorporated into the procedures employed by a district court under § 3582(c). See United States v. Mueller, 168 F.3d 186, 189 (5th Cir.1999) (holding that a defendant must be apprised of the contents of a PSR addendum considered by the district court in a § 3582(c) proceeding); United States v. Curran, 926 F.2d 59, 62-63 (1st Cir.1991) (invoking supervisory authority to require *864 disclosure to defendant of documents to which Rule 32 does not apply at an original sentencing). Here, apparently due to a misunderstanding about whether Foster was represented by the federal public defender in the § 3582(c) proceeding, the district court and the probation office failed to provide Foster with the USPO memorandum. As a result, Foster was not aware that this document was before the court, and he was unable to respond to information in that memorandum on which the district court relied to reject Foster's request for a greater reduction in sentence.\nFoster did not raise this precise argument on appeal, but we have authority to consider the matter sua sponte. See DeRoo v. United States, 223 F.3d 919, 926 (8th Cir.2000); United States v. Granados, 168 F.3d 343, 346 (8th Cir.1999) (per curiam). The propriety of the district court's reliance on a memorandum that was not furnished to Foster is closely related to Foster's arguments that the district court erred by failing to order a supplemental PSR and failing to consider his post-sentencing conduct. Foster had no way to know about the USPO memorandum until after he filed his opening brief in this court, at which time the memorandum was mentioned in the government's brief, discussed at oral argument, and revealed to have been relied upon in the newly docketed order of the district court. Given that the district court specifically relied on negative information from the memorandum as a basis to sentence Foster at the top of the amended guideline range, we cannot say that the procedural error was harmless.\nFor these reasons, we conclude that the procedure employed with respect to the USPO memorandum was an abuse of discretion under the circumstances of this case, and that Foster is entitled to an opportunity to review and respond to the memorandum before the district court resolves the § 3582(c) motion. Accordingly, the district court's amended judgment filed on May 20, 2008, is vacated, and the case is remanded for further proceedings with respect to Foster's motion for reduction of sentence under 18 U.S.C. § 3582(c).\nNOTES\n[1] The Honorable James M. Rosenbaum, United States District Judge for the District of Minnesota, sitting by designation.\n[2] When the clerk of this court appointed the federal public defender to represent Foster on appeal, the public defender moved to withdraw based on an asserted conflict of interest. This court granted the motion, and appointed substitute counsel.\n\n", "ocr": false, "opinion_id": 1214399 } ]

[ "683 N.E.2d 1", "90 N.Y.2d 274", "660 N.Y.S.2d 536" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n90 N.Y.2d 274 (1997)\n683 N.E.2d 1\n660 N.Y.S.2d 536\nPresbyterian Hospital in the City of New York, as Assignee of Karen DeGuisto, Respondent,\nv.\nMaryland Casualty Company, Appellant.\nCourt of Appeals of the State of New York.\nArgued May 1, 1997\nDecided June 10, 1997.\nShort & Billy, P. C., New York City (Michael Billy, Jr., of counsel), for appellant.\nJoseph Henig, P. C., Bellmore (Joseph Henig and Gregory Henig of counsel), for respondent.\nChief Judge KAYE and Judges SMITH and CIPARICK concur with Judge BELLACOSA; Judge WESLEY dissents and votes to reverse in a separate opinion in which Judges TITONE and LEVINE concur.\n*277BELLACOSA, J.\nPlaintiff-respondent Presbyterian Hospital sues to recover no-fault medical payments for services and treatment provided to an insured of defendant-appellant Maryland Casualty Company. We must resolve whether the lower courts properly precluded Maryland from raising an intoxication defense in the ensuing lawsuit on the ground that it did not timely deny the subject no-fault claim pursuant to both the Superintendent's regulations and the Insurance Law (see, 11 NYCRR 65.15 [g] [3]; Insurance Law § 5106 [a]).\nSupreme Court granted Presbyterian's motion for summary judgment, awarding approximately $26,000 in no-fault benefits, statutory interest and attorney's fees. The Appellate Division affirmed and we granted Maryland leave to appeal. We, too, affirm.\n\nI.\nKaren DeGuisto was hurt in a single-car accident on December 26, 1993, when the automobile she was driving hit a utility pole. Maryland was her no-fault insurer. She was admitted to Presbyterian Hospital in New York City on two separate occasions for treatment of her injuries. Only the medical expenses for the hospitalization and treatment rendered from June 7 to June 10, 1994 are the subject of this lawsuit.\nOn August 5, 1994, Presbyterian presented a no-fault claim form, as the insured's assignee, seeking first-party benefits. Maryland received the document on August 9, 1994. On September 15, 1994, by which time the insurer had neither paid nor denied the claim, the hospital sued to recover the benefits. Maryland interposed an answer with an affirmative defense stating that the claim was not overdue because it had not yet received all of the available information relating to the incident, such as a police report on the insured's blood-alcohol test results.\nMaryland had applied to the police department for public access to the insured's blood-alcohol test results on April 19, 1994, after receiving a police accident report noting alcohol on DeGuisto's breath and that a blood specimen had been taken. On October 13, 1994, Maryland requested verification of the insured's alleged intoxication from Presbyterian in the form of interrogatories. Subsequently, on November 3, 1994, the insurer requested the blood-alcohol test results from the local District Attorney's office.\n*278On November 7, 1994, Presbyterian moved for summary judgment, asserting that Maryland's failure to timely deny the claim barred interposition of the intoxication defense in the action. Thereafter, on December 5, 1994, Maryland received the test results, which indicated a blood-alcohol level of 0.13% at the time of the insured's accident. Maryland issued a denial of the claim that same day.\nThe Appellate Division affirmed Supreme Court's grant of summary judgment to Presbyterian, stating that \"[r]ecent precedent squarely holds that `\"preclusion of the insurance company's ability to deny the claim is the appropriate remedy\"' where, as here, the insurance company neither denies a claim within 30 days after receiving it nor seeks to extend that time by requesting verification in the prescribed forms\" (226 AD2d 260, 261). It is on that singular, narrow basis that we affirm.\n\nII.\nMaryland first argues that it properly and timely denied the hospital's no-fault claim. We disagree. Resolution of this issue, however, involves consideration of a complex sequence and interplay of insurance regulations governing the time requirements for delaying or denying payment of a no-fault automobile claim on intoxication exclusion grounds.\nPursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]). Failure to pay benefits within the 30-day requirement renders benefits \"overdue,\" and all overdue payments bear interest at a rate of 2% per month (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h]). Additionally, a claimant is entitled to recover attorney's fees where a \"valid claim or portion\" was denied or overdue (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [i]). Notably, interest and attorney's fees are prescribed sanctions only in late payment circumstances, not as to untimely denials of claims.\nWhen a denial of no-fault benefits rests on the statutory exclusion of intoxication (see, Insurance Law § 5103 [b] [2]), the Superintendent's regulations trigger a series of additional timing and notification requirements. Initially, upon determining that benefits may not be payable due to the insured's intoxication, *279 the insurer must notify the applicant within 10 business days of its denial of the claim (11 NYCRR 65.15 [g] [5]). Failure to satisfy this 10-day requirement, however, expressly does not result in preclusion against an insurer ultimately asserting such a defense to payment (11 NYCRR 65.15 [g] [5]).\nPertinently, when an insurer believes that intoxication may have been a contributing cause to an accident, the insurer is entitled to all available information regarding the insured's condition at the time of the accident (11 NYCRR 65.15 [g] [7]). \"Proof of a claim shall not be complete until the information which has been requested, pursuant to paragraph (d) (1) or (2) of this section, has been furnished to the insurer by the applicant or the authorized representative\" (11 NYCRR 65.15 [g] [7]). In order to properly and timely request such information, the insurer must forward the prescribed verification forms to the parties required to complete them within 10 business days after receipt of the completed application (11 NYCRR 65.15 [d] [1]). Notably, \"[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested\" (11 NYCRR 65.15 [d] [1]). Finally, \"[a] failure to observe any of the time frames specified in this section shall not prevent an insurer from requiring proper proof of claim\" (11 NYCRR 65.15 [g] [6]).\n\nA.\nMaryland's primary contention in this timing-and-remedy facet of the dispute is that the no-fault regulations allow the insurer to delay payment or denial of a claim by requesting verification from third parties. The insurer argues that 11 NYCRR 65.15 (g) (7) does not require it to request proof of claim directly from the applicant, here Presbyterian. Rather, it specifically refers to 11 NYCRR 65.15 (d) (1), which provides that \"[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.\" The insurer thus asserts that its eventual request of the insured's blood-alcohol test results from the District Attorney brought it within this regulation and, in effect, tolled its time-controlled denial of payment requirement.\nWe note in this connection that the insurer already had \"reason to believe that the applicant was operating a motor vehicle while intoxicated\" (see, 11 NYCRR 65.15 [g] [7]) on August 9, 1994, when the insurer received Presbyterian's claim for payment. We reiterate that the record shows that as early as *280 April 19, 1994, Maryland had applied to the police department for access to the insured's blood-alcohol test results. That evident awareness triggered its responsibility to submit the prescribed verification forms to the appropriate parties within 10 days after receipt of Presbyterian's completed application, which occurred on August 9, 1994 (see, 11 NYCRR 65.15 [d] [1]). Whether the pertinent forms relate to the specific problem underlying this case is irrelevant, since the carrier chose to sit on its rights and do nothing in this respect.\nMaryland, instead, did not request verification or proof from Presbyterian, the applicant, until October 13, 1994, well beyond 10 days from receipt of proof of the claim. Furthermore, this distinct request for information was made in the form of interrogatories, not on or in conjunction with the requisite prescribed verification forms. Additionally, Maryland's request of the insured's blood-alcohol test results from the District Attorney was not made until November 3, 1994. That official, in any event, would not qualify as the applicant's authorized agent under this regulation. Thus, even accepting Maryland's contention that verification may be requested from third parties, it utterly failed to timely do so in any respect, pursuant to section 65.15 (d) (1). Its threshold argument in this regard, thus, fails to carry its theory.\nWe note that the dissent's proffered analysis in this regard is inconsistent with the plain language of the regulations. In order for the insurer to have properly and timely requested the blood alcohol test results, it had to forward prescribed verification forms to the appropriate parties within 10 days after receipt of the completed application (see, 11 NYCRR 65.15 [d] [1]). The insurer utterly and flatly failed to do so and, thus, chose or neglected to take advantage of its prescribed extension of time opportunity for considering denial of the hospital's claim. Despite the dissent's differing view of the Superintendent's requirement in this respect, we and the parties are bound by its plain language.\n\nB.\nMaryland next argues that when, as here, an insurer denies coverage based on the statutory exclusion of intoxication, the 30-day rule does not even apply. It urges that the situation instead is governed solely by the 10-day rule in 11 NYCRR 65.15 (g) (5). That regulation expressly eliminates any preclusion consequence for such untimely action.\nA plain reading of the regulations — as much as is reasonably possible amidst such a thicket — suggests that the 10-day *281 denial requirement in 11 NYCRR 65.15 (g) (5) is not exclusive and does not avoid the application of the 30-day rule in 11 NYCRR 65.15 (g) (3) and Insurance Law § 5106 (a). Rather, the interrelationship between the 30-day requirement and the 10-day requirement warrants a complementary consideration when an insurer tries to avoid payment of first-party assigned benefits on the basis of an exclusion due to an insured's intoxication. In other words, 11 NYCRR 65.15 (g) (5) imposes a distinct and additional time requirement on insurers who wish to rely on the statutory exclusion of intoxication.\nIn Keith v Liberty Mut. Fire Ins. Co. (118 AD2d 151), the Appellate Division concluded that when an insurer denies no-fault benefits based on the statutory exclusion of intoxication, \"the regulations contain the separate requirement that the insurer notify the applicant of its decision to deny benefits within 10 business days of when the determination to deny is made\" (id., at 154 [citing now-11 NYCRR 65.15 (g) (5) (iii)]). Similarly, in Presbyterian Hosp. v Maryland Cas. Co. (226 AD2d 613, lv dismissed 89 N.Y.2d 916), the companion case to the instant matter, the court expressly rejected a similar, narrow, either/or interpretation by the insurer.\nWe can find no evidence indicating that 11 NYCRR 65.15 (g) (5) was intended to displace the 30-day requirement of 11 NYCRR 65.15 (g) (3) or that it should have the more potent effect of obviating the pertinent statutory language of Insurance Law § 5106 (a). The insurer's more restrictive contention and interpretation is not otherwise supportable in logic, analysis or policy, because it would frustrate a core and essential objective in these particular insurance regulations — that is, to provide a tightly timed process of claim, disputation and payment.\nTherefore, since Maryland neither denied the claim within 30 days after receiving it nor properly sought to extend that time frame by requesting verification, using the prescribed forms, within 10 days after receipt of the hospital's completed application, it failed to comply with its obligation to timely deny or disclaim Presbyterian's no-fault claim.\n\nIII.\nThat predicate being so, Maryland and the dissent nevertheless also assert that preclusion of an exclusion defense in an eventual action is an unavailable remedy under both the Insurance Law and Insurance Department regulations. This argument essentially hinges on predicates that (1) the common *282 law does not preclude defenses, (2) neither the Insurance Law nor the Superintendent's regulations expressly provide for such preclusion, and (3) the Legislature's prescribed penalties for overdue payments (statutory interest and attorney's fees) are exclusive remedies and impliedly exclude the more effective incentive and sanction of ultimate preclusion. We hold that an insurer may be precluded from interposing a statutory exclusion defense for failure to deny a claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3).\nIn a parallel universe and more general context, this Court has precluded insurers from disclaiming or denying liability after untimely notification of denials, related to liability coverage (see, Hartford Ins. Co. v County of Nassau, 46 N.Y.2d 1028, 1029 [applying preclusion remedy to former Insurance Law § 167 (8) (superseded by Insurance Law § 3420 [d])]; Allstate Ins. Co. v Gross, 27 N.Y.2d 263 [same]; see also, Zappone v Home Ins. Co., 55 N.Y.2d 131). Insurance Law § 3420 (d) provides that \"[i]f under a liability policy delivered or issued in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant\" (Insurance Law § 3420 [d] [emphasis added]).\nNotably, though Insurance Law § 3420 (d) has some distinctive features from the present circumstances, it shares one very important attribute — it does not expressly authorize the preclusion remedy. As with 11 NYCRR 65.15 (g) (3) and Insurance Law § 5106 (a), the statute — Insurance Law § 3420 (d) — also is silent in that respect. In fact, Insurance Law § 3420 (d) does not require an insurer to disclaim coverage; rather, that statute only requires notice of intent to disclaim.\nThis Court, nevertheless, concluded that although \"[i]ts literal language requires prompt notice of disclaimer after decision to do so * * * by logical and practical extension, there is imported the obligation to reach the decision to disclaim liability or deny coverage promptly too\" (Allstate Ins. Co. v Gross, 27 N.Y.2d 263, 266, supra). In Allstate, the Court refused to allow the insurer to \"seek[] shelter behind the words of the statute\" (id.). Rather, it relied upon \"the statutory plan to protect the injured parties and their alternative source of compensation,\" and \"the risks unnecessarily delayed disclaimers *283 of liability or denials of coverage pose to each\" (id., at 267-268 [emphasis added]). The Court, therefore, affirmed the lower court's preclusion remedy and declaration obligating the insurer to defend the insured on the basis of its untimely disclaimer (id., at 270; see also, Hartford Ins. Co. v County of Nassau, 46 N.Y.2d 1028, 1029, supra).\nZappone v Home Ins. Co. (55 N.Y.2d 131, supra) is similarly instructive and supportive. There, we noted that \"[t]he purpose for which subdivision 8 of section 167 was enacted was to avoid prejudice to the insured, the injured claimant and the Motor Vehicle Accident Indemnity Corporation, each of whom could be harmed by delay in learning of the carrier's position\" (id., at 137 [emphasis added], citing Allstate Ins. Co. v Gross, 27 N.Y.2d 263, 267, supra). In Zappone, the Court distinguished an insurer's denial of liability based upon a policy exclusion and a breach of a policy condition from an insurer's denial based on lack of coverage, such as where no contractual relationship exists with respect to the subject vehicle and incident (id., at 136-137). The Court concluded that the insurer was not subject to preclusion in the lack of coverage situation where \"there never was any insurance in effect\" (id., at 138; compare, Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 N.Y.2d 195 [decided today]). Zappone explained, however, that where \"the policy covers the driver and the vehicle and the accident would be covered except for the specific policy exclusion,\" such as occurred here, \"the carrier must deny coverage on the basis of the exclusion if it is not to mislead the insured and the injured person to their detriment\" (Zappone v Home Ins. Co., supra, 55 NY2d, at 136 [emphasis added]).\nWe are persuaded that, until and unless the Legislature clearly declares otherwise, the preclusion analysis that we have employed in this other branch of the Insurance Law should also be discretely applicable with respect to the 30-day requirement in the no-fault context of the instant case. In fact, in addition to consistency and a fair, reasonable and logical policy fit, the no-fault situations also benefit from the availability of preclusion against insurers in situations such as the instant one.\nThe Legislature and the Superintendent surely did not intend to afford insurers greater rights in this particular respect with regard to no-fault insurance, nor do their enactments imply less interest in stimulating timely disclaimers and denials with regard to no-fault payments in such circumstances. The unavailability of preclusion, as urged by the carrier *284 and dissent, would materially frustrate the purposes and retard the goals of the speedy payment objective of the No-Fault Law. Those goals, a driving force behind both the no-fault and liability coverage insurance laws, focus on avoiding prejudice to insureds by providing for prompt payment or disclaimers of claims. We, therefore, refuse to carve out such an artificial demarcation between no-fault and liability coverage for these purposes with potentially even more confusing consequences than already exist (see, Nahmias v Merchants Mut. Ins. Co., 91 AD2d 680 [applying now-Insurance Law § 3420 in a no-fault context]; see also, Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151, 153, supra; Allstate Ins. Co. v Centennial Ins. Co., 187 AD2d 690, 691; Government Empl. Ins. Co. v Long Is. Coll. Hosp., 82 AD2d 797).\nMoreover, Maryland's sweeping preclusion prohibition argument has been repelled with some frequency and consistency in the context of the very no-fault provisions at issue in the instant action — Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (see, Presbyterian Hosp. v Atlanta Cas. Co., 210 AD2d 210, 211; Loudermilk v Allstate Ins. Co., 178 AD2d 897, 898 [involving defense of intoxication exclusion]; Bennett v State Farm Ins. Co., 147 AD2d 779, 781 [same]). Emphatically, in Bennett, the Court concluded that \"[a]lthough the statute does not expressly provide for the preclusion of the insurer from denying or disclaiming benefits because of such untimeliness and lack of diligence, the structure of the Insurance Law and implementing regulations compel the conclusion that preclusion is a proper remedy\" (Bennett v State Farm Ins. Co., supra, 147 AD2d, at 781 [emphasis added]). Appellant insurer urges this Court to overturn these precedents in order to reach its desired reversal in the instant case. We are not persuaded to do so.\nFinally, we must address Insurance Regulation 65.15 (g) (5), which expressly excludes preclusion as a remedy for an insurer's failure to comply with the 10-day notice requirement for statutory exclusions. That alone does not decide this case because it does not go far enough in considering all relevant provisions. In fact, we are satisfied that this provision impliedly recognizes the availability of the preclusion remedy under 11 NYCRR 65.15 (g) (3), since 11 NYCRR 65.15 (g) (5) is the only insurance regulation which expressly prohibits preclusion. The interpretive canon of inclusio unius, exclusio alterius helps us to conclude that had the Superintendent or Legislature intended to foreclose preclusion as a remedy in the 30-day time lapse circumstance under the no-fault intoxication regime, *285 they would have done so again — and certainly could have — expressly in order to avoid the anomalies and confusion that would otherwise ensue — as demonstrated in this very case. Analogously, we have noted that \"[t]he failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended\" (Pajak v Pajak, 56 N.Y.2d 394, 397).\nThus, we reject a blanket prohibition of the preclusion remedy as essentially frustrative of the purpose of the Insurance Law and the Superintendent's regulations. Insurers simply have no precedential or statutory recourse to sit on their many procedural rights and requirements and then belatedly deny claims they should have acted upon earlier. We emphasize that our holding here is keyed solely to the insurer's failure to comply with the 30-day notification requirement, set forth in Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3).\nWe also note our disagreement with the dissent's view regarding the exclusivity of the remedies made available under the statute and regulations. The theory goes too far and does not hold up. Both the statute and regulations provide for interest only with regard to \"overdue payments\" (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h]), and allow for attorney's fees only when a \"valid claim\" was denied or overdue (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [i]). Therefore, untimely denials might suffer no sanction in situations where the insurer is not required to pay the claim and where the claim is ultimately deemed invalid. Consequently, the \"remedies\" provided by the statute and regulations are not plenary or exclusive and should not be deemed so by this Court exercising its interpretative authority. That is a matter for the Legislature to rule on expressly or more certainly.\nNo-fault reform was enacted to provide prompt uncontested, first-party insurance benefits (see, Montgomery v Daniels, 38 N.Y.2d 41). That is part of the price paid to eliminate common-law contested lawsuits. Indeed, contrary to the insurer's assertions, preclusion of this type was an available remedy at common law, and if this important facet of the juridical rights and remedies among the various interested parties is to be deemed eliminated, it must be evident more plainly and expressly as this would be in derogation of a common-law protection. The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices.\n*286To string out belated and extra bites at the apple is, on the present state of the law, inherently contradictory and unfounded under the statutes, regulations and policies that pertain to and govern this dispute, and we should not countenance such practices on the state of this record and these regulations and statutes. If more harmony and clarity are to be achieved, we earnestly invite the Legislature to study and remedy the Rube-Goldberg-like maze. In the meantime, we discern no justification for penalizing injured parties or their provider assignees by recognizing disincentives against prompt attention and action for otherwise valid, first-party insurance payment claims.\nIn sum, Maryland was rightly precluded by the lower courts from raising an intoxication exclusion defense at this stage of this no-fault payment litigation, because it neither denied the claim within 30 days of receipt of the claim nor effectively extended the 30-day time requirement.\nAccordingly, the order of the Appellate Division should be affirmed, with costs.\nWESLEY, J. (dissenting).\nWe agree with the majority's characterization of the statutes and regulations in question in this case as a \"Rube-Goldberg-like maze\", and we join in its request to the Legislature and Superintendent of Insurance to study and remedy the \"thicket\" of apparent contradictions and difficulties presented. Nevertheless, as best we can decipher the legislative intent and purpose of the current regulatory framework, preclusion should not be a remedy for an insurer's failure timely to deny a no-fault claim.\nThe majority finds preclusion to be consistent with the purposes of the Insurance Law. Yet the statute and regulations provide claimants with specific remedies for an insurer's untimely failure to pay a valid no-fault claim (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h], [i]). Instead of employing those remedies, the majority would adopt the remedy of preclusion that we crafted for the untimely failure to disclaim liability coverage under Insurance Law § 3420 (d) (see, Allstate Ins. Co. v Gross, 27 N.Y.2d 263). Employing preclusion as a remedy for the untimely processing of no-fault claims renders the existing sanctions insignificant.\nAs the majority recognizes, \"[n]o-fault reform was enacted to provide prompt uncontested, first-party insurance benefits\" (majority opn, at 285, citing Montgomery v Daniels, 38 N.Y.2d 41). To ensure promptness, the Superintendent of Insurance, in *287 accordance with section 5106 of the Insurance Law, promulgated regulations providing that a claim is overdue 30 days after the insurer receives verification of all relevant information (11 NYCRR 65.15 [g] [1] [i]), and providing for interest at 2% per month compounded (11 NYCRR 65.15 [h]), attorneys' fees and optional arbitration (11 NYCRR 65.15 [i]) to discourage insurers from letting claims languish. Such a system makes eminent sense when dozens of claims can be filed by different care providers in the same case, as was the case here.[1] If instead we impose a sanction of preclusion, then an insurer may be precluded from raising similar defenses to later claims from other health care providers if the insurer allows one claim to become overdue.\nBy comparison, in the context of an automobile liability policy covered by Insurance Law § 3420 (d), either the insured or an injured party notifies the insurer of the accident, and the insurer generally has one chance to disclaim liability. We agree with the majority that preclusion is not specifically authorized by section 3420 (d). Preclusion makes sense when it is limited to one set of facts (i.e., one accident) and a limited number of parties. We have noted that both the insured and those claiming injury from the insured's negligence have a right to know the carrier's coverage position (Allstate Ins. Co. v Gross, 27 N.Y.2d 263, 267-268, supra). Thus, preclusion guarantees everyone involved in a coverage question that it will be resolved in a timely and fair manner. In the liability insurance situation, where there are no other regulatory remedies to ensure a prompt disclaimer by the insurer, this Court devised the remedy of preclusion. The application of that remedy is not warranted a fortiori or otherwise in the context of the no-fault statute absent clearer guidance to that effect from the Legislature and the Superintendent of Insurance. To the contrary, in a January 18, 1989 letter, the Principal Examiner for the Insurance Department stated that it was the Department's position that the existence of \"significant penalties\" for untimely denials of no-fault claims differentiated them from untimely denials under other provisions of the Insurance Law, particularly article 34.\nThe no-fault statute is a creature of legislative fiat. It sought to ensure timely payments of medical bills (Montgomery v Daniels, 38 N.Y.2d 41, 51, supra). To that end, the Legislature *288 specifically included sanctions for the failure to pay timely a claim (Insurance Law § 5106 [a]).[2] Had the Legislature chosen to include preclusion within the available enforcement mechanism it provided for claimants (be they injured persons or care providers), it would have done so (see, Irving M. Etkind, M.D., P. C. v Allstate Ins. Co., 124 Misc 2d 779). The interpretive canon of expressio unius est exclusio alterius, applied by the majority in construing 11 NYCRR 65.15 (g) (5), applies with particular force in construing Insurance Law § 5106 (a): \"when a statute creates a new right and specifies the remedy for the enforcement of such right, the remedy is generally exclusive\" (McKinney's Cons Laws of NY, Book 1, Statutes § 240, at 413).\nOne of the purposes of the no-fault statute was to keep premiums low (Fafinski v Reliance Ins. Co., 65 N.Y.2d 990, 992). The majority's holding endangers that purpose, for it could result in insurers' having to pay claims that would otherwise not be covered. A policy shift such as this should be left to the Legislature that balanced the various competing concerns in creating this system that appears to have functioned well in providing benefits to those injured in automobile accidents.\nThe majority contends that preclusion is necessary because the sanctions available to claimants will be ineffective in situations where the insurer is not required to pay the underlying claim. We believe that an insurer is unlikely to rely on its own internal and unannounced determination that a claim should be denied. The carrier has substantial incentives to deny or approve the claim quickly. If the claim is a valid one, it accrues substantial interest after only 30 days following its submission. If the carrier is of a mind to deny the claim and is wrong, it will face similar penalties when its error is ultimately determined through arbitration or litigation.\nIn any event, if an insurer persists in its failure to deny a claim, even an invalid one, the insurer remains subject to penalties by the Insurance Department. As the Principal *289 Examiner for the Insurance Department noted in his January 18, 1989 letter, the regulations provide a framework which would enable the Department to levy administrative penalties. The regulations set forth time periods, violations of which can result in penalties under Insurance Law §§ 109 and 2601. We have held in other contexts that these Insurance Law provisions regulate the insurer's performance of its contractual obligations but do not give rise to a private cause of action (New York Univ. v Continental Ins. Co., 87 N.Y.2d 308, 317-318; Rocanova v Equitable Life Assur. Socy., 83 N.Y.2d 603, 614). No one has suggested that the majority's preclusion remedy must be employed because of an established failure of the Superintendent to enforce the regulations through these sections, or that these sections are ineffective in ensuring compliance by insurance carriers.\nMoreover, as set forth today in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 N.Y.2d 195), the majority would preclude the insurer from raising any defense except lack of coverage. Such an approach is inconsistent with 11 NYCRR 65.15 (g) (5), which deals with lack of coverage and other defenses, or the statutory exclusions under Insurance Law § 5103 (b). In particular, Insurance Law § 5103 (b) (2) allows insurers to exclude from coverage a person injured \"as a result of operating a motor vehicle while in an intoxicated condition\" under Vehicle and Traffic Law § 1192. We have recognized that this statute reflects the legislative purposes of denying coverage for losses resulting from violations of the law and of keeping premiums low (Fafinski v Reliance Ins. Co., 65 N.Y.2d 990, 992, supra). The result today contravenes those legislative purposes, by creating coverage for an accident that appears to be alcohol related solely because of an insurer's lack of promptness. We see no need to go to such lengths when the statutes and regulations already provide sanctions for insurers that fail to act promptly.\nThe majority's view, and that of the Appellate Division, is premised on the \"narrow basis\" that the defendant failed to disclaim within 30 days after receiving the claim and further failed to request additional verification of the claim on prescribed forms. We agree with the majority's analysis of the applicable (and difficult) regulations involved. The carrier must pay or deny the claim within 30 days after proof of claim is received (11 NYCRR 65.15 [g] [3]). However, if a carrier has reason to believe that a claimant was operating a motor vehicle while in an intoxicated condition and that condition was a contributing cause of the accident, \"the insurer shall be *290 entitled to all available information relating to the applicant's condition at the time of the accident\" (11 NYCRR 65.15 [g] [7]). The proof of claim (the document that triggers the 30-day rule set forth in section 65.15 [g] [3]) is not complete until information that has been requested pursuant to paragraph (d) (1) or (2) of the subdivision has been furnished by the applicant or the authorized representative (plaintiff). Once the carrier determines that benefits are not payable because of the claimant's intoxication, it must notify the applicant within 10 business days (11 NYCRR 65.15 [g] [5]). As noted by the majority, a failure to meet this deadline (which is not measured for the receipt of a completed proof of claim) does not prevent invocation of the defense in an action (11 NYCRR 65.15 [g] [5]).\nThe majority points out that once the insurer had reason to believe that the insured's intoxication was a contributing cause to the accident, it had \"to submit the prescribed verification forms to the appropriate parties [Presbyterian and Ms. DeGuisto] within 10 days after receipt of Presbyterian's completed application\" (majority opn, at 280). Maryland's failure to utilize this procedure serves as the basis for the majority's preclusion decision since, according to the majority, Maryland can only extend the 30-day period (i.e., the proof of claim is not complete) through the use of the forms for more information.\nThe forms Maryland can use to seek verification are \"prescribed\" as noted by the majority. However, the forms do not include any questions that would provide information about whether Ms. DeGuisto was intoxicated on December 26, 1993 when she drove her vehicle into a utility pole (see, Appendix 13-A, 11 NYCRR 65.15, Forms N-F2, N-F4). Presbyterian rendered medical care to Ms. DeGuisto long after the accident. Maryland filed interrogatories in this action on October 13, 1994 and asked Presbyterian to provide any information it possessed concerning Ms. DeGuisto's blood-alcohol levels on the night of the accident. Presbyterian was unable to provide any information on this central and defining issue. Maryland thus was deprived of the benefit of a regulation that guarantees that it can delay its determination in this case until it has \"all available information relating to the applicant's condition at the time of the accident\" (11 NYCRR 65.15 [g] [7]).\nAs the majority points out, after Maryland reviewed the accident report and learned that Ms. DeGuisto had alcohol on her breath at the accident scene and that a blood-alcohol test was performed, Maryland requested the information from the *291 local police department on April 19, 1994 long before Presbyterian filed its claim. In late June 1994, Maryland's investigator again attempted to obtain the information. Apparently the accident was still under investigation by the District Attorney's office with regard to another person who may have provided alcohol to Ms. DeGuisto, who was underage at the time of the accident. Because the matter was still pending, the District Attorney refused to release the blood test results. Finally, the test results were released to Maryland's investigator (Ms. DeGuisto had a blood-alcohol level of 0.13% alcohol by weight) and Maryland notified Presbyterian the day after it received the information.\nMaryland pursued the information it had to have from the only source that had it. Under the majority's analysis, however, Maryland is precluded from using this defense because it failed to use forms that don't allow Maryland to make the appropriate inquiries of a hospital that did not have the information. It is hard for us to understand how preclusion serves the goals of speedy payment when the statutory and regulatory framework on which it is now engrafted by this Court is fraught with ambiguities and inconsistencies.\nAccordingly, we would reverse and deny plaintiff's motion for summary judgment.\nOrder affirmed, with costs.\nNOTES\n[1] From the time of the accident to late October 1994, the carrier had received 30 different claims for care rendered to Ms. DeGuisto.\n[2] Of the 24 no-fault statutes in effect by 1977, 18 (including New York) required payment of claims within 30 days, and made insurers liable for interest and/or attorneys' fees on overdue payments; two other States had different time periods; one had no set time period, and three had no specific payments-due provision (Note, No-Fault Automobile Insurance: An Evaluative Survey, 30 Rutgers L Rev 909, 949, n 242). Three years after that statute was enacted in New York, there was an increase in the promptness of payment of benefits, from an average wait of 16 months prior to no-fault in New York, to an average wait of three months (id., at 952). It appears that the scheme devised by New York and other States is an effective one, without the need for an additional remedy of preclusion.\n\n", "ocr": false, "opinion_id": 2052221 }, { "author_str": "Bellacosa", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n*277OPINION OF THE COURT\nBellacosa, J.\nPlaintiff-respondent Presbyterian Hospital sues to recover no-fault medical payments for services and treatment provided to an insured of defendant-appellant Maryland Casualty Company. We must resolve whether the lower courts properly precluded Maryland from raising an intoxication defense in the ensuing lawsuit on the ground that it did not timely deny the subject no-fault claim pursuant to both the Superintendent’s regulations and the Insurance Law (see, 11 NYCRR 65.15 [g] [3]; Insurance Law § 5106 [a]).\nSupreme Court granted Presbyterian’s motion for summary judgment, awarding approximately $26,000 in no-fault benefits, statutory interest and attorney’s fees. The Appellate Division affirmed and we granted Maryland leave to appeal. We, too, affirm.\nL\nKaren DeGuisto was hurt in a single-car accident on December 26, 1993, when the automobile she was driving hit a utility pole. Maryland was her no-fault insurer. She was admitted to Presbyterian Hospital in New York City on two separate occasions for treatment of her injuries. Only the medical expenses for the hospitalization and treatment rendered from June 7 to June 10, 1994 are the subject of this lawsuit.\nOn August 5, 1994, Presbyterian presented a no-fault claim form, as the insured’s assignee, seeking first-party benefits. Maryland received the document on August 9, 1994. On September 15, 1994, by which time the insurer had neither paid nor denied the claim, the hospital sued to recover the benefits. Maryland interposed an answer with an affirmative defense stating that the claim was not overdue because it had not yet received all of the available information relating to the incident, such as a police report on the insured’s blood-alcohol test results.\nMaryland had applied to the police department for public access to the insured’s blood-alcohol test results on April 19, 1994, after receiving a police accident report noting alcohol on DeGuisto’s breath and that a blood specimen had been taken. On October 13, 1994, Maryland requested verification of the insured’s alleged intoxication from Presbyterian in the form of interrogatories. Subsequently, on November 3, 1994, the insurer requested the blood-alcohol test results from the local District Attorney’s office.\n*278On November 7, 1994, Presbyterian moved for summary judgment, asserting that Maryland’s failure to timely deny the claim barred interposition of the intoxication defense in the action. Thereafter, on December 5, 1994, Maryland received the test results, which indicated a blood-alcohol level of 0.13% at the time of the insured’s accident. Maryland issued a denial of the claim that same day.\nThe Appellate Division affirmed Supreme Court’s grant of summary judgment to Presbyterian, stating that \"[rjecent precedent squarely holds that ' \"preclusion of the insurance company’s ability to deny the claim is the appropriate remedy” ’ where, as here, the insurance company neither denies a claim within 30 days after receiving it nor seeks to extend that time by requesting verification in the prescribed forms” (226 AD2d 260, 261). It is on that singular, narrow basis that we affirm.\nIL\nMaryland first argues that it properly and timely denied the hospital’s no-fault claim. We disagree. Resolution of this issue, however, involves consideration of a complex sequence and interplay of insurance regulations governing the time requirements for delaying or denying payment of a no-fault automobile claim on intoxication exclusion grounds.\nPursuant to both the Insurance Law and the regulations promulgated by the Superintendent of Insurance, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [g] [3]). Failure to pay benefits within the 30-day requirement renders benefits \"overdue,” and all overdue payments bear interest at a rate of 2% per month (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h]). Additionally, a claimant is entitled to recover attorney’s fees where a \"valid claim or portion” was denied or overdue (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [i]). Notably, interest and attorney’s fees are prescribed sanctions only in late payment circumstances, not as to untimely denials of claims.\nWhen a denial of no-fault benefits rests on the statutory exclusion of intoxication (see, Insurance Law § 5103 [b] [2]), the Superintendent’s regulations trigger a series of additional timing and notification requirements. Initially, upon determining that benefits may not be payable due to the insured’s intoxica*279tion, the insurer must notify the applicant within 10 business days of its denial of the claim (11 NYCRR 65.15 [g] [5]). Failure to satisfy this 10-day requirement, however, expressly does not result in preclusion against an insurer ultimately asserting such a defense to payment (11 NYCRR 65.15 [g] [5]).\nPertinently, when an insurer believes that intoxication may have been a contributing cause to an accident, the insurer is entitled to all available information regarding the insured’s condition at the time of the accident (11 NYCRR 65.15 [g] [7]). \"Proof of a claim shall not be complete until the information which has been requested, pursuant to paragraph (d) (1) or (2) of this section, has been furnished to the insurer by the applicant or the authorized representative” (11 NYCRR 65.15 [g] [7]). In order to properly and timely request such information, the insurer must forward the prescribed verification forms to the parties required to complete them within 10 business days after receipt of the completed application (11 NYCRR 65.15 [d] [1]). Notably, \"[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR 65.15 [d] [1]). Finally, \"[a] failure to observe any of the time frames specified in this section shall not prevent an insurer from requiring proper proof of claim” (11 NYCRR 65.15 [g] [6]).\nA.\nMaryland’s primary contention in this timing-and-remedy facet of the dispute is that the no-fault regulations allow the insurer to delay payment or denial of a claim by requesting verification from third parties. The insurer argues that 11 NYCRR 65.15 (g) (7) does not require it to request proof of claim directly from the applicant, here Presbyterian. Rather, it specifically refers to 11 NYCRR 65.15 (d) (1), which provides that \"[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.” The insurer thus asserts that its eventual request of the insured’s blood-alcohol test results from the District Attorney brought it within this regulation and, in effect, tolled its time-controlled denial of payment requirement.\nWe note in this connection that the insurer already had \"reason to believe that the applicant was operating a motor vehicle while intoxicated” (see, 11 NYCRR 65.15 [g] [7]) on August 9, 1994, when the insurer received Presbyterian’s claim for payment. We reiterate that the record shows that as early as *280April 19, 1994, Maryland had applied to the police department for access to the insured’s blood-alcohol test results. That evident awareness triggered its responsibility to submit the prescribed verification forms to the appropriate parties within 10 days after receipt of Presbyterian’s completed application, which occurred on August 9, 1994 (see, 11 NYCRR 65.15 [d] [1]). Whether the pertinent forms relate to the specific problem underlying this case is irrelevant, since the carrier chose to sit on its rights and do nothing in this respect.\nMaryland, instead, did not request verification or proof from Presbyterian, the applicant, until October 13, 1994, well beyond 10 days from receipt of proof of the claim. Furthermore, this distinct request for information was made in the form of interrogatories, not on or in conjunction with the requisite prescribed verification forms. Additionally, Maryland’s request of the insured’s blood-alcohol test results from the District Attorney was not made until November 3, 1994. That official, in any event, would not qualify as the applicant’s authorized agent under this regulation. Thus, even accepting Maryland’s contention that verification may be requested from third parties, it utterly failed to timely do so in any respect, pursuant to section 65.15 (d) (1). Its threshold argument in this regard, thus, fails to carry its theory.\nWe note that the dissent’s proffered analysis in this regard is inconsistent with the plain language of the regulations. In order for the insurer to have properly and timely requested the blood alcohol test results, it had to forward prescribed verification forms to the appropriate parties within 10 days after receipt of the completed application (see, 11 NYCRR 65.15 [d] [1]). The insurer utterly and flatly failed to do so and, thus, chose or neglected to take advantage of its prescribed extension of time opportunity for considering denial of the hospital’s claim. Despite the dissent’s differing view of the Superintendent’s requirement in this respect, we and the parties are bound by its plain language.\nB.\nMaryland next argues that when, as here, an insurer denies coverage based on the statutory exclusion of intoxication, the 30-day rule does not even apply. It urges that the situation instead is governed solely by the 10-day rule in 11 NYCRR 65.15 (g) (5). That regulation expressly eliminates any preclusion consequence for such untimely action.\nA plain reading of the regulations — as much as is reasonably possible amidst such a thicket — suggests that the 10-day *281denial requirement in 11 NYCRR 65.15 (g) (5) is not exclusive and does not avoid the application of the 30-day rule in 11 NYCRR 65.15 (g) (3) and Insurance Law § 5106 (a). Rather, the interrelationship between the 30-day requirement and the 10-day requirement warrants a complementary consideration when an insurer tries to avoid payment of first-party assigned benefits on the basis of an exclusion due to an insured’s intoxication. In other words, 11 NYCRR 65.15 (g) (5) imposes a distinct and additional time requirement on insurers who wish to rely on the statutory exclusion of intoxication.\nIn Keith v Liberty Mut. Fire Ins. Co. (118 AD2d 151), the Appellate Division concluded that when an insurer denies no-fault benefits based on the statutory exclusion of intoxication, \"the regulations contain the separate requirement that the insurer notify the applicant of its decision to deny benefits within 10 business days of when the determination to deny is made” (id., at 154 [citing now-11 NYCRR 65.15 (g) (5) (iii)]). Similarly, in Presbyterian Hosp. v Maryland Cas. Co. (226 AD2d 613, Iv dismissed 89 NY2d 916), the companion case to the instant matter, the court expressly rejected a similar, narrow, either/or interpretation by the insurer.\nWe can find no evidence indicating that 11 NYCRR 65.15 (g) (5) was intended to displace the 30-day requirement of 11 NYCRR 65.15 (g) (3) or that it should have the more potent effect of obviating the pertinent statutory language of Insurance Law § 5106 (a). The insurer’s more restrictive contention and interpretation is not otherwise supportable in logic, analysis or policy, because it would frustrate a core and essential objective in these particular insurance regulations — that is, to provide a tightly timed process of claim, disputation and payment.\nTherefore, since Maryland neither denied the claim within 30 days after receiving it nor properly sought to extend that time frame by requesting verification, using the prescribed forms, within 10 days after receipt of the hospital’s completed application, it failed to comply with its obligation to timely deny or disclaim Presbyterian’s no-fault claim.\nm.\nThat predicate being so, Maryland and the dissent nevertheless also assert that preclusion of an exclusion defense in an eventual action is an unavailable remedy under both the Insurance Law and Insurance Department regulations. This argument essentially hinges on predicates that (1) the common *282law does not preclude defenses, (2) neither the Insurance Law nor the Superintendent’s regulations expressly provide for such preclusion, and (3) the Legislature’s prescribed penalties for overdue payments (statutory interest and attorney’s fees) are exclusive remedies and impliedly exclude the more effective incentive and sanction of ultimate preclusion. We hold that an insurer may be precluded from interposing a statutory exclusion defense for failure to deny a claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3).\nIn a parallel universe and more general context, this Court has precluded insurers from disclaiming or denying liability after untimely notification of denials, related to liability coverage (see, Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029 [applying preclusion remedy to former Insurance Law § 167 (8) (superseded by Insurance Law § 3420 [d])3; Allstate Ins. Co. v Gross, 27 NY2d 263 [same]; see also, Zappone v Home Ins. Co., 55 NY2d 131). Insurance Law § 3420 (d) provides that \"[i]f under a liability policy delivered or issued in this state, an insurer shall disclaim liability or deny coverage for death or bodily injury arising out of a motor vehicle accident or any other type of accident occurring within this state, it shall give written notice as soon as is reasonably possible of such disclaimer of liability or denial of coverage to the insured and the injured person or any other claimant” (Insurance Law § 3420 [d] [emphasis added]).\nNotably, though Insurance Law § 3420 (d) has some distinctive features from the present circumstances, it shares one very important attribute — it does not expressly authorize the preclusion remedy. As with 11 NYCRR 65.15 (g) (3) and Insurance Law § 5106 (a), the statute — Insurance Law § 3420 (d)— also is silent in that respect. In fact, Insurance Law § 3420 (d) does not require an insurer to disclaim coverage; rather, that statute only requires notice of intent to disclaim.\nThis Court, nevertheless, concluded that although \"[i]ts literal language requires prompt notice of disclaimer after decision to do so * * * by logical and practical extension, there is imported the obligation to reach the decision to disclaim liability or deny coverage promptly too” (Allstate Ins. Co. v Gross, 27 NY2d 263, 266, supra). In Allstate, the Court refused to allow the insurer to \"seek[ ] shelter behind the words of the statute” (id.). Rather, it relied upon \"the statutory plan to protect the injured parties and their alternative source of compensation,” and \"the risks unnecessarily delayed disclaim*283ers of liability or denials of coverage pose to each” (id., at 267-268 [emphasis added]). The Court, therefore, affirmed the lower court’s preclusion remedy and declaration obligating the insurer to defend the insured on the basis of its untimely disclaimer (id., at 270; see also, Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1029, supra).\nZappone v Home Ins. Co. (55 NY2d 131, supra) is similarly instructive and supportive. There, we noted that \"[t]he purpose for which subdivision 8 of section 167 was enacted was to avoid prejudice to the insured, the injured claimant and the Motor Vehicle Accident Indemnity Corporation, each of whom could be harmed by delay in learning of the carrier’s position” (id., at 137 [emphasis added], citing Allstate Ins. Co. v Gross, 27 NY2d 263, 267, supra). In Zappone, the Court distinguished an insurer’s denial of liability based upon a policy exclusion and a breach of a policy condition from an insurer’s denial based on lack of coverage, such as where no contractual relationship exists with respect to the subject vehicle and incident (id., at 136-137). The Court concluded that the insurer was not subject to preclusion in the lack of coverage situation where \"there never was any insurance in effect” (id., at 138; compare, Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [decided today]). Zappone explained, however, that where \"the policy covers the driver and the vehicle and the accident would be covered except for the specific policy exclusion,” such as occurred here, \"the carrier must deny coverage on the basis of the exclusion if it is not to mislead the insured and the injured person to their detriment” (Zappone v Home Ins. Co., supra, 55 NY2d, at 136 [emphasis added]).\nWe are persuaded that, until and unless the Legislature clearly declares otherwise, the preclusion analysis that we have employed in this other branch of the Insurance Law should also be discretely applicable with respect to the 30-day requirement in the no-fault context of the instant case. In fact, in addition to consistency and a fair, reasonable and logical policy fit, the no-fault situations also benefit from the availability of preclusion against insurers in situations such as the instant one.\nThe Legislature and the Superintendent surely did not intend to afford insurers greater rights in this particular respect with regard to no-fault insurance, nor do their enactments imply less interest in stimulating timely disclaimers and denials with regard to no-fault payments in such circumstances. The unavailability of preclusion, as urged by the car*284rier and dissent, would materially frustrate the purposes and retard the goals of the speedy payment objective of the No-Fault Law. Those goals, a driving force behind both the no-fault and liability coverage insurance laws, focus on avoiding prejudice to insureds by providing for prompt payment or disclaimers of claims. We, therefore, refuse to carve out such an artificial demarcation between no-fault and liability coverage for these purposes with potentially even more confusing consequences than already exist (see, Nahmias v Merchants Mut. Ins. Co., 91 AD2d 680 [applying now-Insurance Law § 3420 in a no-fault context]; see also, Keith v Liberty Mut. Fire Ins. Co., 118 AD2d 151, 153, supra; Allstate Ins. Co. v Centennial Ins. Co., 187 AD2d 690, 691; Government Empl. Ins. Co. v Long Is. Coll. Hosp., 82 AD2d 797).\nMoreover, Maryland’s sweeping preclusion prohibition argument has been repelled with some frequency and consistency in the context of the very no-fault provisions at issue in the instant action — Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (see, Presbyterian Hosp. v Atlanta Cas. Co., 210 AD2d 210, 211; Loudermilk v Allstate Ins. Co., 178 AD2d 897, 898 [involving defense of intoxication exclusion]; Bennett v State Farm Ins. Co., 147 AD2d 779, 781 [same]). Emphatically, in Bennett, the Court concluded that \"[although the statute does not expressly provide for the preclusion of the insurer from denying or disclaiming benefits because of such untimeliness and lack of diligence, the structure of the Insurance Law and implementing regulations compel the conclusion that preclusion is a proper remedy” (Bennett v State Farm Ins. Co., supra, 147 AD2d, at 781 [emphasis added]). Appellant insurer urges this Court to overturn these precedents in order to reach its desired reversal in the instant case. We are not persuaded to do so.\nFinally, we must address Insurance Regulation 65.15 (g) (5), which expressly excludes preclusion as a remedy for an insurer’s failure to comply with the 10-day notice requirement for statutory exclusions. That alone does not decide this case because it does not go far enough in considering all relevant provisions. In fact, we are satisfied that this provision impliedly recognizes the availability of the preclusion remedy under 11 NYCRR 65.15 (g) (3), since 11 NYCRR 65.15 (g) (5) is the only insurance regulation which expressly prohibits preclusion. The interpretive canon, of inclusio unius, exclusio alterius helps us to conclude that had the Superintendent or Legislature intended to foreclose preclusion as a remedy in the 30-day time lapse circumstance under the no-fault intoxication regime, *285they would have done so again — and certainly could have— expressly in order to avoid the anomalies and confusion that would otherwise ensue — as demonstrated in this very case. Analogously, we have noted that \"[t]he failure of the Legislature to include a matter within a particular statute is an indication that its exclusion was intended” (Pajak v Pajak, 56 NY2d 394, 397).\nThus, we reject a blanket prohibition of the preclusion remedy as essentially frustrative of the purpose of the Insurance Law and the Superintendent’s regulations. Insurers simply have no precedential or statutory recourse to sit on their many procedural rights and requirements and then belatedly deny claims they should have acted upon earlier. We emphasize that our holding here is keyed solely to the insurer’s failure to comply with the 30-day notification requirement, set forth in Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3).\nWe also note our disagreement with the dissent’s view regarding the exclusivity of the remedies made available under the statute and regulations. The theory goes too far and does not hold up. Both the statute and regulations provide for interest only with regard to \"overdue payments” (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h]), and allow for attorney’s fees only when a \"valid claim” was denied or overdue (see, Insurance Law § 5106 [a]; 11 NYCRR 65.15 [i]). Therefore, untimely denials might suffer no sanction in situations where the insurer is not required to pay the claim and where the claim is ultimately deemed invalid. Consequently, the \"remedies” provided by the statute and regulations are not plenary or exclusive and should not be deemed so by this Court exercising its interpretative authority. That is a matter for the Legislature to rule on expressly or more certainly.\nNo-fault reform was enacted to provide prompt uncontested, first-party insurance benefits (see, Montgomery v Daniels, 38 NY2d 41). That is part of the price paid to eliminate common-law contested lawsuits. Indeed, contrary to the insurer’s assertions, preclusion of this type was an available remedy at common law, and if this important facet of the juridical rights and remedies among the various interested parties is to be deemed eliminated, it must be evident more plainly and expressly as this would be in derogation of a common-law protection. The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices.\n*286To string out belated and extra bites at the apple is, on the present state of the law, inherently contradictory and unfounded under the statutes, regulations and policies that pertain to and govern this dispute, and we should not countenance such practices on the state of this record and these regulations and statutes. If more harmony and clarity are to be achieved, we earnestly invite the Legislature to study and remedy the Rube-Goldberg-like maze. In the meantime, we discern no justification for penalizing injured parties or their provider assignees by recognizing disincentives against prompt attention and action for otherwise valid, first-party insurance payment claims.\nIn sum, Maryland was rightly precluded by the lower courts from raising an intoxication exclusion defense at this stage of this no-fault payment litigation, because it neither denied the claim within 30 days of receipt of the claim nor effectively extended the 30-day time requirement.\nAccordingly, the order of the Appellate Division should be affirmed, with costs.\n", "ocr": false, "opinion_id": 9533668 }, { "author_str": "Wesley", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nWesley, J.\n(dissenting). We agree with the majority’s characterization of the statutes and regulations in question in this case as a \"Rube-Goldberg-like maze”, and we join in its request to the Legislature and Superintendent of Insurance to study and remedy the \"thicket” of apparent contradictions and difficulties presented. Nevertheless, as best we can decipher the legislative intent and purpose of the current regulatory framework, preclusion should not be a remedy for an insurer’s failure timely to deny a no-fault claim.\nThe majority finds preclusion to be consistent with the purposes of the Insurance Law. Yet the statute and regulations provide claimants with specific remedies for an insurer’s untimely failure to pay a valid no-fault claim (Insurance Law § 5106 [a]; 11 NYCRR 65.15 [h], [i]). Instead of employing those remedies, the majority would adopt the remedy of preclusion that we crafted for the untimely failure to disclaim liability coverage under Insurance Law § 3420 (d) (see, Allstate Ins. Co. v Gross, 27 NY2d 263). Employing preclusion as a remedy for the untimely processing of no-fault claims renders the existing sanctions insignificant.\nAs the majority recognizes, \"[n]o-fault reform was enacted to provide prompt uncontested, first-party insurance benefits” (majority opn, at 285, citing Montgomery v Daniels, 38 NY2d 41). To ensure promptness, the Superintendent of Insurance, in *287accordance with section 5106 of the Insurance Law, promulgated regulations providing that a claim is overdue 30 days after the insurer receives verification of all relevant information (11 NYCRR 65.15 [g] [1] [i]), and providing for interest at 2% per month compounded (11 NYCRR 65.15 [h]), attorneys’ fees and optional arbitration (11 NYCRR 65.15 [i]) to discourage insurers from letting claims languish. Such a system makes eminent sense when dozens of claims can be filed by different care providers in the same case, as was the case here.1 If instead we impose a sanction of preclusion, then an insurer may be precluded from raising similar defenses to later claims from other health care providers if the insurer allows one claim to become overdue.\nBy comparison, in the context of an automobile liability policy covered by Insurance Law § 3420 (d), either the insured or an injured party notifies the insurer of the accident, and the insurer generally has one chance to disclaim liability. We agree with the majority that preclusion is not specifically authorized by section 3420 (d). Preclusion makes sense when it is limited to one set of facts (i.e., one accident) and a limited number of parties. We have noted that both the insured and those claiming injury from the insured’s negligence have a right to know the carrier’s coverage position (Allstate Ins. Co. v Gross, 27 NY2d 263, 267-268, supra). Thus, preclusion guarantees everyone involved in a coverage question that it will be resolved in a timely and fair manner. In the liability insurance situation, where there are no other regulatory remedies to ensure a prompt disclaimer by the insurer, this Court devised the remedy of preclusion. The application of that remedy is not warranted a fortiori or otherwise in the context of the no-fault statute absent clearer guidance to that effect from the Legislature and the Superintendent of Insurance. To the contrary, in a January 18, 1989 letter, the Principal Examiner for the Insurance Department stated that it was the Department’s position that the existence of \"significant penalties” for untimely denials of no-fault claims differentiated them from untimely denials under other provisions of the Insurance Law, particularly article 34.\nThe no-fault statute is a creature of legislative fiat. It sought to ensure timely payments of medical bills (Montgomery v Daniels, 38 NY2d 41, 51, supra). To that end, the Legislature *288specifically included sanctions for the failure to pay timely a claim (Insurance Law § 5106 [a]).2 Had the Legislature chosen to include preclusion within the available enforcement mechanism it provided for claimants (be they injured persons or care providers), it would have done so (see, Irving M. Etkind, M.D., P. C. v Allstate Ins. Co., 124 Misc 2d 779). The interpretive canon of expressio unius est exclusio alterius, applied by the majority in construing 11 NYCRR 65.15 (g) (5), applies with particular force in construing Insurance Law § 5106 (a); \"when a statute creates a new right and specifies the remedy for the enforcement of such right, the remedy is generally exclusive” (McKinney’s Cons Laws of NY, Book 1, Statutes § 240, at 413).\nOne of the purposes of the no-fault statute was to keep premiums low (Fafinski v Reliance Ins. Co., 65 NY2d 990, 992). The majority’s holding endangers that purpose, for it could result in insurers’ having to pay claims that would otherwise not be covered. A policy shift such as this should be left to the Legislature that balanced the various competing concerns in creating this system that appears to have functioned well in providing benefits to those injured in automobile accidents.\nThe majority contends that preclusion is necessary because the sanctions available to claimants will be ineffective in situations where the insurer is not required to pay the underlying claim. We believe that an insurer is unlikely to rely on its own internal and unannounced determination that a claim should be denied. The carrier has substantial incentives to deny or approve the claim quickly. If the claim is a valid one, it accrues substantial interest after only 30 days following its submission. If the carrier is of a mind to deny the claim and is wrong, it will face similar penalties when its error is ultimately determined through arbitration or litigation.\nIn any event, if an insurer persists in its failure to deny a claim, even an invalid one, the insurer remains subject to penalties by the Insurance Department. As the Principal *289Examiner for the Insurance Department noted in his January 18, 1989 letter, the regulations provide a framework which would enable the Department to levy administrative penalties. The regulátions set forth time periods, violations of which can result in penalties under Insurance Law §§ 109 and 2601. We have held in other contexts that these Insurance Law provisions regulate the insurer’s performance of its contractual obligations but do not give rise to a private cause of action (New York Univ. v Continental Ins. Co., 87 NY2d 308, 317-318; Rocanova v Equitable Life Assur. Socy., 83 NY2d 603, 614). No one has suggested that the majority’s preclusion remedy must be employed because of an established failure of the Superintendent to enforce the regulations through these sections, or that these sections are ineffective in ensuring compliance by insurance carriers.\nMoreover, as set forth today in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195), the majority would preclude the insurer from raising any defense except lack of coverage. Such an approach is inconsistent with 11 NYCRR 65.15 (g) (5), which deals with lack of coverage and other defenses, or the statutory exclusions under Insurance Law § 5103 (b). In particular, Insurance Law § 5103 (b) (2) allows insurers to exclude from coverage a person injured \"as a result of operating a motor vehicle while in an intoxicated condition” under Vehicle and Traffic Law § 1192. We have recognized that this statute reflects the legislative purposes of denying coverage for losses resulting from violations of the law and of keeping premiums low (Fafinski v Reliance Ins. Co., 65 NY2d 990, 992, supra). The result today contravenes those legislative purposes, by creating coverage for an accident that appears to be alcohol related solely because of an insurer’s lack of promptness. We see no need to go to such lengths when the statutes and regulations already provide sanctions for insurers that fail to act promptly.\nThe majority’s view, and that of the Appellate Division, is premised on the \"narrow basis” that the defendant failed to disclaim within 30 days after receiving the claim and further failed to request additional verification of the claim on prescribed forms. We agree with the majority’s analysis of the applicable (and difficult) regulations involved. The carrier must pay or deny the claim within 30 days after proof of claim is received (11 NYCRR 65.15 [g] [3]). However, if a carrier has reason to believe that a claimant was operating a motor vehicle while in an intoxicated condition and that condition was a contributing cause of the accident, \"the insurer shall be *290entitled to all available information relating to the applicant’s condition at the time of the accident” (11 NYCRR 65.15 [g] [7]). The proof of claim (the document that triggers the 30-day rule set forth in section 65.15 [g] [3]) is not complete until information that has been requested pursuant to paragraph, (d) (1) or (2) of the subdivision has been furnished by the applicant or the authorized representative (plaintiff). Once the carrier determines that benefits are not payable because of the claimant’s intoxication, it must notify the applicant within 10 business days (11 NYCRR 65.15 [g] [5]). As noted by the majority, a failure to meet this deadline (which is not measured for the receipt of a completed proof of claim) does not prevent invocation of the defense in an action (11 NYCRR 65.15 [g] [5]).\nThe majority points out that once the insurer had reason to believe that the insured’s intoxication was a contributing cause to the accident, it had \"to submit the prescribed verification forms to the appropriate parties [Presbyterian and Ms. DeGuisto] within 10 days after receipt of Presbyterian’s completed application” (majority opn, at 280). Maryland’s failure to utilize this procedure serves as the basis for the majority’s preclusion decision since, according to the majority, Maryland can only extend the 30-day period (i.e., the proof of claim is not complete) through the use of the forms for more information.\nThe forms Maryland can use to seek verification are \"prescribed” as noted by the majority. However, the forms do not include any questions that would provide information about whether Ms. DeGuisto was intoxicated on December 26, 1993 when she drove her vehicle into a utility pole (see, Appendix 13-A, 11 NYCRR 65.15, Forms N-F2, N-F4). Presbyterian rendered medical care to Ms. DeGuisto long after the accident. Maryland filed interrogatories in this action on October 13, 1994 and asked Presbyterian to provide any information it possessed concerning Ms. DeGuisto’s blood-alcohol levels on the night of the accident. Presbyterian was unable to provide any information on this central and defining issue. Maryland thus was deprived of the benefit of a regulation that guarantees that it can delay its determination in this case until it has \"all available information relating to the applicant’s condition at the time of the accident” (11 NYCRR 65.15 [g] [7]).\nAs the majority points out, after Maryland reviewed the accident report and learned that Ms. DeGuisto had alcohol on her breath at the accident scene and that a blood-alcohol test was performed, Maryland requested the information from the *291local police department on April 19, 1994 long before Presbyterian filed its claim. In late June 1994, Maryland’s investigator again attempted to obtain the information. Apparently the accident was still under investigation by the District Attorney’s office with regard to another person who may have provided alcohol to Ms. DeGuisto, who was underage at the time of the accident. Because the matter was still pending, the District Attorney refused to release the blood test results. Finally, the test results were released to Maryland’s investigator (Ms. DeGuisto had a blood-alcohol level of 0.13% alcohol by weight) and Maryland notified Presbyterian the day after it received the information.\nMaryland pursued the information it had to have from the only source that had it. Under the majority’s analysis, however, Maryland is precluded from using this defense because it failed to use forms that don’t allow Maryland to make the appropriate inquiries of a hospital that did not have the information. It is hard for us to understand how preclusion serves the goals of speedy payment when the statutory and regulatory framework on which it is now engrafted by this Court is fraught with ambiguities and inconsistencies.\nAccordingly, we would reverse and deny plaintiffs motion for summary judgment.\nChief Judge Kaye and Judges Smith and Ciparick concur with Judge Bellacosa; Judge Wesley dissents and votes to reverse in a separate opinion in which Judges Titone and Levine concur.\nOrder affirmed, with costs.\n\n. From the time of the accident to late October 1994, the carrier had received 30 different claims for care rendered to Ms. DeGuisto.\n\n\n. Of the 24 no-fault statutes in effect by 1977, 18 (including New York) required payment of claims within 30 days, and made insurers liable for interest and/or attorneys’ fees on overdue payments; two other States had different time periods; one had no set time period, and three had no specific payments-due provision (Note, No-Fault Automobile Insurance: An Evaluative Survey, 30 Rutgers L Rev 909, 949, n 242). Three years after that statute was enacted in New York, there was an increase in the promptness of payment of benefits, from an average wait of 16 months prior to no-fault in New York, to an average wait of three months (id., at 952). It appears that the scheme devised by New York and other States is an effective one, without the need for an additional remedy of preclusion.\n\n", "ocr": false, "opinion_id": 9533669 } ]

[ "743 So. 2d 1" ]

[ { "author_str": null, "per_curiam": true, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n743 So. 2d 1 (1999)\nWalter RUIZ, Appellant,\nv.\nSTATE of Florida, Appellee.\nNo. 89,201.\nSupreme Court of Florida.\nApril 1, 1999.\nRehearing Denied May 12, 1999.\n*2 James Marion Moorman, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Tenth Judicial Circuit, Bartow, Florida, for Appellant.\nRobert A. Butterworth, Attorney General, and Robert J. Landry, Assistant Attorney General, Tampa, Florida, for Appellee.\nPER CURIAM.\nWe have on appeal the judgment and sentence of the trial court imposing the death penalty on Walter Ruiz. We have jurisdiction. Art. V, § 3(b)(1), Fla. Const. We reverse the conviction and vacate the sentence because of prosecutorial misconduct.\nBetween 7 and 8 p.m. on April 7, 1995, Rolando Landrian was abducted from a Stop and Shop convenience store parking lot in Tampa and shot to death. Walter Ruiz was arrested in June and charged with first-degree murder, armed kidnapping with a firearm, and robbery with a firearm. Evidence adduced at trial showed the following: Landrian was the *3 former common law husband of Lotia Romanes; after the couple broke up, Lotia and her subsequent husband, Delio, worked for and at times lived with Landrian; Lotia and Delio lived in Tampa and on occasion bought drugs from Ruiz who lived in Orlando; Lotia and Delio ultimately bailed Ruiz out of jail on an unrelated robbery charge and solicited him and a second person, Micky Hammonds, to \"rough up\" or kill Landrian because Landrian had raped Lotia's two daughters by a different marriage.\nHammonds entered a plea and testified for the State.[1] He attested to the murder-for-hire plot and explained that on the day of the murder he and Ruiz followed Landrian throughout Tampa but were unable to accost him until that evening. Hammonds testified that after they kidnapped Landrian at the Stop and Shop he drove the getaway car while Ruiz held a gun on Landrian. When Hammonds stopped the car, Ruiz and Landrian got out and Ruiz shot Landrian. The State presented several witnesses who testified that they saw Ruiz on the day of the murder outside Landrian's house and at the Stop and Shop.\nRuiz presented an alibi defense, claiming that he was in Orlando on the day of the murder. Several witnesses attested to this. Ruiz claimed that while the Romanes had solicited him to rough up Landrian, he turned the offer down. Delio, he claimed, was the real killer, and Hammonds was being paid to implicate Ruiz.\nRuiz was convicted as charged and the court followed the jury's ten-to-two recommendation and imposed a sentence of death on the first-degree murder count based on four aggravating circumstances,[2] no statutory mitigating circumstances, and several nonstatutory mitigating circumstances.[3] The court imposed concurrent life sentences on the remaining counts. Ruiz raises five issues on appeal.[4]\n*4 As his first two points, Ruiz contends that the prosecutors engaged in egregious misconduct during closing argument in both the guilt and penalty phases of the trial. We agree. A criminal trial is a neutral arena wherein both sides place evidence for the jury's consideration; the role of counsel in closing argument is to assist the jury in analyzing that evidence, not to obscure the jury's view with personal opinion, emotion, and nonrecord evidence:\nA criminal trial provides a neutral arena for the presentation of evidence upon which alone the jury must base its determination of a defendant's innocence or guilt. Attorneys for both sides, following rules of evidence and procedure designed to protect the neutrality and fairness of the trial, must stage their versions of the truth within that arena. That which has gone before cannot be considered by the jury except to the extent it can be properly presented at the trial and those things that cannot properly be presented must not be considered at all.\nThe role of the attorney in closing argument is \"to assist the jury in analyzing, evaluating and applying the evidence. It is not for the purpose of permitting counsel to `testify' as an `expert witness.' The assistance permitted includes counsel's right to state his contention as to the conclusions that the jury should draw from the evidence.\" United States v. Morris, 568 F.2d 396, 401 (5th Cir.1978) (emphasis in original). To the extent an attorney's closing argument ranges beyond these boundaries it is improper. Except to the extent he bases any opinion on the evidence in the case, he may not express his personal opinion on the merits of the case or the credibility of witnesses. Furthermore, he may not suggest that evidence which was not presented at trial provides additional grounds for finding defendant guilty.\nIt is particularly improper, even pernicious, for the prosecutor to seek to invoke his personal status as the government's attorney or the sanction of the government itself as a basis for conviction of a criminal defendant.\nThe power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government's vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.\n\nHall v. United States, [419 F.2d 582, 583-84 (5th Cir.1969)].\nUnited States v. Garza, 608 F.2d 659, 662-62 (5th Cir.1979) (citations and footnote omitted).\nThe present case was a hotly contested credibility battle with conflicting evidence and witnesses. As noted above, the State contended that Ruiz was a hit-man for the Romanes and that he executed Landrian. Hammonds, the driver during the alleged kidnapping and murder, testified at length concerning this. Mary Jo Hahn, a neighbor of Landrian's, stated that she saw Ruiz in the passenger seat of a car parked outside Landrian's house on April 7, and Stop and Shop employee Charles Via and manager Michael Witty both identified Ruiz as the man they saw accosting Landrian.\nThe defense, on the other hand, claimed that Ruiz was elsewhere on the day of the murder. Ruiz himself testified that he was in Orlando with his mother running errands and shopping at K-Mart and that later that evening he met with his ex-wife at her home and played with his children. Both his mother and ex-wife attested to this, and several eyewitness reported seeing him with his ex-wife that night. Inmate Alderman testified that Hammonds told him in prison that whereas he, Hammonds, *5 was blaming the murder on Ruiz, it actually was the stepfather of the raped daughters, i.e. Delio Romanes, who committed the murder.\nThe witnesses for both sides were subjected to extensive cross-examination and impeachment, and the credibility of each was called into question. At the zenith of this fray, during closing argument in the guilt phase, prosecutor Cox sought to bolster the credibility of the State's case with the following improper statements:\n[MS. COX:] What interest, ask yourselves what interest does [State witness] Charles Via, Michael Witty, the Hahns, Dianne Guty and Abraham Machado have in seeing that somebody other than the person responsible for this horrible crime be convicted? What interest do we as representatives of the citizens of this county have in convicting somebody other than the person—\nMR. DONERLY: Objection, Your Honor.\nTHE COURT: Yeah, sustained.\nMR. DONERLY: Move for a mistrial.\nTHE COURT: Denied.\nMS. COX: Delio Romanes was charged in this case. What interest is there to bamboozle anybody about Delio's real role in this case. Ask yourselves that. No one is saying Delio Romanes has clean hands, but what interest does anybody have in saying that Delio Romanes isn't the person responsible for this if he was?\nBy arguing that the prosecutors as representatives of the State have no interest in convicting anyone other than the guilty (\"What interest do we [prosecutors] as representatives of the citizens of this county have in convicting somebody other than the person—.\"), prosecutor Cox was implying, \"If the defendant wasn't guilty, he wouldn't be here.\" This type of argument has been soundly rejected by courts. In finding the statement \"we try to prosecute only the guilty\" indefensible, the court in Hall v. United States, 419 F.2d 582 (5th Cir.1969), explained:\nThis statement takes guilt as a predetermined fact. The remark is, at the least, an effort to lead the jury to believe that the whole governmental establishment had already determined appellant to be guilty on evidence not before them. Or, arguably it may be construed to mean that as a pretrial administrative matter the defendant has been found guilty as charged else he would not have been prosecuted, and that the administrative level determination is either binding upon the jury or else highly persuasive to it. Appellant's trial was held and the jury impaneled to pass on his guilt or innocence, and he was clothed in the presumption of innocence. The prosecutor may neither dispense with the presumption of innocence nor denigrate the function of the trial not sit as a thirteenth juror.\nId. at 587 (citation and footnote omitted).\nThe State engaged in a second line of improper comment in closing argument in the guilt phase when prosecutor Goudie compared the defendant to Pinocchio:\nIt's the evidence in this case that you're to look at and you look at it and you say, look at this stuff. Is this enough to give me an abiding conviction of guilt? I can't even think of a way that it isn't enough to give you an abiding conviction of guilt, an overwhelming conviction of guilt. There's no way, no stretch of the imagination because let me tell you one thing, if that guy were Pinocchio, his nose would be so big none of us would be able to fit in this courtroom on what he said [up] there.\n\nYou all had an opportunity to watch him. Give me a break, okay? Look to the evidence, think about it. Use your common sense, and don't let anybody get you side-tracked, and all of you are going to come back with the only just verdict you can in this case, and remember that [what] you're here to do is render justice. Truth equals justice, *6 and the truth is he was the hit man. He violently kidnapped, robbed and murdered another human being and after he did that, and you saw those pictures, and how, frankly, how gross they were. After he did that, he had a burger and fries at a Burger King. That's the kind of person we're looking at over there. That's what he thought about another human being. The truth is he did that and justice is that you convict him of it.\nThank you.\nThe State contends that this Pinocchio argument is permissible under Craig v. State, 510 So. 2d 857 (Fla. 1987), wherein this Court stated:\nAppellant argues that the prosecutor improperly made repeated references to defendant's testimony as being untruthful and to the defendant himself as a \"liar.\" It may be true that the prosecutor used language that was somewhat intemperate but we do not believe he exceeded the bounds of proper argument in view of the evidence. When counsel refers to a witness or a defendant as being a \"liar,\" and it is understood from the context that the charge is made with reference to testimony given by the person thus characterized, the prosecutor is merely submitting to the jury a conclusion that he is arguing can be drawn from the evidence. It was for the jury to decide what evidence and testimony was worthy of belief and the prosecutor was merely submitting his view of the evidence to them for consideration. There was no impropriety.\nId. at 865. We disagree.\nProsecutor Goudie's comments cross the line of acceptable advocacy by a wide margin. By characterizing Ruiz as \"Pinocchio\" and then telling the jury that \"truth equals justice\" and \"justice is that you convict him,\" the prosecutor was inviting the jury to convict Ruiz of first-degree murder because he is a liar. Cf. Bass v. State, 547 So. 2d 680, 682 (Fla. 1st DCA 1989) (\"In our view, with this exhortation, taken in the context of his earlier unsupported remarks, the prosecutor extended an open invitation to the jury to convict the defendant for a reason other than his guilt of the crimes charged. Such comments have been held to constitute reversible error in a long line of cases.\").\nThe State engaged in a third line of improper comment during closing argument in the penalty phase. Prosecutor Cox urged the jurors to do their duty as citizens just as her own father had done his duty for his country in Operation Desert Storm:\nAsk Mr. Ruiz why should their love be a reflection upon him when it had no effect on him or his behavior, none. Doesn't his reckless indifference to their love, to their well-being, to their concern make his action even more despicable?\nAnd it's not easy for any of us to be here. My father was a physician and commander in the United States Military, U.S. Navy Reserve, and about six years ago, he got orders to go to Operation Desert Storm to command a Naval ship in the Gulf. And as he prepared to close his practice down and leave, they found a shadow on his brain, and the doctors would not commit to anything, but we all knew, the family all knew that that was going to be the cancer that ultimately killed him.\n\n\nAnd so I begged him, don't go, your days are numbered. Stay here with your family. Go talk to the people who issued your orders, go talk to the Navy and tell them that you can't go. You've got an excuse now. You've got an excuse that no one can deny. And he said, \"I can't do that. This is my duty.\" And the thing about duty is that it's often difficult and it's usually unpleasant, but it's a moral and in this case a legal obligation.\nWhen you got your duty summons in this case, it was a call to duty, and no one of us is underestimating the difficulty of your task in this case, but it's your *7 duty to make sure that justice is meted out in this case.\n\n\nIt's without any pleasure that the State asks for the ultimate sentence because for there to be justice in our society, the punishment must fit the crime, the crime that was inflicted upon Rolando Landrian, the ultimate act of moral depravity and unmitigated evil. And justice can be harsh and demanding, but there's no room in these facts for compassion. There's no room in these facts for mercy.\nWe ask you to consider this not because it's easy, because we all know it's very difficult, but it's the right thing and we ask that you have the courage and the moral strength to bring justice to this case.\nThank you.\nThis blatant appeal to jurors' emotions was improper for a number of reasons: it personalized the prosecutor in the eyes of the jury and gained sympathy for the prosecutor and her family; it contrasted the defendant (who at that point had been convicted of murder) unfavorably with Ms. Cox's heroic and dutiful father; it put before the jury new evidence highly favorable to the prosecutor; it exempted this new evidence from admissibility requirements and from the crucible of cross-examination; and most important, it equated Ms. Cox's father's noble sacrifice for his country with the jury's moral duty to sentence Ruiz to death.\nThe State argues that because defense counsel failed to object to several of the prosecutor's guilt and penalty phase statements he is barred from raising this issue on appeal. We disagree. When the properly preserved comments are combined with additional acts of prosecutorial overreaching set forth below, we find that the integrity of the judicial process has been compromised and the resulting convictions and sentences irreparably tainted.\nAs noted above, Ruiz was in jail in Seminole County on an unrelated robbery charge when the Romanes posted bond for him and solicited his services in executing or \"roughing up\" Landrian. Ruiz now contends that the State improperly elicited testimony showing that the crime he was charged with in Seminole County was a robbery.[5] We agree. As we *8 have pointed out, \"[t]he State is not permitted to present otherwise inadmissible information regarding a defendant's criminal history under the guise of witness impeachment.\" Geralds v. State, 601 So. 2d 1157, 1162-63 (Fla.1992). The fact that Ruiz was charged with an unrelated robbery in Seminole County was collateral to the issue of guilt on the murder count, and the State thus was required to \"take\" Ruiz's answers on cross-examination.[6] Contrary to the State's argument, the prosecutor's persistent baiting of Ruiz did not \"open the door\" to that line of inquiry.[7] Admission of this evidence was error.\nRuiz next claims that the State improperly introduced into evidence an inflammatory photo of the corpse. We agree. Admission of photographic evidence of a murder victim is within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent abuse. Gudinas v. State, 693 So. 2d 953 (Fla.1997). Further, the test for admissibility of such a photo is relevancy, not necessity. Pope v. State, 679 So. 2d 710 (Fla.1996). The photo in issue is a two-by-three foot blow-up of the victim's upper body—it revealed in detail the bloody and disfigured head and upper torso—which the State introduced during the penalty phase. The record shows that the prosecutor provided no relevant basis for submitting the blow-up at that point in the trial; the standard-size photo from which the blow-up was made had already been shown to the jury during the guilt phase. Appellate counsel for the State likewise offered no credible explanation at oral argument before this Court. We must conclude that the photo was offered simply to inflame the jury. This was error.\nRuiz argues as his last point that the prosecutor improperly introduced testimony showing that police found a bloody gun in Ruiz's apartment following his arrest on a prior charge of resisting arrest with violence in connection with a domestic disturbance. We agree. Evidence concerning the circumstances of a prior violent felony conviction may be admissible in a capital sentencing proceeding where admission of the evidence does not violate the defendant's confrontation rights and where the probative value of the evidence is not outweighed by its prejudicial effect. Finney v. State, 660 So. 2d 674 (Fla.1995). Of course, as with all evidence, in order to be admissible the proof must meet the test of relevance. Id. The present record reveals no relevant basis for introducing testimony concerning the gun. The gun was unrelated to the domestic disturbance—it was found in the bedroom of a different apartment in a different building—and played no role whatsoever in the resulting arrest. Again, we must conclude that this evidence was introduced simply to inflame. This was error.\nIn conclusion, the present record shows that this trial was permeated by egregious and inexcusable prosecutorial misconduct. Prosecutors Cox and Goudie attempted to tilt the playing field and obtain a conviction *9 and death sentence in a number of improper ways: by invoking the immense power, prestige, and resources of the State (i.e., \"What interest do we [prosecutors] as representatives of the citizens of this county have in convicting somebody other than the person—.\"); by demeaning and ridiculing the defendant (i.e., \"if that guy were Pinocchio, his nose would be so big none of us would be able to fit in this courtroom\"); by characterizing the defendant as the archetypical liar and then equating truth with justice and justice with a conviction (i.e., \"[t]ruth equals justice\" and \"justice is that you convict him\"); by appealing to the jurors' raw emotions (i.e., recounting the anecdote concerning prosecutor Cox's cancer-stricken father); and by introducing improper evidence (i.e., the blown-up photo of the bloody head; testimony concerning the unrelated robbery charge; and testimony concerning the unrelated gun).\nWe warned of the dire consequences of such \"inexcusable prosecutorial overkill\" in Hill v. State, 477 So. 2d 553 (Fla. 1985):\nAppellant has also alleged several instances of improper prosecutorial comment during the trial. We find the prosecutor acted improperly by asking the jury to consider him a \"thirteenth juror\" when it retired to deliberate its verdict in the guilt phase, but find the error harmless under the circumstances of this cause. Had the case involved substantial factual disputes, this \"inexcusable prosecutorial overkill\" would have resulted in harmful error requiring reversal of each of appellant's convictions. We again caution prosecutors to note that repeated failure to curb this misconduct adds fuel to the flame of those who advocate the adoption of a per se rule of reversal for such misconduct.\nId. at 556-57 (citations omitted). The present case is precisely the scenario we feared in Hill—a bitterly contested swearing match between competing witnesses, including eyewitnesses on both sides, where a defendant's life hangs in the balance.\nIn spite of our admonishment in Hill and despite subsequent warnings that prosecutorial misconduct will be subject to disciplinary proceedings of The Florida Bar,[8] we nevertheless continue to encounter this problem with unacceptable frequency.[9] The present case follows on the heels of another misconduct case[10] and is one of the worst examples we have encountered. The conduct of prosecutors Cox and Goudie was both egregious and inexcusable. The prosecutors crossed the line of zealous advocacy by a wide margin and *10 compromised the integrity of the proceeding.\nAccordingly, we must reverse Ruiz's convictions, vacate his sentences, and remand for a new trial.[11] We submit this matter, via issuance of this opinion, to The Florida Bar to determine whether any disciplinary rules were violated.\nIt is so ordered.\nHARDING, C.J., SHAW, WELLS, ANSTEAD and PARIENTE, JJ., and OVERTON and KOGAN, Senior Justices, concur.\nNOTES\n[1] Hammonds was sentenced to twenty years' imprisonment for his role in the crime.\n[2] The court found that the State had proven the existence of the following aggravators: (1) Ruiz had been convicted of a prior violent felony (i.e., resisting arrest and three separate armed robberies); (2) the murder was committed in the course of a kidnapping; (3) the murder was committed for financial gain; and (4) the murder was committed in a cold, calculated, and premeditated manner. The court concluded: \"The court has very carefully considered and weighed the aggravating factors and finds that aggravating factors 1 and 2 should be given substantial weight and that aggravating factors 3 and 4 should be given great weight.\"\n[3] The court noted the following concerning nonstatutory mitigators:\n\nEvidence offered in support on non-statutory mitigating factors proved beyond a reasonable doubt the following: Defendant is a fair and considerate father to his four children including two stepchildren; he played games with them, he participated in their activities, helped with homework and treated them equally both before and after the separation between himself and his ex-wife, the children's mother. Defendant has always supported his children financially. Before the separation defendant was always steadily employed in Orange County and when the family lived in New York City. Defendant helped willingly with the housework and cooking. Before the separation defendant attended church regularly and was active in church affairs by singing and testifying and \"gave his heart to God in the church.\" Defendant participated willingly and actively in family gatherings. From jail the defendant talks to his children and stepchildren on the telephone and writes them inspirational and loving letters and this contact is important to the children and they would continue this contact with defendant were he to be sentenced to life in prison. Defendant's mother loves him and communicates with him and would visit him in prison were he to be sentenced to life in prison. Defendant's conduct and lifestyle changed abruptly for the worse about two years ago.\nThe court concluded as follows: \"The court has very carefully considered and weighed the nonstatutory mitigating factors and finds that they should be given considerable weight.\"\n[4] Ruiz claims that the trial court erred on the following points: (1) prosecutorial misconduct in the guilt phase; (2) prosecutorial misconduct in the penalty phase; (3) admission of evidence concerning a prior robbery; (4) admission of a photo of the victim; and (5) admission of details concerning a prior conviction for resisting arrest with violence.\n[5] During cross-examination of Ruiz, the following discussion took place:\n\nQ. Okay. First let me ask you something. Didn't Delio tell you that Rolando Landrian wore a lot of jewelry and kept lots of money in his car, so it was going to be a robbery?\nA. I don't know nothing about no robbery, ma'am. You're putting words into my mouth now.\nQ. Well, Delio tells you in the context of what he wants done to Rolando Landrian, that Rolando Landrian wears lots of jewelry and keeps lots of money in his car?\nA. What he says is that the person that goes down there to rough him up could take it because he does have a lot of jewelry and he does carry a large sum of money, yes.\nQ. And that's a robbery?\nA. As far as—yeah.\nQ. You know what a robbery is?\nA. How do you know what I know what a robbery is?\nQ. Well, are you trying to suggest to this jury—let me look for a moment. You told Mr. Gonzalez—not Mr. Gonzales, I'm sorry, Mr. Donerly that you sell drugs, but you don't do things like hurting people, right?\nA. Why should I?\nQ. Well, you're more than willing to use a gun in order to get what you want, aren't you?\nA. If you have a gun, that doesn't mean you're going to hurt somebody.\nQ. Pointing a gun at someone doesn't mean you're willing to hurt someone?\nA. If you point a gun at somebody doesn't mean you're going to shoot the gun. If you point a gun at somebody, it doesn't mean that it's loaded.\nAt this point, the prosecutor asked to approach the bench and argued that appellant had opened the door concerning the prior robbery charge in Seminole County. The prosecutor contended that she should be able to establish that he has been convicted of robberies before and that is how he knows what a robbery is. She also argued that the State should be able to introduce the portion of a letter written by Ruiz's mother in which she stated that Ruiz told her he did not show up for his court appearance on the robbery charge because he did not do those robberies alone. The court did not allow the prosecutor to pursue this line of inquiry with Ruiz but did allow her to recall and question Ruiz's mother, Julia Ramirez. Accordingly, during the State's case in rebuttal, the prosecutor called Mrs. Ramirez and questioned her concerning her alleged conversation with Ruiz at K-Mart on April 7:\nQ. Didn't he mention to you that one of the reasons that he—he mentioned that they would lock him up for a long time and he didn't rob those stores alone—or those store [sic] alone?\nMrs. Ramirez answered in the affirmative. The State entered into evidence a letter written by Mrs. Ramirez attesting to the above.\n[6] See Charles W. Ehrhardt, Florida Evidence § 608.1, at 398 (1998 ed.) (\"If a witness is cross-examined concerning a collateral ... matter, the examiner is bound by the answer given. Counsel must `take' the answer of the witness and may not subsequently introduce extrinsic evidence to impeach the witness.\").\n[7] See id. at 401 (\"A witness may `open-the-door' during the direct testimony to impeachment concerning matters that would not otherwise be permissible.\" (emphasis added)).\n[8] See, e.g., Garcia v. State, 622 So. 2d 1325, 1332 (Fla. 1993) (\"Once again, we are compelled to reiterate the need for propriety, particularly where the death penalty is involved....\"); Nowitzke v. State, 572 So. 2d 1346, 1356 (Fla. 1990) (\"[W]e are distressed over the lack of propriety and restraint exhibited in the overzealous prosecution of capital cases, and we feel compelled to reiterate [the warning expressed in Bertolotti].\"); Garron v. State, 528 So. 2d 353, 359 (Fla. 1988) (\"Such violations of the prosecutor's duty to seek justice and not merely `win' a death recommendation cannot be condoned by this Court.... [I]t appears that the admonitions in Bertolotti went unheeded and that the misconduct in this case far outdistances the misconduct in Bertolotti.\"); Bertolotti v. State, 476 So. 2d 130, 133 (Fla. 1985) (\"We have recently addressed incidents of prosecutorial misconduct in several death penalty cases.... This Court considers this sort of prosecutorial misconduct, in the face of repeated admonitions against such overreaching, to be grounds for appropriate disciplinary proceedings.\").\n[9] See, e.g., Campbell v. State, 679 So. 2d 720 (Fla. 1996) (reversing death sentence due to prosecutorial misconduct); King v. State, 623 So. 2d 486 (Fla. 1993) (reversing death sentence due to prosecutorial misconduct); Garcia (reversing two death sentences due to prosecutorial misconduct); Nowitzke (reversing two first-degree murder convictions due to prosecutorial misconduct); Garron (reversing first-degree murder conviction due to prosecutorial misconduct).\n[10] See Urbin v. State, 714 So. 2d 411 (Fla. 1998) (reversing death sentence and condemning extensive prosecutorial misconduct).\n[11] Double jeopardy principles do not bar a new trial in the present case. See, e.g., Keen v. State, 504 So. 2d 396, 402 n. 5 (Fla.1987) (\"We find no double jeopardy problem with a retrial of Keen arising from the prosecutorial misconduct here.\").\n\n", "ocr": false, "opinion_id": 1654180 } ]

[ "344 B.R. 663" ]

[ { "author_str": "Paskay", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n344 B.R. 663 (2006)\nIn re James K. GARDNER, Debtor.\nUnited States Trustee, Plaintiff\nv.\nJames K. Gardner, Defendant.\nBankruptcy No. 9:04-BK-21004-ALP. Adversary No. 05-181.\nUnited States Bankruptcy Court, M.D. Florida, Fort Myers Division.\nMarch 8, 2006.\n*664 Phillip J. Jones, Wilkins, Frohlich, Jones, et al., Port Charlotte, FL, for Debtor.\nBenjamin E. Lambers, Tampa, FL, for Plaintiff.\nRichard Johnston, Jr., Kiesel Hughes & Johnston, Fort Myers, FL, for Defendant.\n\nFINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION\nALEXANDER L. PASKAY, Bankruptcy Judge.\nTHE MATTER under consideration in this Chapter 7 liquidation case is the challenge by Felicia S. Turner, United States Trustee for Region 21 (U.S.Trustee) of the right of James K. Gardner (the Debtor) to the benefits of a general bankruptcy discharge. The Complaint Objecting to Discharge filed by the U.S. Trustee sets forth two claims in two separate counts.\nIn Count I of the Complaint, the U.S. Trustee alleges that the Debtor knowingly and fraudulently made a False Oath in his Schedules filed in this case and in the Statement of Financial Affairs noting the following omissions:\n(a) the Debtor in his original Schedule I stated he had worked for fours years at Charlotte County Lincoln Mercury, but had no income;\n(b) the Debtor in question 1 of the original Statement of Financial Affairs stated that he had no income from January 1, 2002 through October 28, 2004;\n(c) the Debtor failed to disclose in questions 7 and 10 of the original and Amended Statement of Financial Affairs the gifts and transfers to his wife, Maureen Gardner (Mrs. Gardner) in the form of —\n\n*665 (1) Payments on notes payable by Mrs. Gardner, secured by property titled in the name of Mrs. Gardner;\n(2) Payments toward the maintenance of property of Mrs. Gardner;\n(3) Gifts to Mrs. Gardner; and\n(4) Deposits of his personal payroll checks into an account he owns jointly with Mrs. Gardner at Charlotte State Bank; and\n(d) the Debtor failed to disclose his interest in Carson City Car & Truck Center, Inc. in item 18 of the original and Amended Statement of Financial Affairs.\nBased on the foregoing, the U.S. Trustee demands the entry of a judgment denying the Debtor's discharge.\nIn Count II of the Complaint the U.S. Trustee alleges that the Debtor within one year of the commencement of the case made several of the following payments to his wife, Mrs. Gardner, or on her behalf.\n(1) Payments on notes secured by the property solely owed by Mrs. Gardner;\n(2) Payments for the maintenance of the same property owed by Mrs. Gardner;\n(3) Made several unspecified gifts to Mrs. Gardner; and\n(4) Deposited his payroll checks into a joint account held by the Debtor and his wife, Mrs. Gardner at Charlotte State Bank.\nIt is the U.S. Trustee's contention that these payments were made with specific intent to hinder, delay or defraud unsecured creditors and, therefore, the Debtor is not entitled to the protection of a general bankruptcy discharge pursuant to 11 U.S.C. § 727(a)(4)(A) — (Count I) or in the alternative not entitled to a discharge pursuant to 11 U.S.C. § 727(a)(2)(A) — (Count II).\nThe facts relevant to the resolution of the two claims as established at the final evidentiary hearing are as follows. Prior to 2000 the Debtor was the president, secretary, and treasurer of a corporation named Carson City & Truck Center, Inc., in Carson City, Nevada. Sometime in 2002 the Debtor moved to the State of Florida and obtained employment with a Lincoln Mercury Dealership (Lincoln Mercury) located in Charlotte County, Florida. On January 31, 2003, the Debtor and his wife purchased the Debtor's current residence located in Charlotte County, Florida. The purchase of the family home was financed and the promissory note and the mortgage were signed by both the Debtor and Mrs. Gardner — however, the deed was recorded solely in the name of Mrs. Gardner. The down payment for the purchase of the residence came from the proceeds of a sale of Mrs. Gardner's residence of which she owned prior to her marriage to the Debtor.\nOn September 26, 2003, Mrs. Gardner obtained a loan from the First Florida Bank, NA in the amount of $344,350.00. The loan was secured by a mortgage granted to First Florida Bank, NA, replacing the previous mortgage held by William D. Ivey and Evelyn A. Ivey. Some part of the loan obtained by First Florida Bank, NA was used to pay for the improvements to the residence.\nOn August 31, 2004, Mrs. Gardner purchased a 2004 Lincoln Navigator, which was financed requiring a monthly payment in the amount of $719.06. On September 2004, Mrs. Gardner purchased a 27-foot angler boat requiring monthly payments in the amount of $500.00. On September 30, 2004, Mrs. Gardner purchased a second 2004 Lincoln Navigator requiring payments in the amount of $765.50 per month.\n*666 Sometime before October 28, 2004, the Debtor retained Phillip J. Jones (Mr. Jones) for the purpose of assisting him and requiring service to represent him as a Debtor in a Chapter 7 case. It appears that there was some unspecified emergency, which required the immediate protection of the automatic stay imposed by 11 U.S.C. § 362(a). On October 28, 2004, Mr. Jones, filed the Debtor's bare Petition without the documents required by 11 U.S.C. 521(a) and F.R.B.P. 1007. On November 1, 2004, the Clerk of the Court issued a Notice of Commencement of Case and scheduled the Section 341(a) meeting to be held on December 1, 2004. On November 2, 2004, this Court issued a Notice of Deficient Filing, indicating that the Debtor failed to file Summary of Schedules, Schedules A-J, Statement of Financial Affairs, and Statement of Intentions (Doc No. 4).\nOn November 5, 2004, the Debtor filed his Schedules A-J, Statement of Intentions, and his Statement of Financial Affairs (Doc. Nos. 7, 8 and 9). On Schedule I, the Statement of Income, the Debtor stated that he worked for four years at Lincoln Mercury but failed to state the amount that he had received. In fact, the Debtor's Statement of Financial Affairs failed to state what income, if any, he had received between January 1, 2002 through October 28, 2004. On Schedule J, the Schedule of Expenses, the Debtor failed to state what expenses, if any, he paid during the relevant time.\nAs previously noted, the Section 341 Meeting of Creditors was scheduled for December 1, 2004. Because of the incompleteness of the Schedules and the Statement of Financial Affairs, Mr. Jones requested a continuance of the Section 341 Meeting in order to enable him to cure the deficiencies. On December 3, 2004, the Debtor executed Amended Schedules and Statement of Financial Affairs, which were filed on December 6, 2004.\nAccording to the Debtor's Amended Schedule I he had a gross monthly income of $13,098.27. or $157,174.24 annually and his wife had gross income of $2,500.00 per month or $30,000 per year. The Amended Schedule I also indicated that the Debtor and his wife had a combined net monthly income of $10,022.07. According to the Schedule of Expense for the Debtor's household, the Debtor's expenses were $7,390.00 leaving a monthly disposable income of $2,630.07.\nThe Debtor in his Amended Statement of Financial Affairs stated that he earned $100,846.00 in 2002; $140,048.00 in 2003; and $120,000.00 to date in 2004. However, as of December 11, 2004, the Debtor earned $150,920.40. In addition to the above, the Debtor at all times supplied more than half of the support for his wife, his two children and also for his wife's child.\nThe Debtor stated in his Amended Statement of Financial Affairs that he earned $100,846.00 in 2002; $140,048.00 in 2003; and $120,000.00 to date in 2004 — however, as of December 11, 2004, he earned $150,920.40. Although the evidence is not clear, it appears that the Debtor's paychecks were deposited in a joint checking account maintained by the Debtor and his wife, which was used to make payments on the mortgage of the family residence owned by Mrs. Gardner. All payments on the two vehicles and the boat, which are also owned by Mrs. Gardner, were also made from funds deposited in the joint checking account. While it is possible that Mrs. Gardner's paychecks were also deposited in the joint account, it is fair to infer that the Debtor's funds were used to make the mortgage payments on the house and the note payments concerning the two vehicles and the boat. *667 This Court is satisfied that the Debtor's funds were used, at least in part, to pay for the vehicles, boat and residence.\n\nCount I-11 U.S.C. § 727(a)(4)(A) — False Oath\nIt is well established that the provisions of the discharge were designed to assist a financially distressed debtor to receive a fresh start in life unencumbered from the financial burdens of the debtor's past. Lines v. Frederick, 400 U.S. 18, 91 S. Ct. 113, 27 L. Ed. 2d 124 (1970). Thus, these provisions of the Code should be construed in favor of the debtor, and strictly against the one who challenges the debtor's right to discharge. In re Muscatell, 113 B.R. 72 (Bankr.M.D.Fla.1990).\nIt is equally true that the benefits of the discharge are reserved for honest debtors. A debtor who comes to the bankruptcy court must come clean, make full disclosure of all information relevant to the administration, and must fully cooperate with the trustee. Kentile Floors, Inc. v. Winham, 440 F.2d 1128 (9th Cir.1971); In the Matter of Garman, 643 F.2d 1252 (7th Cir.1980). It is not for the debtor to decide what is and is not relevant. A debtor who intentionally omits important information and fails to make full disclosure to the court, places the right to the discharge in serious jeopardy. The veracity of a debtor's Statement is absolutely essential to the successful administration of the Bankruptcy Code. Diorio v. Kreisler-Borg Construction Co., 407 F.2d 1330 (2nd Cir.1969); In re Chalik, 748 F.2d 616 (11th Cir.1984). It is true that a discharge should not be denied when the omissions were due to mere mistake or inadvertence. In re Ellingson, 63 B.R. 271 (Bankr. N.D.Iowa 1986).\nWhile the burden of proof is on the party challenging a debtor's right to the benefits of the general discharge, the standard of proof is no longer the clear and convincing evidence but a mere preponderance is sufficient to prevail on the objections. Grogan v. Garner, 498 U.S. 279, 111 S. Ct. 654, 112 L. Ed. 2d 755 (1991)(dicta); In re Scott, 172 F.3d 959 (7th Cir.1999); In re Brown, 108 F.3d 1290 (10th Cir.1997); In re Adams, 31 F.3d 389 (6th Cir.1994), cert. denied. 513 U.S. 1111, 115 S. Ct. 903, 130 L. Ed. 2d 786 (U.S.1995).\nIn order to establish a viable of False Oath, the challenging party must prove two elements. First, the debtor's oath must have been made knowingly and fraudulently. Second, the oath must be related to a material fact. In re Lattore, 164 B.R. 692, 695 (Bankr.M.D.Fla.1994); In re Ingersoll, 124 B.R. 116 (M.D.Fla. 1991).\nThere is no question that the initial filling was devoid of any of the required information, most notably, the earnings of the Debtor during the relevant years. The fact that Schedule J was in blank does not warrant the inference that it was an affirmative denial that the Debtor in fact did not have income in the relevant years. The deficient filing was no doubt attributable of the attorney's haste to file the Petition and certainly not attributed to the Debtor's intention to knowingly make a false statement that he had no income. This Court is satisfied that the same comments are equally applicable to Schedule I, which was also filed in blank.\nWhile it is true that, the original information furnished by the Debtor was untrue and might be sufficient to support the claim of false oath, it is contended that the amendment cured the initial defects. It is well established that if the original information is tainted and would be a sufficient bases to find false oath a subsequent amendment would not cleanse the initial taint. Moreover, the Debtor's amendments equally failed to disclose what interest, *668 if any, he has in Carson City Car & Truck Center, Inc., and the fact of the matter is, that he failed to disclose that he had been engaged in the business when he answered question 18 of the Financial Statement of Affairs. This record leaves no doubt that the Debtor was less than candid and certainly did not furnish a full and honest disclosure of the information relevant for the administration of his estate. It is evident from the foregoing, that the Debtor did not come to this Court with a candor and an intention to make full disclosures of all the information relevant to the administration to this estate.\nIn addition, the U.S. Trustee charges that the Debtor committed False Oath in his original and Amended Statement of Financial Affairs by failing to disclose the gifts and transfers to his wife and his interest in Carson City Car & Truck Center, Inc. These so-called gifts include payments by the Debtor on the note, which was secured by the family residence that was owned solely by the Debtor's wife.\nIt is clear to this Court that the Debtor's failure to disclose his interest in Carson City Car & Truck Center, Inc. in the original and in the Amended Statement of Financial Affairs were made knowingly and the Debtor knew, or should have know that the information that he failed to furnish was tantamount to false statement under oath and was material to his case. These omissions were both knowingly false and material to the case. In sum, for the reasons stated, this Court is satisfied that Count I of the U.S. Trustee's Objection to Discharge is well-taken and will be sustained.\n\nCount 1I-11 U.S.C. § 727(a)(2)(A) — Fraudulent Transfer\nThe second basis urged by the Trustee to deny discharge is based on Section 727(a)(2)(A) of the Bankruptcy Code. The factual basis of this claim is the Trustee's allegation that the Debtor transferred property within one year preceding the commencement of the case with the specific intent to hinder, delay or defraud creditors (emphasis supplied). The alleged transfer was the deposit into the Debtor's joint checking account, a common practice between married couples and certainly a fraudulent transfer. The fact that the funds in the joint account were used to pay for properties owned by Mrs. Gardner could no doubt be the basis for a claim to establish that the properties acquired by Mrs. Gardner, paid for by the Debtor are in fact the properties of the Debtor and, therefore, would technically be subject to administration in a Chapter 7 case. However, this is not the matter before this Court, and the claim asserted in Count II, the fraudulent transfer claim must be viewed within the framework for the ground to deny the discharge. There is no evidence in this record, that, even assuming there was a transfer from the Debtor to Mrs. Gardner, there was a specific intent to hinder, delay or defraud the creditors. This record is devoid of any evidence that the Debtor was being sued, faced imminent entry of a judgment, or loss of any assets which prompted the transfer which was done for the purpose of hindering, delaying or defrauding or protecting himself from creditors.\nBased on the foregoing, this Court is satisfied that the U.S. Trustee met its burden to establish Count I of its Complaint regarding False Oath by a preponderance of the evidence and, therefore, Count I is sustained. The U.S. Trustee failed to carry its burden as to Count II for Fraudulent Transfer, and, therefore, Count II is overruled. This being the case, the Debtor's discharge is denied.\nA separate final judgment shall be entered in accordance with the foregoing.\n\n\n*669 FINAL JUDGMENT\n\nTHIS CAUSE came on for consideration upon the Court's own Motion for the purpose of entering a Final Judgment in the above-captioned adversary proceeding. The Court has considered the record and finds that this Court has entered Findings of Fact, Conclusions of Law and Memorandum Opinion. Therefore, there is no reason why a final judgment should not be entered on the findings.\nAccordingly, it is\nORDERED, ADJUDGED AND DECREED that Final Judgment be, and the same is hereby, entered in favor of the Plaintiff, the United States Trustee and against the Defendant, James K. Gardner with respect to Count I of the U.S. Trustee's Complaint Objecting to Discharge pursuant to 11 U.S.C. § 727(a)(4)(A), and the discharge of the Debtor, James K. Gardner is denied. It is further\nORDERED, ADJUDGED AND DECREED that Final Judgment be, and the same is hereby entered in favor of the Defendant, James K. Gardner against the Plaintiff, the United States Trustee with respect to Count II of the Unites States Trustee's Complaint Objecting to Discharge pursuant to 11 U.S.C. § 727(a)(2)(A). It is further\nORDERED, ADJUDGED AND DECREED that the Complaint Objecting to Discharge be, and the same is hereby dismissed with prejudice.\n", "ocr": false, "opinion_id": 1541235 } ]

[ "591 F.2d 1339" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/591/591.F2d.1339.78-1273.html", "author_id": null, "opinion_text": "591 F.2d 1339\n Irvinv.McLean Trucking Company, Inc.\n No. 78-1273\n United States Court of Appeals, Fourth Circuit\n 1/25/79\n \n 1\n M.D.N.C.\n \n AFFIRMED\n ", "ocr": false, "opinion_id": 363363 } ]

[ "2013 Ohio 4913" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 9, "download_url": "http://www.sconet.state.oh.us/rod/docs/pdf/8/2013/2013-ohio-4913.pdf", "author_id": 8067, "opinion_text": "[Cite as CitiMortgage, Inc. v. Guarnieri, 2013-Ohio-4913.]\n\n\n Court of Appeals of Ohio\n EIGHTH APPELLATE DISTRICT\n COUNTY OF CUYAHOGA\n\n\n\n JOURNAL ENTRY AND OPINION\n No. 99504\n\n\n\n CITIMORTGAGE, INC.\n PLAINTIFF-APPELLEE\n\n vs.\n\n WILLIAM T. GUARNIERI, ET AL.\n DEFENDANTS-APPELLANTS\n\n\n\n\n JUDGMENT:\n AFFIRMED\n\n\n Civil Appeal from the\n Cuyahoga County Court of Common Pleas\n Case No. CV-704677\n\n\n BEFORE: Celebrezze, P.J., E.A. Gallagher, J., and Blackmon, J.\n\n RELEASED AND JOURNALIZED: November 7, 2013\n\fFOR APPELLANT\n\nWilliam T. Guarnieri, pro se\n10711 Greenhaven Parkway\nBrecksville, Ohio 44141\n\n\nFOR APPELLEES\n\nAttorneys for Citimortgage, Inc.\nEdward G. Bohnert\nReimer Arnovitz Chernek & Jeffrey Co., L.P.A.\n30455 Solon Road\nSolon, Ohio 44139\nHarry W. Cappel\nJohn C. Greiner\nGraydon Head & Ritchey, L.L.P.\n1900 Fifth Third Center\n511 Walnut Street\nCincinnati, Ohio 45202\n\nAttorneys for State of Ohio, Bureau of Employment Services\nMike DeWine\nOhio Attorney General\n30 East Broad Street, 17th Floor\nColumbus, Ohio 43215\n\nDonn D. Rosenblum\nAssistant Attorney General\nCollections Enforcement Section\n150 East Gay Street, 21st Floor\nColumbus, Ohio 43215\n\nFor Theresa L. Guarnieri\nTheresa L. Guarnieri, pro se\n370 South Green Road\nSouth Euclid, Ohio 44121\n\fFRANK D. CELEBREZZE, JR., P.J.:\n\n {¶1} This cause came to be heard on the accelerated calendar pursuant to App.R.\n\n11.1 and Loc.R. 11.1.\n\n {¶2} Defendant-appellant, William T. Guarnieri, appeals the entry of summary\n\njudgment in favor of plaintiff-appellee, CitiMortgage, Inc., in its foreclosure action.\n\nAfter a careful review of the record and relevant case law, we affirm the trial court’s\n\njudgment.\n\n I. Factual and Procedural History\n\n {¶3} On April 14, 2008, appellant executed a note in the amount of $135,000 in\n\nfavor of Ohio U.S. Mortgage Corp. The note was secured by a mortgage on the property\n\nlocated at 10711 Greenhaven Parkway, Brecksville, Ohio, in favor of Mortgage\n\nElectronic Registration Systems, Inc. (“MERS”), as nominee for Ohio U.S. Mortgage\n\nCorp. and its successors, executed on the same day. In December 2008, appellant\n\ndefaulted on his repayment obligations as the borrower under the note and mortgage.\n\n {¶4} On September 14, 2009, MERS assigned the mortgage to CitiMortgage. As\n\nprovided in the note and mortgage, CitiMortgage exercised its option to accelerate the\n\nbalance due on the note. The principal due was $134,461.04 plus interest from\n\nNovember 1, 2008.\n\n {¶5} On September 22, 2009, CitiMortgage filed an action against appellant\n\nseeking judgment on the note and foreclosure on the mortgage. CitiMortgage attached a\n\ncopy of the mortgage and note to its complaint. Attached to the note is an allonge\n\fcontaining an executed specific endorsement from the original lender, Ohio U.S.\n\nMortgage Corp., to CitiMortgage.\n\n {¶6} On August 31, 2010, CitiMortgage moved for summary judgment arguing\n\nthat, as holder of the note and assignee of the mortgage at issue, it was entitled to\n\njudgment as a matter of law. Following numerous attempts to resolve this matter in\n\nmediation, appellant was granted leave to file a brief in opposition to CitiMortgage’s\n\nmotion for summary judgment on February 7, 2012. On January 17, 2013, the magistrate\n\nissued its decision granting summary judgment in favor of CitiMortgage. On February\n\n11, 2013, the magistrate’s decision was adopted in full by the common pleas court.\n\n {¶7} Appellant now brings this timely appeal, pro se, raising one assignment of\n\nerror for review, which contains two separate issues:\n\n I. The Cuyahoga County Court of Common Pleas erred in granting\n summary judgment where there remained issues of fact. There was\n insufficient testimony (evidence), to establish how the Plaintiff obtained the\n promissory note and mortgage and there was pending discovery requests\n directed to the Plaintiff.\n\n II. Law and Analysis\n\n A. Summary Judgment\n\n {¶8} Appellant first argues that the trial court erred in granting summary judgment\n\nin favor of CitiMortgage.\n\n {¶9} We review summary judgment rulings de novo, applying the same standard as\n\nthe trial court. Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105, 671 N.E.2d 241\n\f(1996). We accord no deference to the trial court’s decision and independently review\n\nthe record to determine whether summary judgment is appropriate.\n\n {¶10} Under Civ.R. 56, summary judgment is appropriate when (1) no genuine\n\nissue as to any material fact exists, (2) the party moving for summary judgment is entitled\n\nto judgment as a matter of law, and (3) viewing the evidence most strongly in favor of the\n\nnonmoving party, reasonable minds can reach only one conclusion that is adverse to the\n\nnonmoving party.\n\n {¶11} On a motion for summary judgment, the moving party carries an initial\n\nburden of setting forth specific facts that demonstrate its entitlement to summary\n\njudgment. Dresher v. Burt, 75 Ohio St.3d 280, 292-293, 662 N.E.2d 264 (1996). If the\n\nmoving party fails to meet this burden, summary judgment is not appropriate; if the\n\nmoving party meets this burden, summary judgment is appropriate only if the nonmoving\n\nparty fails to establish the existence of a genuine issue of material fact. Id. at 293.\n\n {¶12} To properly support a motion for summary judgment in a foreclosure action,\n\na plaintiff must present “evidentiary quality materials” establishing: (1) that the plaintiff\n\nis the holder of the note and mortgage, or is a party entitled to enforce the instrument; (2)\n\nif the plaintiff is not the original mortgagee, the chain of assignments and transfers; (3)\n\nthat the mortgagor is in default; (4) that all conditions precedent have been met; and (5)\n\nthe amount of principal and interest due. See, e.g., United States Bank, N.A. v. Adams,\n\n6th Dist. Erie No. E-11-070, 2012-Ohio-6253, ¶ 10.\n\f {¶13} In challenging the trial court’s judgment, appellant’s argument focuses\n\nsolely on his contention that the affidavit attached to CitiMortgage’s summary judgment\n\nmotion “failed to demonstrate that the [relevant] mortgage and promissory note were\n\nassigned [to CitiMortgage].” In support of his argument, appellant relies on First Union\n\nNatl. Bank v. Hufford, 146 Ohio App.3d 673, 767 N.E.2d 1206 (3d Dist.2001). In\n\nHufford, the Third District found that summary judgment in favor of plaintiff, First Union\n\nNational Bank, was improper based on its failure to present documentation evidencing\n\nthat it had been assigned the note and mortgage from the original payee on the note and\n\nlender on the mortgage, First Union Home Equity Bank, N.A., Charlotte, North Carolina.\n\nThe court explained that, “other than [First Union National Bank’s] inferences and bald\n\nassertions, the record contains no clear statement or documentation * * * of a transfer of\n\nthe note or mortgage [from the original lender].” For the following reasons, we find the\n\nevidentiary material submitted in the case at hand to be distinguishable from those\n\nmaterials discussed in Hufford.\n\n {¶14} In the case sub judice, CitiMortgage’s motion for summary judgment was\n\nsupported by the affidavit of Dan Berra, a foreclosure analyst for CitiMortgage. In his\n\naffidavit, Berra stated he had personal knowledge of appellant’s loan account and that the\n\nattached note and mortgage were true and accurate copies of the original instruments.\n\nWhile Berra does not specifically aver that the mortgage and note were assigned to\n\nCitiMortgage, the attached copies of the note, the mortgage, and the recorded assignment\n\nof the mortgage were sufficient to demonstrate that CitiMortgage was assigned the\n\fmortgage on September 14, 2009, and subsequently recorded the assignment with the\n\nCuyahoga County Recorder’s office on September 18, 2009. Furthermore, the allonge\n\nattached to the note contained a specific endorsement from Ohio U.S. Mortgage Corp. to\n\nCitiMortgage, thereby evidencing the transfer of the note to CitiMortgage prior to the\n\ntime the complaint for foreclosure was filed in this matter.\n\n {¶15} Thus, the evidence offered by CitiMortgage demonstrates a clear chain of\n\nassignments from the original lender, Ohio U.S. Mortgage Corp., to CitiMortgage and\n\nestablished CitiMortgage’s right to enforce the note as the holder of the instrument. See\n\nR.C. 1303.31. Accordingly, unlike the evidentiary material presented in Hufford, the\n\ndocumentary evidence attached to CitiMortgage’s motion for summary judgment\n\nsufficiently evidenced the assignment of the mortgage and note to CitiMortgage. See\n\nCountrywide Home Loans Servicing, L.P. v. Shifflet, 3d Dist. Marion No. 9-09-31,\n\n2010-Ohio-1266, ¶ 12-16.\n\n {¶16} Because appellant failed to present any evidence raising genuine issues of\n\nmaterial fact pertaining to the elements necessary for a successful foreclosure action, we\n\nfind the trial court did not err in granting summary judgment in favor of CitiMortgage.\n\n B. Civ.R. 56(F)\n\n {¶17} Appellant next argues that the trial court erred in granting summary\n\njudgment in favor of CitiMortgage while requests for discovery were pending.\n\n {¶18} When a party finds itself having to respond to a summary judgment motion\n\nbefore adequate discovery is completed, the proper remedy is to move the trial court to\n\fdelay judgment under Civ.R. 56(F). Maschari v. Tone, 103 Ohio St.3d 411,\n\n2004-Ohio-5342, 816 N.E.2d 579; Drake Constr. Co. v. Kemper House Mentor, Inc., 170\n\nOhio App.3d 19, 2007-Ohio-120, 865 N.E.2d 938 (11th Dist.); Alexander v. Tullis, 11th\n\nDist. Portage No. 2005-P-0031, 2006-Ohio-1454 (stating that when discovery is not yet\n\ncomplete and a party files a motion for summary judgment, the nonmoving party’s\n\nremedy is to move the trial court to delay judgment under Civ.R. 56(F)). When a party\n\nfails to file a motion pursuant to Civ.R. 56(F), that party fails to preserve its right on\n\nappeal, and a trial court does not err in determining the summary judgment motion.\n\nTaylor v. XRG, Inc., 10th Dist. Franklin No. 06AP-839, 2007-Ohio-3209, ¶ 17;\n\nMaschari, supra (upholding decision to grant summary judgment prior to the completion\n\nof discovery where the nonmoving party failed to file a Civ.R. 56(F) motion for a\n\ncontinuance); Tullis, supra (upholding the trial court’s grant of summary judgment where\n\nthe nonmoving party failed to file a Civ.R. 56(F) motion).\n\n {¶19} The record here is devoid of any indication that appellant attempted to\n\ncomply with Civ.R. 56(F); nor does his status as a pro se litigant excuse him from\n\ncomplying with the same rules with which represented parties must comply. Because\n\nappellant did not avail himself of the remedies Civ.R. 56(F) provides, any discovery he\n\nlacked does not present a basis to reverse the trial court’s judgment.\n\n {¶20} Accordingly, appellant’s assignment of error is overruled.\n\n {¶21} Judgment affirmed.\n\n It is ordered that appellee recover from appellant costs herein taxed.\n\f The court finds there were reasonable grounds for this appeal.\n\n It is ordered that a special mandate be sent to said court to carry this judgment into\n\nexecution.\n\n A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of\n\nthe Rules of Appellate Procedure.\n\n\n\nFRANK D. CELEBREZZE, JR., PRESIDING JUDGE\n\nEILEEN A. GALLAGHER, J., and\nPATRICIA A. BLACKMON, J., CONCUR\n\f", "ocr": false, "opinion_id": 2702183 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 2, "download_url": "http://www.uscfc.uscourts.gov/sites/default/files/VOWELL.HORVATH112613.pdf", "author_id": null, "opinion_text": " In the United States Court of Federal Claims\n No.02-1064V\n Filed: November 26, 2013\n Not to be Published\n\n****************************\nMICHELE HORVATH and *\nJEFFREY HORVATH, as the Parents *\nand Natural Guardians of *\nJOSHUA HORVATH, a minor, *\n *\n Petitioners, * Autism; Attorneys’ Fees and Costs\n v. *\n *\nSECRETARY OF HEALTH *\nAND HUMAN SERVICES, *\n *\n Respondent. *\n *\n****************************\n\n DECISION AWARDING ATTORNEYS’ FEES AND COSTS1\n\n On September 12, 2012, petitioners filed a motion for attorneys’ fees and costs in\nthis case. Respondent opposed the motion, arguing that fees and costs should not be\nawarded in untimely filed cases. Because this issue was pending before the U.S.\nSupreme Court, the special masters deferred ruling on fee applications in approximately\n1,000 Omnibus Autism Proceedings (“OAP”) cases. Thus, a ruling on petitioners’\nmotion in this case was deferred.\n\n Following the Supreme Court’s decision,2 respondent’s counsel and petitioners’\ncounsel from the five law firms with the greatest number of pending motions discussed\n1\n Because this unpublished decision contains a reasoned explanation for the action in this\ncase, I intend to post this decision on the United States Court of Federal Claims' website, in\naccordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899,\n2913 (codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule\n18(b), a party has 14 days to identify and move to delete medical or other information, that\nsatisfies the criteria in 42 U.S.C. § 300aa-12(d)(4)(B). Further, consistent with the rule\nrequirement, a motion for redaction must include a proposed redacted decision. If, upon review,\nI agree that the identified material fits within the requirements of that provision, I will delete such\nmaterial from public access.\n2\n The Supreme Court held that a “petition found to be untimely may qualify for an award of\nattorney's fees if it is filed in good faith and there is a reasonable basis for its claim.” Sebelius v.\nCloer, 133 S.Ct. 1886, 1896-97 (2013).\n\fa procedure to avoid the lengthy litigation required to assess whether each case was\nfiled in good faith and with a reasonable basis. Respondent will withdraw her objection\nto the payment of attorneys’ fees and costs in cases which were filed when the minor\nchild was 78 months of age or younger with two caveats.3 Petitioners’ counsel will\nwithdraw all motions for fees and costs in cases which were filed when the minor child\nwas older than 78 months of age or which fall under either caveat. The procedure\napplies only to cases in the OAP and should not be construed as evidence that the\nparties are abandoning any legal arguments they may make in other cases.\n\n Petitioners’ counsel in this case has decided to follow this procedure. Because\nthe case was filed when the minor child was 78 months of age or younger and does not\nfall under either of respondent’s caveats, respondent has withdrawn her objection to\npayment of attorneys’ fees and costs. Additionally, respondent does not oppose the\namount of fees and costs requested.\n\n Petitioners seek attorneys’ fees and costs in the amount of $11,586.43. In lieu of\nfiling a Vaccine General Order #9 statement, petitioners’ counsel represents that he will\nreimburse petitioners any costs that petitioners personally incurred that are\ncompensable under § 15 (e)(1).\n\n Pursuant to §15(e), I hereby award a lump sum of $11,586.434 to be paid in\nthe form of a check payable jointly to the petitioners and petitioners’ counsel,\nDouglas & London, P.C.\n\n In the absence of a timely-filed motion for review filed pursuant to Appendix B of\nthe Rules of the U.S. Court of Federal Claims, the Clerk of the court shall enter\njudgment in accordance herewith.5\n\nIT IS SO ORDERED. s/Denise K. Vowell\n Denise K. Vowell\n Chief Special Master\n\n3\n The first caveat is that respondent will continue to object in any case where the filed medical\nrecords show that there was a diagnosis outside the statute of limitations. The second caveat\napplies to those cases, in which the claim lacked a reasonable basis for reasons unrelated to\ntimely filing. For example, if the minor vaccinee received only a hepatitis B vaccine at birth and\nno additional vaccines were administered, respondent may continue to object because the\nperiod between vaccination and onset of symptoms at 15 months of age is unreasonable.\n4\n This amount is intended to cover all legal expenses incurred in this matter. This award\nencompasses all charges by the attorney against a client, “advanced costs” as well as fees for\nlegal services rendered. Furthermore, § 15(e)(3) prevents an attorney from charging or\ncollecting fees (including costs) that would be in addition to the amount awarded herein. See\ngenerally Beck v. Sec’y, HHS, 924 F.2d 1029 (Fed. Cir.1991).\n5\n Entry of judgment can be expedited by each party’s filing of a notice renouncing the right to\nseek review. See Vaccine Rule 11(a).\n\n\n 2\n\f", "ocr": false, "opinion_id": 2646633 } ]

[ "603 F.2d 403" ]

[ { "author_str": "Mansfield", "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F2/603/603.F2d.403.79-2036.1072.html", "author_id": null, "opinion_text": "603 F.2d 403\n Victor COLON, Petitioner-Appellant,v.Walter FOGG, Superintendent, Greenhaven CorrectionalFacility, Respondent-Appellee.\n No. 1072, Docket 79-2036.\n United States Court of Appeals,Second Circuit.\n Argued May 23, 1979.Decided Aug. 1, 1979.\n \n David J. Gottlieb, New York City (The Legal Aid Society, Federal Defender Services Unit, New York City), for petitioner-appellant.\n Charles A. Bradley, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen. of the State of New York, George D. Zuckerman, Asst. Sol. Gen., State of New York, New York City, of counsel), for respondent-appellee.\n Before LUMBARD, MANSFIELD and GURFEIN, Circuit Judges.\n MANSFIELD, Circuit Judge:\n \n \n 1\n Victor Colon appeals from a judgment of the United States District Court for the Southern District of New York entered on February 23, 1979, after an evidentiary hearing before Gerard L. Goettel, Judge, dismissing Colon's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Appellant's sole claim on appeal is that he was denied effective assistance of counsel at his state trial because he and his co-defendant were jointly represented by the same counsel. We agree and reverse.\n \n \n 2\n Colon and his co-defendant, Mariano Salomon, were convicted in June, 1974, in New York state court after a jury trial for possession and sale of cocaine. The evidence at trial consisted primarily of the testimony of an undercover police officer. The officer had arranged for the purchase of the cocaine in a series of telephone calls to appellant Colon, some of which were recorded and the tapes admitted into evidence at trial. Colon and the officer then met in a Bronx hardware store and waited for the arrival of Salomon, who eventually appeared carrying a bag containing cocaine. Salomon set the bag down and announced \"I have nothing to do with this deal.\" The officer checked the powder to be sure it was cocaine and weighed it in the hardware store. Then the officer suggested that Colon accompany him to his car to get the money, which Colon did. Colon was arrested after the two men had left the store; Salomon was subsequently arrested in the hardware store.\n \n \n 3\n At trial, both Salomon and Colon were represented by the same retained attorney, who was being paid solely by Salomon. Neither defendant called any witnesses, and defense counsel waived an opening statement. Through cross-examination of the State's witnesses and summation to the jury, defense counsel urged that Colon was acting solely as an agent of the buyer, which under New York law is a valid defense to a charge of the illegal sale of narcotics. See People v. Roche, 45 N.Y.2d 78, 407 N.Y.S.2d 682, 379 N.E.2d 208 (1978); People v. Chong, 45 N.Y.2d 64, 407 N.Y.S.2d 674, 379 N.E.2d 200 (1978); People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427 (2d Dept. 1962), Aff'd., 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492 (1963). The defense theory urged on behalf of Salomon was that he was merely an innocent bystander.\n \n \n 4\n The jury found both defendants guilty. Both convictions were affirmed by the Appellate Division without opinion, People v. Salomon, 50 A.D.2d 1103, 377 N.Y.S.2d 347 (1st Dept. 1975); People v. Colon, 51 A.D.2d 1104, 381 N.Y.S.2d 570 (1st Dept. 1965), and both defendants were denied leave to appeal to the New York Court of Appeals.\n \n \n 5\n In early 1976 Salomon filed his pro se petition for a writ of habeas corpus, in the District Court for the Southern District of New York, raising a Sixth Amendment claim along with other issues. In July 1976 his petition was denied, without an evidentiary hearing, by Judge Pollack of that court, who found that Salomon had failed to show any prejudice from the joint representation. Salomon then petitioned this court for a certificate of probable cause under 28 U.S.C. § 2253, for leave to proceed in Forma pauperis on appeal, and for appointment of counsel. In March, 1977, we vacated the judgment of the district court and remanded for consideration of the question of waiver. The district court then appointed counsel for Salomon and held an evidentiary hearing. Judge Pollack again denied the petition for a writ of habeas corpus, finding that Salomon had failed to demonstrate that the joint representation was \"conducive to or created or resulted in any conflict of interest or prejudice.\" Salomon v. LaVallee, 575 F.2d 1051, 1053 (2d Cir. 1978) (quoting from the finding of the district court). The issue of waiver was not reached. On appeal this court held that there was not a sufficient inquiry at the state trial into the joint representation issue and therefore remanded for \"a reconsideration of the issue of prejudice, with the burden this time on the state to show its absence and not . . . on (Salomon) to demonstrate its existence.\" Salomon v. LaVallee, supra, 575 F.2d at 1055.\n \n \n 6\n Appellant Colon filed his pro se petition for a writ of habeas corpus in October, 1976, while Salomon's first appeal to this court was still pending.1 Colon did not expressly assert a claim that the joint representation had denied him effective assistance of counsel. Judge Goettel appointed counsel for Colon, and on August 5, 1977, with the State's express consent, an amended petition on behalf of Colon was filed clearly asserting the claim now before us on appeal. Judge Goettel held Colon's amended petition in abeyance since at that time Salomon's second appeal to this court was pending. Following our second remand, the Salomon and Colon petitions were joined for an evidentiary hearing before Judge Goettel.\n \n \n 7\n At the evidentiary hearing, the State called former Assistant District Attorney Scotto (the prosecutor at the original trial), A. Matthew Broughton (an associate of the defense counsel at trial), Colon and Salomon. In addition, the State submitted an affidavit from the state trial judge, transcripts of the pre-trial proceedings in the state court, and the testimony of the defense counsel as given at the initial evidentiary hearing held before Judge Pollack on Salomon's petition. The State argued that Colon and Salomon had waived the joint representation claim prior to trial and that there had been no prejudice to either petitioner from the joint representation. After the evidentiary hearing had concluded, in October 1978 the State moved to dismiss Colon's petition for failure to exhaust state remedies on the claim of ineffective assistance of counsel.\n \n \n 8\n Judge Goettel denied the State's motion to dismiss, which he noted was made \"somewhat incredibly after over two years of reluctant litigation.\" Colon had not explicitly raised the ineffective assistance of counsel claim in his state appeal, although he had challenged his joint trial on constitutional grounds. However, co-defendant Salomon, whose state appeal had been decided first, had explicitly raised the joint representation issue in his state appeal, and the Appellate Division had affirmed his conviction without opinion. Judge Goettel concluded that \"there is no reason to expect that the state courts would have altered their view of the case for Colon's benefit.\" In addition, Judge Goettel found that \"the State's extensive delay in asserting the exhaustion ground would itself be sufficient to support a discretionary decision not to dismiss on that ground.\" Judge Goettel concluded that in light of the State's prior consent to the amendment of Colon's petition to assert the ineffective assistance of counsel claim, \"the State's motion must be considered close to frivolous.\"\n \n \n 9\n On the issue of waiver, Judge Goettel noted that this court had already held in Salomon v. LaVallee, supra, 575 F.2d at 1055, that there had been no inquiry by the state trial judge of Salomon himself on the issue of joint representation or on the risk of a conflict of interest, and that this represented the law of the case as to Salomon. \"(B)ased on the evidence presented in this proceeding,\" Judge Goettel found that there was not a showing \"that each of the petitioners was advised explicitly of the inherent potential for conflict and of the possibility that separate counsel could be appointed, or that they, with this knowledge, willingly consented to be jointly represented.\" The burden was therefore on the State to show a lack of prejudice from the joint representation. Judge Goettel concluded that the State had met that burden and that there was no \"real, specific or material prejudice\" from the joint representation. Colon and Salomon have separately appealed. Only Colon's appeal is before this court at the present time.2\n \n DISCUSSION\n \n 10\n We agree with the district court that appellee's motion to dismiss Colon's petition for failure to exhaust state remedies, an argument also pressed before this court, is \"close to frivolous.\" The summary rejection of co-defendant Salomon's identical ineffective assistance of counsel claim by the Appellate Division prior to Colon's state appeal demonstrates that it would have been futile for Colon to have raised the claim on his direct appeal, which relieved him of the necessity of pursuing state remedies. Stubbs v. Smith,533 F.2d 64, 68-69 (2d Cir. 1976). In addition, the State consented to the amendment of the petition to add a claim of ineffective assistance of counsel and did not raise the exhaustion issue until after the evidentiary hearing and some fourteen months after the amendment of the petition. Cf. United States ex rel. Graham v. Mancusi, 457 F.2d 463, 467-68 (2d Cir. 1972).\n \n \n 11\n Judge Goettel's finding that Colon and Salomon were not explicitly and directly advised by the state trial judge of the inherent potential for conflict in joint representation and of the possibility of appointment of separate counsel, and that therefore neither defendant knowingly consented to joint representation, is adequately supported by the record. Although it appears that the state trial judge did discuss the possibility of a conflict of interest in the joint representation with an associate of defense counsel, there was conflicting evidence on whether the potential hazards were ever discussed with Colon and Salomon personally. Judge Goettel's resolution of that conflicting testimony after seeing and hearing the witnesses is not clearly erroneous. See also Salomon v. LaVallee, supra, 575 F.2d at 1055.\n \n \n 12\n In order to assure a jointly-represented defendant of the effective assistance of counsel guaranteed by the Sixth Amendment a trial judge must explore with him personally the inherent potential for a conflict of interest in the joint representation. Salomon v. LaVallee, supra, 575 F.2d at 1054; United States v. Carrigan, 543 F.2d 1053, 1055 (2d Cir. 1976); United States v. Mari, 526 F.2d 117, 119 (2d Cir. 1975), Cert. denied, 429 U.S. 941, 97 S.Ct. 359, 50 L.Ed.2d 311 (1976); United States v. DeBerry, 487 F.2d 448, 453 (2d Cir. 1973); People v. Gomberg, 38 N.Y.2d 307, 313-14, 379 N.Y.S.2d 769, 775, 342 N.E.2d 550, 554 (1975). See also Glasser v. United States,315 U.S. 60, 71, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Kaplan v. Bombard, 573 F.2d 708, 716 (2d Cir.) (Mansfield, J., concurring). Cf. United States v. Alberti, 470 F.2d 878, 881-82 (2d Cir. 1972) (defense counsel had earlier represented one of the Government's witnesses in connection with a guilty plea to the same crime), Cert. denied, 411 U.S. 919, 93 S.Ct. 1557, 36 L.Ed.2d 311 (1973). Such an inquiry is usually the only practical method of ascertaining whether the joint representation may prejudice the defendant and, if so, whether he nevertheless desires to make an informed waiver of his right to independent representation. For these reasons we have held that in the absence of such an inquiry the burden shifts to the State to prove that the petitioners were not prejudiced by the joint representation. Kaplan v. Bombard, supra, 573 F.2d at 714 n.7 (2d Cir. 1978); United States v. Carrigan, supra, 543 F.2d at 1056; United States v. DeBerry, supra, 487 F.2d at 453 n.6. See also Salomon v. LaVallee, supra, 575 F.2d at 1055-56 (Mansfield, J., concurring in part and dissenting in part) (by implication). If the defendant's Sixth Amendment right is to be effective, such a course is dictated as a corollary of his constitutional right.\n \n \n 13\n The State has failed completely to sustain its burden in this case. Colon's claim is not based upon a speculative, hypothetical or far-fetched strategy that might have been adopted by separate counsel without any possible chance of success in the face of overwhelming proof, see e. g., United States v. DeFillipo, 590 F.2d 1228, 1237-38 (2d Cir. 1979); Smith v. Regan, 583 F.2d 72 (2d Cir. 1978). Instead this is a case \"where joint counsel was placed in the dilemma of having either to pursue or abandon a defense or tactic that would help one defendant but hurt the other,\" Smith v. Regan, supra, 583 F.2d at 77, citing Glasser v. United States, supra, and United States v. Carrigan, supra.\n \n \n 14\n The conflict of interest was quite specific arising out of the presentation of plainly conflicting defenses. The defense theory urged at the trial for Colon was that he was the agent of the buyer;3 the defense urged for Salomon was that he was an innocent bystander. For counsel to press Colon's argument vigorously it would be necessary to portray Salomon as the seller or at least the representative of the seller, but that would plainly conflict with Salomon's contention that he was an innocent bystander. On the other hand, a vigorous presentation of Salomon as an innocent bystander would have required emphasis on Salomon's limited participation, which would necessarily have accented Colon's participation as the likely seller; in fact, in summation defense counsel did draw the jury's attention to the fact that it was Colon, not Salomon, who accompanied the agent to his car to get the money. In addition, if Salomon was an innocent bystander, the only person left at the scene of the crime to represent the seller was Colon; such an assertion is in direct conflict with Colon's defense theory.\n \n \n 15\n Colon was entitled to \"zealous and independent counsel.\" United States v. Carrigan, supra, 543 F.2d at 1057. As we have noted before, \"(t)rial counsel could not Possibly have given his full measure of professional devotion to clients presenting inconsistent defenses.\" Id. (emphasis supplied). See also Holloway v. Arkansas, 435 U.S. 475, 489-90, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978) (\"Joint representation of conflicting interests is suspect because of what it tends to prevent the attorney from doing.\"); Salomon v. LaVallee, supra, 575 F.2d at 1056 (Mansfield, J., concurring in part and dissenting in part). Counsel representing Salomon and in fact being paid solely by Salomon could not assure Colon of the substantial right to full and vigorous representation without violating his duty to Salomon.4 Such a fundamental conflict in defense strategies actually used at trial constitutes a sufficient showing of \"some specific instance of prejudice, some real conflict of interest, resulting from a joint representation,\" United States v. Carrigan, supra, 543 F.2d at 1055, quoted in Kaplan v. Bombard, supra, 573 F.2d at 712 and Salomon v. LaVallee, supra, 575 F.2d at 1054, regardless of whether a jury might have reached the same result if each defendant had been separately represented. \"The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.\" Glasser v. United States, Supra, 315 U.S. at 76, 62 S.Ct. at 467, quoted in Holloway v. Arkansas, supra, 435 U.S. at 488, 98 S.Ct. 1173. Colon was therefore denied his Sixth Amendment right to the undivided loyalty of his counsel and uninhibited representation at trial.5\n \n \n 16\n Accordingly, we reverse the judgment below and remand to the district court for entry of an order to the effect that Colon be released from custody pursuant to a writ of habeas corpus unless he is retried by the State within a reasonable period of time.\n \n \n \n 1\n The State permitted three successive deadlines to pass without filing an answer to the original petition for a writ of habeas corpus. On February 3, 1977, Judge Goettel found the respondent to be in default and directed the clerk of the court to issue the writ of habeas corpus. The State moved to vacate its default in February, 1977, and the motion was granted in April, 1977\n \n \n 2\n Salomon's appeal has not yet been scheduled, pending appointment of new counsel on appeal\n \n \n 3\n Under N.Y. law only the seller and those acting for him may be convicted of unlawfully selling narcotics. See People v. Lindsey, 16 A.D.2d 805, 228 N.Y.S.2d 427 (2d Dept. 1962), Aff'd., 12 N.Y.2d 958, 238 N.Y.S.2d 956, 189 N.E.2d 492 (1963)\n \n \n 4\n The district court acknowledged that \"viewed from an overall perspective, joint counsel was identifiably compromised in arguing these inconsistent factual positions to the jury.\" That defense counsel attempted to take a \"middle\" road, raising both defense theories but not pressing either to its logical extent, is demonstrated by Judge Goettel's remark that the \" 'possible prejudice' from the theoretically conflicting factual positions now purportedly seen in trial counsel's tactics Were not stressed or even articulated well.\" (emphasis supplied)\n \n \n 5\n In addition, defense counsel testified at the evidentiary hearing before Judge Pollack that Colon had wished to plead guilty but Salomon had wanted to go to trial. Here, too, Colon was specifically prejudiced by the joint representation. Although the defense counsel testified at the hearing before Judge Pollack that the State was unwilling to accept a guilty plea from only one defendant, this was not a case like Smith v. Regan, supra, 583 F.2d at 76, where \"the prosecutor had an iron-clad case against both defendants, with four witnesses who could (and did) positively identify (both defendants), prior acquaintances, as the robbers\" so that \"there was no reason for the State, once it was required to try its case against one defendant not to go on trial against both.\" Separate counsel for Colon might well have been able to bargain for a guilty plea to a lesser offense in exchange for Colon's testimony against Salomon at trial; obviously joint counsel could not even make such an offer without violating his duty to Salomon\n \n \n ", "ocr": false, "opinion_id": 368865 } ]

[ "830 P.2d 188" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\n830 P.2d 188 (1992)\nJohn L. DISMUKE and Davina C. Dismuke, Appellees,\nv.\nAlbert T. CSEH and Judith A. Cseh, Appellants.\nNo. 69827.\nSupreme Court of Oklahoma.\nApril 28, 1992.\nMichael J. Beard, Parks & Beard, Tulsa, for appellees.\nJohn A. Burkhardt, Boone, Smith, Davis & Hurst, Tulsa, for appellants.\n*189 SIMMS, Justice.\nJohn and Davina Dismuke, plaintiffs/appellees, commenced a breach of contract action to recover proceeds promised them from the sale of real estate by Albert and Judy Cseh, defendants/appellants. The trial court entered judgment for plaintiffs and defendants appeal.\nThe contract in question dated March 6, 1981, set forth provisions for the sale by the Csehs of real estate held under contract for deed by the Dismukes. The contract stated that the house sold to the Dismukes by a contract for deed, dated April of 1980, was being put on the market by the Csehs, the record owners. Under the March, 1981 agreement, the Dismukes released any rights to the property under the contract for deed in consideration of receiving the \"benefit of the proceeds from sale of the property above a loan balance of $68,000.00.\"\nDispute arose upon defendants' remittance of considerably less proceeds from sale of the property than the plaintiffs believed the contract provided. Defendants interpreted the words \"necessary closing costs\" stated in the agreement as including many costs beyond those enumerated. Defendants deducted these amounts from the proceeds and remitted the residue to the plaintiffs.\nPlaintiffs filed suit to enforce the March, 1981 agreement and specifically its terms relating to the enumerated loan balance from which the plaintiff's benefit was to be calculated, and the enumerated \"necessary closing costs.\" Defendants contended that the loan balance set forth in the agreement was an estimate and that the parties intended that any payment to the Dismukes would be computed upon the actual loan balance, which was about $69,000.00. Additionally, the defendants denied the agreement was intended to be a release and that \"necessary closing costs\" was intended to include amounts owed to them by the Dismukes under the April, 1980 agreement. The trial court found for the plaintiffs and enforced the agreement as written.[1]\nThe Court of Appeals affirmed the trial court, but modified the judgment citing that the trial court erred in enforcing the agreement by its terms.\nThe question for review is whether the trial court's finding that the contract and its terms were enforceable as written was unsupported by the evidence. Because the Court of Appeals ignored the proper standard of review for a trial court's finding at law and because the trial court's finding is supported by the evidence, we vacate the Court of Appeals opinion and affirm the finding of the trial court.\nThe proper standard of review in an action at law is that the findings of the trial court are as binding on appeal as the verdict of a jury, and if there is competent *190 evidence to support the findings, they will not be disturbed on appeal. Tax Investments Concepts, Inc. v. McLaughlin, 670 P.2d 981, 983 (Okla. 1982).\nExecution of a written contract supersedes oral negotiations or stipulations concerning matters which precede or accompany its execution. 15 Ohio St. 1981, § 137. Also, in cases of uncertainty of terms in respect to ambiguity, the interpretation shall be in the sense in which the promisor believed, at the time of making the contract as the promisees understood it. 15 Ohio St. 1981, § 165. And, if the foregoing rule does not resolve the matter, the language of the contract should be interpreted most strongly against the party who drafted the contract. King-Stevenson Gas and Oil Co. v. Texam Oil Corp., 466 P.2d 950 (Okla. 1970). See also: 15 Ohio St. 1981, § 170.\nCourts cannot supply material stipulations or read into a contract words or terms it does not contain; the law will not make a better contract than the parties themselves have seen fit to enter into, or alter it for benefit of one party to detriment of another. King, at 954. Parole evidence is allowed where there is a latent ambiguity, but such evidence is not available to vary, modify or contradict the written provision absent fraud, accident, or proof of mistake. Mercury Investment Co. v. F.W. Woolworth Co., 706 P.2d 523 (Okla. 1985).\nIn this case, the contract of March 6, 1981, was drafted by one of the defendants, Albert Cseh. It was executed by the parties so that the property held by the Dismukes under the contract for deed could be sold to a third party. With the promised benefit of the proceeds from the sale, the contract provided adequate consideration for the release of any rights the Dismukes held under the contract for deed. That this contract could stand alone is support enough for the trial court's decision without here deciding the contract's nature as a release or novation.\nApplication of statutory law to a contract is a question of law for the trial court. This Court will not reverse the findings of the trial court for insufficient evidence if there is any evidence, including any reasonable inferences therefrom, tending to support findings at law. State, ex rel., Oklahoma Department of Highways v. Sharpensteen, 538 P.2d 1044, 1046 (Okla. 1975). Although the issue of ambiguity, a question of fact, was raised during the proceedings, the trial court did not find that an ambiguity existed as the loan balance was clearly stated at $68,000.00. In addition, the trial court did not find the amounts defendants deducted from the proceeds of sale were within the definition of \"necessary closing costs.\" Instead, the trial court enforced the contract by its terms against the drafter. This finding cannot be disturbed on appeal unless no evidence exists to support it.\nWe hold that the trial court's judgment is supported by the evidence. The Court of Appeals opinion is vacated, and the judgment of the trial court.\nAffirmed.\nOPALA, C.J., HODGES, V.C.J., and LAVENDER and KAUGER, JJ., concur.\nSUMMERS, J., concurs in result.\nHARGRAVE and ALMA WILSON, JJ., dissent.\nALMA WILSON, Justice, dissenting:\nUpon review of the appellate record, it is clear that the summary opinion of the Court of Appeals, Division 4 is correct and that certiorari was improvidently granted. Accordingly, I respectfully dissent.\nNOTES\n[1] March 6, 1981, Agreement: \"This agreement is entered into by Albert Cseh and John and Davina Dismuke, husband & wife. The following items are agreed to on the transaction involving the sale of property at 2905 So. 140 E. Ave.:\n\n1. John and Davina Dismuke now reside at 2905 So. 140 E. Ave.\n2. $7,000.00 in escrow with Albert Cseh May 17, 1980, as down payment.\n3. House was sold to John and Davina Dismuke at $75,000.00 and is now being put on the market at $88,900.00.\nThe Dismukes are to enjoy the benefits of the difference between the actual sales contract price and the loan balance of $68,000.00 less the necessary closing costs, abstracting, stamps, proration of taxes and realtor's brokerage.\n4. Refunded escrow account from Sooner Federal to be given to Albert and Judy Cseh.\" (signed by John and Davina Dismuke and by Albert Cseh).\n\n", "ocr": false, "opinion_id": 1162693 }, { "author_str": "Simms", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nSIMMS, Justice.\nJohn and Davina Dismuke, plaintiffs/ap-pellees, commenced a breach of contract action to recover proceeds promised them from the sale of real estate by Albert and Judy Cseh, defendants/appellants. The trial court entered judgment for plaintiffs and defendants appeal.\nThe contract in question dated March 6, 1981, set forth provisions for the sale by the Csehs of real estate held under contract for deed by the Dismukes. The contract stated that the house sold to the Dismukes by a contract for deed, dated April of 1980, was being put on the market by the Csehs, the record owners. Under the March, 1981 agreement, the Dismukes released any rights to the property under the contract for deed in consideration of receiving the “benefit of the proceeds from sale of the property above a loan balance of $68,-000.00.”\nDispute arose upon defendants’ remittance of considerably less proceeds from sale of the property than the plaintiffs believed the contract provided. Defendants interpreted the words “necessary closing costs” stated in the agreement as including many costs beyond those enumerated. Defendants deducted these amounts from the proceeds and remitted the residue to the plaintiffs.\nPlaintiffs filed suit to enforce the March, 1981 agreement and specifically its terms relating to the enumerated loan balance from which the plaintiffs benefit was to be calculated, and the enumerated “necessary closing costs.” Defendants contended that the loan balance set forth in the agreement was an estimate and that the parties intended that any payment to the Dismukes would be computed upon the actual loan balance, which was about $69,000.00. Additionally, the defendants denied the agreement was intended to be a release and that “necessary closing costs” was intended to include amounts owed to them by the Dis-mukes under the April, 1980 agreement. The trial court found for the plaintiffs and enforced the agreement as written.1\nThe Court of Appeals affirmed the trial court, but modified the judgment citing that the trial court erred in enforcing the agreement by its terms.\nThe question for review is whether the trial court’s finding that the contract and its terms were enforceable as written was unsupported by the evidence. Because the Court of Appeals ignored the ‘proper standard of review for a trial court’s finding at law and because the trial court’s finding is supported by the evidence, we vacate the Court of Appeals opinion and affirm the finding of the trial court.\nThe proper standard of review in an action at law is that the findings of the trial court are as binding on appeal as the verdict of a jury, and if there is competent *190evidence to support the findings, they will not be disturbed on appeal. Tax Investments Concepts, Inc. v. McLaughlin, 670 P.2d 981, 983 (Okla.1982).\nExecution of a written contract supersedes oral negotiations or stipulations concerning matters which precede or accompany its execution. 15 O.S.1981, § 137. Also, in cases of uncertainty of terms in respect to ambiguity, the interpretation shall be in the sense in which the promisor believed, at the time of making the contract as the promisees understood it. 15 O.S. 1981, § 165. And, if the foregoing rule does not resolve the matter, the language of the contract should be interpreted most strongly against the party who drafted the contract. King-Stevenson Gas and Oil Co. v. Texam Oil Corp., 466 P.2d 950 (Okla.1970). See also: 15 O.S.1981, § 170.\nCourts cannot supply material stipulations or read into a contract words or terms it does not contain; the law will not make a better contract than the parties themselves have seen fit to enter into, or alter it for benefit of one party to detriment of another. King, at 954. Parole evidence is allowed where there is a latent ambiguity, but such evidence is not available to vary, modify or contradict the written provision absent fraud, accident, or proof of mistake. Mercury Investment Co. v. F.W. Woolworth Co., 706 P.2d 523 (Okla.1985).\nIn this case, the contract of March 6, 1981, was drafted by one of the defendants, Albert Cseh. It was executed by the parties so that the property held by the Dismukes under the contract for deed could be sold to a third party. With the promised benefit of the proceeds from the sale, the contract provided adequate consideration for the release of any rights the Dismukes held under the contract for deed. That this contract could stand alone is support enough for the trial court’s decision without here deciding the contract’s nature as a release or novation.\nApplication of statutory law to a contract is a question of law for the trial court. This Court will not reverse the findings of the trial court for insufficient evidence if there is any evidence, including any reasonable inferences therefrom, tending to support findings at law. State, ex rel., Oklahoma Department of Highways v. Sharpensteen, 538 P.2d 1044, 1046 (Okla.1975). Although the issue of ambiguity, a question of fact, was raised during the proceedings, the trial court did not find that an ambiguity existed as the loan balance was clearly stated at $68,000.00. In addition, the trial court did not find the amounts defendants deducted from the proceeds of sale were within the definition of “necessary closing costs.” Instead, the trial court enforced the contract by its terms against the drafter. This finding cannot be disturbed on appeal unless no evidence exists to support it.\nWe hold that the trial court’s judgment is supported by the evidence. The Court of Appeals opinion is vacated, and the judgment of the trial court.\nAffirmed.\nOPALA, C.J., HODGES, V.C.J., and LAVENDER and KAUGER, JJ., concur.\nSUMMERS, J., concurs in result.\nHARGRAVE and ALMA WILSON, JJ., dissent.\n\n.March 6, 1981, Agreement: \"This agreement is entered into by Albert Cseh and John and Davi-na Dismuke, husband & wife. The following items are agreed to on the transaction involving the sale of property at 2905 So. 140 E. Ave.:\n1. John and Davina Dismuke now reside at 2905 So. 140 E. Ave.\n2. $7,000.00 in escrow with Albert Cseh May 17, 1980, as down payment.\n3. House was sold to John and Davina Dis-muke at $75,000.00 and is now being put on the market at $88,900.00.\nThe Dismukes are to enjoy the benefits of the difference between the actual sales contract price and the loan balance of $68,000.00 less the necessary closing costs, abstracting, stamps, proration of taxes and realtor’s brokerage.\n4.Refunded escrow account from Sooner Federal to be given to Albert and Judy Cseh.” (signed by John and Davina Dismuke and by Albert Cseh).\n\n", "ocr": false, "opinion_id": 9543533 }, { "author_str": "Wilson", "per_curiam": false, "type": "040dissent", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nALMA WILSON, Justice,\ndissenting:\nUpon review of the appellate record, it is clear that the summary opinion of the Court of Appeals, Division 4 is correct and that certiorari was improvidently granted. Accordingly, I respectfully dissent.\n", "ocr": false, "opinion_id": 9543534 } ]

[ "94 F.3d 996" ]

[ { "author_str": "Wisdom", "per_curiam": false, "type": "010combined", "page_count": 15, "download_url": "http://www.ca5.uscourts.gov/opinions\\pub\\95/95-50160.CV0.wpd.pdf", "author_id": null, "opinion_text": " United States Court of Appeals,\n\n Fifth Circuit.\n\n No. 95-50160.\n\n WASHINGTON LEGAL FOUNDATION; William R. Summers; Michael J. Mazzone,\nPlaintiffs-Appellants,\n\n v.\n\nTEXAS EQUAL ACCESS TO JUSTICE FOUNDATION; W. Frank Newton, Chairman, Texas\nEqual Access to Justice Foundation; Thomas R. Phillips, Chief Justice; Raul Gonzalez, Justice; Jack\nHightower, Justice; Nathan L. Hecht, Justice; Lloyd A. Doggett, Justice; Bob Gammage, Justice;\nCraig T. Enoch, Justice; John Cornyn, Justice; Rose Spector, Justice; Supreme Court Dfts,\nDefendants-Appellees.\n\n Sept. 12, 1996.\n\nAppeal from the United States District Court for the Western District of Texas.\n\nBefore WISDOM, GARWOOD and JONES, Circuit Judges.\n\n WISDOM, Circuit Judge:\n\n The plaintiffs-appellants appeal the district court's denial of their motion for summary\n\njudgment and the court's award of summary judgment to the defendants-appellees, in which the\n\ndistrict court upheld the constitutionality of the Texas statute, Interest on Lawyers Trust Accounts\n\nProgram (IOLTA), and found that the defendants are entitled to limited immunity under the Eleventh\n\nAmendment. For the reasons that follow, we REVERSE the judgment of the district court in part,\n\nVACATE and remand in part, and AFFIRM in part.\n\n I.\n\nStatement of Facts\n\n Clients often give their attorneys money to be held in escrow, such as retainer fees or closing\n\ncosts for a transaction. In Texas, traditional ethical rules require attorneys to place this money in a\n\ntrust account that permits withdrawal on demand. The ethical rules also allow attorneys to aggregate\n\nall client funds into a single trust account and prohibit attorneys from commingling their own money\n\n\n\n\n 1\n\fwith the trust fund. Because federal law prohibited banks from paying interest on demand accounts,1\n\nthese accounts formerly amounted to interest-free loans to the banks.\n\n In 1980, new banking regulations allowed negotiable order of withdrawal (NOW) accounts,2\n\nwhich operate as interest-bearing checking accounts. NOW accounts created a vehicle for attorneys\n\nto pool client funds into an interest-bearing trust account, provided that none of the funds belong to\n\na for-profit corporation.3 Attorneys, however, may not deduct the costs of maintaining the trust\n\naccount from the interest earned, because such a practice would constitute an impermissible benefit\n\nfrom the management of the trust account in violation of the ethical rules.\n\n The creation of NOW accounts led to the development of IOLTA programs. The IOLTA\n\nconcept arises from the premise that there are still situations in which, because of the nominal amount\n\nof a client's funds to be held or the brief period for which a client's funds will be held, NOW accounts\n\nare not feasible; because the costs of maintaining such accounts outweigh the interest that each client\n\nwould have earned. In these situations, the trust accounts still operated as interest-free loans to the\n\nbanks. IOLTA is an attempt to switch this benefit from the banks to legal providers for the indigent.\n\n Under its statutory power to regul ate the state bar, the Texas Supreme Court created its\n\nIOLTA program in 1984, which is modeled after IOLTA programs used in other states and which\n\nseeks to capitalize on this banking anomaly. The IOLTA program originally permitted attorneys to\n\nplace client funds that were \"nominal in amount\" or were \"reasonably anticipated to be held for a\n\nshort period of time\" into an unsegregated interest-bearing bank account (IOLTA account), the\n\ninterest of which is paid to the Texas Equal Access to Justice Foundation (TEAJF), a non-profit\n\n\n\n\n 1\n S.REP. NO. 96-368, 9th Cong., 2d Sess. 5, reprinted in 1980 U.S.C.C.A.N. 240, 240.\n 2\n Depository Institutions Deregulation and Monetary Control Act of 1980, 94 Stat. 132, 146\n(codified as amended at 12 U.S.C.A. § 1832 (West 1989)); see also S.REP. NO. 96-368,\nreprinted in 1980 U.S.C.C.A.N. at 242-43.\n 3\n See 12 U.S.C.A. § 1832(a)(2) (permitting NOW accounts to consist of commingled funds\nbelonging to numerous individuals or non-profit organizations or both).\n\n 2\n\fcorporation created by the Texas Supreme Court.4 At that time, Texas's IOLTA program was\n\nvoluntary, meaning that an attorney could choose whether to participate but clients had no choice,\n\nother than to select an attorney who did not maintain an IOLTA account.\n\n The TEAJF's purpose is to manage and distribute the interest earned from the IOLTA\n\naccounts to non-profit organizations that \"have as a primary purpose the delivery of legal services to\n\nlow income persons\",5 with the exception that no funds may be used to financing class action lawsuits\n\nor to lobby on behalf of a political candidate or issue.6 Nearly all states have similar systems, which\n\nwere designed to provide much-needed finances to legal providers for the impoverished. States have\n\ndrastically slashed the budgets for such programs over the years; in 1993, the Texas legislature even\n\nrefused to enact a modest increase in court filing fees to compensate for temporary IOLTA shortfalls.\n\n Initially, the Texas IOLTA program did not meet expectations. Attorneys were reluctant to\n\ndeposit their client funds into IOLTA accounts and impoverished Texas citizens still were unable to\n\nobtain legal assist ance because of a lack of resources. Texas's voluntary IOLTA program yielded\n\nonly $1 million per year. Following the lead of several other states and the recommendation of the\n\nAmerican Bar Association, in 1988, the Texas Supreme Court made attorney participation in the\n\nIOLTA program mandatory, requiring that attorneys deposit client funds in IOLTA accounts under\n\ncertain circumstances.7 The revised rules, which became effective in 1989, state that\n\n [a]n attorney ... receiving in the course of the practice of law ... client funds that are nominal\n\n 4\n See TEX.GOV'T CODE ANN. tit. 2, subtit. G, app. A, art. 11 §§ 6-7 (1987). Attorneys must\nmake a reasonable determination as to whether a client's funds are nominal in amount or only to\nbe held for a short period of time. When this determination is made in good faith, then an\nattorney cannot be liable for this decision. Id. § 7.\n 5\n TEXAS RULES OF COURT—STATE, Rules Governing the Operation of the Texas Equal Access\nto Justice Program [TEAJF rule] rule 10 (West 1996).\n 6\n Id. rule 15. The TEAJF, however, may provide funds \"to finance suits against governmental\nentities on behalf of individuals in order to secure entitlement to benefits\", such as Social Security,\nMedicaid, and public housing. Id.\n 7\n Attorneys and law firms must open their own IOLTA accounts at a financial institution and\ndirect the depository institution \"to remit, at least quarterly, interest earned on the average daily\nbalance in the account, less reasonable service charges\" to the TEAJF. TEAJF rules 7, 9.\n\n 3\n\f in amount or are reasonably anticipated to be held for a short period of time, shall establish\n and maintain a separate interest-bearing demand account at a financial institution and shall\n deposit in the account all those client funds.8\n\nThe rules further guide an attorney's decision as to whether funds are suitable for deposit in an\n\nIOLTA account, stating that a client's funds may be deposited in an IOLTA account only if\n\n such funds, considered without regard to funds of other clients which may be held by the\n attorney ..., could not reasonably be expected to earn interest for the client or if the interest\n which might be earned on such funds is not likely to be sufficient to offset the cost of\n establishing and maintaining the account, service charges, accounting costs and tax reporting\n costs which would be incurred in attempting to obtain interest on such funds for the client.9\n\n Under the mandatory IOLTA program, Texas realized a dramatic increase in IOLTA revenue,\n\nwith recent earnings of approximately $10 million per year. The TEAJF distributes these funds to\n\nvarious non-profit organizations who apply to the TEAJF for funding.\n\nProcedural History\n\n The plaintiffs' objections to the activities of some of the IOLTA fund recipients, such as those\n\ngroups providing legal aid to refugees seeking political asylum in the United States and those\n\norganizations assisting death row inmates to challenge their death sentences, prompted them to bring\n\nthis suit.10 The plaintiffs allege that the IOLTA program constitutes an impermissible taking of\n\nproperty, in violation of the Fifth Amendment of the United States Constitution, and that the program\n\nalso forces them to support speech that they find offensive, in violation of the First Amendment. The\n\nplaintiffs request compensation for the interest proceeds that the Texas IOLTA program earned from\n\ntheir deposit and an injunction against the further application of the Texas IOLTA program.\n\n\n\n 8\n TEX.GOV'T CODE ANN. tit. 2, subtit. G, app. A, art. 11 § 5 (West Supp.1995) (emphasis\nadded).\n 9\n TEAJF rule 6.\n 10\n The plaintiffs consist of Michael J. Mazzone, a Texas attorney who regularly places clients'\nfunds into an IOLTA account and who asserts that practical problems prevent him from practicing\nlaw without collecting nominal or short-term client funds; William J. Summers, a Texas citizen\nwho has funds currently held in an IOLTA account and who regularly uses Texas attorneys; and\nthe Washington Legal Foundation, a public interest law firm whose members are similarly situated\nto Mazzone and Summers.\n\n 4\n\f The defendants11 moved to dismiss the case for failure to state a claim. Though the district\n\ncourt denied this motion, it granted the defendants' subsequent motion for summary judgment and\n\ndenied the plaintiffs' summary judgment motion. The district court, finding the logic of the First and\n\nEleventh Circuits \"compelling\",12 reasoned that there was no property interest at stake in the interest\n\nproceeds earned on funds deposited in IOLTA accounts.13 Having made this determination, the\n\ndistrict court then dismissed the plaintiffs' First and Fifth Amendment arguments.14 The district court\n\nconcluded by holding that the TEAJF is entitled to Eleventh Amendment immunity against all of the\n\nplaintiffs' claims and that Newton is subject only to the plaintiffs' claims of injunctive and prospective\n\nrelief. The plaintiffs now appeal the district court's decision.\n\n II.\n\n It has been suggested that the IOLTA program represents a successful, modern-day attempt\n\nat alchemy.15 While legends abound concerning the ancient, self-professed alchemists who worked\n\ntirelessly towards their goal of changing ordinary metal into precious gold, modern society generally\n\nscoffs at this attempt to create \"something from nothing\". The defendants in this case denounce such\n\nskepticism, declaring that they have unlocked the magic that eluded the alchemists. The alchemists\n\nfailed because the necessary ingredients for their magic did not exist in historical times: the\n\ncombination of attorney's client funds and anomalies in modern banking regulations. According to\n\nthe defendants' theory, the interest proceeds generated by Texas's IOLTA accounts exist solely\n\nbecause of an anomaly in banking regulations and, until the creation of the IOLTA program, that\n\n 11\n In its suit, the plaintiffs named as defendants the TEAJF; W. Frank Newton, the director of\nthe TEAJF; and all the Justices of the Texas Supreme Court.\n 12\n Washington Legal Found. v. Texas Equal Access to Justice Found., 873 F.Supp. 1, 6-7\n(W.D.Tex.1995) (citing Washington Legal Found. v. Massachusetts Bar Found., 993 F.2d 962,\n975-76 (1st Cir.1993) and Cone v. State Bar of Fla., 819 F.2d 1002, 1004 (11th Cir.), cert.\ndenied, 484 U.S. 917, 108 S.Ct. 268, 98 L.Ed.2d 225 (1987)).\n 13\n Id. at 7.\n 14\n Id. at 8, 10.\n 15\n AMERICAN BAR ASS'N, CIVIL JUSTICE: AN AGENDA FOR THE 1990'S 56-72 (1989).\n\n 5\n\finterest belonged to no one. The defendants then contend that Texas used the IOLTA program to\n\nstake a legitimate claim to these funds and that the plaintiffs cannot now seek to repossess the fruits\n\nof this magic as their own. We, however, view the IOLTA interest proceeds not as the fruit of\n\nalchemy, but as the fruit of the clients' principal deposits.\n\n State law defines \"property\" and the United States Consti tution protects private property\n\nfrom government encroachment.16 Texas observes the traditional rule that \"interest follows\n\nprincipal\", which recognizes that interest earned on a deposit of principal belongs to the owner of the\n\nprincipal.17 In the light of this rule, it seems obvious that the interest earned in the IOLTA accounts\n\nis the property of the clients whose money is held in those accounts; nevertheless, the district court\n\nadopted the theory espoused by the First and Eleventh Circuits, which circumvents this rule. The\n\ndistrict court concluded that the plaintiffs cannot \"have a [cognizable] property interest in interest\n\nproceeds that, but for the IOLTA Program, would have never been generated\".18 This reasoning,\n\nthough, does not give proper weight to Supreme Court precedent.\n\n In Webb's Fabulous Pharmacies v. Beckwith, the Supreme Court addressed a similar\n\nsituation.19 The case arose when the purchase of Webb's Fabulous Pharmacies faltered because, at\n\nthe closing, the purchaser learned that Webb's had substantial debt that was not previously revealed.\n\nThe purchaser then filed a complaint of interpleader in Florida state court and tendered the $1.8\n\nmillion purchase price to the clerk of court. Florida law required the clerk to place the interpleaded\n\nfunds into an interest-bearing account, to retain the interest earned for the court, and to deduct\n\nstatutorily-defined fees for maintaining the funds. During the following year while the matter was\n\n\n 16\n Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155, 161, 101 S.Ct. 446, 450-51, 66\nL.Ed.2d 358 (1980) (citing Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709,\n33 L.Ed.2d 548 (1972)).\n 17\n E.g., Sellers v. Harris County, 483 S.W.2d 242, 243 (Tex.1972).\n 18\n Washington Legal Found., 873 F.Supp. at 7 (citing Massachusetts Bar Found., 993 F.2d at\n980; Cone, 819 F.2d at 1005-07).\n 19\n 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358 (1980).\n\n 6\n\fbeing resolved, the interpleaded funds earned over $100,000 in interest. The court then appointed\n\na receiver for Webb's, who promptly demanded that the clerk deliver t he funds to him. The clerk\n\nsurrendered the funds, but withheld approximately $10,000 for administrative fees and the $100,000\n\nin interest that had accrued. The creditors then filed suit in state court to recover the interest.\n\nUltimately, the Florida Supreme Court ruled against the creditors, holding that there was no\n\nunconstitutional taking because money deposited with the clerk was public money, interest earned\n\non public money was not private property, and the statute only took that which it created.20 This\n\ndecision prompted the creditors to appeal to the United States Supreme Court.\n\n The Supreme Court began by noting that the principal deposited with the clerk clearly\n\nconstituted private property under Florida law.21 The Court then determined that because the\n\nprincipal was \"held only for the ultimate benefit of Webb's creditors, not for the benefit of the court\"22\n\nand eventually would be distributed to them, state law gave the creditors a property interest\n\nproportional to their share of the principal.23\n\n Having decided the ownership of the principal, the Court turned to the interest on the\n\nprincipal, \"the fruit of the fund's use\".24 Reaching the opposite conclusion from that of the Florida\n\nSupreme Court,25 the Webb's Court held that simply because the state ordered the placement of\n\ninterpleaded funds into an interest-bearing account does not mean that the state can assert ownership\n\n\n\n\n 20\n Beckwith v. Webb's Fabulous Pharmacies, 374 So.2d 951, 952-53 (Fla.1979) (per curiam),\nrev'd, Webb's Fabulous Pharmacies v. Beckwith, 449 U.S. 155, 101 S.Ct. 446, 66 L.Ed.2d 358\n(1980).\n 21\n Webb's Fabulous Pharmacies, 449 U.S. at 160, 101 S.Ct. at 450.\n 22\n Id. at 161, 101 S.Ct. at 451.\n 23\n Id.\n 24\n Id. at 162, 101 S.Ct. at 451.\n 25\n Beckwith, 374 So.2d at 953 (finding no unconstitutional taking because the IOLTA program\nonly took the interest that it created).\n\n 7\n\fof that interest.26 Recognizing that \"[t]he usual and general rule [under Florida law] is that any\n\ninterest on an interpleaded and deposited fund follows the principal and is to be allocated to those\n\nwho are ultimately to be the owners of that principal\", the Court ruled that \"earnings of a fund are\n\nincidents of ownership of the fund itself and are property just as the fund itself is property\".27 The\n\nCourt then concluded that the Florida law perpetrated an unconstitutional taking of the interest,\n\nwhich is the property of the creditors who own the principal.28\n\n After Webb's, numerous state courts debated the constitutionality of IOLTA programs. With\n\nthe exception of the Indiana Supreme Court,29 these courts agreed that Webb's was inapposite\n\nbecause of the difference in size between the deposit in Webb's and the funds eligible for deposit in\n\nIOLTA accounts.30\n\n In 1987, the Eleventh Circuit considered the IOLTA issue in a suit challenging Florida's\n\nversion of the IOLTA program.31 The Eleventh Circuit distinguished Webb's on the basis that Webb's\n\n 26\n Id. at 162, 101 S.Ct. at 451.\n 27\n Id. at 162-63, 101 S.Ct. at 451-52.\n 28\n Id. at 163, 101 S.Ct. at 451-52.\n 29\n The Indiana Supreme Court refused to implement an IOLTA program, concluding that the\nprogram diverts clients' funds, because the interest proceeds belong to the clients, and convolutes\nattorneys' fiduciary duty to their clients. In re Ind. State Bar Ass'ns Petition to Authorize a\nProgram Governing Interest on Lawyers' Trust Accounts, 550 N.E.2d 311, 312-15 (Ind.1990)\n(per curiam).\n 30\n See In re Ark. Bar Ass'n Petition to Authorize a Program Governing Interest on Lawyer's\nTrust Accounts, 283 Ark. 252, 675 S.W.2d 355, 357 (1984), modified, 289 Ark. 595, 709\nS.W.2d 400 (1986); Carroll v. State Bar of Cal., 166 Cal.App.3d 1193, 213 Cal.Rptr. 305, 312,\ncert. denied, 474 U.S. 848, 106 S.Ct. 142, 88 L.Ed.2d 118 (1985); In re Interest on Trust\nAccounts, 402 So.2d 389, 395-96 (Fla.1981); Petition by the Mass. Bar Ass'n, 395 Mass. 1, 478\nN.E.2d 715, 718 (1985); In re Petition of Minn. State Bar Ass'n, 332 N.W.2d 151, 158\n(Minn.1982); Petition of N.H. Bar Ass'n, 122 N.H. 971, 453 A.2d 1258, 1261 (1982); In re\nInterest on Lawyers' Trust Accounts, 672 P.2d 406, 408 (Utah 1983). While forty-nine states and\nthe District of Columbia have adopted an IOLTA program in one form or another, In re Indiana\nState Bar Ass'n, 550 N.E.2d at 311, most states adopted the program without opinion or through\nlegislation.\n 31\n Cone, 819 F.2d at 1002. The Florida IOLTA program was \"voluntary\", giving its attorneys\nthe option of whether to participate. The clients, however had no choice, other than to choose an\nattorney who did not use the program. In Cone, the plaintiff paid her attorneys $100 to probate\n\n 8\n\finvolved the ownership of over $100,000 in accrued interest, an amount that clearly exceeded any\n\nfees that were assessed.32 In contrast, the Florida IOLTA program only concerned deposits that were\n\nso small or short-term that the administrative costs of maintaining an interest-bearing NOW account\n\nfor that deposit would exceed any interest earned.33 Relying on this factual distinction, the Eleventh\n\nCircuit concluded that Florida's IOLTA program does not commit an unconstitutional taking,\n\nreasoning that the owner of principal has no legitimate expectation of earning interest on money\n\ndeposited into a Florida IOLTA account because \"the use of [the client's] money had no net value,\n\ntherefore there could be no property interest for the state to appropriate\".34 According to the\n\nEleventh Circuit, the use of the money had no net value because the IOLTA program only takes the\n\ninterest from those deposits that do not produce interest in excess of the administrative expenses\n\nincurred.35\n\n Although the Eleventh Circuit explicitly says otherwise,36 inherent in its Cone analysis is the\n\nnotion that the value of the alleged pro perty involved determines whether there is a cognizable\n\nproperty interest. Under Cone, \" \"property' is [erroneously] redefined as an interest that must\n\n\n\n\nher husband's estate. The attorneys failed to return $13.75 of that amount to the plaintiff, which,\nduring the following eleven years, earned $2.25 in interest. The plaintiff's attorneys paid that\ninterest to Florida's IOLTA program and the plaintiff sued to recover that interest.\n 32\n Id. at 1007.\n 33\n Id. at 1006-07.\n 34\n Id. at 1007.\n 35\n Id. The First Circuit, in dicta, reached the same conclusion. See Massachusetts Bar Found.,\n993 F.2d at 976. In that case, the First Circuit stated that the plaintiffs did not assert property\nrights in the IOLTA interest proceeds, but sought only to protect the right to exclude the state\nfrom the use of their principal. Id. at 975-76. The right to exclude is one of the sticks in the\nbundle of property rights. Id. The Court, nevertheless, held that the interest earned on IOLTA\naccounts was not the plaintiff's property, id. at 976, an issue that was not properly before it. The\nFirst Circuit employed reasoning that parallels the decision in Cone, concluding that the IOLTA\ninterest belongs to no one. Id. at 980.\n 36\n Cone, 819 F.2d at 1007 (stating that the decision does not establish \"a de minimis standard\nfor Fifth Amendment takings\").\n\n 9\n\fnecessarily benefit its owner\".37 The Webb's decision, however, creates a rule that is independent of\n\nthe amount or value of interest at issue, holding that a property interest existed in the accrued interest\n\nsimply because \"[t]he earnings of a fund are incidents of ownership of the fund itself and are property\n\njust as the fund itself is property\".38 We see no reason why this rule does not apply to the instant\n\ncase.\n\n The Cone Court also failed to consider the precise events of the transaction, concluding that\n\nthe only protectable property interest in interest proceeds attaches to the amount of interest that\n\nremains after a bank deducts its charges from the interest earned, because the owner of the principal\n\nonly has a legitimate expectation of receiving those interest proceeds.39 It appears, however, that a\n\nbank pays interest on the account and then deducts fees. It is a two-part process. As a result, a\n\n 37\n Mary O. Sinibaldi, Note, The Takings Issue in California's Legal Services Trust Account\nProgram, 12 HASTINGS CONST.L.Q. 463, 492 (1985).\n 38\n Webb's Fabulous Pharmacies, 449 U.S. at 164, 101 S.Ct. at 452. The Webb's Court\nconcluded by holding that the Florida statute appropriated \"the value of the use of the fund for the\nperiod in which it is held\". Id.; see also Sinibaldi, supra note 37, at 493.\n\n The Cone Court was correct to note that the value of the property involved does\n not effect the determination of whether a property interest exists; indeed, the Supreme\n Court rejected this position in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.\n 419, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982), in which the Court held that \"constitutional\n protection for the rights of private property cannot be made to depend on the size of the\n area permanently occupied\". Id. at 436, 102 S.Ct. at 3176-77 (ruling that an ordinance\n requiring landlords to allow cable television providers to install small cable boxes on the\n roofs of their buildings was a permanent physical occupation, thereby entitling the\n landlords to compensation despite the small area appropriated and the fact that the\n installation actually enhanced the value of the buildings).\n\n The defendants in the instant case suggest that Loretto does not govern IOLTA\n because money, unlike real property, is fungible and deductions from the IOLTA account\n are not physical appropriations of property. Cf. United States v. Sperry Corp., 493 U.S.\n 52, 62 n. 9, 110 S.Ct. 387, 394-95 n. 9, 107 L.Ed.2d 290 (1989) (holding that the\n government did not perpetrate a taking when it deducted a statutory fee from the plaintiff's\n award by the Iran-United States Claims Tribunal instead of requiring the plaintiff to pay\n the fee separately). This argument is inappropriate because this suit does not concern the\n constitutionality of deductions for the maintenance of the IOLTA accounts, but rather\n addresses the ownership of the interest generated. See id. Sperry merely confirms that\n the state may charge fees to those who use its services, and may deduct those fees directly\n from any amount due to the user.\n 39\n Cone, 819 F.2d at 1007.\n\n 10\n\fproperty interest attaches the moment that the interest accrues, from which the bank then deducts its\n\ncharges from the depositor's account. Furthermore, the Webb's Court noted that Florida was under\n\nno obligation to place the interpleaded funds into an interest-bearing account, but once it did so, then\n\nany interest earned belongs to the depositor. The same rule applies to IOLTA accounts. Ethical rules\n\nhistorically demanded that attorneys hold their clients' funds in trust accounts, choosing the type of\n\naccount in accordance with the best interests of the client. If attorneys still had this latitude, clients\n\ncould not complain that a taking occurred when the attorney placed their funds in a non-interest\n\nbearing account, because until the interest accrues, the clients have no cognizable property right in\n\nthe interest.40 The Texas IOLTA program, however, requires attorneys to place certain client funds\n\ninto an IOLTA account and then takes the interest that accrues for itself. In such a case, the plain\n\nrule is that the interest proceeds, once they have accrued, belong to the owner of the principal.\n\n The defendants additionally argue that finding a property interest in the IOLTA interest\n\noverlooks the fact that, for practical banking reasons, the interest earned in trust accounts could never\n\naccrue to the clients. This argument ignores one of the critical driving forces of IOLTA: IOLTA\n\nprograms became possible only with the announcement of Internal Revenue Service ruling 81-209.41\n\nIn this ruling, the I.R.S. agreed that clients would not be taxed on the interest earned on their deposits\n\nin IOLTA accounts provided that they had no choice but to parti cipate in the program.42 By the\n\nterms of this ruling, if clients have any control over the interest generated from their nominal and\n\nshort-term deposits into IOLTA accounts, then the interest generated is taxable income.43 To prevent\n\n 40\n See Webb's Fabulous Pharmacies, 449 U.S. at 161, 101 S.Ct. at 451 (\"[A] mere unilateral\nexpectation ... is not a property interest entitled to protection.\")\n 41\n Rev.Rul. 81-209, 1981-2 C.B. 16; see also Rev.Rul. 87-2, 1987-1 C.B. 18 (restating the\ndecision announced in Rev.Rul. 81-209).\n 42\n Rev.Rul. 81-209, 1981-2 C.B. at 17 (justifying the tax-exempt status of IOLTA interest\nbecause under IOLTA plans, \"no client may individually elect whether to participate in the\nprogram\" and \"bars clients from receiving the benefit of any interest earned\").\n 43\n The I.R.S. was concerned about IOLTA programs providing a means to assign income and\nto avoid taxes on that income. By prohibiting clients from having any control over IOLTA funds,\nthe I.R.S. is satisfied that the assignability problem is mooted.\n\n 11\n\fthis situation, Texas gave itself an IOLTA monopoly, reserving all the IOLTA interest proceeds for\n\nitself and requiring all of its attorneys to participate in the program. If private charities were to\n\nestablish private IOLTA programs and clients could choose the program to which their funds went,\n\nthen clients suddenly would have taxable income. Applying the defendants' arguments to such a\n\nscenario, the IOLTA funds would be too minimal to return to the clients, therefore falling outside of\n\nthe Cone definition of property, yet clients still would have to pay income tax on the interest earned,\n\ninterest which Cone would say was not their property. This situation flies in the face of reason.\n\n We are also hesitant to declare that such interest is not property lest we incite a new gold\n\nrush, encouraging government agencies to dissect banking regulations to discover other anomalies\n\nthat lead to \"unclaimed\" interest. One possible source is the interest earned by banks during the float\n\ntime of checks. Consider a customer who deposits a check drawn on a payor bank with a depositary\n\nbank. \"In a simple case, where the Federal Reserve Bank is the only intermediary, the depositary\n\nbank will present that check to the Fed and receive a [provisional] credit in its reserve account.\"44\n\nThe Fed then presents the check to the payor bank, whose account is debi ted and the payor bank\n\nmust send notice of dishonor within the defined period or be liable for the amount.45 Typically, this\n\nprocess takes one to two days, during which time the depositary bank has a provisional credit from\n\nthe Federal Reserve in the amount of the check. Until recently, depositary banks were not required\n\nto pay interest to their customers during the time between the deposit of funds and the payor banks'\n\ndeadline to send the notice of dishonor, effectively giving the depositary banks an interest-free loan\n\non the deposited funds during that time because the depositary banks could treat the provisional credit\n\nlike cash reserves. This interest-free loan appears very similar to the one that the Texas Supreme\n\nCourt sought to exploit with the IOLTA program and the interest earned on some checking accounts\n\nconceivably could fall below any benefits received, creating an IOLTA-like situation. While\n\n\n 44\n Robert D. Cooter & Edwin L. Rubin, Orders and Incentives as Regulatory Methods: The\nExpedited Funds Availability Act of 1987, 35 U.C.L.A.L.REV. 1115, 1127 (1988).\n 45\n See id.\n\n 12\n\fdepositary banks now must pay interest on deposits from the time that they receive provisional credit\n\nfrom the Fed, credit unions are exempt from this requirement and still receive the benefit of these\n\n\"interest-free loans\".46\n\n This is only one example of another \"anomaly\" in the banking industry and we cannot believe\n\nthat such anomalies each create funds that belong to nobody. The traditional rule that interest follows\n\nprincipal must apply because that rule compensates the owners of the principal for the use of their\n\nfunds. If a bank customer chooses, however, to allow the bank to profit in this manner, that decision\n\ndoes not give the state carte blanche to claim that property as its own. As technology continues to\n\nadvance, the speed with which such t ransactions can occur will continue to increase, providing\n\ngreater opportunities for states to try to collect the fract ions of pennies that could be earned as\n\ninterest during the float time of all these activities. Indeed, the faster the funds move, the more and\n\nmore difficult it will be for individuals to make a practical claim to such funds. Nevertheless, the rule\n\nremains the same: any interest that accrues belongs to the owner of the principal, unless they agree\n\notherwise.47\n\n III.\n\n The district court's decision on the merits is wholly premised on the notion that clients do not\n\nhave a valid property interest in the interest proceeds earned on funds in IOLTA accounts. Having\n\nrejected this premise, we vacate the district court's award of summary judgment to the defendants and\n\ndenial of summary judgment to the plaintiffs. We remand this case for reconsideration in the light of\n\nthe principles explained in this decision and for further factual development of the record, such as the\n\n 46\n See 12 U.S.C.A. § 4005(a), (b) (West 1989).\n 47\n Furthermore, we also note that under the current IOLTA program, tax law seemingly defines\nproperty. If interest was no longer taxed, banks would not have to send 1099s, thereby greatly\ndecreasing the administrative costs of IOLTA accounts. In this case, nearly all deposits would\nearn interest and clients clearly would be entitled to their funds. We find no basis to hinge\nproperty interests on the fickle tax code. Under the current scheme, any change in the costs to\nbanks of managing small deposits would impact the determination of whether a property right in\nIOLTA interest exists. See Kenneth P. Kreider, Note, Florida's IOLTA Program Does Not\n\"Take\" Client Property for Public Use, 57 U.CIN.L.REV. 369, 391-93 (1988). This short-sighted\nview of property renders it unacceptable.\n\n 13\n\fclarification of the types of account pooling permitted by the TEAJF rules.\n\n With respect to the merits of the plaintiffs' claims, we note that to prevail on their taking\n\nclaim, the plaintiffs must demonstrate that the taking was against the will of the property owner.48\n\nThat or a similar showing would also likely be necessary to prevail on their First Amendment claim.\n\nWe express no opinion as to whether such a showing has been, or can be, made in the context of this\n\ncase. We leave these and such other issues as may surface to be addressed in the first instance by the\n\ndistrict court on remand.\n\n IV.\n\n Finally, the district court also granted the defendants' request for immunity under the Eleventh\n\nAmendment with respect to the plaintiffs' claim for monetary restitution. The parties now only\n\ndispute whether the district court erred by declaring the defendants immune to the plaintiffs'\n\nrestitution claim. The parties do not seriously challenge this portion of the district court's ruling; the\n\ndefendants concede that they are subject to the plaintiffs' prospective injunction claims and the\n\nplaintiffs admit that their \"principal concern all along has been in obtaining prospective injunctive\n\nrelief\". We suggest another reason for the parties' lackadaisical approach to this part of the decision:\n\nthey realize that the district court is correct.\n\n The Eleventh Amendment shields states and their agencies from suits in federal court without\n\nthe states' consent.49 Initially, we note that the Texas Supreme Court is entitled to Eleventh\n\nAmendment immunity.50 This immunity extends to the TEAJF because the Texas Supreme Court\n\ncreated the TEAJF pursuant to its rule-making authority and the TEAJF acts on behalf of the Texas\n\nSupreme Court to carry out its role, which the Texas Supreme Court defined.51 Similarly, defendant\n\n 48\n See Yee v. City of Escondido, 503 U.S. 519, 527, 112 S.Ct. 1522, 1528, 118 L.Ed.2d 153\n(1992).\n 49\n Word of Faith World Outreach Ctr. Church v. Morales, 986 F.2d 962, 965 (5th Cir.), cert.\ndenied, 510 U.S. 823, 114 S.Ct. 82, 126 L.Ed.2d 50 (1993).\n 50\n See Lewis v. Louisiana State Bar Ass'n, 792 F.2d 493, 497 (5th Cir.1986).\n 51\n See id. at 497 & n. 4.\n\n 14\n\fNewton is entitled to immunity because he is being sued in his official capacity as chairman of the\n\nTEAJF, and therefore is also a state actor. The immunity that applies, as held by the district court,\n\nis limited and protects the defendants only from the plaintiffs' claims for reimbursement because the\n\nEleventh Amendment does not protect the state from federal suits seeking injunctive relief.52\n\nAccordingly, we hold that the district court did not err on this issue.\n\n V.\n\n For the foregoing reasons, we find that the district court erred by holding that the clients do\n\nnot have a cognizable property interest in the interest proceeds that are earned on their deposit in\n\nIOLTA accounts. We VACATE the district court's award of summary judgment for the defendants\n\nand denial of summary judgment for the plaintiffs and REMAND for further consideration. Finally,\n\nwe AFFIRM the limited immunity that the district court granted to the defendants.\n\n\n\n\n 52\n Word of Faith, 986 F.2d at 965 (5th Cir.); see also Lewis, 792 F.2d at 497. The parties also\ndisagree over whether the plaintiffs are entitled to monetary relief under their 42 U.S.C. § 1983\nclaim for monetary damages. Because neither a state nor state officials sued in their official\ncapacity are \"persons\" within the meaning of § 1983 when the relief sought is monetary, the\nplaintiffs cannot recover their claim for reimbursement from the defendants. See Will v. Michigan\nDep't of State Police, 491 U.S. 58, 69-71 & n. 10, 109 S.Ct. 2304, 2311-12 & n. 10, 105 L.Ed.2d\n45 (1989).\n\n 15\n\f", "ocr": false, "opinion_id": 10321 } ]

[ "462 F.3d 903" ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": null, "download_url": "http://bulk.resource.org/courts.gov/c/F3/462/462.F3d.903.05-4275.html", "author_id": null, "opinion_text": "462 F.3d 903\n UNITED STATES of America, Appellee,v.Edwin MARTINEZ, Jr., also known as Edwin Martinez Franco, Jr., Appellant.\n No. 05-4275.\n United States Court of Appeals, Eighth Circuit.\n Submitted: June 14, 2006.\n Filed: September 11, 2006.\n \n COPYRIGHT MATERIAL OMITTED Katherine Menendez, argued, Minneapolis, MN, for appellant.\n Erika Mozangue, AUSA, argued, Minneapolis, MN, for appellee.\n Before LOKEN, Chief Judge, BEAM, and ARNOLD, Circuit Judges.\n BEAM, Circuit Judge.\n \n \n 1\n Edwin Martinez, Jr. appeals his conviction, following a jury verdict, and sentence for bank robbery in violation of 18 U.S.C. sections 2113(a) and (d). We affirm.\n \n I. BACKGROUND\n \n 2\n The Liberty Savings Bank in St. Cloud, Minnesota was robbed on July 23, 2004, at approximately 9:20 a.m. The robber entered the bank, approached a teller, placed a gun on the counter in front of her, and told her this was a robbery. The teller gave the man all the money she had in her drawer. The man pulled his sleeves down over his hands, wiped down the counter with the sleeves, folded the bills in half, and put the wad of bills in one of his pockets. He then slowly backed away, told the teller not to say anything, and left through the front door.\n \n \n 3\n The bank contacted the police, and the teller described the robber to them as a black male in his early to mid-twenties, between 5'7\" and 5'9\" tall, wearing a gray hooded sweatshirt and blue jeans. St. Cloud police officers Michael Lewandowski, Jeff Atkinson, and David Missell responded. Atkinson was told to check the area surrounding the bank, and so went to a recreational area known as Lake George, about a half-mile from the bank. Once there, he noticed a black male matching the height description, wearing a white tank top and blue pants, walking southbound very fast through the park. Atkinson slowed his car to observe the man, Martinez, talking on his cell phone while walking. Martinez looked up at Atkinson and quickly looked down again. Atkinson noticed that Martinez's face was shiny and assumed he was sweaty.\n \n \n 4\n Atkinson exited his car and told Martinez that he needed to talk with him. Martinez cooperated, putting his hands behind his head. Atkinson walked up to Martinez, took the cell phone from his hand and laid it on the ground, grabbed his hands, and told him that he was being detained because he matched the description of a bank robber. Atkinson then performed a pat-down to check for weapons since the robber had used a gun. At the same time Missell, who had responded to assist Atkinson, asked Martinez if he had any weapons on him. Martinez responded that he possessed only a large sum of money. Atkinson felt what he knew to be a wad of cash in Martinez's pocket. At that point, Atkinson placed handcuffs on Martinez, and told him he would be further detained. Atkinson pulled the wad of cash partly out of the pocket to confirm it was money, and then pushed it back into the pocket. Missell then asked Martinez where he got the cash. Martinez responded that he had just been paid from his place of work. When Missell expressed disbelief, Martinez changed his story to say he saw a man running in the park, and that he found the money. Atkinson then placed Martinez in the back of the police car, read him his Miranda rights, and took him to the bank for a show-up identification.\n \n \n 5\n Once at the bank, Atkinson placed Martinez on the sidewalk in front of the bank toward the windows, hands behind his back and cuffed. The teller was inside the bank. Upon seeing Martinez, she became physically shaken, and identified Martinez as the robber. He was then arrested and taken to jail.\n \n \n 6\n Martinez was indicted on one count of bank robbery, in violation of 18 U.S.C. sections 2113(a) and (d). Before trial, Martinez asked the magistrate judge to suppress (1) statements made in response to questioning from Missell about the wad of cash in his pocket because he was not given his Miranda warnings at that time, (2) the cash seized from his person after arrest because the officers lacked reasonable suspicion to conduct the Terry stop in the first place, and (3) the teller's identification of him at the bank as impermissibly suggestive. The magistrate judge denied all three requests in the report and recommendation, which was adopted by the district court.1 Martinez was convicted and sentenced to 150 months imprisonment.\n \n II. DISCUSSION\n A. Extent of Terry Stop\n \n 7\n Martinez first argues that his statements to the officers in the park, the money seized from his person, and his participation in the show-up identification should be suppressed as \"fruit of the poisonous tree\" because once he was handcuffed and placed in the police car, the Terry stop turned into an arrest, for which officers had no probable cause. The parties both focus on whether the cuffing of Martinez constituted an arrest. We conclude that the cuffing did not convert the Terry stop into an arrest, and even if it did, the officers had probable cause to effectuate the arrest, based on the wad of cash discovered during the Terry frisk.\n \n \n 8\n \"An investigative detention may turn into an arrest if it `lasts for an unreasonably long time or if officers use unreasonable force.'\" United States v. Maltais, 403 F.3d 550, 556 (8th Cir.2005) (quoting United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th Cir.1999)). During an investigative stop, officers should use the least intrusive means of detention and investigation reasonably necessary to achieve the purpose of the detention. Id. During a Terry stop, officers are authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo during the stop. Id. This court has previously held that use of handcuffs can be a reasonable precaution during a Terry stop to protect their safety and maintain the status quo. See. e.g. United States v. Summe, No. 05-4179, 2006 WL 1458293 (8th Cir. May 30, 2006) (unpublished) (holding that use of cuffs to detain suspected accomplice did not constitute arrest); United States v. Saffeels, 982 F.2d 1199, 1206 (8th Cir.1992) (overruled on other grounds) (holding that using cuffs on robbery suspect did not convert Terry stop into arrest); United States v. Miller, 974 F.2d 953, 957 (8th Cir.1992) (concluding that cuffing of suspects during Terry stop where suspects outnumbered officers and where officers were concerned for safety was reasonably necessary to achieve purposes of Terry stop).\n \n \n 9\n Here, the officers knew that the robbery had been accomplished by brandishing a gun. Martinez was a close match to the description of the robber, and Atkinson found him near the scene of the crime, acting suspiciously. The discovery of what Atkinson immediately recognized as a wad of cash on Martinez's person reasonably led Atkinson and Missell to believe that Martinez might be the robber, and that he might still have the gun used to commit the crime. Placing Martinez in handcuffs was a reasonable response to the situation in order to protect the officers' personal safety and to maintain the status quo. As such, the use of handcuffs did not convert this Terry stop into an arrest.\n \n \n 10\n Martinez also argues that placing him in a patrol car and transporting him back to the bank made the stop an arrest. We do not agree. In United States v. Lego, 855 F.2d 542 (8th Cir.1988), this court held that confining a potentially dangerous suspect to a patrol car while checking his identification was not tantamount to an arrest. There, the \"obvious exigencies of the situation\" authorized the officer to continue the Terry stop by confining the suspect to the patrol car \"until the situation stabilized and she could determine if full custodial arrest and detention were warranted.\" Id. at 545. Here, the exigencies were such that the officers could not dispel their suspicions that had prompted the Terry stop until they transported Martinez back to the bank for the show-up identification. In United States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir. 2002), this court held that, given the circumstances, moving a suspect from one location to another did not exceed the bounds of Terry because it was reasonable to relocate the suspect for questioning.\n \n \n 11\n In Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), the Supreme Court held that transporting a suspect from his home to a police station for questioning goes beyond the scope of a Terry stop and effects an arrest for which there must be probable cause. Here, the officers did not take Martinez to the police station during the Terry stop, but moved him only to the scene of the crime to help dispel or confirm their suspicions. Similarly, in United States v. Charley, 396 F.3d 1074, 1080 n. 4, 1081 (9th Cir.2005), the court, relying on Montano-Gudino and cases from seven other circuits, held that moving a suspect from the place officers found her to her own home in order to check on her children whom she may have harmed there did not effect an arrest. Thus, neither placing Martinez in the police car nor transporting him to the bank converted this Terry stop into an arrest for which probable cause was required.\n \n \n 12\n Even if the stop could be considered an \"arrest\" following the cuffing of Martinez, the discovery of the wad of cash on his person provided probable cause to arrest him. See, e.g., United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983) (finding that information officers obtained during investigatory stop \"escalated the factual basis from one permitting an investigatory stop to one warranting an arrest\"). Probable cause exists when, at the time of the arrest, \"the available facts and circumstances are sufficient to warrant a person of reasonable caution to believe that an offense was being or had been committed by the person to be arrested.\" United States v. Kelly, 329 F.3d 624, 628 (8th Cir.2003). Given the facts and circumstances known to Atkinson and Missell at the time they discovered the wad of cash, a reasonably cautious officer would believe that Martinez might well have committed the bank robbery, and thus probable cause existed to arrest him then.\n \n \n 13\n B. Nature of Questioning By Officers in Park\n \n \n 14\n Martinez also argues that his statements to the officers in the park should be suppressed because they were made in response to custodial interrogation without the benefit of Miranda warnings. Whether Martinez was \"in custody\" for purposes of Miranda after being handcuffed during the Terry stop is a separate question from whether that handcuffing constituted an arrest for which probable cause was required.\n \n \n 15\n Miranda warnings are required only where a person's freedom has been so restricted as to render him \"in custody.\" United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004). The ultimate inquiry is whether (1) the person has been formally arrested, or (2) the person's freedom of movement has been restrained to a degree associated with a formal arrest. Id. \"`Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.'\" Id. (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)). \"Thus, the critical inquiry is not whether the interview took place in a coercive or police dominated environment, but rather whether the defendant's freedom to depart was restricted in any way.\" Id. (internal quotation and citation omitted). \"In answering this question, we look at the totality of the circumstances while keeping in mind that the determination is based on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.\" Id. (internal quotation and citation omitted). See also United States v. Ollie, 442 F.3d 1135, 1137 (8th Cir.2006).\n \n \n 16\n In this case, Martinez was detained by two officers, patted down for weapons (with none being found), and closely questioned about his possession of weapons. Then, he was handcuffed and told he was being further detained. This occurred before being questioned by the two officers. A reasonable person would not, considering the totality of the circumstances, feel he was at liberty to stop the questioning and leave. Martinez's freedom was restricted to a degree often associated with formal arrest, and we find he was in custody at the time he was handcuffed. He was interrogated about the wad of cash while in this custody, being asked at least twice to explain the presence of the cash. Thus, we find that Martinez was subjected to custodial interrogation.\n \n \n 17\n The government argues that so long as the encounter remained a Terry stop, no Miranda warnings were required. But the Supreme Court has indicated that the analysis is not that simple. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Court looked to the circumstances involved in a traffic stop to conclude that the suspect's freedom of action was not \"curtailed to a `degree associated with formal arrest'\" as to require Miranda warnings. Id. at 440, 86 S.Ct. 1602 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). In holding that the traffic stop at issue in Beheler was akin to a Terry stop, the Court held that, \"by itself,\" the stop did not render him \"`in custody.'\" Id. at 441, 86 S.Ct. 1602. Analyzing the factual circumstances, the Court noted that the \"respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest.\" Id. Thus, the Court looked not to the fact that the detention was a Terry stop, but rather to the circumstances bearing on the question of custody, just as we have done here. The Court noted that some traffic/Terry stops might involve such restraint, necessitating Miranda warnings. \"If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him `in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda.\" Id. at 440, 86 S.Ct. 1602. Citing Berkemer, this court has previously implied the possible need for Miranda warnings during a Terry stop. \"[M]ost Terry stops do not trigger the detainee's Miranda rights.\" United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir.2003) (emphasis added). In this case, as we have said, Martinez was, under the circumstances, subjected to restraint associated with formal arrest, and was interrogated during that custody. Therefore, we follow the Supreme Court's cue and find that he was entitled to Miranda warnings at the time he was handcuffed. Since Miranda warnings were not given before Martinez gave conflicting accounts of how he got the wad of cash, those statements should have been suppressed.\n \n \n 18\n Though failing to suppress the statements made in the park was error, we find it was harmless. \"An error is harmless if it does not affect substantial rights of the defendant, and did not influence or had only a slight influence on the verdict.\" United States v. Davis, 449 F.3d 842, 847 (8th Cir.2006) (internal quotations and citations omitted).\n \n \n 19\n Martinez argues that his contradictory explanations about the cash, the cash seized, and his participation in the show-up identification were all \"fruit of the poisonous tree\" under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, we have found that handcuffing Martinez in the park did not convert the Terry stop into an arrest, and that even if it did, it was supported by probable cause. Thus, any arrest that might have allegedly occurred was not unlawful. Martinez has not shown that the police decided to take him to the bank for the show-up identification because he gave them contradictory statements. The Court in Wong Sun proceeded to a \"fruit of the poisonous tree\" analysis because \"[t]he prosecutor candidly told the trial court that `we wouldn't have found [the incriminating evidence] except that [the defendant] helped us to.'\" Id. at 487, 83 S.Ct. 407. In this case, the record indicates that Atkinson was instructed to bring Martinez to the bank. We think, in this case, the identification of Martinez by the teller at the bank was obtained at least \"by means sufficiently distinguishable\" from, if not independent of, Martinez's non-Mirandized statements. Id. at 488, 83 S.Ct. 407. The cash retrieved from Martinez was fair game for seizure, as its discovery did not rely on his statements, and we have found that probable cause existed for his arrest at the time of its discovery. Thus, Martinez's \"fruit of the poisonous tree\" argument fails, and only his contradictory statements in the park should have been suppressed. Given the other admissible evidence against Martinez, we find that failure to suppress these statements did not sufficiently influence the jury to merit our reversal, and thus was harmless error.\n \n C. The Show-Up Identification\n \n 20\n Martinez argues that the introduction at trial of the results of the show-up identification violated his procedural due process rights because the procedure used was unduly suggestive and unreliable. \"A crime victim's identification of the defendant is admissible unless it is based upon a pretrial confrontation between the witness and the suspect that is both impermissibly suggestive and unreliable.\" United States v. King, 148 F.3d 968, 970 (8th Cir.1998) (internal quotation omitted). \"An identification is unreliable if its circumstances create `a very substantial likelihood of irreparable misidentification.'\" Id. (quoting Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir.1996)). \"Police officers need not limit themselves to station house line-ups when an opportunity for a quick, on-the-scene identification arises. Such identifications are essential to free innocent suspects and to inform the police if further investigation is necessary.\" Id. \"`[A]bsent special elements of unfairness, prompt on-the-scene confrontations do not entail due process violations.'\" Id. (quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969)) (alteration in original).\n \n \n 21\n Though Martinez argues that the show-up was unduly suggestive because he was handcuffed, he had been driven to the bank in a police car, and because police officers were present, \"[n]ecessary incidents of on-the-scene identifications, such as the suspect[ ] being handcuffed and in police custody, do not render the identification procedure impermissibly suggestive.\" Id. \"Whether such factors cast doubt on the accuracy of a positive identification is an issue for the jury.\" Id. Given the facts in this case, we do not believe the show-up identification was unduly suggestive. Even if it was, we do not find that the circumstances created \"`a very substantial likelihood of irreparable misidentification'\" because the teller's identification was reliable. Id. (quoting Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir.1996)). \"Given [the teller's] opportunity to clearly observe the robber[ ], [her] direct dealing with him at the time of the offense, [her] prior description of the robber[ ], the certainty of his identification, and the short time between the robbery and his identification,\" the show-up identification was reliable. United States v. Woody, 690 F.2d 678, 680 (8th Cir.1982) (holding that the show-up identification was reliable in spite of being unduly suggestive, and thus permissible). Therefore, admission at trial of the results of the show-up identification, as well as the subsequent identification of Martinez by the teller at trial, did not violate Martinez's procedural due process rights. King, 148 F.3d at 970.\n \n III. CONCLUSION\n \n 22\n Finding no other non-frivolous issues, we affirm.\n \n \n \n Notes:\n \n \n 1\n The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota\n \n \n \n 23\n LOKEN, Chief Judge, dissenting in part and concurring in the judgment.\n \n \n 24\n I respectfully dissent from the conclusion in Part II.B. of the court's opinion that Officer David Missell violated Edwin Martinez's Fifth Amendment rights by failing to give Miranda warnings before asking Martinez to explain the \"wad of cash\" found in his pocket shortly after an armed bank robbery. I agree that the district court's suppression error, if any, was harmless, and with the remainder of the court's opinion. Therefore, I concur in the decision to affirm.\n \n \n 25\n Miranda warnings are required before the police engage in \"custodial interrogation,\" which the Supreme Court defined in Miranda as whenever \"a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.\" Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (emphasis added). Later, the Court decided in Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and cases applying Terry, that the Fourth Amendment is not violated when a police officer with reasonable suspicion that criminal activity is afoot briefly detains (seizes) a suspect while making a reasonable investigation to confirm or dispel the officer's suspicion. The investigation normally includes brief questioning \"reasonably related in scope to the justification\" for the stop. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The apparent overlap of the broad definition of custody in Miranda and the detention inherent in a Terry stop inevitably raised the question whether a Terry stop is a significant deprivation of the suspect's freedom of action so that Miranda warnings are required before any questioning. An affirmative answer to this question would have undermined both the practical and the constitutional underpinnings of the Court's 8-1 decision in Terry: \"if the investigative stop is sustainable at all, constitutional rights are not necessarily violated if pertinent questions are asked and the person is restrained briefly in the process.\" 392 U.S. at 35, 88 S.Ct. 1868 (White, J., concurring).\n \n \n 26\n Not surprisingly, the Court declined to make Miranda warnings mandatory during Terry stops. In Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Court held that a motorist stopped and questioned for a routine traffic offense was not in custody for Miranda purposes until he was later arrested for driving while intoxicated. In explaining its decision, the Court expressly equated traffic stops and Terry stops and observed that the nonthreatening and noncoercive nature of both \"explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda.\" Then, reiterating the test it had articulated in post-Miranda cases, the Court cautioned that Miranda warnings are required if, at any point during a Terry stop, \"a suspect's freedom of action is curtailed to a degree associated with formal arrest.\" Berkemer, 468 U.S. at 440, 104 S.Ct. 3138. The Court acknowledged that \"the doctrine just recounted will mean that the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody [for Miranda purposes].\" Id. at 441, 86 S.Ct. 1602. We have construed Berkemer to mean that \"most Terry stops do not trigger the detainee's Miranda rights.\" United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir.2003). But this is one of those difficult cases.\n \n \n 27\n In my view, the court's opinion errs by relying heavily on two station-house questioning cases — United States v. LeBrun 363 F.3d 715 (8th Cir.2004), and Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). In such cases, the dominant inquiry is whether a suspect who agreed to be questioned was still free to leave when he made incriminating statements. By contrast, during a Terry non-consensual stop, \"[o]ne is not free to leave . . . until the completion of a reasonably brief investigation, which may include limited questioning.\" Pelayo-Ruelas, 345 F.3d at 592. Thus, it is contrary to Berkemer for the court to frame the Miranda custody question as being whether a reasonable person would \"feel he was at liberty to stop the questioning and leave,\" supra at p. 909, because that framing compels the conclusion that all questioning during lawful Terry stops must be preceded by Miranda warnings.\n \n \n 28\n Applying Terry, the court concludes — correctly, in my view — that Officers Missell and Jeff Atkinson acted reasonably when they stopped Martinez, a bank robbery suspect; frisked and handcuffed him in the interest of officer safety and to prevent flight; took a quick look at a wad of cash in his pants that might be contraband; did not seize the cash; placed Martinez in the patrol car and gave him Miranda warnings; and then took him some distance for a show-up before the bank teller victim. In the midst of this relatively coercive Terry stop, justified by the violent crime that had just occurred, Missell asked Martinez to explain how a suspicious wad of cash came to be in his pocket soon after an armed bank robbery.\n \n \n 29\n In my view, the critical fact for Miranda purposes is that the questions were entirely consistent with the proper scope and purpose of a reasonable Terry stop. To be sure, handcuffing is an additional restraint on the suspect's freedom of action, a restraint that often accompanies formal arrests. But in a Terry stop, handcuffing may signal that a formal arrest is imminent, or it may be an action reasonably limited to officer safety concerns or the risk of flight while the officers attempt to quickly confirm or dispel their suspicions. In distinguishing the two situations, I consider the nature of the questioning critical. If Missell had interrogated the handcuffed Martinez about his actions earlier that day, or the details of the robbery, or other crimes under investigation, that would be custodial interrogation consistent with a formal arrest, and Miranda warnings would be required. But brief questioning consistent with the limited purpose of the Terry stop did not require such warnings, even though the suspect was (reasonably) handcuffed. This distinction is consistent with cases holding that a Terry stop that includes handcuffing followed by brief questioning related to the purpose of the stop does not violate the suspect's Fourth or Fifth Amendment rights. See United States v. Cervantes-Flores, 421 F.3d 825, 829-30 (9th Cir.2005), cert. denied, ___ U.S. ___, 126 S.Ct. 1911, 164 L.Ed.2d 668 (2006); United States v. Fornia-Castillo, 408 F.3d 52, 63-65 (1st Cir.2005); United States v. Miller, 974 F.2d 953, 956-57 (8th Cir.1992); United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983). The court cites no factually similar case to the contrary.\n \n \n 30\n \"Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.\" Berkemer, 468 U.S. at 437, 104 S.Ct. 3138. I conclude that Martinez was not in custody for Miranda purposes when he gave inconsistent and therefore incriminating answers to questions that were consistent with a lawful Terry stop.\n \n ", "ocr": false, "opinion_id": 795659 }, { "author_str": "Beam", "per_curiam": false, "type": "020lead", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nBEAM, Circuit Judge.\nEdwin Martinez, Jr. appeals his conviction, following a jury verdict, and sentence for bank robbery in violation of 18 U.S.C. sections 2113(a) and (d). We affirm.\nI. BACKGROUND\nThe Liberty Savings Bank in St. Cloud, Minnesota was robbed on July 23, 2004, at approximately 9:20 a.m. The robber entered the bank, approached a teller, placed a gun on the counter in front of her, and told her this was a robbery. The teller gave the man all the money she had in her drawer. The man pulled his sleeves down over his hands, wiped down the counter with the sleeves, folded the bills in half, and put the wad of bills in one of his pockets. He then slowly backed away, told the teller not to say anything, and left through the front door.\nThe bank contacted the police, and the teller described the robber to them as a black male in his early to mid-twenties, between 5'7\" and 5'9\" tall, wearing a gray hooded sweatshirt and blue jeans. St. Cloud police officers Michael Lewandow-ski, Jeff Atkinson, and David Missell responded. Atkinson was told to check the area surrounding the bank, and so went to a recreational area known as Lake George, about a half-mile from the bank. Once there, he noticed a black male matching the height description, wearing a white tank top and blue pants, walking southbound very fast through the park. Atkinson slowed his car to observe the man, Martinez, talking on his cell phone while walking. Martinez looked up at Atkinson and quickly looked down again. Atkinson noticed that Martinez’s face was shiny and assumed he was sweaty.\nAtkinson exited his car and told Martinez that he needed to talk with him. Martinez cooperated, putting his hands behind his head. Atkinson walked up to Martinez, took the cell phone from his hand and laid it on the ground, grabbed his hands, and told him that he was being detained because he matched the description of a bank robber. Atkinson then performed a pat-down to check for weapons since the robber had used a gun. At the same time Missell, who had responded to assist Atkinson, asked Martinez if he had any weapons on him. Martinez responded that he possessed only a large sum of money. Atkinson felt what he knew to be a wad of cash in Martinez’s pocket. At that point, Atkinson placed handcuffs on Martinez, and told him he would be further detained. Atkinson pulled the wad of cash partly out of the pocket to confirm it was money, and then pushed it back into the pocket. Missell then asked Martinez where he got the cash. Martinez responded that he had just been paid from his place of work. When Missell expressed disbelief, Martinez changed his story to say he saw a man running in the park, and that he found the money. Atkinson then placed Martinez in the back of the police car, read him his Miranda rights, and took him to the bank for a show-up identification.\nOnce at the bank, Atkinson placed Martinez on the sidewalk in front of the bank toward the windows, hands behind his back and cuffed. The teller was inside the bank. Upon seeing Martinez, she became physically shaken, and identified Martinez as the robber. He was then arrested and taken to jail.\nMartinez was indicted on one count of bank robbery, in violation of 18 U.S.C. sections 2113(a) and (d). Before trial, Martinez asked the magistrate judge to suppress (1) statements made in response *907to questioning from Missell about the wad of cash in his pocket because he was not given his Miranda warnings at that time, (2) the cash seized from his person after arrest because the officers lacked reasonable suspicion to conduct the Terry stop in the first place, and (3) the teller’s identification of him at the bank as impermissibly suggestive. The magistrate judge denied all three requests in the report and recommendation, which was adopted by the district court.1 Martinez was convicted and sentenced to 150 months imprisonment.\nII. DISCUSSION\nA. Extent of Terry Stop\nMartinez first argues that his statements to the officers in the park, the money seized from his person, and his participation in the show-up identification should be suppressed as “fruit of the poisonous tree” because once he was handcuffed and placed in the police car, the Terry stop turned into an arrest, for which officers had no probable cause. The parties both focus on whether the cuffing of Martinez constituted an arrest. We conclude that the cuffing did not convert the Terry stop into an arrest, and even if it did, the officers had probable cause to effectuate the arrest, based on the wad of cash discovered during the Terry frisk.\n“An investigative detention may turn into an arrest if it ‘lasts for an unreasonably long time or if officers use unreasonable force.’ ” United States v. Maltais, 403 F.3d 550, 556 (8th Cir.2005) (quoting United States v. Navarrete-Barron, 192 F.3d 786, 790 (8th Cir.1999)). During an investigative stop, officers should use the least intrusive means of detention and investigation reasonably necessary to achieve the purpose of the detention. Id. During a Terry stop, officers are authorized to take such steps as are reasonably necessary to protect their personal safety and to maintain the status quo during the stop. Id. This court has previously held that use of handcuffs can be a reasonable precaution during a Terry stop to protect their safety and maintain the status quo. See. e.g. United States v. Summe, No. 05-4179, 2006 WL 1458293 (8th Cir. May 30, 2006) (unpublished) (holding that use of cuffs to detain suspected accomplice did not constitute arrest); United States v. Saffeels, 982 F.2d 1199, 1206 (8th Cir.1992) (overruled on other grounds) (holding that using cuffs on robbery suspect did not convert Terry stop into arrest); United States v. Miller, 974 F.2d 953, 957 (8th Cir.1992) (concluding that cuffing of suspects during Terry stop where suspects outnumbered officers and where officers were concerned for safety was reasonably necessary to achieve purposes of Terry stop).\nHere, the officers knew that the robbery had been accomplished by brandishing a gun. Martinez was a close match to the description of the robber, and Atkinson found him near the scene of the crime, acting suspiciously. The discovery of what Atkinson immediately recognized as a wad of cash on Martinez’s person reasonably led Atkinson and Missell to believe that Martinez might be the robber, and that he might still have the gun used to commit the crime. Placing Martinez in handcuffs was a reasonable response to the situation in order to protect the officers’ personal safety and to maintain the status quo. As such, the use of handcuffs did not convert this Terry stop into an arrest.\n*908Martinez also argues that placing him in a patrol car and transporting him back to the bank made the stop an arrest. We do not agree. In United States v. Lego, 855 F.2d 542 (8th Cir.1988), this court held that confining a potentially dangerous suspect to a patrol car while checking his identification was not tantamount to an arrest. There, the “obvious exigencies of the situation” authorized the officer to continue the Terry stop by confining the suspect to the patrol car “until the situation stabilized and she could determine if full custodial arrest and detention were warranted.” Id. at 545. Here, the exigencies were such that the officers could not dispel their suspicions that had prompted the Terry stop until they transported Martinez back to the bank for the show-up identification. In United States v. Montano-Gudino, 309 F.3d 501, 504 (8th Cir.2002), this court held that, given the circumstances, moving a suspect from one location to another did not exceed the bounds of Terry because it was reasonable to relocate the suspect for questioning.\nIn Hayes v. Florida, 470 U.S. 811, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985), the Supreme Court held that transporting a suspect from his home to a police station for questioning goes beyond the scope of a Terry stop and effects an arrest for which there must be probable cause. Here, the officers did not take Martinez to the police station during the Terry stop, but moved him only to the scene of the crime to help dispel or confirm their suspicions. Similarly, in United States v. Charley, 396 F.3d 1074, 1080 n. 4, 1081 (9th Cir.2005), the court, relying on Montano-Gudino and cases from seven other circuits, held that moving a suspect from the place officers found her to her own home in order to check on her children whom she may have harmed there did not effect an arrest. Thus, neither placing Martinez in the police car nor transporting him to the bank converted this Terry stop into an arrest for which probable cause was required.\nEven if the stop could be considered an “arrest” following the cuffing of Martinez, the discovery of the wad of cash on his person provided probable cause to arrest him. See, e.g., United States v. Martin, 706 F.2d 263, 265 (8th Cir.1983) (finding that information officers obtained during investigatory stop “escalated the factual basis from one permitting an investigatory stop to one warranting an arrest”). Probable cause exists when, at the time of the arrest, “the available facts and circumstances are sufficient to warrant a person of reasonable caution to believe that an offense was being or had been committed by the person to be arrested.” United States v. Kelly, 329 F.3d 624, 628 (8th Cir.2003). Given the facts and circumstances known to Atkinson and Missell at the time they discovered the wad of cash, a reasonably cautious officer would believe that Martinez might well have committed the bank robbery, and thus probable cause existed to arrest him then.\nB. Nature of Questioning By Officers in Park\nMartinez also argues that his statements to the officers in the park should be suppressed because they were made in response to custodial interrogation without the benefit of Miranda warnings. Whether Martinez was “in custody” for purposes of Miranda after being handcuffed during the Ten-y stop is a separate question from whether that handcuffing constituted an arrest for which probable cause was required.\nMiranda warnings are required only where a person’s freedom has been so restricted as to render him “in custody.” United States v. LeBrun, 363 F.3d 715, 720 (8th Cir.2004). The ultimate inquiry is *909whether (1) the person has been formally arrested, or (2) the person’s freedom of movement has been restrained to a degree associated with a formal arrest. Id. “ ‘Two discrete inquiries are essential to the determination: first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave.’ ” Id. (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)). “Thus, the critical inquiry is not whether the interview took place in a coercive or police dominated environment, but rather whether the defendant’s freedom to depart was restricted in any way.” Id. (internal quotation and citation omitted). “In answering this question, we look at the totality of the circumstances while keeping in mind that the determination is based on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Id. (internal quotation and citation omitted). See also United States v. Ollie, 442 F.3d 1135, 1137 (8th Cir.2006).\nIn this case, Martinez was detained by two officers, patted down for weapons (with none being found), and closely questioned about his possession of weapons. Then, he was handcuffed and told he was being further detained. This occurred before being questioned by the two officers. A reasonable person would not, considering the totality of the circumstances, feel he was at liberty to stop the questioning and leave. Martinez’s freedom was restricted to a degree often associated with formal arrest, and we find he was in custody at the time he was handcuffed. He was interrogated about the wad of cash while in this custody, being asked at least twice to explain the presence of the cash. Thus, we find that Martinez was subjected to custodial interrogation.\nThe government argues that so long as the encounter remained a Terry stop, no Miranda warnings were required. But the Supreme Court has indicated that the analysis is not that simple. In Berkemer v. McCarty, 468 U.S. 420, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Court looked to the circumstances involved in a traffic stop to conclude that the suspect’s freedom of action was not “curtailed to a ‘degree associated with formal arrest’ ” as to require Miranda warnings. Id. at 440, 86 S.Ct. 1602 (quoting California v. Beheler, 463 U.S. 1121, 1125, 103 S.Ct. 3517, 77 L.Ed.2d 1275 (1983) (per curiam)). In holding that the traffic stop at issue in Beheler was akin to a Terry stop, the Court held that, “by itself,” the stop did not render him “ ‘in custody.’ ” Id. at 441, 86 S.Ct. 1602. Analyzing the factual circumstances, the Court noted that the “respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest.” Id. Thus, the Court looked not to the fact that the detention was a Terry stop, but rather to the circumstances bearing on the question of custody, just as we have done here. The Court noted that some traffic/Tern/ stops might involve such restraint, necessitating Miranda warnings. “If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him ‘in custody’ for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. ” Id. at 440, 86 S.Ct. 1602. Citing Berkemer, this court has previously implied the possible need for Miranda warnings during a Terry stop. “[MJost Terry stops do not trigger the detainee’s Miranda rights.” United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir.2003) *910(emphasis added). In this ease, as we have said, Martinez was, under the circumstances, subjected to restraint associated with formal arrest, and was interrogated during that custody. Therefore, we follow the Supreme Court’s cue and find that he was entitled to Miranda warnings at the time he was handcuffed. Since Miranda warnings were not given before Martinez gave conflicting accounts of how he got the wad of cash, those statements should have been suppressed.\nThough failing to suppress the statements made in the park was error, we find it was harmless. “An error is harmless if it does not affect substantial rights of the defendant, and did not influence or had only a slight influence on the verdict.” United States v. Davis, 449 F.3d 842, 847 (8th Cir.2006) (internal quotations and citations omitted).\nMartinez argues that his contradictory explanations about the cash, the cash seized, and his participation in the show-up identification were all “fruit of the poisonous tree” under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). However, we have found that handcuffing Martinez in the park did not convert the Terry stop into an arrest, and that even if it did, it was supported by probable cause. Thus, any arrest that might have allegedly occurred was not unlawful. Martinez has not shown that the police decided to take him to the bank for the show-up identification because he gave them contradictory statements. The Court in Wong Sun proceeded to a “fruit of the poisonous tree” analysis because “[t]he prosecutor candidly told the trial court that ‘we wouldn’t have found [the incriminating evidence] except that [the defendant] helped us to.’ ” Id. at 487, 83 S.Ct. 407. In this case, the record indicates that Atkinson was instructed to bring Martinez to the bank. We think, in this case, the identification of Martinez by the teller at the bank was obtained at least “by means sufficiently distinguishable” from, if not independent of, Martinez’s non-Mirandized statements. Id. at 488, 83 S.Ct. 407. The cash retrieved from Martinez was fair game for seizure, as its discovery did not rely on his statements, and we have found that probable cause existed for his arrest at the time of its discovery. Thus, Martinez’s “fruit of the poisonous tree” argument fails, and only his contradictory statements in the park should have been suppressed. Given the other admissible evidence against Martinez, we find that failure to suppress these statements did not sufficiently influence the jury to merit our reversal, and thus was harmless error.\nC. The Show-Up Identification\nMartinez argues that the introduction at trial of the results of the show-up identification violated his procedural due process rights because the procedure used was unduly suggestive and unreliable. “A crime victim’s identification of the defendant is admissible unless it is based upon a pretrial confrontation between the witness and the suspect that is both impermissibly suggestive and unreliable.” United States v. King, 148 F.3d 968, 970 (8th Cir.1998) (internal quotation omitted). “An identification is unreliable if its circumstances create ‘a very substantial likelihood of irreparable misidentifícatíon.’ ” Id. (quoting Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir.1996)). “Police officers need not limit themselves to station house line-ups when an opportunity for a quick, on-the-scene identification arises. Such identifications are essential to free innocent suspects and to inform the police if further investigation is necessary.” Id. “ ‘[A]bsent special elements of unfairness, prompt on-the-scene confronta*911tions do not entail due process violations.’ ” Id. (quoting Russell v. United States, 408 F.2d 1280, 1284 (D.C.Cir.1969)) (alteration in original).\nThough Martinez argues that the show-up was unduly suggestive because he was handcuffed, he had been driven to the bank in a police car, and because police officers were present, “[n]ecessary incidents of on-the-scene identifications, such as the suspectf] being handcuffed and in police custody, do not render the identification procedure impermissibly suggestive.” Id. “Whether such factors cast doubt on the accuracy of a positive identification is an issue for the jury.” Id. Given the facts in this case, we do not believe the show-up identification was unduly suggestive. Even if it was, we do not find that the circumstances created “ ‘a very substantial likelihood of irreparable misidentification’ ” because the teller’s identification was reliable. Id. (quoting Brodnicki v. City of Omaha, 75 F.3d 1261, 1265 (8th Cir.1996)). “Given [the teller’s] opportunity to clearly observe the robber[], [her] direct dealing with him at the time of the offense, [her] prior description of the robber!], the certainty of his identification, and the short time between the robbery and his identification,” the show-up identification was reliable. United States v. Woody, 690 F.2d 678, 680 (8th Cir.1982) (holding that the show-up identification was reliable in spite of being unduly suggestive, and thus permissible). Therefore, admission at trial of the results of the show-up identification, as well as the subsequent identification of Martinez by the teller at trial, did not violate Martinez’s procedural due process rights. King, 148 F.3d at 970.\nIII. CONCLUSION\nFinding no other non-frivolous issues, we affirm.\n\n. The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, adopting the report and recommendation of the Honorable Raymond L. Erickson, United States Magistrate Judge for the District of Minnesota.\n\n", "ocr": false, "opinion_id": 9499210 }, { "author_str": "Loken", "per_curiam": false, "type": "035concurrenceinpart", "page_count": null, "download_url": null, "author_id": null, "opinion_text": "\nLOKEN, Chief Judge,\ndissenting in part and concurring in the judgment.\nI respectfully dissent from the conclusion in Part II.B. of the court’s opinion that Officer David Missell violated Edwin Martinez’s Fifth Amendment rights by failing to give Miranda warnings before asking Martinez to explain the “wad of cash” found in his pocket shortly after an armed bank robbery. I agree that the district court’s suppression error, if any, was harmless, and with the remainder of the court’s opinion. Therefore, I concur in the decision to affirm.\nMiranda warnings are required before the police engage in “custodial interrogation,” which the Supreme Court defined in Miranda as whenever “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (emphasis added). Later, the Court decided in Terry v. Ohio, 392 U.S. 1, 30, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and cases applying Terry, that the Fourth Amendment is not violated when a police officer with reasonable suspicion that criminal activity is afoot briefly detains (seizes) a suspect while making a reasonable investigation to confirm or dispel the officer’s suspicion. The investigation normally includes brief questioning “reasonably related in scope to the justification” for the stop. United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). The apparent overlap of the broad definition of custody in Miranda and the detention inherent in a Terry stop inevitably raised the question whether a Terry stop is a significant deprivation of the suspect’s freedom of action so that Miranda warnings are required before any questioning. An affirmative answer to this question *912would have undermined both the practical and the constitutional underpinnings of the Court’s 8-1 decision in Terry: “if the investigative stop is sustainable at all, constitutional rights are not necessarily-violated if pertinent questions are asked and the person is restrained briefly in the process.” 392 U.S. at 35, 88 S.Ct. 1868 (White, J., concurring).\nNot surprisingly, the Court declined to make Miranda warnings mandatory during Terry stops. In Berkemer v. McCarty, 468 U.S. 420, 441, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984), the Court held that a motorist stopped and questioned for a routine traffic offense was not in custody for Miranda purposes until he was later arrested for driving while intoxicated. In explaining its decision, the Court expressly equated traffic stops and Terry stops and observed that the nonthreatening and non-coercive nature of both “explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda.” Then, reiterating the test it had articulated in post -Miranda cases, the Court cautioned that Miranda warnings are required if, at any point during a Terry stop, “a suspect’s freedom of action is curtailed to a degree associated with formal arrest.” Berkemer, 468 U.S. at 440, 104 S.Ct. 3138. The Court acknowledged that “the doctrine just recounted will mean that the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody [for Miranda purposes].” Id. at 441, 86 S.Ct. 1602. We have construed Berkemer to mean that “most Terry stops do not trigger the detainee’s Miranda rights.” United States v. Pelayo-Ruelas, 345 F.3d 589, 592 (8th Cir.2003). But this is one of those difficult cases.\nIn my view, the court’s opinion errs by relying heavily on two station-house questioning cases — United States v. LeBrun 363 F.3d 715 (8th Cir.2004), and Thompson v. Keohane, 516 U.S. 99, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). In such cases, the dominant inquiry is whether a suspect who agreed to be questioned was still free to leave when he made incriminating statements. By contrast, during a Terry non-consensual stop, “[o]ne is not free to leave ... until the completion of a reasonably brief investigation, which may include limited questioning.” Pelayo-Ruelas, 345 F.3d at 592. Thus, it is contrary to Berkemer for the court to frame the Miranda custody question as being whether a reasonable person would “feel he was at liberty to stop the questioning and leave,” supra at p. 909, because that framing compels the conclusion that all questioning during lawful Terry stops must be preceded by Miranda warnings.\nApplying Terry, the court concludes— correctly, in my view — that Officers Mis-sell and Jeff Atkinson acted reasonably when they stopped Martinez, a bank robbery suspect; frisked and handcuffed him in the interest of officer safety and to prevent flight; took a quick look at a wad of cash in his pants that might be contraband; did not seize the cash; placed Martinez in the patrol car and gave him Miranda warnings; and then took him some distance for a show-up before the bank teller victim. In the midst of this relatively coercive Terry stop, justified by the violent crime that had just occurred, Mis-sell asked Martinez to explain how a suspicious wad of cash came to be in his pocket soon after an armed bank robbery.\nIn my view, the critical fact for Miranda purposes is that the questions were entirely consistent with the proper scope and purpose of a reasonable Terry stop. To be sure, handcuffing is an additional restraint on the suspect’s freedom of action, a restraint that often accompanies formal arrests. But in a Terry stop, handcuffing may signal that a formal arrest is immi*913nent, or it may be an action reasonably limited to officer safety concerns or the risk of flight while the officers attempt to quickly confirm or dispel their suspicions. In distinguishing the two situations, I consider the nature of the questioning critical. If Missell had interrogated the handcuffed Martinez about his actions earlier that day, or the details of the robbery, or other crimes under investigation, that would be custodial interrogation consistent with a formal arrest, and Miranda warnings would be required. But brief questioning consistent with the limited purpose of the Terry stop did not require such warnings, even though the suspect was (reasonably) handcuffed. This distinction is consistent with cases holding that a Terry stop that includes handcuffing followed by brief questioning related to the purpose of the stop does not violate the suspect’s Fourth or Fifth Amendment rights. See United States v. Cervantes-Flores, 421 F.3d 825, 829-30 (9th Cir.2005), cert. denied, — U.S. -, 126 S.Ct. 1911, 164 L.Ed.2d 668 (2006); United States v. Fomiar-Castillo, 408 F.3d 52, 63-65 (1st Cir.2005); United States v. Miller, 974 F.2d 953, 956-57 (8th Cir.1992); United States v. Bautista, 684 F.2d 1286, 1292 (9th Cir.1982), cert. denied, 459 U.S. 1211, 103 S.Ct. 1206, 75 L.Ed.2d 447 (1983). The court cites no factually similar case to the contrary.\n“Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.” Berkemer, 468 U.S. at 437, 104 S.Ct. 3138. I conclude that Martinez was not in custody for Miranda purposes when he gave inconsistent and therefore incriminating answers to questions that were consistent with a lawful Terry stop.\n", "ocr": false, "opinion_id": 9499211 } ]

[ { "author_str": null, "per_curiam": false, "type": "010combined", "page_count": 3, "download_url": "http://www.ca5.uscourts.gov/opinions\\unpub\\97/97-30710.0.wpd.pdf", "author_id": null, "opinion_text": " UNITED STATES COURT OF APPEALS\n For the Fifth Circuit\n\n\n\n No. 97-30710\n Summary Calendar\n\n\n\n JEFFERY E. RICHARDSON,\n\n Plaintiff-Appellee,\n\n\n VERSUS\n\n\n DEPARTMENT OF AGRICULTURE, Dan Glickman, Secretary,\n\n Defendant-Appellee,\n\n\n DONALD LEWIS,\n\n Movant-Appellant.\n\n\n\n\n Appeal from the United States District Court\n For the Eastern District of Louisiana\n (95-CV-1954-N)\n April 27, 1998\n\n\nBefore DUHÉ, DeMOSS, and DENNIS, Circuit Judges.\n\nPER CURIAM:*\n\n In June 1995, Jeffery E. Richardson (\"plaintiff\") filed suit\n\nin the United States District Court for the Eastern District of\n\n *\n Pursuant to 5TH CIR. R. 47.5, the Court has determined that this\nopinion should not be published and is not precedent except under\nthe limited circumstances set forth in 5TH CIR. R. 47.5.4.\n\fLouisiana against Dan Glickman, Secretary, United States Department\n\nof Agriculture (\"defendant\"), seeking damages for discrimination in\n\nemployment and reprisal for engaging in protected activities\n\npursuant to Title VII of the Civil Rights Act of 1964. During the\n\ncourse of discovery in this proceeding, plaintiff subpoenaed Donald\n\nLewis, who was an employee of the Department of Agriculture to\n\nappear for a deposition and to bring with him copies of \"[a]ny and\n\nall documents, records, calendars, diaries, correspondence and\n\nmemoranda pertaining or in anywise relating to any charge of\n\ndiscrimination filed by [Lewis] or on [Lewis’] behalf against the\n\nDepartment of Agriculture, or any of its employees.\" Lewis had, in\n\nfact, himself filed suit in another division of the Eastern\n\nDistrict of Louisiana against the Department of Agriculture. Lewis\n\nfailed and refused to produce the requested documentation and\n\nplaintiff cited him for contempt. The magistrate judge ordered\n\nLewis to comply with the subpoena and upon his failure accessed\n\nattorney’s fees and costs against him. Lewis filed a motion with\n\nthe district judge to reconsider the magistrate judge’s ruling, but\n\nthe district judge declined and affirmed the magistrate judge’s\n\nrulings. Lewis filed a document labeled as a notice of appeal in\n\nwhich he stated that \"Lewis seeks a writ of mandamus/supervisory\n\nwrit compelling the United States District Court for the Eastern\n\nDistrict of Louisiana to vacate the order of the Magistrate dated\n\nMay 22, 1997 which said order was affirmed by the District Court\n\nJudge on June 27, 1997.... Alternative, Donald Lewis appeals said\n\n 2\n\forder.\" At the time of filing of this \"notice of appeal\" Lewis was\n\nnot a party to the proceeding between plaintiff and defendant. On\n\nOctober 3, 1997, the district court entered a final judgment\n\ndismissing plaintiff’s suit against defendant pursuant to a\n\nsettlement agreement between them.\n\n We have carefully reviewed the briefs and the record excerpts\n\nand relevant portions of the record itself. For the reasons stated\n\nby (1) the magistrate judge’s order filed under date of May 21,\n\n1997 and (2) the district judge in her order filed under date of\n\nJune 27, 1997 which affirmed the magistrate judge’s order, we are\n\nsatisfied that there is no reversible error in the disposition of\n\nLewis’ claims and those orders are hereby AFFIRMED.\n\n In view of the language used by Lewis in his \"notice of\n\nappeal\" regarding a \"writ of mandamus/supervisory writ,\" we also\n\ntreat this document as a petition for writ of mandamus from this\n\nCourt to the district court seeking the relief requested therein.\n\nWe have carefully reviewed the briefs, the record excerpts and\n\nrelevant portions of the record itself. We can find no basis\n\neither in law or in fact to conclude that either (i) the order\n\nentered by the magistrate judge dated May 22, 1997, or (ii) the\n\norder entered by the district judge on June 27, 1997 affirming the\n\nmagistrate judge’s order, were clearly erroneous or outside of the\n\njudicial discretion vested in those officers. Accordingly, we DENY\n\nLewis’ petition for a writ of mandamus/supervisory writ.\n\n\n\n 3\n\f", "ocr": false, "opinion_id": 14783 } ]