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0 | 404,998 | 2 | 5 | 51 The Insurance Company raises several allegations of error in the trial court's evidentiary rulings 27 and jury instructions. We have reviewed those claims, and, in light of our prior rulings, conclude that any error committed must be deemed harmless. 52 | Insurance Company's Assertions of Trial Error. |
1 | 173,333 | 1 | 7 | Petitioners also argue that the FEIS, in addressing the effects of the past mining operations, erroneously treated the airborne radiation already being emitted from the debris as naturally occurring rather than as man-made background radiation. Even if it did so, the FEIS still adequately considered the cumulative impact from all of these sources of airborne radiation, regardless of how the NRC characterized that airborne radiation. | Whether the NRC erred in characterizing the airborne radiation emitted from the prior conventional mining operation as background radiation |
2 | 204,752 | 2 | 2 | The Park District challenges the judgment against it for breach of contract even though damages were assessed at a nominal $1. The district court held that Commissioner Burroughs's casual remarkYou're still there, aren't you? That's all you need to do.created an implied-in-fact contract requiring the Park District to give Kelley reasonable notice before reconfiguring Wildflower Works. Although factual findings about the existence of a contract are reviewed for clear error, ReMapp Int'l Corp. v. Comfort Keyboard Co., 560 F.3d 628, 633 (7th Cir.2009), there is a threshold legal question here about the commissioner's unilateral authority to bind the Park District to a contract. Our review is de novo. See Manning v. United States, 546 F.3d 430, 432 (7th Cir.2008). Two statutes guide our analysis. The first is the Chicago Park District Act, which provides in relevant part that [t]he commissioners of [the Park District] constitute the corporate authorities thereof, and have full power to manage and control all the officers and property of the district, and all parks, driveways, boulevards and parkways maintained by such district or committed to its care and custody. 70 ILL. COMP. STAT. 1505/7.01. The district court noted the statute's use of the plural commissioners and authorities and concluded from this that each individual commissioner was a separate corporate authority with the power to unilaterally bind the Park District. This conclusion strains the statutory language and ignores how public bodies customarily operate. It also contradicts another provision in the Illinois Park District Code, which applies to all Illinois park districts and must be read in conjunction with the Chicago Park District Act. The Illinois Park District Code states: No member of the board of any park district . . . shall have power to create any debt, obligation, claim or liability, for or on account of said park district. . . except with the express authority of said board conferred at a meeting thereof and duly recorded in a record of its proceedings. 70 ILL. COMP. STAT. 1205/4-6 (emphasis added). When read together, these statutes confirm that there is only one corporate authority of the Chicago Park Districtits Board of Commissionersand that individual commissioners cannot unilaterally bind the Park District's Board to a contract without express Board approval. There is no evidence that the Park District's Board of Commissioners authorized Commissioner Burroughs to enter into a contract with Kelley. Moreover, Illinois law provides that ultra vires contracts entered into by municipal corporations are invalid, see, e.g., McMahon v. City of Chicago, 339 Ill.App.3d 41, 273 Ill.Dec. 447, 789 N.E.2d 347, 350 (2003), so Commissioner Burroughs's offhand remark cannot have created a valid implied-in-fact contract. The judgment for Kelley on the contract claim was premised on legal error; the Park District was entitled to judgment on this claim. For the foregoing reasons, we AFFIRM the judgment in favor of the Park District on the VARA claim; we REVERSE the judgment in favor of Kelley on the contract claim and REMAND with instructions to enter judgment for the Park District. | The Park District's Cross-Appeal on the Contract Claim |
3 | 792,413 | 3 | 2 | 50 In Valenti, 987 F.2d at 715, this Circuit held that a dual-docketing system, or sealed docket, in the Middle District of Florida violated the press and public's First Amendment right of access to criminal proceedings, and declared it facially unconstitutional. In striking down that system, we recognized that public docket sheets are essential to provide meaningful access to criminal proceedings. 15 Id. Thus, we held that the press and public's qualified First Amendment right to access criminal proceedings extends to the proceedings' docket sheets. Id.; accord Hartford Courant Co., 380 F.3d at 91 (concerning the secret docketing procedures in Connecticut state courts). 51 Because the district court's orders unsealing dockets here brought them in compliance with Valenti, the secret-docketing issue is not properly before us. We nevertheless exercise our supervisorial authority to remind the district court that it cannot employ the secret docketing procedures that we explicitly found unconstitutional in Valenti. 52 | Constitutionality of Secret Docketing Procedures in Ochoa-Vasquez |
4 | 150,472 | 3 | 1 | First, the CFRA prohibits state contractors and lobbyists from making campaign contributions to candidates for state office. See Conn. Gen.Stat. §§ 9-610(g), 9-612(g)(2)(A)-(B). The CFRA's ban on contractor contributions applies to any person, business entity or nonprofit organization that enters into a state contract. Id. § 9-612(g)(1)(D). It also applies to any prospective contractor; to any principal of a contractor or prospective contractor; and to the spouse or dependent child [2] of a contractor, a prospective contractor, or a principal of a contractor or prospective contractor. Id. § 9-612(g)(2). (We discuss these terms in detail below.) In addition, the ban on contractor contributions is what might be called branch specific. If the contract in question is with or from a state agency in the executive branch, the contractor may contribute to a candidate for the General Assembly but not to a candidate for an executive office ( i.e., a candidate for Governor, Lieutenant Governor, Attorney General, State Comptroller, Secretary of the State or State Treasurer). Id. § 9-612(g)(2)(A). If the contract in question is with or from the General Assembly, the contractor may contribute to a candidate for an executive office but not to a candidate for the General Assembly. Id. § 9-612(g)(2)(B). [3] Nonetheless, any holder, or principal of a holder of a valid prequalification certificate, such a certification being required in order to bid or perform work on certain high-cost, state-funded projects, is precluded from contributing to candidates for either branch of government. Id. § 9-612(g)(2)(A)-(B). Further, all individuals and entities covered by the contractor ban are prohibited from contributing to any state or town [p]arty committee. Id. § 9-601(1)-(2). The CFRA's ban on lobbyist contributions applies to any communicator lobbyist, defined (a) as someone compensated for lobbying over the threshold amount of $2,000 in any calendar year, Green Party I, 590 F.Supp.2d at 295 n. 3 (quoting State Elections Enforcement Commission (SEEC) Declaratory Ruling 2006-1, at 2), and (b) as a lobbyist who communicates directly or solicits others to communicate with an official or his staff in the legislative or executive branch of government or in a quasi-public agency for the purpose of influencing legislative or administrative action, Conn. Gen.Stat. § 1-91(v). The ban on lobbyist contributions also applies to the spouse or dependent child of a communicator lobbyist. See id. § 9-610(g) (applying the ban to the immediate family of a communicator lobbyist); id. § 9-601(24) (defining [i]mmediate family as the spouse or a dependent child of an individual). [4] | Contribution Bans |
5 | 4,541,110 | 3 | 1 | cation, the pumping system receiving information from a user, the pumping system comprising: a pump; a motor coupled to the pump; a control system operating as a master controller, the control system including an automation sys- tem, the control system including a remote Case: 19-1821 Document: 55 Page: 3 Filed: 06/12/2020 HAYWARD INDUSTRIES, INC. v. PENTAIR WATER POOL AND SPA 3 keypad and display connected to the automation system; and a pump controller located remotely from the con- trol system, the pump controller coupled to at least one of the pump and the motor, the pump controller operating as a slave controller when connected to the control system, the pump controller in digital communication with the motor and the control system, the pump controller transmitting information to and receiving information from the control system over at least one communication link, the pump controller operating the motor to substantially optimize energy consumption based on the information entered into the re- mote keypad by the user and received from the control system, the pump controller operating independently to control the motor to optimize energy con- sumption when disconnected from the control system. ’597 patent col. 13, ll. 33–58 (emphasis added to indicate disputed claim limitations). The prior art reference at issue in this case is U.S. Patent Publication No. 2003/0061004 (“Discenzo”). Discenzo discloses a control system for control of pumps and motors to provide optimized performance of a pumping system. Discenzo teaches various pumping systems, some of which are connected to a host computer for the purpose of receiving and sending information to control the system. | A pumping system for at least one aquatic appli- |
6 | 3,185,495 | 1 | 3 | Lareka Laws challenges the district court’s denial of her motion for a judgment of acquittal. She asserts that the government’s evidence was insufficient to establish who in fact owned the real estate identified on the tax returns, or that the properties could not properly qualify for the homebuyer tax credit. She also argues that the government failed to prove that she had sufficient intent to defraud, or that any fraudulent claims she made were material. We review the denial of a motion for judgment of acquittal de novo. United States v. Ford, 726 F.3d 1028, 1033 (8th Cir. 2013), cert. denied, 135 S. Ct. 131 (2014) (citing United States v. Lewis, 557 F.3d 601, 612 (8th Cir. 2009)). When a motion for judgment of acquittal is based on insufficiency of the evidence, we view all evidence in the light most favorable to the verdict, accept all reasonable inferences in support of the verdict, and reverse only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. We conclude that the evidence against Laws was sufficient to support the jury’s guilty verdict. The evidence included more than 200 tax returns that improperly claimed a first-time homebuyer tax credit, a significant number of which Laws personally prepared; deposit of the credits into one of 17 accounts owned by a -12- member of the Laws family, including two accounts owned or co-owned by Lareka Laws; an admission by Laws that she had filed some of the relevant tax returns; testimony that Laws knew that the individuals she was filing returns for were not entitled to the homebuyer credit; and testimony that Laws had fabricated information on the tax returns she filed. Viewing this evidence in the light most favorable to the jury’s verdict and accepting all reasonable inferences in favor of the verdict, we cannot say that no reasonable jury could have found Laws guilty beyond a reasonable doubt. Though the jury could alternatively have accepted the arguments Laws advances on appeal, it was not required to do so. See United States v. Hively, 437 F.3d 752, 761 (8th Cir. 2006). Because the evidence was sufficient to support a verdict of guilty, the district court did not err in denying Laws’ motion for a judgment of acquittal. | Lareka Laws |
7 | 476,864 | 1 | 3 | 14 Because of the deafening congressional silence regarding retrospective application, this interpretive conflict is controlled by the characterizations attributed to the CMPL. It appears that Congress generally intended the CMPL to be a procedural, civil alternative to ameliorate the pattern of underenforcement of criminal statutes. Because of the similarity of their provisions, it is not wholly unreasonable to adopt the Secretary's interpretation that the CMPL was also intended to provide a procedural alternative to the FCA. Most of the CMPL provisions are procedural. However, the CMPL enlarged the scope of substantive liability, allowing prosecution of those who had reason to know that their claims were not provided for. Whether this substantive change so colors the nature of the Act as to make the CMPL substantive law for retroactivity purposes is the question before us. 15 Little guidance exists on whether the statute as a whole can be characterized as procedural. In somewhat similar circumstances, this court concluded that the congressional purpose in shoring up the enforcement mechanisms of the Shipping Act of 1916, 46 U.S.C. Sec. 801 et. seq. (1970), was procedural and remedial in nature. In United States v. Blue Sea Line, 553 F.2d 445 (5th Cir.1977), we faced the question whether the government could bring a criminal prosecution under a repealed statute for acts antedating the statute's repeal, as Congress had replaced the statute's criminal sanctions with civil penalties and transferred jurisdiction of some claims to an administrative commission. Affirming the district court's dismissal of the indictment and holding the amendments applicable to pre-amendment violations, the court described congressional intent as follows: 16 By these changes Congress hoped to strengthen enforcement of the Shipping Act's commands. The government's reduced burden of proof in civil penalty proceedings would simplify documentation of violations, increasing the likelihood of successful prosecution and diminishing the delay between violation and penalty. Both these consequences would tend to increase the Act's deterrent impact without altering the substance of the Act's penalties. Additionally, by authorizing Maritime Commission compromise of civil penalties, the 1972 amendments provided a tool for reducing duplicative Justice Department review and expensive federal litigation. 17 | Unreasonable Characterization of the CMPL for Retroactivity Purposes |
8 | 318,311 | 1 | 2 | 6 The issue before this court is limited to the question whether the CCC, a government agency, can obtain damages for an unperformed oral contract for carriage. We believe that both the relevant statutes and regulations require that government contracts such as the charter agreement here be written in order to be enforceable by the Government. Hence, in answer to the certified question we hold that this oral contract is unenforceable.
7 In 1955 the Congress, troubled by executive spending, 6 enacted 1311(a)(1) of the Supplemental Appropriation Act. 7 This section provided that 8 After August 26, 1954 no amount shall be recorded as an obligation of the Government of the United States unless it is supported by documentary evidence of-- 9 (1) a binding agreement in writing between the parties thereto, including Government agencies, in a manner and form and for a purpose authorized by law, executed before the expiration of the period of availability for obligation of the appropriation or fund concerned for specific goods to be delivered, real property to be purchased or leased, or work or services to be performed. 8 10 The original purpose of the statute was to prevent executive officials from excessive or inappropriate spending. 9 11 The parties to this litigation urge contrary interpretations of this provision. On the one hand, the Government urges that the statute is simply a recordation statute to facilitate auditing and has no effect on government contracts with private parties. On the other hand, ARL argues that the provision, in conjunction with certain regulations, establishes virtually a statute of frauds for such government contracts as involved here. Sustaining the government position here would remove reciprocally the protection of the Government which was the initial intent of the statute, and this we decline to do. 12 We hold that the statute does establish a requirement that government contracts of this type be in writing, and that contracts which are merely oral are not enforceable. We agree with the Government that this statute does not follow the typical statute of frauds format. 10 But we do not believe that to be determinative. Rather, we feel that the Congress was concerned that the executive might avoid spending restrictions by asserting oral contracts, and so enacted the requirement of a writing. 11 13 The Supreme Court long ago considered a similar question in Clark v. United States. 12 Although the statute there involved has since been repealed, it was similar to the statute here in that it required government contracts of certain departments to be in writing. 13 The Supreme Court held that this statute effectively established a statute of frauds. The oral agreement made by the Government to charter a steamer from a private party was hence void. The Court, however, did allow the owner of the steamer to recover from the Government for the value of services rendered, on a theory of quantum meruit. 14 Justice Bradley wrote for the Court: 14 The facility with which the government may be pillaged by the presentment of claims of the most extraordinary character, if allowed to be sustained by parol evidence, which can always be produced to any required extent, renders it highly desirable that all contracts which are made the basis of demands against the government should be in writing. Perhaps the primary object of the statute was to impose a restraint upon the officers themselves, and prevent them from making reckless engagements for the government; but the considerations referred to make it manifest that there is no class of cases in which a statute for preventing frauds and perjuries is more needed than in this. 15 15 While the Clark case dealt with a private party trying to collect from the Government, the principles enunciated above remain true when the situation is reversed and the Government is seeking damages. The requirement of a written contract protects both sides from the possibility of fraud or misinterpretation by the other. And, on the principle of mutuality, it is not appropriate for the Government to assert the lack of a written contract when it wishes an agreement to lapse, but to waive such an objection when it wishes to enforce an agreement. 16 In fact, if the Government's position of no mutuality were accepted, the agreement would not meet the basic contractual prerequisite of consideration from each contracting party. 16 For if the Government could avoid its part of the bargain by asserting lack of a written contract, the Government would be making merely an illusory promise: the Government would pay the agreed price for the services only if it wished and if it had complied with the statute (and regulations, infra). The Government could avoid payment by citing the statute and its own failure to follow its own regulations, and then the private party would be limited to quantum meruit. Such an arrangement clearly would not satisfy the requirement of mutual consideration. 17 The Supreme Court decision in 1915 of United States v. New York and Porto Rico SS Co. 17 can be distinguished from the present case. In that earlier case, the Government sought to recover from a private steamship company which had not performed its written agreement to ship coal. The company raised as a defense the failure of the Government to comply with the exact writing requirements of the same statute as involved in Clark, 18 by not producing proper copies and seals. The Court held that the Government could waive the requirements because it was the only intended beneficiary of the protection. The private company 'needs no such protection against a written undertaking signed by himself.' 19 In the case at bar, however, what is lacking is not simply the proper form or seal but a written contract in its entirety. Such of the entire agreement as was made was made orally, and no writing was sent until after the agreement was repudiated. ARL claims that vital provisions were never agreed upon, and disputes the CCC version of what was actually agreed to, e.g., whether long or short tons were meant is still in controversy. Protection for the private company, as well as the Government, is necessary under these circumstances. 18 A somewhat related issue was considered by the Court of Claims in Escote Manufacturing Co. v. United States. 20 There the court stated that an oral contract to buy surplus government property was as binding on the private party as if it had been in writing. However, the facts in Escote are markedly different from this case. In Escote the private bidder had sent a written bid and check for deposit in response to the Government's invitation to bid for surplus goods. The Government then sent the bidder a letter containing three copies of a form headed 'Invitation, Bid, and Acceptance' for signature by the bidder. The bidder sought to avoid the contract on the ground that the contracting officer of the Government had not signed the form, but his name was only typewritten. Thus, the issue was not whether there was a written agreement, but simply whether the signature of the contracting officer was required. 19 Although Escote was decided after the 1955 statute requiring written contracts, the Court of Claims stated that the parties had not identified any statute requiring a writing. The court felt that the contract forms sent by the Government to the private buyer, which were not signed, were merely part of the Government's bookkeeping system. At no time in its opinion did the court give consideration to the statute or regulations in effect here. Consequently, the Escote opinion is of limited value in deciding this case. 21 20 We view the statute as establishing a requirement that a government contract as involved here be in writing before either party may be allowed to obtain court enforcement of the agreement. The statute admittedly is not phrased as the typical statute of frauds. It is more specific, in that it requires that the contract be supported by documentary evidence of a binding agreement in writing. 22 Although the statute simply bars recording oral contracts as obligations of the Government, 23 this does not mean that recordation is the only purpose or effect of the statute. If the Government does not fulfill the recordation requirements, it can neither automatically take the benefit of an agreement it has allegedly made, nor can it be hurt by another party alleging an agreement. Mutuality of protection is thus provided, and we do not see by the Government's interpretation of the statute anything but one-sided protection would be afforded. 21 We believe that this interpretation of the statute is in accordance with the legislative intentions. The House Conference Report on the provision offers a succinct summary of the legislative view: 22 Section 1311(a)(1) precludes the recording of an obligation unless it is supported by documentary evidence of a binding agreement between the parties as specified therein. It is not necessary, however, that this binding agreement be the final formal contract on any specified form. The primary purpose is to require that there be an offer and an acceptance imposing liability on both parties. For example, an authorized order by one agency on another agency of the Government, if accepted by the latter and meeting the requirement of specificity, etc., is sufficient. Likewise, a letter of intent accepted by a contractor, if sufficiently specific and definitive to show the purposes and scope of the contract finally to be executed, would constitute the binding agreement required. 24
23 Several regulations of the Executive branch further support our view that a written contract is necessary to bind ARL here. The regulations include general Federal Procurement Regulations 25 and regulations specific to the CCC. 26 24 The Federal Procurement Regulations (FPR's) were promulgated pursuant to the Federal Property Act 27 to regulate all government agency procurement. Specifically FPR 1-1.208 provides a definition of contract: 25 'Contract' means establishment of a binding legal relation basically obligating the seller to furnish personal property or nonpersonal services (including construction) and the buyer to pay therefor. It includes all types of commitments which obligate the Government to an expenditure of funds and which, except as otherwise authorized, are in writing. In addition to a two-signature document, it includes all transactions resulting from acceptance of offers by awards or notices of awards; agreements and job orders or task letters issued thereunder; letter contracts; letters of intent; and orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance. It also includes contract modifications. 26 The Government urges that 1-1.208 merely says that a contract is the 'establishment of a binding legal relation' and is broadly defined to include oral agreements. We believe that the Government has misinterpreted the definition. The regulation requires a writing, except as otherwise authorized. It does not require a formal two-signature document, but it does require some form of writing, whether letters of intent, or purchase orders, or some other written manifestation. 27 It must be noted that the scope of the FPR's is limited by the Federal Property Act, which states in relevant part that the Act and accompanying regulations shall not be interpreted to impair the authority of any executive agency with respect to any phase, including transportation, 28 of any program conducted for purposes of resale, price support, grants to farmers, stabilization, transfer to foreign governments, or foreign aid, relief, or rehabilitation: Provided, That the agency carrying out such program shall, to the maximum extent practicable, consistent with the fulfillment of the purposes of the program and the effective and efficient conduct of its business, coordinate its operations with the requirements of said chapters and the policies and regulations prescribed pursuant thereto. 28 29 Thus, while the FPR's are not mandatory, and agencies may carve out exceptions, there is strong pressure on the CCC to conform to them insofar as possible. 29 30 The CCC has not adopted regulations exempting it from the writing requirement in the FPR definition of contract. Not only do CCC regulations explicitly adopt the FPR's, 30 but also CCC's own regulations incorporate an additional writing requirement. 31 And, the Government has pointed to no cases wherein the CCC has stated that it rejects the requirement of a writing. The Government does suggest that the CCC's charter instructs it to follow the usual and customary channels of trade and commerce, 32 and that oral contracts to be followed by written charters are customary. Whether such oral agreements are customary in shipping, we do not believe that the CCC charter provision was intended to cover the formalities of a contract; rather, it tells the CCC to use normal commercial, as opposed to governmental, means for transporting goods. In the face of the regulations governing the CCC, this charter provision should not be interpreted as removing the writing requirement. 31 A regulation more directly applicable to the CCC is 7 C.F.R. 11.12(a), which provides specifically for ocean transportation of goods for the CCC: 32 The cost of ocean transportation will be financed by CCC only when specifically provided for in the purchase authorization. Unless the purchase authorization provides otherwise, this section will apply to the financing of ocean transportation. Unless otherwise specifically provided in the applicable purchase authorization or unless otherwise requested by FAS, the pertinent terms of all proposed charters . . . and all proposed liner bookings must be submitted to the appropriate USDA Office . . . for review and approval prior to fixture of the vessel. Tentative advance approvals may be obtained by telephone or telegram, provided Form CCC 105, Ocean Shipment Data-PL 480 ('Request for Vessel Approval'), is furnished promptly confirming the information supplied by telephone or telegram. Approvals of charters and liner bookings will be given on Form CCC 106, 'Advice of Vessel Approval.' 33 Thus, use of particular forms is required prior to 'fixture' of a ship. While the regulation does not explicitly state that an oral contract is unenforceable, that meaning is apparent. 34 The Government objects that the CCC regulations are inapplicable because the foodstuffs were being shipped under Title II of PL 480, rather than Title I. The significance of this difference is that Title I provides for the sale of surplus agricultural commodities overseas and is administered by the U.S. Department of Agriculture. Title II provides for the donation of surplus agricultural commodities for relief and is administered by the State Department. The CCC regulations apply only to Title I. 33 The State Department regulations do not provide any form or writing requirement for a contract. 34 35 As ARL correctly points out, there was no indication given by the Government that Title II rather than Title I activity was being undertaken. ARL was negotiating with the CCC and had a right to assume that the CCC would follow its own published regulations. Furthermore, while Title II regulations do not mention writing of contracts, AID has specifically adopted the FPR's in general, with no exception from the definition of contract. 35 So, even if Title II were applicable, the FPR definition would still be effective. 36 The Government also argues that even if Title I were applicable, it merely establishes requirements for importing countries to produce written charters for ocean transportation to obtain USDA approval of financing. 36 Whether or not the writing requirement is directed to importing countries or shippers, the fact remains that certain forms are to be used before USDA approval will be granted; USDA need not finance any non-conforming charters. We believe this suggests a requirement of a written contract, similar to the statutory requirement. Unenforceability of any oral agreement determines the position of both parties: just as USDA could refuse to finance the oral charter here, so, too, can ARL raise the lack of writing as a defense to an action for breach of contract. | the enforceability of the oral contract by the government |
9 | 2,996,064 | 2 | 1 | Barlow first argues that the district court erred in denying his motion for discovery because he produced sufficient evidence to warrant further investigation of his claim that the DEA agents had engaged in racial profiling. We review the denial of a motion for discovery in a criminal case for abuse of discretion. United States v. Bastanipour, 41 F.3d 1178, 1181 (7th Cir. 1994). Barlow’s motion for discovery invoked Armstrong, in which the Supreme Court defined the showing necessary for a defendant to obtain discovery on a selective prosecution claim. 517 U.S. at 465. Barlow complains not of selective prosecution, but of racial profiling, a selective law enforcement tactic. But the same analysis governs both types of claims: a defendant seeking discovery on a selective enforcement claim must meet the same “ordinary equal protection standards” that Armstrong outlines for selective prosecution claims. See Armstrong, 517 U.S. at 465; Chavez v. Ill. State Police, 251 F.3d 612, 635-36 (7th Cir. 2001); United States v. Hayes, 236 F.3d 891, 895 (7th Cir. 2001). To prevail on his motion, therefore, Barlow needed to demonstrate that the agents’ actions had a discriminatory effect and that the agents had a discriminatory purpose when they approached him in Union Station. Armstrong, 517 U.S. at 465; Chavez, 251 F.3d at 635-36; Hayes, 236 F.3d at 895. Law enforcement has a racially discriminatory effect when members of a protected racial group—in this case 6 No. 01-1273 African Americans—receive less favorable treatment than nonmembers. See Armstrong, 517 U.S. at 465; Chavez, 251 F.3d at 636; Hayes, 236 F.3d at 895. In other words, to establish discriminatory effect, an African American claimant must demonstrate that a law or regulation was enforced against him, but not against similarly situated individuals of other races. Armstrong, 517 U.S. at 465; Chavez, 251 F.3d at 636; Hayes, 236 F.3d at 895. Barlow contended that the DEA agents had enforced the law selectively by choosing to approach, interview, and search African Americans but not Caucasians, i.e., by engaging in racial profiling. To obtain discovery on this claim, Barlow was required to present evidence that DEA agents chose not to approach whites to whom he was similarly situated. Armstrong, 517 U.S. at 468-69; Chavez, 251 F.3d at 638; Hayes, 236 F.3d at 895. A finding that DEA agents did not approach whites who rode the Southwest Chief as frequently as African American travelers would not automatically establish that the agents’ investigatory tactics were discriminatory; Barlow needed to show also that at least some of these whites not approached were similarly situated to him. Armstrong, 517 U.S. at 468-69; Chavez, 251 F.3d at 638; Hayes, 236 F.3d at 895. Barlow introduced Dr. Lamberth’s statistical analysis in an attempt to demonstrate that the DEA agents had a practice of approaching African American travelers but not similarly situated white travelers. Statistical data has proven a useful tool in some high-profile state racial profiling cases. See, e.g., State v. Soto, 734 A.2d 350 (N.J. 1996) (statistical evidence that blacks were 4.85 times more likely than whites to be stopped for traffic violations established prima facie case of discriminatory effect). And although statistics alone rarely establish an equal protection violation, they may be sufficient to establish the No. 01-1273 7 discriminatory effect prong of the Armstrong test. Chavez, 251 F.3d at 640. But such statistics must be relevant and reliable, id., and the ones Barlow provided were neither. Dr. Lamberth’s statistical conclusions rely heavily upon the fact that, in the ten days his investigators observed the Southwest Chief waiting area, law enforcement officials intercepted only two individuals—an African American couple. But the African American couple was approached by a uniformed Amtrak police officer whereas Barlow was approached by two plain-clothes DEA Transportation Task Force agents. Barlow leveled his allegations against the DEA, not Amtrak; observations of Amtrak’s law enforcement activities are irrelevant to a claim that the DEA engaged in racial profiling. Moreover, Dr. Lamberth’s investigators could provide no information as to why the Amtrak officer approached the African American couple; Barlow has not even established that the officer did so for a law enforcement purpose. Even more problematic is Dr. Lamberth’s flawed statistical methodology: Dr. Lamberth’s investigators counted 726 travelers between February 28 and March 10, 2000, of whom 119, or 16.4%, were African American. Only two of the 726 travelers were approached by law enforcement agents, and both were African American. But Dr. Lamberth did not simply calculate the statistical significance of the fact that two out of two travelers approached were African American. He added Barlow and Guidry to the subset of travelers who had been approached by law enforcement and calculated that the probability that all four individuals approached would be African American to be less than 8 times in 10,000, which he considered a “highly statistically significant” result. But the incident involving Barlow and Guidry occurred on October 29, 1999, 8 No. 01-1273 months before Dr. Lamberth’s investigators began their surveillance in Union Station. Presumably, travelers other than Barlow and Guidry entered the Southwest Chief departure gate on October 29th. We do not know, however, whether law enforcement officials approached additional travelers that day, or, if they did, the race of these travelers. For all we or Dr. Lamberth know, several white individuals could have been approached that day in addition to Barlow and Guidry; if other individuals of any race were approached that day, their addition to the data pool could drastically alter Dr. Lamberth’s statistical results. Barlow argues that Dr. Lamberth’s conclusions were sound, pointing out that Dr. Lamberth was an expert witness in Soto, and that the New Jersey court in Soto accepted his noncontemporaneous statistical analysis as evidence of racial profiling. But Dr. Lamberth did not use the same methodology here as he did in Soto. 734 A.2d at 352-53. Soto involved claims that the New Jersey State Police engaged in selective enforcement in traffic stops between April 1988 and May 1991. Id. at 352. Dr. Lamberth conducted his research two years after the time period relevant to the selective enforcement claims had ended: In June 1993 he recorded the number of drivers stopped by police on the New Jersey Turnpike and the subset of those drivers who were African American. His statistical analysis of these numbers suggested that the state police used racial profiling when enforcing traffic laws. Id. at 35253. Given that there was no evidence that traffic patterns had changed between 1991 and 1993, the court accepted Dr. Lamberth’s 1993 statistics as evidence that the stops between 1988 and 1991 resulted from selective enforcement. Id. at 352, 360-61. Significantly, Dr. Lamberth did not add the allegedly discriminatory stops from 1988 to 1991 to the pool for his June 1993 traffic survey, id. at 352; No. 01-1273 9 instead he relied on the 1993 data only as a baseline by which to evaluate the period relevant to the defendants’ claims. Id. at 352-53. In Barlow’s case, on the other hand, Dr. Lamberth did not merely use the ten-day observation period to evaluate the possibility that the DEA agents engaged in racial profiling when they approached Barlow and Guidry; instead he added Barlow and Guidry to the pool of travelers observed during the ten-day period, thereby altering the significance of his data. Even if we accept Dr. Lamberth’s conclusions as statistically valid, however, Barlow has still presented no evidence that he received less favorable treatment than similarly situated white travelers. To meet his burden under Armstrong, Barlow needed to present evidence that the DEA agents observed whites engaging in the same behavior as Barlow—i.e., looking nervously over their shoulders—but chose not to approach them. 517 U.S. at 465. But Dr. Lamberth’s data tells us nothing about the behavior of the white travelers in Union Station; we therefore have no basis for concluding that any of these white travelers were similarly situated to Barlow. Moreover, Barlow has not demonstrated that the DEA agents acted with discriminatory purpose when they approached him. Chavez, 251 F.3d at 645. The agents made no racial comments during their encounter with Barlow, and there is no evidence of a DEA Transportation Task Force policy, either actual or de facto, encouraging racial profiling. Without evidence of both discriminatory effect and discriminatory intent on the agents’ part, Barlow could not make the threshold showing required in Armstrong; the district court therefore did not abuse its discretion in denying Barlow’s motion for discovery. 10 No. 01-1273 | Selective Enforcement Claim |
10 | 422,278 | 1 | 4 | 44 The district court denied Saturn's request for prejudgment interest observing that prejudgment interest under 35 U.S.C. § 284 (1976) was to be awarded in the discretion of the court and that the general rule was that interest should be awarded from the date damages are determined. We need not determine whether the district court's conclusion at the time this case was tried was based on valid reasons. The Supreme Court in General Motors Corp. v. Devex Corp., --- U.S. ----, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983), held that prejudgment interest ordinarily should be awarded under 35 U.S.C. § 284 absent some justification for withholding such an award. The Court reasoned that prejudgment interest is necessary to ensure that the patent owner is placed in as good a position as he would have been in had the infringer entered into a reasonable royalty agreement. An award of interest from the time that the royalty payments would have been received merely serves to make the patent owner whole .... Id. at ----, 103 S.Ct. at 2062-63 (footnote omitted). It is evident that the district court did not approach the question of prejudgment interest under the principles laid down in the later Devex case, and we feel it appropriate to remand this issue to the district court for further consideration under the standards announced in Devex. 9 45 The district court also denied Saturn's requests to increase the damages awarded by the jury and to award attorney fees. The court recognized that 35 U.S.C. § 284 (1976) authorized it to increase the damages up to three times the amount found and that 35 U.S.C. § 285 (1976) authorized it to award attorney fees in exceptional cases. The court concluded: Defendants' conduct, in the opinion of the Court, was neither egregious nor taken in bad faith. Plaintiff's proposed judgment for treble damages and attorney's fees, therefore, will not be entered. In so concluding, as it did with respect to prejudgment interest, the district court apparently considered exceptional circumstances to be required to justify an award of increased damages. Here the jury found willful or wanton infringement of the Saturn patent, and this ordinarily is sufficient to support an award of increased damages. See Milgo Electronic Corp. v. United Business Communications, Inc., 623 F.2d 645, 666 (10th Cir.) (per curiam), cert. denied, 449 U.S. 1066, 101 S.Ct. 794, 66 L.Ed.2d 611 (1980); General Electric Co. v. Sciaky Bros., 415 F.2d 1068, 1071-74 (6th Cir.1969). It appears that the district court imposed a higher standard, the exceptional circumstances standard, in denying increased damages. Although an award of increased damages is discretionary under the statute and the decided cases, nonetheless in view of the analysis in Devex that section 284 does not incorporate the exceptional circumstances standard of section 285, see --- U.S. at ----, 103 S.Ct. at 2061, we feel it appropriate to remand this issue to the district court for further consideration in light of Devex. 46 The findings of the district court fully support its conclusion that this is not such an exceptional case as to justify an award of attorney fees. | Saturn's Appeal |
11 | 217,410 | 3 | 2 | Moore claims he was discharged in violation of Title VII because Vital was motivated by racial and sexual discrimination in discharging him. The district court correctly held that Moore could not bring these claims because he had not included them in his EEOC charge. Generally, a plaintiff may not bring claims under Title VII that were not originally included in the charges made to the EEOC. Sitar v. Ind. Dep't of Transp., 344 F.3d 720, 726 (7th Cir.2003). But if certain claims are not included in an EEOC charge, a plaintiff can still bring them if they are like or reasonably related to the allegations of the [EEOC] charge and growing out of such allegations. Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., 538 F.2d 164, 167 (7th Cir.1976) ( en banc ). To be like or reasonably related, the relevant claim and the EEOC charge must, at minimum, describe the same conduct and implicate the same individuals. Cheek v. W. & S. Life Ins. Co., 31 F.3d 497, 501 (7th Cir.1994) (emphasis removed). Whether Moore's discharge claims are within the scope of his EEOC charge is a question of law. Conner v. Ill. Dep't of Natural Res., 413 F.3d 675, 680 (7th Cir.2005). Moore's discriminatory discharge claims were not like or reasonably related to the allegations in his EEOC charge. To be sure, Moore's EEOC charge shows (by checked boxes) that he was alleging sex discrimination, race discrimination, and retaliation claims. But merely checking the Race and Sex discrimination boxes in the EEOC charge is not enough to make the EEOC charge like or reasonably related to Moore's discriminatory discharge claims. See Cheek, 31 F.3d at 500-01 (refusing to consider sex discrimination claim when plaintiff had not described conduct giving rise to the claim in an EEOC charge, even though plaintiff had checked the sex discrimination box). In discussing the particulars of his allegations, Moore focused almost entirely on evidence of a sexually and racially hostile work environment. He mentioned inappropriate racial and sexual language, racial and sexual insults, and inappropriate sexual behavior. He contended that management ignored his complaints of sexual and racial harassment and that Matta and Cocking thwarted his attempts to file a grievance. The EEOC charge does include two complaints unrelated to the alleged hostile work environment: that Vital retaliated against me by overloading my workload and by giving me assignments in unfamiliar and challenging neighborhoods. Notably, Moore did not assert in this narrative that he was discharged because of racial or sexual discrimination. Rather, Moore explained that he was currently on medical leave. At best, the EEOC charge can be read to allege a hostile work environment and retaliation (though not retaliatory discharge). These harassment and retaliation allegations are not like or reasonably related to Moore's discriminatory discharge claims because they are not based on the same conduct. See id. at 500-02 ([A] claim of sex discrimination in an EEOC charge and a claim of sex discrimination in a complaint are not alike or reasonably related just because they both assert forms of sex discrimination.); Conner, 413 F.3d at 678, 680 (EEOC allegation of racial discrimination based on 2001 non-promotion not like or reasonably related to claim based on 2002 non-promotion); Rush v. McDonald's Corp., 966 F.2d 1104, 1110 (7th Cir.1992) (An aggrieved employee may not complain to the EEOC of only certain instances of discrimination, and then seek judicial relief for different instances of discrimination.). Moore does not seriously argue that his discriminatory discharge claims are like or related to the allegations in his EEOC charge. Rather, he complains that he could not have included discharge allegations because he did not know he had been discharged. Moore points to no case suggesting an exception from the EEOC charge requirement when the plaintiff is confused about the underlying facts, and we decline to create one. Such an exception would run counter to a primary purpose of the requirement, which is to give the EEOC an opportunity to investigate the complaints and help the parties settle the dispute without litigation. Cheek, 31 F.3d at 500; Conner, 413 F.3d at 680 (finding EEOC charge prerequisite unmet because the conduct underlying plaintiff's complaint had not occurred when she filed her EEOC charge, and, as a result, [t]here was no way for the EEOC to undertake preliminary investigation as contemplated by Title VII's statutory design). In short, the district court correctly held that Moore cannot complain of discriminatory discharge because he has not alleged such conduct in an EEOC charge. Summary judgment was proper for these claims. | Title VII Discriminatory Discharge Claims |
12 | 1,251,515 | 3 | 2 | Although the district court acknowledged that the record does not reflect the underlying facts and circumstances on which the DSS's determination was based, it found that this deficiency in the record was largely due to Nyari's failure to appear at the DSS hearing in 1989. The court construed Nyari's failure to pursue his appeal to be the equivalent of a `no contest.' But a nolo contendere plea is a `plea by which a defendant does not expressly admit his guilt, but nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were guilty.' Rawls v. Mabry, 630 F.2d 654, 659-60 (8th Cir.1980) (quoting North Carolina v. Alford, 400 U.S. 25, 35, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970)). Because all of the DSS proceedings were of a civil nature, the court's no contest analogy is inapposite. [3] | Nyari's Failure To Appear at the Social Services Hearing |
13 | 815,532 | 3 | 1 | The district court excluded all of Mr. Arms’s testimony on the ground that his ignition theory did not satisfy the minimum indicia of reliability required by Daubert. We agree with the district court’s holding with regards to Mr. Arms’s testimony about the ignition sequence that started the fire. However, our inquiry 6 Case: 11-15011 Date Filed: 01/17/2013 Page: 7 of 12 into the reliability of Mr. Arms’ testimony does not end with a discussion of his ignition theory. Despite only discussing Mr. Arms’ testimony with regards to the specific ignition sequence, the district court excluded all of Mr. Arms potential testimony, including his testimony relating to the location of the fire’s origin. This sweeping exclusion constituted an abuse of discretion. Mr. Arms’s testimony that the fire originated from the dryer was rooted in his investigation of the scene of the fire and an examination of the dryer in accordance with the principles of the “NFPA 921” guide for fire and explosion investigations, a peer reviewed fire investigation guide that is the industry standard for fire investigation. Travelers Prop. & Cas. Corp. v. Gen. Elec. Co., 150 F. Supp. 2d 360, 366 (D. Conn. 2001) (NFPA 921 is “a peer reviewed and generally accepted standard in the fire investigation community”). By applying these principles to the distinctive burn patterns and other physical evidence he examined first-hand at the scene of the fire, Mr. Arms concluded that the fire began in the dryer area. Mr. Arms pointed to several specific pieces of evidence that supported his conclusion that the dryer was the origin of the fire to the exclusion of other possible sources of the fire in the laundry room. First, he noted that the burn patterns in the room in which the dryer was located indicated that the dryer was the center of the fire. Specifically, he observed that the wall directly behind the dryer was totally consumed and the wires in that wall had melted, suggesting that the fire 7 Case: 11-15011 Date Filed: 01/17/2013 Page: 8 of 12 was centered in the dryer area. Second, he noted there was a lack of arcing, which suggested that an electrical fault was not the cause of the fire. Third, and perhaps most persuasively, he observed that the linoleum floor directly beneath the dryer had had burned and stuck to the bottom of the dryer. This evidence suggested that the fire was located in the bottom part of the dryer. That the linoleum stuck to the bottom of the dryer ruled out the possibility that the fire started adjacent to the dryer or in the washing machine, as no other part of the floor, including the area directly under the washer, showed burns of remotely similar levels of severity as the floor under the dryer. As there was no other potential source of heat that could have damaged the linoleum under the dryer besides a fire in the dryer and no other part of the floor suffered similar levels of damage, Mr. Arms concluded that the origin of the fire came from inside the bottom part of the dryer. But the district court’s order did not address any of Mr. Arms’ testimony as it related to where the fire started. Contrary to what the district court held, Mr. Arms’ testimony regarding the physical origin of the fire was based on a widely accepted methodology and grounded in the available physical evidence. For these reasons, we hold that excluding that part of Mr. Arms’ testimony on Daubert grounds was an abuse of discretion. See City of Tuscaloosa v. Harcros Chem, Inc., 158 F.3d 548, 564 (11th Cir. 1999) (holding that “the district court abused its discretion in excluding admissible portions of [the expert’s] testimony by ruling 8 Case: 11-15011 Date Filed: 01/17/2013 Page: 9 of 12 that [the expert’s] testimony in its entirety was inadmissible”); see also Weisgram v. Marley Co., 169 F.3d 514, 518 (8th Cir. 1999) (holding that although fire investigation expert was not qualified to opine on whether heater had malfunctioned, he could testify about the origin of the fire), aff'd on other grounds, 528 U.S. 440 (2000). We reverse as to the exclusion of the part of Mr. Arms’ testimony that related to origin of the fire. | Testimony of Mr. Arms |
14 | 536,108 | 3 | 5 | 23 Id. See Folks v. Secretary of Health & Human Servs., 825 F.2d 1259, 1261 (8th Cir.1987). In the present case, the ALJ failed to consider these factors in analyzing appellant's claim. 24 The ALJ suggests that appellant's complaints were disregarded because appellant failed to establish a physical impairment. The ALJ held that [a]lthough claimant has complained of lower back pain and stomach problems, this record fails to demonstrate by objective medical evidence that the claimant suffers from a physical impairment. ALJ Order at 4. However, appellant has established a severe impairment of mental retardation and he has also been diagnosed as mildly depressed. The Social Security Act recognizes that a psychological disorder may cause disabling pain. The ALJ erred in requiring evidence of a physical impairment to verify complaints of pain. See Reinhart, 733 F.2d at 573 (8th Cir.1984); Cook v. Heckler, 739 F.2d 396, 398 (8th Cir.1984). The ALJ made no findings concerning whether the impairments appellant established could reasonably be expected to cause pain. Nor did the ALJ find that appellant's complaints were not credible because of inherent inconsistencies in his testimony or other circumstances. See Reinhart, 733 F.2d at 573; Simonson, 699 F.2d at 428. Rather, the ALJ found that appellant was generally a credible witness. Other than the lack of objective medical evidence proving the existence of disabling pain, the ALJ did not note any inconsistencies in the record undermining appellant's claims of pain. 25 Accordingly, we affirm the district court's affirmance of the Secretary's denial of presumptive disability, but reverse and remand with directions to the district court to remand this case to the Secretary to reassess appellant's allegations of subjective pain, by evaluating all of the evidence pursuant to the five factors set forth in Polaski. | functional restrictions. |
15 | 484,327 | 2 | 2 | 17 Despite the fact that [t]he Feres doctrine cannot be reduced to a few bright-line rules and that each case must be examined in light of the [Federal Tort Claims Act] as it has been construed, Shearer, 105 S.Ct. at 3043, this circuit has adopted a three-part test for determining whether the activity of a serviceman is incident to service. Parker, 611 F.2d at 1013-15. See Flowers v. United States, 764 F.2d 759, 760-61 (11th Cir.1985); Johnson, 749 F.2d at 1537. 4 The factors to be considered include (1) the duty status of the service member, (2) the place where the injury occurred, and (3) the activity the serviceman was engaged in at the time of the injury. Parker, 611 F.2d at 1013. After evaluating the relative weight of these factors, a court should determine whether an activity is incident to service based on the totality of the circumstances. Parker, 611 F.2d at 1013.
18 The United States stresses the fact that Pierce was a member of the armed forces assigned to active duty the day of the accident and therefore, subject to recall. Reviewing courts, however, have refused to treat that fact as dispositive of the duty status issue. See Parker, 611 F.2d at 1014 n. 10. A serviceman on furlough may bring an action under the Federal Tort Claims Act. See Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949). Nevertheless, a serviceman on furlough is also subject to recall. Parker, 611 F.2d at 1014 n. 10. 19 Here, the salient facts are that Pierce requested and obtained permission from his supervising officer to leave the base during regular duty hours to conduct some personal business. It is conceded that he was technically neither on furlough nor on leave; nevertheless, Pierce received more than a mere release from the day's duties. 5 Parker, 611 F.2d at 1014. When a serviceman requests and receives authorization to leave the base and exercise the right to be absent from regular duty, the serviceman attains a status much akin to being on furlough. Parker, 611 F.2d at 1014. Just as a serviceman on furlough may bring an action under the Federal Tort Claims Act, a soldier exercising his rights under a pass may maintain an action. See Brooks, 337 U.S. at 49, 69 S.Ct. at 918; Parker, 611 F.2d at 1015. Because Pierce received a discretionary time off privilege granted by [his] supervising officer, he arguably left the base on a pass. See Parker, 611 F.2d at 1013 n. 9, 1014.
20 Although subject matter jurisdiction of actions under the Federal Tort Claims Act has never turned on whether the alleged harm occurred on or off the military reservation, the situs of the injury is an important factor in determining whether the activity is incident to service. Parker, 611 F.2d at 1014. As stated by the court in Parker, [i]f the injury occurs on the base, it is more likely that the injured service member was engaged in activity incident to service. Parker, 611 F.2d at 1014. In this case, the motor vehicle collision occurred on a public highway within the city limits of Hinesville. 6 As the court in Parker observed, [w]hen soldiers are returning to the base, but have not yet reached the premises line when the collision occurs, [Federal Tort Claims Act] actions are permitted. Parker, 611 F.2d at 1014 (citations omitted).
21 In this case, Pierce was driving a civilian vehicle off the base in a highly congested area. He had eaten lunch at a fast food restaurant, visited a pawn shop, and was returning to the base to unpack his personal belongings. The government alleges that these activities are proximately related to military duties because they are part of the life of a soldier. We disagree. 22 Pierce, similar to the claimant in Parker, was not directly subject to military control; he was not under the compulsion of military orders; he was not performing any military mission. Parker, 611 F.2d at 1014. We do not view pawning a camera, eating lunch, operating a motor vehicle, or unpacking personal property when relieved of assigned tasks as activity materially related to military service. 23 As the court in Parker acknowledged, [i]n some cosmic sense 'all human events depend upon what has already transpired.' Parker, 611 F.2d at 1011 (quoting Brooks, 337 U.S. at 52, 69 S.Ct. at 920). Servicemen have to live somewhere. The mere fact that he was stationed at Fort Stewart does not mean that everything Pierce did in connection with his personal life can legitimately be considered activity proximately related to military service. To accept the government's contention would be to construe any conceivable personal activity as incident to service because that activity happened to be performed by a member of the armed forces. We refuse to accept such a construction, for to do so would preclude the class of servicemen from bringing an action under the Federal Tort Claims Act merely by virtue of the fact that the claimants are wearing a United States uniform. 24 Based upon the totality of the circumstances, we conclude that the district court erred in ruling that Pierce's injuries were incurred from activities incident to service. Pierce was on pass, the accident occurred off the base, and the activities involved were not proximately related to military service. Thus, the district court erroneously concluded that it was without subject matter jurisdiction to entertain Pierce's claims. 25 | Incident to Service |
16 | 718,690 | 2 | 1 | 29 Section 406(a) states in relevant part that: 30 [W]here the person named in the copyright notice on copies ... publicly distributed by authority of the copyright owner is not the owner of the copyright, ... any person who innocently begins an undertaking that infringes the copyright has a complete defense to any action for such infringement if such person proves that he or she was misled by the notice and began the undertaking in good faith under a purported transfer or license from the person named therein.... 31 17 U.S.C. § 406(a). Bagdadi contends that the innocent infringer defense would not apply to Nazar because the copy on which Nazar relied, which came from Linguex, was not an authorized copy. Bagdadi reasons that he transferred to Linguex only the right to use the video in its classrooms, not to further sell the video to Nazar. As a result of Nazar's reliance on the erroneous copyright in an un authorized copy of English I, Bagdadi asserts that the § 406(a) defense does not apply. 32 This argument misses the mark. 4 Bagdadi's interpretation would require that in order for the § 406(a) defense to apply, the purported transfer or license from the person named in the copyright (Linguex) to the person claiming innocent infringement (Nazar) would have to be authorized by the true copyright owner (Bagdadi). Such a rule would inappropriately shift the focus of the requirement of owner authorization from the initial public distribution, where it belongs, and render irrelevant the innocence of anyone relying in good faith on a misleading notice. 33 It is Bagdadi's authorization of the initial public distribution to Linguex that is the authorization required to constitute a copy publicly distributed by authority of the copyright owner. A subsequent distribution to another party, such as that found in this case, is precisely the type of situation for which the innocent infringer defense was created. Thus, Bagdadi's reading of section 406(a) fails because it is inconsistent with the statute's plain language and irreconcilable with its manifest purpose. 34 | Reliance on an Authorized Copy |
17 | 765,768 | 4 | 1 | 23 The crux of Hollister's claim is that the shirt that she wore was defective because it was constructed of a fabric that was too highly flammable to be safe. In other words, Hollister argues that the dangerousness of the shirt is attributable to the intentional design decisions of the manufacturer. See Prentis v. Yale Mfg. Corp., 365 N.W.2d 176, 182 (Mich. 1984)(distinguishing design defects from manufacturing defects). 24 In Owens v. Allis-Chalmers Corp., 326 N.W.2d 372, 378-79 (Mich. 1982), the Michigan Supreme Court held that a plaintiff in a design-defect case must present evidence of the magnitude of risks involved, and the utility and relative safety of proposed alternatives, in order to overcome the defendant's motion for summary judgment. The forklift operator in Owens was killed when the forklift he was driving overturned and pinned him beneath it. His wife argued that the forklift was defective because it lacked seatbelts. In granting a directed verdict for the defendant, the court stated that the plaintiff could not prevail because she had not shown that the presence of a seatbelt would have rendered the forklift safer. See id. 25 In Prentis, the Michigan Supreme Court built upon Owens and explicitly adopted a so-called risk-utility test for determining a manufacturer's liability. See Prentis, 365 N.W.2d at 186 (Thus we adopt, forthrightly, a pure negligence, risk-utility test in products liability actions . . . where liability is predicated upon defective design.). The risk-utility analysis focuses upon whether a manufacturer would be judged negligent if it had known of the product's dangerous design at the time it was marketed. Id. at 183. 26 In Reeves v. Cincinnati, Inc., 439 N.W.2d 326 (Mich. App. 1989), a worker whose hand was crushed in a power press that unexpectedly cycled sued the press's manufacturer on a design-defect theory. Reeves demonstrated that sudden cycling of power presses was common and that injury resulting from such cycling could occur. He further presented evidence that a guard installed in front of the press would prevent injuries such as the one he had incurred, and that such guards only cost about $1 each. On the other hand, he did not provide evidence as to any costs that might be associated with redesigning the presses to accommodate the guards, or the exact statistical likelihood of injury. See id. at 329-30. 27 In reversing a directed verdict for the manufacturer, the Michigan Court of Appeals stated that the plaintiff had presented sufficient evidence to raise a question of fact for the jury as to the reasonableness of the power press's design. See id. at 330. The Reeves court succinctly articulated the following elements of a prima facie design-defect case under Michigan law: 28 [A] prima facie case of a design defect premised upon the omission of a safety device requires first a showing of the magnitude of foreseeable risks, including the likelihood of occurrence of the type of accident precipitating the need for the safety device and the severity of injuries sustainable from such an accident. It secondly requires a showing of alternative safety devices and whether those devices would have been effective as a reasonable means of minimizing the foreseeable risk of danger. This latter showing may entail an evaluation of the alternative design in terms of its additional utility as a safety measure and its trade-offs against the costs and effective use of the product. 29 Id. at 329 (citing Prentis). 30 This court has previously applied the Owens, Prentis, and Reeves analysis in a design defect case under Michigan law. See Zettle v. Handy Mfg. Co., 998 F.2d 358, 360 (6th Cir. 1993) (holding that the plaintiff had failed to present sufficient evidence concerning the effectiveness of a proposed alternative design in a products liability action against the manufacturer of a power washer). 31 In the present case, Hollister has sued the distributor of the shirt, not its manufacturer. The manufacturer of the shirt remains unknown. A distributor's liability is the same as that of the manufacturer in a design-defect case. See Gregory v. Cincinnati, Inc., 538 N.W.2d 325, 339 (Mich. 1995). 32 | The elements of a design-defect case under Michigan law |
18 | 3,219,057 | 2 | 3 | The IRS produced the relevant portions of Agent Sharma’s activity record, a document similar to a time sheet, with a single entry on one page redacted. The IRS explained that the deleted entry reflected that Agent Sharma “communicated with the IRS Office of Chief Counsel with respect to a specific issue in the examination,” adding that “disclosure of [the redacted entry] would reveal an area of the exam for which the revenue agent sought legal advice.” The IRS relied on Exemption 5’s incorporation of the attorney-client privilege to justify this redaction, and the district court agreed with the IRS. Solers contends mainly that the entry should not have been redacted because “the subject matter of an attorney-client communication is not privileged.” While, as Solers contends, “the general purpose of the work performed [by an attorney] [is] usually not protected from disclosure by the attorney-client privilege because such information ordinarily reveals no confidential professional communications between attorney and client,” In re Grand Jury Subpoena, 204 F.3d 516, 520 (4th Cir. 2000) (internal quotation marks and citation omitted), the privilege nonetheless shields from disclosure “the specific nature of the legal advice sought by [the client],” In re Grand Jury Subpoena, 341 F.3d 331, 335 (4th Cir. 2003); see also id. (holding that, while the fact that 17 an attorney “provid[ed] advice regarding an immigration matter” would not be privileged, a question “specifically ask[ing] whether [the client] consulted with Counsel about the preparation of [a particular immigration form]” sought information protected by the attorney-client privilege). Accordingly, we conclude that the attorney-client privilege justifies the IRS’ limited redaction of the activity report so as to keep confidential the specific issues on which Revenue Agent Sharma sought legal advice while working on the audit. | The Activity Record |
19 | 3,064,166 | 1 | 2 | On appeal, Dell argues that the district court erred by failing to “both determine the scope of [his] criminal activity . . . and to specify the amount of crack cocaine attributable to . . . Dell in the entire case.” Dell argues that the evidence indicates that the “scope” of his criminal activity was limited to the drug transactions taking place in February, September, and October 2005, which totaled 46.39 grams of crack cocaine. He stresses that, with respect to other controlled buys, his name was not mentioned, and the confidential sources (“CS”) did not indicate that he was involved. Dell argues that because the parties who testified to his involvement gave inconsistent testimony, no “credible evidence” supports the inference that he was more involved in the conspiracy. 10 We review a district court’s determination of the amount of drugs for which a defendant is held accountable at sentencing for clear error. United States v. Lee, 68 F.3d 1267, 1274 (11th Cir. 1995). “When a defendant objects to a factual finding that is used in calculating his guideline sentence, such as drug amount, the government bears the burden of establishing the disputed fact by a preponderance of the evidence.” United States v. Rodriguez, 398 F.3d 1291, 1296 (11th Cir. 2005). “For sentencing purposes a member of a drug conspiracy is liable for his own acts and the acts of others in furtherance of the activity that the defendant agreed to undertake and that are reasonably foreseeable in connection with that activity.” United States v. Ismond, 993 F.2d 1498, 1499 (11th Cir. 1993). [T]o determine a defendant’s liability for the acts of others, the district court must first make individualized findings concerning the scope of criminal activity undertaken by a particular defendant. Once the extent of a defendant’s participation in the conspiracy is established, the court can determine the drug quantities reasonably foreseeable in connection with that level of participation. If the court does not make individualized findings, the sentence may nevertheless be upheld if the record supports the amount of drugs attributed to a defendant. Id. (citations omitted). The district court must take into account all “relevant conduct” when determining the quantity of drugs attributable to the defendant, i.e. “all acts and omissions committed, aided, abetted, counseled, commanded, 11 induced, procured, or willfully caused by the defendant[.]” U.S.S.G. § 1B1.3(a)(1)(A). If the case involves drugs, “the defendant is accountable for all quantities of contraband with which he was directly involved and, in the case of a jointly undertaken criminal activity, all reasonably foreseeable quantities of contraband that were within the scope of the criminal activity that he jointly undertook.” U.S.S.G. § 1B1.3, comment. (n.2); U.S.S.G. § 1B1.3(a)(1)(B). Because “the [g]uidelines require a district court to attribute to a defendant all drugs foreseeably distributed pursuant to a common scheme or plan of which that defendant’s offense of conviction was a part,” a defendant may be held accountable for drugs that were not related specifically to his counts of conviction and for actions taken by others. States v. Mertilus, 111 F.3d 870, 873 (11th Cir. 1997) (quotations and citation omitted). Because the government presented sufficient evidence to show the quantity of crack cocaine attributed to the conspiracy and that Dell was extensively involved in the conspiracy to distribute the entire quantity of crack cocaine, we hold that the district court did not clearly err holding him accountable for 1.5 kilograms of crack cocaine. Accordingly, we affirm. | Dell |
20 | 2,770,245 | 3 | 2 | puted Although a court would not necessarily be required to reach the patent law issues that underlie the causes of action alleged by NeuroRepair, at least one patent law issue is actually disputed by the parties. NeuroRepair claims Defendants’ wrongdoing hindered its ability to timely obtain patents of the same scope it would have obtained but for Defendants’ delay and mishandling. Defendants counter that the patent did not issue sooner because the claims as initially presented were not patentable and that Defendants had not narrowed the claims because “NeuroRepair had expressly ordered [Defendants] not to.” Appellees’ Br. 26. Whether the patent could have issued earlier and with broader claims is thus actually disputed by the parties. | At least one patent law issue is actually dis- |
21 | 377,034 | 1 | 2 | 13 Thiokol argues that the district court was without authority to determine whether Harper had substantially complied with the collective bargaining agreement since this is a claim to be evaluated by an arbitrator. Thiokol contends, and the district court agreed, that Harper had not made a timely request for an extension of maternity leave in accordance with article 16, section 4 of the agreement (Finding of Fact # 26). However, this finding is irrelevant to plaintiff-appellee's entitlement to relief. 14 Thiokol admits in its brief that the district court properly had jurisdiction under Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), to determine that its refusal to allow Harper to return to work because she had not met its medical requirement of sustaining a normal menstrual cycle was a discriminatory act (appellant's brief at 19). Appellant argues, however, that the district court did not address this issue. This argument is without merit. In its Conclusion of Law # 15 the district court held that (t)he fact that Plaintiff was refused the right to return to work in accordance with her request and in accordance with medical advice prior to the expiration of her maternity leave constituted an unlawful employment practice in violation of Title VII of the Civil Rights Act of 1964, as amended. In its Conclusion of Law # 17, the court further held that the (e)mployer's policy of denying female employees on pregnancy leave the right to return to work prior to their having a normal menstrual cycle is a denial of specific employment opportunities and in absence of proof of any business necessity for it, constitutes an unlawful employment practice. The court therefore clearly addressed the issue whether Thiokol's act in refusing reinstatement was discriminatory and concluded that it was. The district court's holding was correct. See Satty, supra. | Substantial Compliance with the Collective Bargaining Agreement |
22 | 198,532 | 2 | 2 | 31 I.V. Services argues alternatively that equitable tolling is required because IDM or Reliastar allegedly refused repeated requests to forward a copy of the Plan, thereby concealing its terms. This argument need not detain us long. The magistrate found that what the record shows, however, is that [I.V. Services] made no effort to obtain a copy of the Plan until 1995, well after three years from the initial denial of Daly's claim for benefits. The district court echoed this finding in its order adopting the magistrate's report. 32 I.V. Services contends that this finding is not supported by the record. It points to the testimony of I.V. Services President, Maureen Teachman, who stated that she contacted IDM and Reliastar in an effort to procure a copy of the Plan. In her affidavit, however, Teachman's states that she attempted to obtain a copy of the Plan in 1995. This statement is reiterated in her deposition, where she testified that on August 10, 1995, she sent a letter to IDM via fax requesting a copy of the Plan. I.V. Services contends that, prior to this time, Teachman had spoken with an employee at IDM named Nancy Warino about getting a copy. However, Teachman testified that she had between three and six conversations with Warino, the first of which took place probably some time in the range of [the August 10, 1995] fax, a few months before perhaps. 4 33 In short, the district court was not in error in stating that I.V. Services did not seek to obtain a copy of the Plan until after the applicable limitations period had already run. Acts of alleged concealment by IDM or Reliastar after the statute had run would not warrant equitable tolling. Cf. Bernier v. Upjohn Co., 144 F.3d 178, 180 (1st Cir. 1998) (A party seeking to toll the statute must at the very least show that the information could not have been found by a timely diligent inquiry[.]) (emphasis supplied). 34 | Did IDM or Reliastar Conceal the Terms of the Plan? |
23 | 2,966,594 | 5 | 3 | borrower or any of their employees, while moving property to or from a covered auto. 3. Anyone liable for the conduct of an insured described above is an insured but only to the extent of that liability. However, the owner or anyone else from whom you hire or borrow a covered auto is an insured only if that auto is a trailer connected to a covered auto you own . (J.A. at 47.) The policy defined covered auto for purposes of liability coverage to include automobiles Tidewater Pizza did not own, lease, hire, or borrow but which it used in connection with its business; but for purposes of uninsured motorist coverage, the termcovered auto was defined to include [o]nly those autos you own which, because of the law in the state where they are licensed or principally garaged, are required to have and cannot reject uninsured motorists insurance. 3 (J.A. at 26.) Stone conceded that he was not occupying a motor vehicle owned, leased, hired, or borrowed by Tidewater Pizza. | Anyone other than your employees, a lessee or |
24 | 18,498 | 2 | 3 | 20 Village seeks a declaratory judgment stating that HUD acted arbitrarily and capriciously by (1) refusing to consider Village's rent increase request; (2) declaring Village in default and subsequently foreclosing on Mockingbird because Village failed to adequately maintain the property; and (3) refusing to review its rent increase request unless Village escrowed $2 million for repairs on Mockingbird. 21 Village argues that its obligation to maintain the property was dependent upon HUD's providing sufficient rent revenues to pay for maintenance. According to Village, because HUD refused to approve a sufficient rental schedule, HUD acted arbitrarily and capriciously in citing poor maintenance as the reason for declaring Village in default. HUD counters that Village had an absolute duty to maintain the property, regardless of its rental income. This means that if Village's rental income was insufficient to pay all of its operating and maintenance costs, Village and its financial partners must either invest additional equity to make up any deficiencies or risk default and foreclosure. 22 HUD's argument would perhaps be convincing if it had undertaken to review Village's rental increase request and to rule upon it. Both the Regulatory Agreement and HUD's regulations require HUD at least to entertain a rent increase request. 8 See Regulatory Agreement, ¶¶4(g) (stating that HUD will at any time entertain a written request for [a rent] increase); 24 C.F.R. §§ 886.312(b) (stating that once HUD receives a request, it shall approve a rental schedule . . . or shall deny the increase stating the reasons therefor) (emphasis added). HUD violated its contractual and regulatory duty to consider the rent request. This defect renders suspect HUD's other actions, particularly when the full regulatory context is considered. 23 Village certainly had the duty to maintain Mockingbird so as to provide decent, safe and sanitary housing. HAP Contract, §§ 14(a); see also Regulatory Agreement, §§ 7 (Owners shall maintain the mortgaged premises . . . in good repair and condition.). Village's duty, however, was not absolute. Nothing in the National Housing Act, HUD's regulations, the Regulatory Agreement, or the HAP contract requires Village, as a low income property owner, to absorb or subsidize operating and maintenance deficiencies. Instead, the programs are designed to ensure that HUD establishes rental rates so that property owners receive enough revenue to cover all of the property's expenses including maintenance, repairs, debt service, taxes, and a six percent return on investment. See 12 U.S.C.A. §§ 1747c. Thus, the HUD reimbursement scheme resembles cost-plus contracts or public utility regulation, in either of which situations the private party who performs the work is assured of recovering reasonably incurred costs as well as a reasonable return on investments. 24 That the cost of operating and maintaining the property, in addition to the cost of complying with the Regulatory Agreement, 9 must be paid for out of the regulated rental revenues is reinforced in several ways. First, HUD's internal interpretation of its regulations indicates that operating and maintenance costs are to be derived from the rental revenues. Albert Cason, the Director of Multifamily Housing (Houston, Texas Office) and the HUD official who oversaw Mockingbird, testified that [e]verything that comes from the project's operation is paid from the rents, and [w]e've all agreed that the operation and maintenance of the property comes out of the rents. Similarly, HUD's handbook states that [i]n reviewing requests from owners concerning rents and charges, the Field Office should be guided by the fact that these rents and fees should and must provide sufficient and adequate funding to operate the projects. Multifamily Asset Management and Project Servicing, United States Department of Housing and Urban Development, Handbook 4350.01 Rev-1,7-1 (September 1992); see also 42 U.S.C. §§ 1437f(c)(2)(B) (stating that HUD shall adjust the HAP contract to provide for sufficient monthly rents to reflect increases in the actual and necessary expenses of owning and maintaining the units); 12 U.S.C. §§ 1747c.; Beck Park, 695 F.2d at 371 (HUD has the duty to maintain reasonable rents, based on operating costs, and to allow project owners a reasonable return on their investment.). 25 Second, HUD forced Village to be organized as a single asset entity, which can neither own or operate any other property nor conduct any other business besides owning the property. See Regulatory Agreement §§ 6(f) (prohibiting Village from engaging in any other business or activity, including the operation of any other rental project). Because of this requirement, Village had no source of income to maintain the property other than the rental revenues. The only way for it to obtain a sufficient amount of money to pay for the needed repairs was by seeking a rent increase. HUD's refusal to consider a rent increase effectively forced Village either to default or, as HUD well knew, to seek additional equity or debt financing without assurance that these investments would be recouped. 26 Third, Village signed a non-recourse note, guaranteed by HUD. From the inception of HUD's program, therefore, Village was not required to support the property financially after its initial investment. Had Village not obtained a non-recourse loan, then either Village as an entity or perhaps its investors could have been made responsible to the lender (and HUD) for failure to repay or comply with terms of the loan. One HUD official put it this way: [HUD} does not require owners to make outright cash gifts to the projects they own. After final endorsement of a mortgage, there is no requirement of owners to provide additional funds to a project. Letter from Dean K. Reger, Deputy Director of Multifamily Housing Management, to Mr. Streuby L. Drumm, Jr. (October 21, 1994). 27 The interplay among these aspects of the regulatory program makes clear that all of the expenses of operating and maintaining a low income housing project must be paid out of the rental revenues, which in turn are subsidized by HUD. The regulatory scheme does not contemplate that property owners must bear the risk of maintaining properties based on insufficient rental revenues. HUD could understandably refuse to provide financial assistance to an owner that has misappropriated funds, mismanaged the property, taken a profit instead of maintaining the property, or been negligent in its management in some other regard. When those elements are absent, however, thestatutes provide that HUD must ensure that the owner receives rents sufficient to meet at least the operating and maintenance expenses of the property. There is no statutory or regulatory basis for imposing on a conscientious low-income housing operator the risk of uncompensated dilapidation or deterioration; the federal government, not the private contractor, is charged with funding the public program. 28 In the case at hand, it is alleged that rental revenues approved by HUD were consistently insufficient to cover the cost of operating and maintaining the property. 10 Village sought several rental increases over the course of its ownership of Mockingbird, but it never received the full amount requested, nor the amount it thought was necessary to maintain the property. 11 Annual financial audits appear to have routinely showed, moreover, that Village never misappropriated funds or squandered its revenues. Village never received a profit from Mockingbird and appears to have applied all of its revenues to cover costs of operating and maintaining the property. In addition, there was no evidence that the property was mismanaged, 12 nor did HUD ever attempt to remove the management company as it had a right to do. See Regulatory Agreement, 9(a) (Any management contract entered into by Owners . . . involving the project shall contain a provision that it shall be subject to termination, without penalty, and with or without cause, upon written request by the Commissioner addressed to the Owners.). 29 These facts reinforce Village's contention that HUD's $2 million demand was arbitrary and capricious. As noted supra, instead of considering Village's rent request, HUD determined that no action would be taken unless Village first escrowed $2 million. HUD cannot point to any statute, regulation, or agreement with Village giving it the discretion to table Village's rent increase request and use it as leverage to demand $2 million new equity for repairs. 13 30 Because HUD acted without statutory or regulatory authority, the agency arbitrarily and capriciously demanded Village to escrow $2 million before it would consider the rent request. 31 HUD argues that a holding in Village's favor would mean that HUD has the duty to pay for all of a property's maintenance expenses, thus giving owners the incentive to neglect the maintenance needs of their property. We disagree. This decision has no bearing on those cases where a property owner has negligently permitted the property to deteriorate or has misused its rental income in a way that has caused the maintenance problem. As noted supra, rental increase decisions are discretionary and are generally unreviewable by the courts. In this case, however, HUD acted arbitrarily and capriciously when it refused to abide by its legal obligation to consider a rental increase request from a non-negligent owner and instead demanded a $2 million cash infusion and then declared the property in default for those very reasons. | Village's Request for a Declaratory Judgment |
25 | 415,604 | 3 | 2 | 16 The district court admitted Smith's armed robbery conviction because, as for Lipscomb's conviction, the desperate person who would commit an armed robbery would also lie under oath. 16 The court did not expressly explain why Little's robbery conviction or Green's accessory after the fact to manslaughter conviction were probative of credibility. The court did, however, state its opinion as to both Little and Green that the probative value of the convictions outweighs the prejudice to the Defendant. 17 | Smith, Green, and Little |
26 | 2,979,166 | 5 | 1 | Montgomery’s complete argument concerning probable cause for the search warrant issued for 1117 Plum Run Road is contained in one short paragraph of his appellate brief: . . . concerning the 1117 Plum Run Road address, the warrant itself provided for the search of 1197 Plum Run Road. Three of the first four houses on Plum Run Road actually fit the description provided. The warrant was not sufficient as it failed to describe the location with sufficient particularity. Brief of Defendant-Appellant, 49. The government concedes, as it must, that the address listed in the search warrant as the address to be searched was off by one digit in that it stated the address as 1197 Plum Run Road instead of 1117 Plum Run Road. 17 No. 08-5898 United States v. Montgomery The particularity requirement for a search warrant is met “if the description is such that the officer with a search warrant can, with reasonable effort ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503 (1925). In determining whether the description of the place to be searched is sufficient, the inquiry is whether the place to be searched is described with sufficient particularity “‘to enable the executing officer to locate and identify the premises with reasonable effort, and whether there is any reasonable probability that another premise might be mistakenly searched.’” United States v. Durk, 149 F.3d 464, 465 (6th Cir. 1998) (quoting United States v. Gahagan, 865 F.2d 1490, 1496 (6th Cir.1989)). Thus, an incorrect description of the premises does not automatically invalidate the warrant. We find the particularity requirement of the Fourth Amendment to have been met here. Although the premises are referred to in the search warrant as 1197 Plum Run Road, the warrant contains a detailed description of the premises as a “single story brown brick residence with black shutters and white trim.” The residence has a “shingle style roof and a concrete driveway.” The search warrant also had precise directions to the residence and had detailed descriptions of automobiles located on the premises. Attached to the warrant was a photograph of the residence to be searched. Under these circumstances, there was no reasonable probability that the executing officer might mistakenly search one of the other three houses on the street that fit the description of the premises to be searched. 18 No. 08-5898 United States v. Montgomery | 1117 Plum Run Road |
27 | 2,655,125 | 2 | 3 | Amzak also appeals the district court’s grant of summary judgment in favor of Appellees on its negligence claim. Under Louisiana law, to succeed on a negligence claim, a plaintiff must prove: (1) the had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard of care (breach of duty element); (3) the defendant’s sub-standard conduct was a cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the defendant’s substandard conduct was the legal cause of the plaintiff’s injuries (the scope of protection element); and (5) actual damages (the damages element). La. Civil Code art. 2315. The cause-in-fact element is dispositive here. When there are multiple causes of loss, the proper inquiry is whether the complained-of conduct was a substantial factor in bringing about the loss. Perkins v. Entergy Corp., 782 So. 2d 606, 611 (La. 2001); see also Westchester Fire Ins. Co. v. HaspelKansas Inv. P’ship, 342 F.3d 416, 420 (5th Cir. 2003). In determining whether an event was a “substantial factor,” the questions are “whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm” and whether each of the multiple causes “played so important a part in producing the result that responsibility should be imposed upon” each item of conduct. LeJeune v. Allstate Ins. Co., 365 So. 2d 471, 477 (La. 1978). 6 6 Amzak points to First Nat’l Bank of Louisville v. Lustig, 961 F.2d 1162 (5th Cir. 1992) to support a wider reading of “by reason of.” Lustig interpreted coverage issues arising from a banker’s blanket bond. In that case, the lender would not have made the loans “in the absence of the [employee’s] fraud.” Likewise, Amzak argues, it would not have made its loan “in the absence of a valid mortgage.” Hence, under a lender’s title policy, as in Lustig, “[t]here will always be” other causes “for the failure of [the loan] to be repaid,” because “otherwise the 12 Case: 13-30675 Document: 00512546787 Page: 13 Date Filed: 02/27/2014 No. 13-30675 In order to prove that the title defect was a substantial factor in bringing about Amzak’s purported loss, Amzak had to create a genuine issue of material fact as to the following chain of events: (1) Amzak and WFA had agreed on the terms of a forbearance agreement, which included an additional capital infusion by WFA; (2) the investors would have made a $7-8 million infusion investment despite the existence of the Fluor and subcontractors liens, which they believed to be a threat; (3) with that infusion, WFA would not have filed bankruptcy; (4) that infusion would have been enough to turn around the mill financially; and (5) the mill would have become profitable, allowing WFA to repay its creditors, including Amzak, in full. As the district court aptly noted, Amzak has not done this. Tembec Indus., Inc. v. Amzak Capital Mgmt., LLC, No. 11-622-JJB (M.D. La. May 1, 2013). Amzak’s expert, Professor Glynn Lunney, Jr., did not project what WFA might do with a capital infusion, could not testify to what creditors would have been paid with such an infusion or what portion would remain for Amzak, and stated “[i]t would be foolish . . . to make a post hoc prediction of what would have actually happened (or not happened) if the Mortgage defect had not existed . . . because there are too many variables that would have changed the result.” Amzak has invested at least $58 million in its subsidiary which now runs the mill, and the mill continues to lose money. Finally, the defect was effectively waived by the parties in bankruptcy, as Amzak was permitted to bid its debt to obtain the property as if there had been no title defect. We agree with the district court that Amzak did not create a genuine issue of material fact as to these essential steps of causation. [lender] would suffer no loss.” Id. at 1167. All this may be true, but as discussed above, Amzak has not proven that its loss resulted from a defect in the mortgage. 13 Case: 13-30675 Document: 00512546787 Page: 14 Date Filed: 02/27/2014 No. 13-30675 We briefly mention legal causation, although the lack of cause-in-fact is enough to dispose of Amzak’s negligence claim. Under Louisiana law, legal causation is “ultimately a question of policy as to whether a particular risk falls within the scope of the duty.” Roberts v. Benoit, 605 So. 2d 1032, 1044 (La. 1991). STL’s duty to Amzak is defined by the title policy. As we have stated, the policy provides indemnity for actual loss “by reason of” title defect; it does not guarantee the effectiveness of Amzak’s mortgage or the property’s fair market value. Accordingly, under the undisputed facts developed here, STL’s delay in making a complete filing of Amzak’s mortgage was not a legal cause of Amzak’s loss. | Amzak’s Negligence Claim |
28 | 557,349 | 2 | 1 | 15 motion to sever. 16 Defendants-appellants (collectively Mason County) argue that the district court erred in denying their motion to sever. This argument is based on two theories. First, they contend that the requirements for permissive joinder were not met. Second, they maintain that even if the requirements for permissive joinder were met, the motion to sever the plaintiffs' claims should have been granted because not doing so resulted in prejudice to the individual defendants. 17 Federal Rule of Civil Procedure 42(b) gives a district court broad discretion to order separate trials. A district court's decision regarding severance may be set aside only for abuse of discretion. United States v. Sanchez-Lopez, 879 F.2d 541, 551 (9th Cir.1989). Under the abuse of discretion standard, a reviewing court cannot reverse unless it has a definite and firm conviction that the district court made a clear error of judgment in its conclusion. Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir.1988).
18 Mason County did not raise the issue of whether the requirements for permissive joinder were met below. They are thus precluded from raising it now. This court will not review an issue not raised below unless necessary to prevent manifest injustice. International Union of Bricklayers and Allied Craftsman Local Union No. 20 v. Martin Jaska, Inc., 752 F.2d 1401, 1404 (9th Cir.1985). This court will address the issue only if the proponent can point to exceptional circumstances why the issue was not raised below. Id. (quoting Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 655-56 (9th Cir.1984) (per curiam)). Because Mason County does not show any reasons why they failed to raise the issue below, this court will not consider the issue.
19 Mason County moved before trial to sever the claims of the plaintiffs because, they argued, joinder would result in prejudice to the individual defendants. It is true that by trying the claims against the individual defendants with the claims against Mason County and the Sheriff's Department, evidence of the series of incidents of excessive force involving different police officers which would have been inadmissible against individual defendants not involved in the particular episode, were admissible against the County and the Sheriff's Department in order to show a pattern of misconduct. 20 Yet, while severing the defendants would have surely eliminated this prejudice, severing the plaintiffs would not have solved the problem. Even if each plaintiff had a separate trial, evidence of a pattern of misconduct would still have been admitted because each plaintiff (except Taylor who did not sue Mason County) presented a claim against at least one defendant and against the County. Since defendants requested severance of the plaintiffs' claims, the court below did not abuse its discretion in rejecting the motion. 21 | Whether the district court erred in denying defendants' |
29 | 751,894 | 1 | 12 | 89 The district court sentenced Sehorn to a 20-year mandatory sentence on Count Two, which charged aiding and abetting a firearms crime under 18 U.S.C. § 924(c). This statute provides that [i]n the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years ... Because Sehorn was previously convicted under this statute for a Los Angeles robbery, the district court sentenced Sehorn to the mandatory twenty-year sentence. 90 Sehorn argues that the mandatory twenty-year sentence was not warranted because the Los Angeles robbery occurred after the July 1992 robbery for which appellant was convicted in this case. However, the language of § 924(c) plainly refers to a subsequent conviction, not a subsequent crime. As this court has pointed out: There is nothing in the simple wording of this statute that requires that an offense underlying a second conviction occur after the conviction for the first offense. The only requirement is that a conviction be second or subsequent, not that any offense underlying that conviction follow a first conviction. United States v. Neal, 976 F.2d 601, 602 (9th Cir.1992). See also Deal v. United States, 508 U.S. 129, 134, 113 S.Ct. 1993, 1997-98, 124 L.Ed.2d 44 (1993) (noting that the term second or subsequent conviction means that a defendant convicted of a crime committed in 1992, who has previously been convicted of a crime committed in 1993, would receive the enhanced sentence). Thus, the twenty-year mandatory sentence was proper. 12 91 | Was Sehorn properly sentenced? |
30 | 3,066,758 | 3 | 2 | Plaintiffs allege that the Program has resulted in “a series of reports documenting in detail the information obtained from [the NYPD’s] surveillance of New Jersey Muslim communities.” Id. ¶ 5. These “includ[e] a report focusing on the Muslim community in Newark” (the “Newark report”), id.; “more than twenty precinct-level maps of the City of Newark, noting the location of mosques and Muslim businesses and the ethnic composition of the Muslim community,” id. ¶ 3; “analytical report[s] on every mosque within 100 miles” of New York City, id. ¶ 47; and a weekly “MSA Report on schools, including reports on Rutgers New Brunswick and Rutgers Newark,” id. ¶ 51. The information and records collected and compiled are extensive and varied. Among these are “pictures, . . . video, . . . and license plate numbers of [mosque] congregants,” id. ¶ 46; intelligence about “where religious schools are located,” id. ¶ 47; indications of religious affiliation and Muslim patronage of shops, restaurants, and grocery stores, id.; lists of “businesses owned or frequented by Muslims,” id.; and “names of professors, scholars, and students” affiliated with MSAs, id. ¶ 51. The City also allegedly “compiles databases of new Muslim converts who take Arabic names, as well as Muslims who 13 take names that are perceived to be ‘Western.’” Id. ¶ 55. Besides names and other identifying information of individuals, businesses, and organizations, the NYPD reports include seemingly mundane and innocuous details about Muslim community life in New Jersey, such as: (1) “flyers are posted in shops advertising for Quran tutoring;” (2) “a picture of a mosque hangs in a grocery store;” (3) “a restaurant serves ‘religious Muslims;’” (4) “customers visit a Dunkin’ Donuts after Friday prayer;” (5) “a restaurant is located near a particular mosque;” (6) “employees or customers of establishments are observed wearing ‘traditional clothing;’” (7) “Muslim prayer mats are hanging on the wall at an Indian restaurant;” and (8) “a store posts a sign that it will be closed on Friday in observance of Friday prayer.” Id. ¶ 47. Finally, NYPD officers have compiled “the subject[s and details] of conversations overheard at mosques.” Id. In one 2006 report, for instance, they “document[ed] twentythree conversations at twenty mosques,” though “[n]one of the information collected showed any indication of criminal activity.” Id. | Reports and Informational Databases |
31 | 3,065,770 | 3 | 1 | At a status conference, Veterans sought to compel discovery of suicide incident briefs — reports prepared by the VA following the suicide or attempted suicide of a veteran under VA care. The VA represented that there are 15,000 suicide incident briefs that would be subject to extensive redaction and argued that the redacted suicide incident briefs would be of little probative value. The district court asked Veterans what they would do with that information. Veterans responded: “I think it would potentially subject to analysis . . . to try to amalgamate the data across the system to show in practice how the procedures and policies that are in place with respect to mental health care, in fact, the small—.” The district court interjected “I don’t think I have any authority to talk about their policies,” and thereafter denied Veterans’s motion to compel production. Veterans claim that full discovery of all suicide incident briefs would have allowed them to establish links between the VA’s failure to comply with its policies and procedures and veterans’ suicides. Veterans, however, do not argue how they were prejudiced by the discovery ruling in the context of their specific APA and due process claims. There is no contention that the suicide incident briefs would have allowed Veterans to fulfill the APA’s statutory requirements for judicial review set forth at 5 U.S.C. § 706(1) and delineated in Norton. It is possible that access to the suicide incident briefs might have provided Veterans with additional useful material in support of their due process claim concerning veterans’ inability to appeal administrative scheduling decisions that delay necessary mental health care. However, such material is not necessary for Veterans to make out a valid claim — indeed, as we hold above, their eligibility for relief under Mathews has already been established by the district court’s factual findings. In light of our holding reversing and remanding this case to the district court for the entry of an appropriate order remedying the due process violation that Veterans have suffered VETERANS FOR COMMON SENSE v. SHINSEKI 6371 because of the VHA’s delay in the provision of mental health care, we conclude that it is unnecessary to address this discovery issue. B. Average Time for Processing PTSD Claims at the RO Level Veterans also sought to compel a response to their interrogatory requesting the average amount of time it takes to process PTSD compensation claims at the Regional Office level. During the trial, Veterans raised the issue with the district court. The VA represented that Michael Walcoff, then Deputy Under Secretary for Benefits in the Department of Veterans Affairs,40 would testify as to what data the VA has and why the VA cannot produce the data sought by Veterans. After Walcoff testified, Veterans filed a motion to compel by letter contending that “Walcoff’s testimony, although consistent with the explanation provided by counsel for Defendants, does not support the ‘not available’ interrogatory answer provided by Defendants.” The following day, April 29, 2008, the court denied Veterans’s motion to compel. Veterans contend that the district court abused its discretion in refusing to compel an answer to that interrogatory. We fail to see how this specific information would bolster Veterans’s APA or due process claims. Veterans’s statutory claims are foreclosed for the reasons we discuss above. Veterans’s due process arguments concerning delays in claims adjudication focus on the time it takes to appeal benefits determinations. At the RO level, Veterans claim only that the failure to provide more formal procedures for adjudicating benefits claims and the VA’s use of a procedure to reduce benefits awards system violates due process. Veterans make no argument as to how further information on delays in processing PTSD claims at the RO level would support their due process claims 40 Walcoff was appointed Acting Under Secretary for Benefits in the Department of Veterans Affairs on Jan. 4, 2010. 6372 VETERANS FOR COMMON SENSE v. SHINSEKI regarding RO-level procedures. In the absence of any showing of how this additional information would have strengthened Veterans claims, we affirm the district court’s ruling on this issue. | Suicide Incident Briefs |
32 | 2,979,541 | 4 | 1 | Defendants first argue that guaranty section 5(b)(i), supra, which states that a guarantor’s obligations are not affected in the event of a bankruptcy, is ambiguous or conflicts with other provisions. Defendants say that the section is ambiguous because it could be interpreted to mean that defendants, as guarantors, have no additional obligations in the event of a bankruptcy. Defendants’ -6- 111 Debt Acquisitions Holdings, LLC v. Six Ventures Ltd., et al. No. 09-4436 argument is without merit. The clear meaning of the provision is that a guarantor’s obligations under the terms of the loan documents do not change in the event of a bankruptcy, not that guarantors are released from the liability provided therein. To read the provision as defendants suggest is counterintuitive. Instead, the loan agreement and guaranty clearly provide that a bankruptcy filing is a SRE and that a SRE renders the defendants, as guarantors, personally liable for the full debt. In the same argument, defendants assert that the guaranty’s section 10 heading, “Unconditional Character of Obligations of Guarantor,” supra, should not have impacted the district court’s finding related to this issue, and that the district court erred by not giving more weight to Kahn’s affidavit in which he stated that he never intended to be liable for the entire amount of the debt. Defendants’ assertions are without merit as they do not change the clear meaning of the guaranty provision that defendants contest as ambiguous. A guarantor’s obligations under section 5(b)(i) are not ambiguous. Thus, the district court did not err in finding the same. Defendants also argue that the guaranty’s definition of “Guaranteed Obligations,” section 1(b), supra, is ambiguous. Particularly, defendants say that because modifiers are not used in the clause – “and” or “or” – the clause should be read as one sentence and to mean that it is ambiguous whether defendants are liable for the full amount of the debt. Defendants’ claim is without merit. Whether the definition is read as one sentence or as two independent sentences, it is clear that defendants are liable for the full debt in the case of a SRE, which defendants concede converts their debt obligations from non-recourse to recourse. See Appellants’ Brief, at p. 5. Thus, the district court did not err in finding a lack of ambiguity related to the definition of the guaranty’s “Guaranteed Obligations” term. -7- 111 Debt Acquisitions Holdings, LLC v. Six Ventures Ltd., et al. No. 09-4436 | Guaranty Ambiguity |
33 | 39,521 | 2 | 1 | 54 We have no authority to grant habeas corpus relief simply because we conclude, in our independent judgment, that a state supreme court's application of [federal law] is erroneous or incorrect. Martinez v. Dretke, 404 F.3d 878, 884 (5th Cir.2005) (quoting Neal v. Puckett, 286 F.3d 230, 236 (5th Cir.2002) (en banc)). Because Kittelson filed his federal habeas petition on September 11, 2003, the petition is subject to review under the standards established in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA). Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Section 2254(d)(1) of that law establishes the narrow conditions under which a federal court may grant a petition for a writ of habeas corpus: 55 An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim 56 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 57 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 58 Section 2254(d)(1) addresses pure questions of law and mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.2001). Under the first (contrary to) clause, a federal court may grant habeas relief if the state court decided a case differently from how the United States Supreme Court decided a case on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Under the second (unreasonable application) clause, a court may grant habeas relief if the state court correctly divined a legal principle from the Supreme Court's jurisprudence but misapplied that principle to the facts. Section 2254(d)(2) addresses pure questions of fact. Moore v. Johnson, 225 F.3d 495, 501, 504 (5th Cir.2000). We review the federal district court's determinations of law under AEDPA de novo. Mann v. Scott, 41 F.3d 968, 973 (5th Cir.1994). | The AEDPA Standard of Review |
34 | 511,547 | 4 | 3 | 67 Did Hall and the Board fall into that narrow band of fragile relationships requiring for job security loyalty at the expense of unfettered speech? Gonzalez I, 712 F.2d at 150. The district court rightly concluded that they did, and therefore that the government's interest in the effective functioning of its enterprise outweighed Hall's interest in speaking on a matter of public concern. 68 Hall's position related to a policy area, and his duties were such as to identify him as a prominent policy level official. The University therefore had a significant interest in ensuring that Hall was, and was perceived to be, compatible with the President and the Board. Hall's speech directly interfered with this interest, as he engaged in a pattern of opposition to the policies of his superiors. 69 First, the Athletic Directorship clearly is a position that relates to policy concerns. There is substantial room for principled disagreement on the formulation and implementation of goals for the Athletic Department. Two directors may disagree about which sports to emphasize, whether to focus on league or intramural activities, or whether to insist on compliance with NCAA and University rules even at the expense of negative publicity and competitive setbacks. As the Athletic Director's job performance cannot be measured solely on the basis of neutral, technical criteria of professional competence, his position relates to a policy area. See Shondel, 775 F.2d at 864; cf. Roman Melendez v. Inclan, 826 F.2d 130, 133-34 (1st Cir.1987) (as physical condition of schools is matter of vital public concern, and there was room for disagreement as to priorities for investigating and remedying deficient conditions, position of director of program whose primary responsibility was to repair, maintain, and improve public schools clearly related to institutional policy); Tomczak v. City of Chicago, 765 F.2d 633, 641 (7th Cir.) (deputy water commissioner's duties related to unprotected area because there was room for principled disagreement on how best to accomplish goal of providing public services), cert. denied, 474 U.S. 946, 106 S.Ct. 313, 88 L.Ed.2d 289 (1985). 70 Second, Hall's duties as Athletic Director were sufficiently extensive to qualify him as a policy level employee. The Athletic Director is in the excepted service, which is defined by statute as an individual whose primary duties are of a policy determining, confidential, or policy advocacy character and who reports directly to the head of an agency. D.C.Code Ann. Sec. 1-610.2 (1981). Although the statute is not conclusive, it is entitled to some deference. Jimenez Fuentes, 807 F.2d at 246. The statutory classification is confirmed by the complaint's description of the Athletic Directorship. Hall alleged that the President and the Board placed the position of Athletic Director in the University's 'Excepted Service' so that the President could select the Athletic Director at his sole discretion. Complaint at p 30, App. at 8. Hall was the President's key subordinate, chosen for the express purpose of implementing policy. The President rel[ied] upon [appellant] to bring the UDC Athletic Department into full compliance with NCAA and UDC rules and guidelines. Complaint at p 10, App. at 3. In other words, he was charged with formulat[ing] plans for the implementation of [the University's] broad goals. Elrod, 427 U.S. at 368, 96 S.Ct. at 2687 (plurality opinion). 71 These duties were obviously not well defined [and] of broad scope. Id. Hall was the immediate subordinate of the President and the Board. He reported directly to them, and they were his only superiors. He had the power and primary responsibility to control all employees within his department. At the same time, he was a highly visible spokesman for the University's athletic program, likely to be thought of by the public as responsible for running the department. 72 Finally, the government's interest in having its Athletic Department efficiently operated in accordance with policies established by the President and Board was directly undermined by Hall's contrary views as to how these policies should have been formulated and implemented. He engaged in a pattern of speech concerning the proper response to rule violations within the department. Complaint at p 13, App. at 4. His statements were opposed with increasing frequency by the UDC administration and various members of the Board. Complaint at p 14, App. at 5. Hall's views as to how the department should have been run were obviously at odds with those of the Board. 73 We conclude that Hall could be dismissed for expressing views on matters within the core of his responsibilities that reflected a policy disagreement with his superiors such that they could not expect him to carry out their policy choices vigorously. | Application to Present Case |
35 | 153,893 | 2 | 1 | Meyers contends that the district court erred in failing to balance his interests in his religion with governmental interests as required by the First Amendment and the RFRA; in refusing to recognize his interpretation of his own religion; and in refusing to give his beliefs the status of religion.
Meyers asserts that as the Reverend of the Church of Marijuana it is his sincere belief that his religion commands him to use, possess, and distribute marijuana for the benefit of mankind and the planet earth and that 21 U.S.C. §§ 841 and 846 and 18 U.S.C. § 2, which prohibit this religiously motivated conduct, unduly burden his constitutional right to free exercise of religion. Meyers maintains that in order to substantially burden religiously motivated conduct, the government must demonstrate a compelling state interest and use means narrowly tailored to achieve that - 5 - interest. The Free Exercise Clause of the First Amendment guarantees that, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ..” U.S. Const. amend. I. In Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940), the Court recognized that there are two aspects of the free exercise of religion: freedom to believe and freedom to act. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,-- freedom to believe and freedom to act. Id. at 303. While the freedom to believe and profess whatever religious doctrines one desires is absolute, the freedom to act cannot be. Id. at 303-04. “Conduct remains subject to regulation for the protection of society. The freedom to act must have appropriate definition to preserve the enforcement of that protection.” Id. at 304. In Employment Div., Dep’t of Human Resources of Or., v. Smith, 494 U.S. 872 (1990), the Court held that the right to free exercise of religion does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes), nor does a generally - 6 - applicable criminal prohibition on a particular form of conduct that substantially burdens a religious practice have to be justified by a “compelling governmental interest.” (citing United States v. Lee, 455 U.S. 252, 263 n.3 (1982)). In Smith, respondents argued that “their religious motivation for using peyote place[d] them beyond the reach of a criminal law that [was] not specifically directed at their religious practice and that [was] concededly constitutional as applied to those who use the drug for other reasons.” 494 U.S. at 878. The respondents further argued “that even though exemption from generally applicable criminal laws need not automatically be extended to religiously motivated actors, at least the claim for a religious exemption must be evaluated under the balancing test set forth in Sherbert v. Verner, 374 U.S. 398 (1963),” where governmental actions that substantially burden a religious practice must be justified by a compelling governmental interest. Smith, 494 U.S. at 882-83. In reaching its decision, the Court stated that “[w]e have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate.” Id. at 878-79. The Court pointed out that “[t]he only decisions in which [it has] held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with - 7 - other constitutional protections.” Id. at 881 (citations omitted). In addition, the Court specifically rejected the respondents contention that a neutral law of general applicability that burdens a religious practice must be justified by a compelling governmental interest. The Court held that: The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” Lyng [v. Northwest Indian Cemetery Protective Assn., 485 U.S. 439, 451 (1988)]. To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling--permitting him, by virtue of his beliefs, “to become a law unto himself,” Reynolds v. United States, 98 U.S. [145], 167 [1878]-- contradicts both constitutional traditions and common sense. Id. at 885 (footnote omitted). In our case, Meyers’ challenge to his convictions under the Free Exercise Clause must fail. First, as in Smith, Meyers challenges the application of valid and neutral laws of general applicability on the grounds that they prohibit conduct that is required by his religion. Therefore, we hold that Meyers’ challenge fails for the same reasons as the respondents challenge in Smith failed, i.e., the right to free exercise of religion under the Free Exercise Clause of the First Amendment does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law incidentally affects religious practice. Second, we hold that when, as here, - 8 - the challenge is to a valid neutral law of general applicability, the law need not be justified by a compelling governmental interest. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 521 (1993).
Meyers argues that the district court erred in refusing to recognize his interpretation of his own religion and in refusing to give his beliefs the status of religion under the RFRA. In response to the Court’s rejection of the compelling governmental interest test in Smith, Congress passed the RFRA reestablishing the compelling interest test of Sherbert, 374 U.S. 398, and Wisconsin v. Yoder, 406 U.S. 205 (1972), as the analytical framework governing all cases where free exercise of religion is substantially burdened. 42 U.S.C. § 2000bb(b)(1). The RFRA provides that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability, except as provided in subsection (b) of this section.” § 2000bb-1(a). Subsection (b) provides that: Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person-- (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. 42 U.S.C. § 2000bb-1(b). - 9 - Under the RFRA, a plaintiff must establish, by a preponderance of the evidence, three threshold requirements to state a prima facie free exercise claim. Thiry v. Carlson, 78 F.3d 1491, 1494 (10th Cir. 1996). The governmental action must (1) substantially burden, (2) a religious belief rather than a philosophy or way of life, (3) which belief is sincerely held by the plaintiff. Id. The government need only accommodate the exercise of actual religious convictions. Werner v. McCotter, 49 F.3d 1476, 1479 n.1 (10th Cir.) (citing Yoder, 406 U.S. at 215-19; Thomas v. Review Bd., 450 U.S. 707, 713-18 (1981)), cert. denied, ___ U.S. ___, 115 s. Ct. 2625 (1995). Once the plaintiff has established the threshold requirements by a preponderance of the evidence, the burden shifts to the government to demonstrate that the challenged regulation furthers a compelling state interest in the least restrictive manner. Werner, 49 F.3d at 1480 n.2 (citing 42 U.S.C. § 2000bb-1(b)). Our review of the requirements, although largely factual in nature, presents mixed questions of fact and law. Thiry, 78 F.3d at 1495. We review the meaning of the RFRA de novo, including the definitions as to what constitutes substantial burden and what constitutes religious belief, and the ultimate determination as to whether the RFRA has been violated. Id. Sincerity is a factual matter and, as with historical and other underlying factual determinations, we defer to the district court’s findings, - 10 - reversing only if those findings are clearly erroneous. Id. There is no dispute that Meyers’ beliefs are sincerely held and that they are substantially burdened by 21 U.S.C. §§ 841 and 846 and 18 U.S.C. § 2. The issue is whether his sincerely held beliefs are “religious beliefs,” rather than a philosophy or way of life. In analyzing this issue, the district court examined the cases that have delved into the question of “what is religion” and catalogued the many factors used to determine whether a set of beliefs is religious in nature.2 Meyers, 906 F. Supp. at 1501. The court then used its list of factors to examine Meyers’ beliefs to determine if his beliefs fit the factors sufficiently to be included in the realm of “religious beliefs.” Keeping in mind that the threshold for establishing the 2 The district court “gleaned” many of these factors from the following cases: Africa v. Commonwealth of Pa., 662 F.2d 1025 (3rd Cir. 1981), cert. denied, 456 U.S. 908 (1982); Malnak v. Yogi, 592 F.2d 197 (3rd Cir. 1979); United States v. Sun Myung Moon, 718 F.2d 1210 (2nd Cir. 1983), cert. denied, 466 U.S. 971 (1984); Founding Church of Scientology of Washington, D.C. v. United States, 409 F.2d 1146 (D. C. Cir.), cert. denied, 396 U.S. 963 (1969); Washington Ethical Soc’y v. District of Columbia, 249 F.2d 127 (D.C. Cir. 1957); United States v. Kauten, 133 F.2d 703 (2nd Cir. 1943); Sherr v. Northport-East Northport Union Free Sch. Dist., 672 F. Supp. 81 (E.D.N.Y. 1987); Jacques v. Hilton, 569 F. Supp. 730 (D.N.J. 1983), aff’d, 738 F.2d 422 (3rd Cir. 1984); Church of the Chosen People v. United States, 548 F. Supp. 1247 (D. Minn. 1982); Womens Services, P.C. v. Thone, 483 F. Supp. 1022 (D. Neb. 1979), aff’d, 636 F.2d 206 (8th Cir. 1980), vacated, 452 U.S. 911 (1981); Stevens v. Berger, 428 F. Supp. 896 (E.D.N.Y. 1977); Remmers v. Brewer, 361 F. Supp. 537 (S.D. Iowa 1973), aff’d, 494 F.2d 1277, cert. denied, 419 U.S. 1012 (1974); United States v. Kuch, 288 F. Supp. 439 (D.D.C. 1968); Fellowship of Humanity v. Alameda County, 315 P.2d 394 (Cal. Ct. App. 1957). - 11 - religious nature of his beliefs is low, the court considered the following factors: 1. Ultimate Ideas: Religious beliefs often address fundamental questions about life, purpose, and death. As one court has put it, “a religion addresses fundamental and ultimate questions having to do with deep and imponderable matters.” Africa, 662 F.2d at 1032. These matters may include existential matters, such as man’s sense of being; teleological matters, such as man’s purpose in life; and cosmological matters, such as man’s place in the universe. 2. Metaphysical Beliefs: Religious beliefs often are “metaphysical,” that is, they address a reality which transcends the physical and immediately apparent world. Adherents to many religions believe that there is another dimension, place, mode, or temporality, and they often believe that these places are inhabited by spirits, souls, forces, deities, and other sorts of inchoate or intangible entities. 3. Moral or Ethical System: Religious beliefs often prescribe a particular manner of acting, or way of life, that is “moral” or “ethical.” In other words, these beliefs often describe certain acts in normative terms, such as “right and wrong,” “good and evil,” or “just and unjust.” The beliefs then proscribe those acts that are “wrong,” “evil,” or “unjust.” A moral or ethical belief structure also may create duties -- duties often imposed by some higher power, force, or spirit -- that require the believer to abnegate elemental self-interest. 4. Comprehensiveness of Beliefs: Another hallmark of “religious” ideas is that they are comprehensive. More often than not, such beliefs provide a telos, an overreaching array of beliefs that coalesce to provide the believer with answers to many, if not most, of the problems and concerns that confront humans. In other words, religious beliefs generally are not confined to one question or a single teaching. Africa, 662 F.2d at 1035. 5. Accoutrements of Religion: By analogy to many of the established or recognized religions, the presence of the following external signs may indicate that a particular set of beliefs is “religious”: - 12 -
have been wholly founded or significantly influenced by a deity, teacher, seer, or prophet who is considered to be divine, enlightened, gifted, or blessed.
seminal, elemental, fundamental, or sacred writings. These writing often include creeds, tenets, precepts, parables, commandments, prayers, scriptures, catechisms, chants, rites, or mantras.
particular structures or places as sacred, holy, or significant. These sites often serve as gathering places for believers. They include physical structures, such as churches, mosques, temples, pyramids, synagogues, or shrines; and natural places, such as springs, rivers, forests, plains, or mountains.
clergy, ministers, priests, reverends, monks, shamans, teachers, or sages. By virtue of their enlightenment, experience, education, or training, these people are keepers and purveyors of religious knowledge. e. Ceremonies and Rituals: Most religions include some form of ceremony, ritual, liturgy, sacrament, or protocol. These acts, statements, and movements are prescribed by the religion and are imbued with transcendent significance. f. Structure or Organization: Many religions have a congregation or group of believers who are led, supervised, or counseled by a hierarchy of teachers, clergy, sages, priests, etc. g. Holidays: As is etymologically evident, many religions celebrate, observe, or mark “holy,” sacred, or important days, weeks, or months. h. Diet or Fasting: Religions often prescribe or prohibit the eating of certain foods and the drinking of certain liquids on particular days or during particular times. | Religious Freedom Defense |
36 | 776,467 | 2 | 2 | 12 Trompeter was a nationally-recognized collector of rare coins. Trompeter also had other valuable collections including art, artifacts, firearms, gems, jewelry, and music recordings. There is considerable dispute, and much ambiguity in the record, about the exact nature and valuation of those holdings, but the Estate concedes that it failed to report approximately $1 million in assets. Among other things, the Estate did not report the gun collection (valued at $10,000), the music collection (valued at $10,000) and some of the gems (valued at $500,000). 13 The IRS determined that the Estate failed to report $14 million in assets, principally art, artifacts, diamonds, jewelry, and the like. This figure was based on the estimate made by the son of one of Trompeter's acquaintances, Joe Pasko, who filed a claim against the Estate for a $1.4 million commission, alleging that Trompeter had retained him to sell assets worth at least $14 million. 14 Although it rejected the Estate's argument that Trompeter had gifted some of the omitted assets to the co-executors, the Tax Court did not accept the Commissioner's determination, because, among other things, the record did not disclose all of the unreported assets, nor was Pasko conversant with the full extent of Trompeter's holdings. The court did, however, conclude that there were unreported assets: 15 Following our detailed review of the record, we find that the estate failed to report $4.5 million of assets (inclusive of the approximately $1 million amount conceded by the estate). 16 Trompeter, 75 T.C.M. at 1665 (emphasis added). 17 The difficulty with this finding is that it is so conclusory as to make it unreviewable. The Tax Court did not specify which portions of the trial record it referenced, detail the methodology it used to arrive at its conclusion, list the omitted assets, or even offer a description of the items. 18 We can understand and review the basis for rejecting the $14 million figure. Unfortunately, it is the alternative finding that leaves us hanging. The convenient shorthand reference to a detailed review of the record only tells us, based on the length of the record, that the court spent considerable time scrutinizing it. We do not doubt the court's sincerity or diligent review. Rather, we simply do not have any factual findings that can be adequately reviewed for clear error. How did the Tax Court arrive at the $3.5 million figure? What items comprise the $3.5 million in omitted assets? 19 In declining to detail the assets with some reasonable specificity, the Tax Court places us in the untenable position of either abdicating our reviewing role or sifting through a voluminous record to construct a plausible account of the missing assets. Although the latter exercise may be theoretically possible, it is not an exercise to be performed by the court of appeals. See, e.g., Estate of Mitchell, 250 F.3d at 704 ([T]he Commissioner offers us a multitude of avenues through which one might arrive at a 35 percent combined discount. This strained effort, in and of itself, is the most telling evidence of the inadequacy of the Tax Court's explanation.); see also Akers v. Comm'r, 798 F.2d 894, 897 (6th Cir.1986) (Unlike the original judgment of Solomon, the true rationale of which has been readily apparent to generations of disinterested observers — if not, at first blush, to both of the maternal litigants — the judgment appealed from here has no discernible logic. We are not prepared to permit the Tax Court, whenever it disagrees with the valuations offered by both sides, simply to shut its eyes and pick at random any number that happens to lie somewhere between the Commissioner's valuation and the taxpayer's.). 20 It is, therefore, not sufficient to say that the value of various unspecified collections of art, artifacts, gems, etc., is $3.5 million. Consequently, consistent with our holding in Leonard Pipeline, we instruct the Tax Court on remand to provide sufficiently detailed findings regarding the assets (including their valuation) that were omitted from the Estate's federal estate tax return. | Omitted Assets |
37 | 2,968,817 | 3 | 3 | Parks also says that she complained about a teleconference presentation by Dr. Kaplan to Coventry Health Care in February of 2006. Part of the presentation was meant to promote Kadian as being less prone to diversion (i.e., less prone to be diverted to the black market) than other opioid drugs. J.A. 262. Notably, Parks “arranged for Dr. Kaplan to 9 speak,” and she also provided certain slides for that presentation. Id. at 1884. Nevertheless, Parks claims that because Kadian had not been proven to be less subject to diversion, she felt that marketing it that way would be considered off-label promotion. When Parks discovered that the presentation would involve a discussion of diversion, she wrote an email to Hill to express these concerns. The email stated, Between us, I am not at all comfortable with this approach. If it were me[,] I would not do this. The success with Medicaid in [Maryland] was due to a strong clinical support from my [doctors] and a great detail from Dr. Royal . . . . Nonetheless, I am doing all that I can to help [Matt Anderson, Alpharma’s Managed Care Representative, who was responsible for the presentation].” J.A. 262. Hill responded, “I would agree, I think we need to take a more clinical approach than abuse and diversion.” Id. at 1884. 3 3 Because Dr. Kaplan was not on Alpharma’s list of approved speakers, he could not be paid his $500 honorarium for the Coventry presentation through normal channels. Parks says that her supervisors encouraged her to buy Dr. Kaplan a gift certificate with her company American Express card, but she refused to do so. Eventually, Dr. Kaplan was paid by a check issued by Alpharma. See J.A. 446-58. It is not clear whether Parks desires to use this fact as evidence of an FCA protected activity or retaliatory behavior on the part of Alpharma. Regardless, we do not find it persuasive or relevant to our analysis. 10 | coventry presentation |
38 | 3,011,431 | 2 | 4 | The plaintiffs further contend that since they have sought class certification, see supra note 1, they should be treated as a class pending the court's determination on that issue. Some courts have uncritically treated a group as a collective when a would-be class has petitioned for certification. See, e.g., Hinckley v. Kelsey-Hayes Co., 866 F.Supp. 1034 (E.D. Mich. 1994). In Hinckley, the court found irreparable harm to the 500 plaintiffs when only one of the two named plaintiffs in the proposed class presented evidence of threatened harm, and none demonstrated that money would not be an effective compensation. See id. at 1044-45. The court based its order, in part, on the fact that it was dealing with a potential class. [T]he court will take into consideration the irreparable harm faced by putative class members before class certification because of the nature of injunctive relief at this stage of the litigation. Id. Likewise, in Lapeer Cty. Medical Care Facility v. Michigan, 765 F.Supp. 1291, 1301 (W.D. Mich. 1991), the court treated a group of noncertified plaintiffs as a class. The court analogized the preliminary injunction order to dismissal orders and compromise negotiations, in which a court can treat a non-certified potential class as a unit. Cf. Musto v. American General Corp., 615 F.Supp. 1483, 150405 (M.D. Tenn. 1985), rev'd on other grounds, 861 F.2d 897 (6th Cir. 1988) (treating certified class collectively for irreparable harm determination). We disagree. We see no reason why the pendency of a class action certification petition should alter our analysis. We have no basis on which to judge the viability of the class certification request, which we understand to be 23 contested. Merely petitioning for class certification cannot provide plaintiffs the right to be treated collectively. Furthermore, a class action determination focuses on similarities between the legal claims of the parties, see Fed. R. Civ. P. 23(a), while a preliminary injunction determination, by requiring a showing of irreparable harm, depends in many cases (including this one) on circumstances entirely independent of legal rights: the particular resources available to each member of the class to weather hardships pending a trial. | Class Certification Issues |
39 | 172,648 | 2 | 2 | We begin by detailing the history of the statute and regulations at issue in this case. The McCarran-Walter Act of 1952 established the structure of current immigration laws, Pub.L. No. 82-414, 66 Stat. 163 (March 27, 1952) (codified at 8 U.S.C. §§ 1101-1537 (1952)). As part of an amendment of the immigration laws in 1961, Congress provided that federal courts could not exercise jurisdiction over deportation and exclusion orders where the alien had departed the United States following issuance of the order. Thus, 8 U.S.C. § 1105a(c)(1962) provided: An order of deportation or of exclusion shall not be reviewed by any court if the alien . . . has departed from the United States after issuance of the order. Three months after the enactment of the 1962 laws, the Attorney General issued implementing regulations, including 8 C.F.R. § 3.2, titled Reopening or reconsideration before the [BIA]. That regulation paralleled § 1105a(c), and provided: [A] motion to reopen or a motion to reconsider shall not be made by or on behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. Any departure from the United States of a person who is the subject of deportation proceedings occurring after the making of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. 8 C.F.R. § 3.2 (1962) (currently 8 C.F.R. 1003.2(d)). 8 C.F.R. § 1003.23(b)(1) contains identical language governing motions to reopen or reconsider filed before an IJ. From the early 1960s until 1996, 8 U.S.C. § 1105a(c) remained unchanged from that 1961 version, as did the language of the regulations regarding motions to reopen or reconsider before an IJ and the BIA. All barred post-departure motions to reopen or reconsider. In April 1996, the Attorney General amended 8 C.F.R. § 3.2 and added numerical and time limits for motions to reopen and to reconsider, as well as prescribed contents for such a motion. The post-departure bar remained. In September 1996, Congress made major reforms to immigration law through its enactment of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. Among other things, the IIRIRA repealed the statutory bar to judicial review of deportation orders when the alien had departed the country and codified and enacted procedures governing the filing of motions to reopen. See William v. Gonzales, 499 F.3d 329, 330 (4th Cir.2007). Thus, the current statute governing motions to reopen and reconsider provides that [t]he alien may file one motion to reconsider a decision that the alien is removable from the United States, 8 U.S.C. § 1229a(c)(6)(A), and that such a motion must be filed within 30 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(6)(B). Furthermore, [a]n alien may file one motion to reopen proceedings under this section, 8 U.S.C. § 1229a(c)(7)(A), which motion must, in general, be filed within 90 days of the date of entry of a final administrative order of removal. 8 U.S.C. § 1229a(c)(7)(C)(I). The statute also details the required content of motions to reopen or reconsider, as well as exceptions from both the numerical limit of one motion to reopen and the time period for filing such a motion. See 8 U.S.C. § 1229a(c)(7)(A)-(C). The statute does not, however, contain any explicit post-departure bar to review, which, as indicated above, had previously existed in former 8 U.S.C. § 1105a(c). On March 6, 1997, the Attorney General promulgated regulations implementing the IIRIRA. The regulations retained the post-departure bar for motions to reopen before an IJ and the BIA: A motion to reopen or . . . reconsider shall not be made by or on behalf of a person who is the subject of exclusion, deportation, or removal proceedings, subsequent to his or her departure from the United States. Any departure from the United States, including the deportation or removal of a person who is the subject of exclusion, deportation, or removal proceedings, occurring after the filing of a motion to reopen . . . or reconsider, shall constitute a withdrawal of such motion. (currently 8 C.F.R. § 1003.2(d)). Virtually identical language bars post-departure review before the IJ. See 8 C.F.R. § 1003.23(b)(1). Thus, the regulations continue to contain a post-departure bar to motions to reopen or reconsider before both the IJ and the BIA. Indeed, the Attorney General specifically discussed the continuing validity of the post-departure bar in the notice and comment process for the regulations implementing the IIRIRA: No provision of the new section 242 of the [INA] supports reversing the long established rule that a motion to reopen or reconsider cannot be made in immigration proceedings by or on behalf of a person after that person's departure from the United States. . . . The Department [of Justice] believes that the burdens associated with the adjudication of motions to reopen and reconsider on behalf of deported or departed aliens would greatly outweigh any advantages this system might render. Inspection and Expedited Removal of Aliens; Conduct of Removal Proceedings; Asylum Procedures, 62 Fed.Reg. 10,312, 10,321 (March 6, 1997). | Background of Immigration Laws |
40 | 74,940 | 3 | 2 | The doctrine of dual or double criminality is distinct from the doctrine of specialty.24 While specialty focuses on the conduct prosecuted, [d]ouble criminality refers to the characterization of the relator's criminal conduct insofar as it constitutes an offense under the law of the respective states .... no state shall use its processes to surrender a person for conduct which it does not characterize as criminal.25 Dual criminality mandates that a prisoner be extradited only for conduct that constitutes a serious offense in both the requesting and surrendering country. Although this presents a slightly closer question, we conclude that Newball, 554 F.2d 665, 685 (5th Cir.1977)). 21 In United States v. Abello-Silva, 948 F.2d 1168 (10th Cir.1991), the court dealt with a defendant's specialty rule challenge to his extradition from Colombia. The court found no right to object at trial to the introduction of evidence that was not part of the request for extradition, so long as the evidence is directed to the charge contained in the request for extradition.' Id. at 1174 (citing RESTATEMENT (THIRD) OF FOREIGN RELATIONS LAW OF THE UNITED STATES § 477 cmt. c (1987)). The court also stated that United States precedent controlled the application of the specialty doctrine and rejected the defendant's assertion that any dispute over emphasis on 'facts' or 'offenses' in applying the specialty doctrine is resolved by the laws of the asylum country: Colombia. Id. at 1173. 22 813 F.2d 146 (8th Cir.1987). 23 Gallo-Chamorro, 48 F.3d at 506 (citing Thirion, 813 F.2d at 152-53). 24 Id. at 507. 25 Herbage, 850 F.2d at 1465 (quoting 1 M. CHERIF BASSIOUNI, INTERNATIONAL EXTRADITION: UNITED STATES LAW AND PRACTICE 324-25 (2d ed.1987)). Gallo's dual criminality arguments ultimately are unpersuasive. | Dual or Double Criminality |
41 | 485,224 | 2 | 3 | 37 The IBEW's final argument is that on remand it proffered a sufficient showing of harm to defeat plaintiff's motion for summary judgment. We disagree. The District Court was correct in concluding that the IBEW failed to raise a genuine issue of material fact because the harm asserted by the IBEW in its submissions was not one which would outweigh the union member's interest in disclosure. J.A. at 15. Therefore, summary judgment against the defendants was proper. See Fed.R.Civ.P. 56(c). 38 In Mallick I, we held that the strong [congressional] policy favoring access to [records] for union members who have otherwise satisfied the statutory requirements for examination requires that the harm from disclosure be genuine and significant. 749 F.2d at 785. As examples of cases in which the union would meet this burden we observed that the information requested should not be revealed if doing so would lead to the public dissemination of a union's organizing strategy or negotiating plan. We also stated that the harm to a union's financial interests, which allegedly would result from disclosure of the requested information, would have to be comparable to the harm to a corporation caused by disclosure of its trade secrets or confidential earnings protections. In remanding the case to the District Court, we instructed that the specific harm alleged by the union must outweigh the specific interest asserted by the union member. 39 In this case, the union members' interest in disclosure is basic to the entire purpose of the LMRDA. Members of the IBEW have observed a precipitous drop in the union's legal defense account, as listed in its LM-2 report, and seek to examine relevant union records in order to substantiate or refute their belief that this drop reflects their union's policy of defending LMRDA lawsuits without regard to cost or the interests of the membership. See Mallick I, 749 F.2d at 774, 776. The Boswell case, we recall, involved a union member's claim under the free speech provision of the LMRDA. See 29 U.S.C. Sec. 411(a)(2). If the IBEW spent substantial--even excessive--sums of money to litigate the Boswell case, this information may reflect costly intransigence on the part of the union leadership simply to discourage members from bringing such [LMRDA] lawsuits. 749 F.2d at 774. How the union leadership responds to LMRDA claims is obviously a valid concern to the union's rank-and-file members. Since the LMRDA specifically grants union members union democracy rights like the free speech right at issue in the Boswell case, the policy of the Act obviously favors disclosure of information to verify an indication in an LM-2 report that the union is hostile to, or at least unsolicitous of, these LMRDA rights. 40 Once again we refer to passages from the House Report, which we quoted extensively in Mallick I, 749 F.2d at 780: 41 The members of a labor organization are the real owners of the money and property. Because such union funds belong to members they should be expended only in the common interest.... 42 | The IBEW's Assertion of Harm |
42 | 2,754,954 | 2 | 1 | New York, NY, and Washington, DC. For Appellants Morgan Stanley Capital Group, Inc. and Shell Oil Company: Anthony M. Mansfield and Joshua L. Shapiro, Cadwalader, Wickersham & Taft LLP, New York, NY, and Washington, DC. For Plaintiff-Appellee U.S. Commodity Futures Trading Commission: MELISSA CHIANG (Jonathan L. Marcus, General Counsel, and Robert A. Schwartz, Deputy General Counsel, on the brief), Commodity Futures Trading Commission, Washington, DC. For Plaintiffs-Appellees Stephen E. Ardizzone et al.: WARREN T. BURNS, Susman Godfrey LLP, Dallas, TX (Christopher Lovell, Lovell Stewart Halebian Jacobson LLP, New York, NY, on the brief). For Defendants-Appellees: ELIZABETH M. BRADSHAW (Timothy J. Carey, on the brief), Winston & Strawn LLP, Chicago, IL. Appeals from the United States District Court for the Southern District of New York (Pauley, J.). ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and DECREED that the orders of the district court are AFFIRMED. Appellants Castleton Commodities International LLC, Vitol, Inc., Vitol Capital 3 Management Ltd., Plains All American Pipeline, LP, Morgan Stanley Capital Group, Inc., and Shell Oil Company appeal from two orders entered on October 25, 2013 by the U.S. District Court for the Southern District of New York (Pauley, J.). The orders were entered in two parallel suits against Defendants-Appellees Parnon Energy Inc., Arcadia Petroleum Ltd., Arcadia Energy (Suisse) SA, Nicholas J. Wildgoose, and James T. Dyer, one an enforcement action filed by Plaintiff-Appellee the U.S. Commodity Futures Trading Commission (the “CFTC”), and the other a class action filed by Plaintiff-Appellee Stephen E. Ardizzone and others (the “Class Plaintiffs”). Both suits allege that the Defendants engaged in an unlawful scheme to manipulate the price of light sweet crude oil futures in late 2007 and early 2008. In the orders under review, the district court allowed the Defendants to produce to the Class Plaintiffs large numbers of confidential business documents that the Appellants had previously produced to the CFTC as part of a nationwide investigation into possible manipulation of crude oil prices, and that the CFTC in turn had produced to the Defendants in the enforcement action. The court conditioned its discovery orders on the parties’ entry of modified protective orders making more stringent the safeguards governing the parties’ review of the documents. The Appellants challenge these discovery orders on grounds of relevance and confidentiality. We assume the parties’ familiarity with the underlying facts, procedural history, and issues presented for review. Before turning to the merits, we must first address our jurisdiction to review these pretrial discovery orders, which were not final when the notices of appeal were filed. See 28 U.S.C. § 1291; Fed. R. Civ. P. 54(b). Generally, “[a] party that seeks to present an objection to a discovery order immediately to a court of appeals must refuse compliance, be held in contempt, and then appeal the contempt order.” Church of Scientology of California v. United States, 506 4 U.S. 9, 18 n.11 (1992). “[U]nder the so-called Perlman doctrine,” however, “a discovery order directed at a disinterested third party is treated as an immediately appealable final order because the third party presumably lacks a sufficient stake in the proceeding to risk contempt by refusing compliance.” Id. (citing Perlman v. United States, 247 U.S. 7 (1918)). Here, the district court’s orders are directed not to the Appellants but to the Defendants, who, although parties to the litigation, have no interest in risking contempt on the Appellants’ behalf and in fact have already turned over the documents in question to the Class Plaintiffs. The district court’s orders are therefore final and appealable under the Perlman doctrine. With regard to the appeal from the order in the CFTC action, we note that we also have appellate jurisdiction under ordinary finality principles. On August 4, 2014, the district court entered a final consent order in the CFTC action, and although the clerk has not entered final judgment, the order leaves no doubt that all claims and defenses have been fully and finally resolved and that all prior decisions in the case are now final. See Bankers Trust Co. v. Mallis, 435 U.S. 381, 387 (1978) (per curiam). In addition, while the notices of appeal were filed before the discovery order was rendered final, “‘[i]n the absence of prejudice to the nonappealing party, this Court . . . has declined to dismiss premature notices of appeal where subsequent actions of the district court have imbued the order appealed from with finality.’” Smith ex rel. Smith v. Half Hollow Hills Cent. Sch. Dist., 298 F.3d 168, 172 (2d Cir. 2002) (per curiam) (ellipsis in original) (quoting Leonhard v. United States, 633 F.2d 599, 611 (2d Cir. 1980)). We must also address the suggestions by the Class Plaintiffs and the CFTC that these appeals are moot. A dispute is moot when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant.” Calderon v. Moore, 518 5 U.S. 149, 150 (1996) (internal quotation marks omitted). Here, the Class Plaintiffs point out that both they and the Defendants already possess the documents in question and have begun reviewing them. But these changed circumstances do not prevent us from ordering meaningful relief. As the Appellants point out, we may order the return of any irrelevant or unreviewed documents, or limit their use in court, for example. For its part, the CFTC argues that because the CFTC action has now settled, any order that might be entered in that action would be of no effect. But under the terms of the amended protective order entered in the CFTC action following the settlement, the Defendants remain in possession of the Appellants’ documents. Were we to conclude that the Defendants hold those documents in violation of the Appellants’ rights to protect their confidential information, we could grant the Appellants at least partial relief by ordering the Defendants to return or destroy the documents, see Church of Scientology, 506 U.S. at 12 (“Even though it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, a court does have the power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession.”). We accordingly conclude that neither appeal is moot. Turning to the merits, district courts “enjoy[] wide discretion in [their] handling of pretrial discovery,” and “[w]e will reverse a district court’s discovery ruling only upon a clear showing of an abuse of discretion.” Wills v. Amerada Hess Corp., 379 F.3d 32, 51 (2d Cir. 2004). “A district court ‘abuses’ or ‘exceeds’ the discretion accorded to it when (1) its decision rests on an error of law (such as application of the wrong legal principle) or a clearly erroneous factual finding, or (2) its decision—though not necessarily the product of a legal error or a 6 clearly erroneous factual finding—cannot be located within the range of permissible decisions.” Zervos v. Verizon New York, Inc., 252 F.3d 163, 169 (2d Cir. 2001) (footnotes omitted). The Appellants first argue that the documents in question have not been shown to be relevant. Under Federal Rule of Civil Procedure 26, “[p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b)(1). In addition, “[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action.” Id. “Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Id. Relevance to the subject matter under Rule 26 is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). In this case, the Defendants served requests on the CFTC seeking documents referring or relating to the Defendants, and the CFTC, based on its limited resources, conducted a relevance review using sampling techniques and date ranges to identify responsive records. The district court then found that the documents the CFTC produced were relevant to the class action, even where they included the Defendants’ internal communications and financial reports, records from outside the period of the Defendants’ alleged scheme, and documents regarding other grades of oil. The court reasoned that such documents could shed light on the perceptions and reactions of other market participants to the alleged manipulation, provide a benchmark for the behavior of a non-manipulated market, and inform an analysis of the scope of the pertinent market. We see no abuse of discretion in these determinations. In addition, while the Appellants 7 fault the CFTC, the Class Plaintiffs, and the district court for failing to conduct a more particularized relevance analysis, the Appellants cite no authority requiring particularized relevance determinations, and the text of Rule 26 is to the contrary. See Fed. R. Civ. P. 26(b)(1) (requiring only that discovery be “reasonably calculated to lead to the discovery of admissible evidence” (emphasis added)). In the alternative, the Appellants argue that any relevance the documents may have had is outweighed by the Appellants’ strong interest in maintaining the privacy of their confidential business records. Under Rule 26(c), a district court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense,” including by “requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way.” Fed. R. Civ. P. 26(c)(1), (c)(1)(G). This rule “confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984). The district court here carefully considered the Appellants’ interest in confidentiality, and in fact strengthened the already stringent requirements of the protective orders in both cases in response to the Appellants’ concerns. We find no abuse of discretion in the district court’s determination that the strengthened protective orders—which closely limit the individuals who can view highly confidential documents—adequately protect the Appellants’ confidentiality. The Appellants also raise broader policy concerns regarding the district court’s orders, contending that they will chill third parties like the Appellants from cooperating with government investigations. But the CFTC here provided notice when it first sought the 8 Appellants’ documents that whatever the Appellants turned over would be subject to “routine uses,” including use in litigation and disclosure in response to a subpoena. Br. for CFTC, add. at 2–3. Moreover, the Appellants’ policy concerns were considered and rejected not only by the district court but also by the CFTC, both of whom are better situated than we are to weigh concerns about cooperation with future government investigations against other relevant considerations. Again, we see no abuse of discretion. We have considered all of the Appellants’ remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the orders of the district court are AFFIRMED. FOR THE COURT: CATHERINE O’HAGAN WOLFE, CLERK | White, on the brief), Vinson & Elkins LLP, |
43 | 771,716 | 1 | 3 | 20 We measure federal trademark infringement, 15 U.S.C. S 1114, and federal unfair competition, 15 U.S.C. S 1125(a)(1)(A), by identical standards. See A&H III, 166 F.3d at 202. 5 To prove either form of Lanham Act violation, a plaintiff must demonstrate that (1) it has a valid and legally protectable mark; (2) it owns the mark; and (3) the defendant's use of the mark to identify goods or services causes a likelihood of confusion. See Commerce Nat'l Ins. Servs., Inc. v. Commerce Ins. Agency, Inc., 214 F.3d 432, 437 (3d Cir. 2000). The plaintiff bears the burden of proof. See American Home Prods. Corp. v. Barr Labs., Inc., 834 F.2d 368, 371 (3d Cir. 1987). It is undisputed that A&H owns Miraclesuit, and that it is a valid and legally protectable mark. Therefore, the questions in this case involve the delineation and application of standards for the evaluation of likelihood of confusion. 21
22 A likelihood of confusion exists when consumers viewing the mark would probably assume that the product or service it represents is associated with the source of a different product or service identified by a similar mark. Dranoff-Perlstein Assocs. v. Sklar, 967 F.2d 852, 862 (3d Cir. 1992) (quotation marks omitted). In Interpace Corp. v. Lapp, Inc., 721 F.2d 460 (3d Cir. 1983), we stated that when the goods involved in a trademark infringement action directly compete with each other, a court need rarely look beyond the mark itself to determine the likelihood of confusion. Id. at 462. For noncompeting goods, we developed a nonexhaustive list of factors to consider in determining whether there is a likelihood of confusion between marks: 23 (1) the degree of similarity between the owner's mark and the alleged infringing mark; 24 (2) the strength of the owner's mark; 25 (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; 26 (5) the intent of the defendant in adopting the mark; 27 (6) the evidence of actual confusion; 28 (7) whether the goods, though not competing, are marketed through the same channels of trade and advertised through the same media; 29 (8) the extent to which the targets of the parties' sales efforts are the same; 30 (9) the relationship of the goods in the minds of consumers because of the similarity of function; 31 (10) other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant's market, or that he is likely to expand into that market. 32 Id. at 463 (citing Scott Paper Co. v. Scott's Liquid Gold, Inc., 589 F.2d 1225, 1229 (3d Cir. 1978)). Throughout the opinion we will refer to these factors as the Lapp factors. 33 The District Court recognized that we have not explicitly elucidated what kind of factors should be considered in the case of directly competing goods. A&H IV, 57 F. Supp. 2d at 163. It chose not to use the Lapp test, but instead developed its own test, drawing on many of the same factors: 34 (1) strength of the plaintiff's mark; 35 (2) similarity between the marks; 36 (3) similarity of the products and the degree to which they directly compete with each other; 37 (4) marketing or advertising channels used; 38 (5) sophistication of consumers; 39 (6) defendant's intent in selecting the mark; and 40 (7) incidents of actual confusion. 41 Id. A&H contends that the District Court erred in three ways in applying these factors. First, it argues that when goods are directly competing, a district court need only examine the similarity of the marks. Second, it submits that inasmuch as the District Court fashioned its own test, the Lapp factors it omitted would have tipped the balance in favor of finding a likelihood of confusion. Third, it contends that on any test the similarity of the marks creates a likelihood of confusion.
42 We have not previously settled upon a method that district courts should use to examine whether there exists a likelihood of confusion between directly competing goods. Uncertainty on this point in the district courts within the circuit, as demonstrated in the margin, counsels that we clarify this area of law. 6 43 The multi-factored test rescribed above was developed to determine likelihood of confusion for noncompeting goods. See Versa Prods. Co., Inc. v. Bifold Co. (Mfg.) Ltd., 50 F.3d 189, 202 (3d Cir. 1995). This genesis is apparent in the substance of the test: factor (7) directs a court to look at the markets of the goods though not competing; factor (9) directs that the court examine the similarity of function; and factor (10) directs that the court look at other facts suggesting that the consuming public might expect the prior owner to manufacture a product in the defendant's market, or that he is likely to expand into that market. These factors are not apposite for directly competing goods: By definition, the goods are competing, their function is the same, and the senior and junior user are already in each other's markets. 44 Nonetheless, despite the test's etiology, the raison d'etre of the Lapp factors and the purpose of their development was to aid in the navigation of the difficult course of determining a likelihood of confusion. A district court should not be foreclosed from using any factors that it deems helpful in analyzing whether a likelihood of confusion exists between given products, whether or not they directly compete. Lapp's suggestion that, for competing goods, the court need rarely look beyond the mark itself, Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 462 (3d Cir. 1983), may be an exercise in unjustified optimism; cases are often not easy, and courts will frequently need help in sorting out the likelihood of confusion. District courts within this circuit, as well as other appellate courts, have found that consideration of the Lapp factors (or their analogs from other circuits) can be quite useful for determining likelihood of confusion even when the goods compete directly. See, e.g., Barr e-National, Inc. v. Barr Labs., Inc., 773 F. Supp. 735, 742 (D.N.J. 1991); Banff, Ltd. v. Federated Dep't Stores, Inc., 841 F.2d 486, 490 (2d Cir. 1988). 45 Further, we recognize that many of the Lapp factors that are specifically applicable only to noncompeting goods are often used by courts to determine, in the first instance, whether goods are or are not directly competing. This makes the plaintiff's proposed prohibition on the examination of evidence beyond the marks themselves somewhat illusory. For instance, in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979), the Court of Appeals for the Ninth Circuit concluded that two lines of recreational boats were not directly competitive because they were marketed to different consumers and were designed for different uses. See id. at 348. This inquiry approximates Lapp factors (8) and (9), which look to the different functions of the products and the different target customers. Similarly, in Induct-O-Matic Corp. v. Inductotherm Corp., 747 F.2d 358 (6th Cir. 1984), the court affirmed a district court's conclusion that the parties were direct competitors based on an examination of the similarity of the parties' customer base, geographical trading area, and products, see id. at 362, factors which approximate Lapp factors (7), (8), and (9). Indeed, in A&H I, the District Court first applied the Lapp test in analyzing A&H's infringement claim regarding the use of The Miracle Bra mark on lingerie, and then observed that much of the same analysis could be used to determine whether The Miracle Bra swimsuit and the Miraclesuit shared the same market. See id. at 1266. 7 46 The above observations lead us to conclude that the Lapp factors should be used both for competing and for noncompeting goods. As for those factors that specifically refer to noncompeting goods, we believe that, rather than force courts first to inquire as to whether or not the goods are directly competitive simply for the purpose of determining if those factors apply--and, presumably, applying Lapp factors to make this initial determination-- factors (7), (9), and (10) of the Lapp test must be adapted to make them applicable whether the products directly compete or not. 47 In holding that the Lapp test is to be employed when examining both competing and noncompeting goods, we acknowledge that we have at times suggested that the method for comparing competing goods is different from that for noncompeting goods. In Williamson-Dickie Manufacturing Co. v. Davis Manufacturing Co., 251 F.2d 924 (3d Cir. 1958), for example, we did not look beyond the marks themselves in upholding a trial court's determination that the marks Dickie Davis and Dickie's for boys' clothing were confusingly similar. See id. at 926-27. Furthermore, in Lapp we stated that 48 [w]here the trademark owner and the alleged infringer deal in competing goods or services, the court need rarely look beyond the mark itself. In those cases the court will generally examine the registered mark, determine whether it is inherently distinctive or has acquired sufficient secondary meaning to make it distinctive, and compare it against the challenged mark. 49 721 F.2d at 462 (emphasis added). Additionally, in Fisons, we noted that the 50 showing of proof plaintiff must make for [likelihood of confusion] depends on whether the goods or services offered by the trademark owner and the alleged infringer are in direct competition . . . . Where the goods or services are not competing, the similarity of the marks is only one of a number of factors the court must examine to determine likelihood of confusion. 51 30 F.3d at 472-73. Finally, in A&H III, we stated that the standard to be applied when goods . . . are directly competing . . . is different than that applied when the goods are not competing. 166 F.3d at 202. In each of these cases, we arguably implied that when the goods are competing, the similarity of the marks is the only relevant factor. 52 Nonetheless, we read our prior opinions on this subject to counsel only that a district court may, if it so chooses, examine only mark similarity for directly competing goods. 53 A&H urges us to take the quoted statement from A&H III to mean that a district court should not consider any factors at all beyond the similarity of the marks themselves. However, we believe that the word standard is different from the word test. The better reading of this statement is the literal one: The standard for determining when marks are likely to be confused is different when the marks directly compete, i.e., the factor regarding the similarity of marks may increase in importance, but it does not eliminate the other factors entirely. This proposition is not only unremarkable, it flows naturally from the Lapp test, which considers the competition and potential competition of the products in the marketplace. We have certainly never held that a court may not look beyond the marks themselves to determine likelihood of confusion. The quote from Lapp itself, rescribed in our prior opinion in this case (the court need rarely look beyond the mark itself ) presumes that a court might sometimes need to look beyond the mark. Lapp, 721 F.2d at 462. 54 We think that this inference is a sound one, for there appears to be no reason, statutory or otherwise, to impose the restrictive rule proposed by A&H. Indeed, the cases relied upon by A&H do no more than suggest that the Lapp inquiry may be unnecessary in some directly competing goods cases. See, e.g., A&H III, 166 F.3d at 202 (holding that in directly competing goods cases, the multi-factored test is not required). At all events, because we have never before been confronted with this question, any implication in our prior cases that courts are foreclosed from looking beyond mark similarity for competing goods would have been dictum. 55 Our conclusion that the Lapp factors may be used to determine the likelihood of confusion in cases of directly competing goods, at least when the marks are not identical, accords with the approaches of the Second, Sixth, Eighth, and Ninth Circuits, which also have approved using multi-factored tests, developed for noncompetitive goods, in the competitive goods arena. See Banff, Ltd. v. Federated Dep't Stores, Inc., 841 F.2d 486, 490 (2d Cir. 1988); Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 421-22 (6th Cir. 1999); Duluth News-Tribune v. Mesabi Publ'g Co., 84 F.3d 1093, 1096 (8th Cir. 1996); Dr. Seuss Enters., L.P. v. Penguin Books U.S.A., Inc., 109 F.3d 1394, 1404 (9th Cir. 1997). 56 As explained above, we do not hold that a District Court must use the factors. In fact our precedents suggest the opposite. If products are directly competing, and the marks are clearly very similar, a district judge should feel free to consider only the similarity of the marks themselves. See, e.g., Opticians Ass'n of Am. v. Independent Opticians of Am., 920 F.2d 187, 195 (3d Cir. 1990) ([v]ery little analysis was necessary in a case where a splinter group of a larger organization continued to use the organization's collective mark). Moreover, the court often need not apply each and every factor; when goods are directly competing, both precedent and common sense counsel that the similarity of the marks takes on great prominence. 8 At all events, the factors are meant to be tools, not hurdles. On the other hand, when, as in this case, the degree of confusing similarity of the marks is not clear, see Barre-National, Inc., 773 F. Supp. at 742, a court can turn to the other factors. Here, the District Court did not err in choosing to look beyond the marks themselves. 57 To summarize, we hold that whether or not the goods directly compete, the Lapp factors should be employed to test for likelihood of confusion. Therefore, likelihood of confusion for both competing and noncompeting goods should be tested with reference to the following: 58 (1) the degree of similarity between the owner's mark and the alleged infringing mark; 59 (2) the strength of the owner's mark; 60 (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; 61 (4) the length of time the defendant has used the mark without evidence of actual confusion arising; 62 (5) the intent of the defendant in adopting the mark; 63 (6) the evidence of actual confusion; 64 (7) whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media; 65 (8) the extent to which the targets of the parties' sales efforts are the same; 66 (9) the relationship of the goods in the minds of consumers, whether because of the near-identity of the products, the similarity of function, or other factors; 67 (10) other facts suggesting that the consuming public might expect the prior owner to manufacture both products, or expect the prior owner to manufacture a product in the defendant's market, or expect that the prior owner is likely to expand into the defendant's market. 68 As we stress further below, the Lapp test is a qualitative inquiry. Not all factors will be relevant in all cases; further, the different factors may properly be accorded different weights depending on the particular factual setting. A district court should utilize the factors that seem appropriate to a given situation.
69 A&H argues in the alternative that inasmuch as the District Court used a multi-factored test, it should have considered all of the Lapp factors, and that the missing factors would have favored A&H. It therefore contends that the court erred as a matter of law in fashioning its own test. However, the test used by the District Court is functionally the same as the Lapp test. A comparison of these factor lists reveals that the ostensibly missing Lapp factors appear to be incorporated into the District Court's test. Lapp factor (9), the relationship of the goods in the minds of the consumers because of the similarity of function, and Lapp factor (8), the extent to which the targets of the parties' sales efforts are the same, are subsumed in the court's factor (3), which considers the similarity of the products and the degree to which they directly compete with each other. Lapp factor (4), the length of time the defendant has used the mark without evidence of actual confusion is subsumed along with factor (6), evidence of actual confusion, within the District Court's factor (7), incidents of actual confusion. Lapp factor (10), other facts suggesting that the consuming public might expect the prior owner to manufacture both products, or expect the prior owner to manufacture a product in the defendant's market, or expect that the prior owner is likely to expand into the defendant's market, is unmentioned, but also unnecessary, because the similarity of the goods and their competitive relationship was accounted for in the court's factor (3). 70 A&H essentially argues that, had the Lapp test been applied as written, a greater absolute number of factors would have been decided in its favor, thus leading to a different outcome; for instance, the court's factor (3), rather than counting in its favor a single time, would have been divided into at least two factors, each of which would have weighed in its favor. However, we have repeatedly insisted that the Lapp factors are not to be mechanically tallied, but rather that they are tools to guide a qualitative decision. See Fisons, 30 F.3d at 476 n.11 (The weight given to each factor in the overall picture, as well as its weighing for plaintiff or defendant, must be done on an individual fact- specific basis.). 71 The District Court did not engage in a simplistic quantitative comparison, but accurately understood the role of the factors: 72 No single factor is dispositive, and a finding of a likelihood of confusion does not require a positive finding on a majority of these factors. Instead, they are simply a guide to help determine whether confusion would be likely between the use of two contested trademarks on competing products. In addition to the listed factors, a court is free to consider other relevant factors in determining whether a likelihood of confusion exists. 73 A&H IV, 57 F. Supp. 2d at 164 (citations omitted). Although it might promote clarity always to use the same factors in the same order, the District Court covered all the ground covered by the Lapp factors and did so with care. Therefore, we conclude, the court did not err in its use of the factors. | The Direct Confusion Claim |
44 | 1,449,914 | 2 | 4 | On cross-appeal, Independent Living challenges the district court's August 27, 2008 order modifying its August 18, 2008 order granting Independent Living's motion for a preliminary injunction. Independent Living principally argues that, in modifying the earlier order to eliminate its retroactive effect, the district court misconstrued the extent of the State's sovereign immunity. [17] Independent Living contends that the State of California has consented to actions in state court for retroactive awards of unlawfully withheld funds. Independent Living further maintains that, by removing this case to federal court, the Director waived whatever immunity he had in state court. The Director responds that the district court correctly modified the August 18 order. He contends that requiring a state agency to expend state funds based on past conduct violates state sovereign immunity, which, the Director insists, was never waived in either the state or federal forum. The doctrine of state sovereign immunity generally prohibits damage suits against states in both state and federal court without their consent. The doctrine comes from the Eleventh Amendment, but its essence derives ... from the structure of the original Constitution itself. Alden, 527 U.S. at 728, 119 S.Ct. 2240; see id. at 713, 119 S.Ct. 2240 (characterizing sovereign immunity as a fundamental aspect of the sovereignty which the States enjoyed before ratification of the Constitution, and which they retain today). The Supreme Court has held that state sovereign immunity bars citizens of any state from bringing a lawsuit for damages against a state or state agency. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989); see also Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Hans v. Louisiana, 134 U.S. 1, 10, 10 S.Ct. 504, 33 L.Ed. 842 (1890). However, there are three well-established exceptions to this general rule. Two of them Ex parte Young and state waiver (both explicit consent and implied removal waiver)are relevant here, and we consider them below. [18]
Although the Eleventh Amendment expressly prohibits suits against states in both law and equity, a plaintiff may nonetheless maintain a federal action to compel a state official's prospective compliance with the plaintiffs federal rights. Ex parte Young, 209 U.S. 123, 156, 28 S.Ct. 441, 52 L.Ed. 714 (1908); id. at 160, 28 S.Ct. 441 (The State has no power to impart to [its officer] any immunity from responsibility to the supreme authority of the United States.); see also Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) (citing Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714). The court may order such an injunction even if the state's compliance will have an ancillary effect on the state treasury. Edelman, 415 U.S. at 667-68, 94 S.Ct. 1347 (citing Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714). This exception applies only to prospective relief; it does not permit retroactive injunctive relief. Id. at 668, 94 S.Ct. 1347. In this case, the August 18 order constituted retroactive relief under our controlling precedent. In Native Village of Noatak v. Blatchford, we held that, [i]n requesting an order requiring the Commissioner to perform his `legal duty' to disburse ... funds to him, the plaintiff essentially seeks an injunction directing the state to pay damages. 38 F.3d 1505, 1512 (9th Cir.1994). What the plaintiff sought, we held, was precisely the type of retroactive relief that the Supreme Court refused to allow in Edelman, and therefore his attempt to characterize its claim as one for prospective relief fail[ed] to avoid the bar of the Eleventh Amendment. Id. In this matter, the August 18 order provided retroactive relief that required the State to pay monetary compensation to affected providers. [19] Therefore, under Native Village of Noatak, the retroactive portion of that order does not fall under the Ex parte Young exception to the sovereign immunity doctrine. As a result, the order violated the State's sovereign immunity unless the Director waived that immunityimpliedly through removal, explicitly through consent to suit in state court, or through some combination thereofan issue we now consider.
Even if a plaintiff seeks damages for past conduct, sovereign immunity will not insulate a state from suit in state court, provided the state has previously consented to be sued in state court under like circumstances. See Carey v. Nev. Gaming Control Bd., 279 F.3d 873, 877 (9th Cir.2002). While a state's consent to suit in its own courts does not waive sovereign immunity against suit in federal court, Carey, 279 F.3d at 877 (noting that waiver of sovereign immunity only gives [the state's] consent to suits in its own courts), a state that consents to suit in state court cannot invoke the sovereign immunity defense after removing the suit to federal court, Embury v. King, 361 F.3d 562, 566 (9th Cir.2004); Stewart v. North Carolina, 393 F.3d 484, 488 (4th Cir.2005). As a result, given that the Director removed the case, sovereign immunity will not protect him if the State has previously consented to suits like this one in state court. Here, Independent Living points to several state authorities it claims constitute such consent. First, it notes that California Code of Civil Procedure § 1085 provides: A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station. Though it does not explicitly waive sovereign immunity against retroactive disbursements, this provision can be read to sanction judicially ordered fund disbursements generally. California state courts, some interpreting California Code of Civil Procedure § 1085, have condoned such orders in more explicit terms. Various decisions have interpreted state law to permit mandamus actions seeking disbursement of unlawfully withheld funds. See, e.g., County of L.A. v. Riley, 20 Cal.2d 652, 128 P.2d 537, 543 (1942); L.A. County v. State Dep't of Pub. Health, 158 Cal.App.2d 425, 443, 322 P.2d 968 (1958). Notably, some of these cases have specifically recognized the availability of monetary awards against a state agency or official resulting from unlawfully withheld health and welfare payments. See Mission Reg'l Med. Ctr. v. Shewry, 168 Cal.App.4th 460, 480, 85 Cal.Rptr.3d 639 (2008) (citing Code of Civil Procedure § 1085); Santa Ana Hosp. Med. Ctr. v. Belshe, 56 Cal.App.4th 819, 837, 65 Cal. Rptr.2d 754 (1997) (noting that [a]ctions seeking traditional mandamus to compel a state officer to comply with a mandatory duty to disburse funds do not invade sovereign immunity, even though they involve an incidental monetary award (citing of Sacramento v. Lackner, 97 Cal.App.3d 576, 587-88, 159 Cal.Rptr. 1 (Cal.Ct.App. 1979))). In Los Angeles County v. Riley, the court authorized back payments for needy services against the State and noted that [t]he rule is well established in this state that where the action is one simply to compel an officer to perform a duty expressly enjoined upon him by law, it may not be considered a suit against the state. 128 P.2d at 543 (citing, e.g., Bd. of Dirs. of Woman's Relief Corps Home Ass'n of Cal. v. Nye, 8 Cal.App. 527, 97 P. 208 (Cal.Ct. App.1908)); see also L.A. County v. State Dep't of Pub. Health, 158 Cal.App.2d at 442-43, 322 P.2d 968; id. at 443, 322 P.2d 968 (holding that because the object of the present suits is to compel state officers to disburse funds specifically appropriated for tuberculosis subsidies in the manner provided by the statute, the order involves no invasion of state sovereignty and does not fall within the rule precluding suits against the state without its consent). Thus, California has construed the scope of its sovereign immunity as it relates to awards of unlawfully withheld funds more narrowly than have the federal courts. Compare, e.g., L.A. County, 158 Cal.App.2d at 442-43, 322 P.2d 968 with Edelman, 415 U.S. at 668, 94 S.Ct. 1347, and Noatak, 38 F.3d at 1512. Under California law, an action seeking injunctive relief that requires a state official to disburse funds is not an action against the State. Thus, it does not implicate the State's sovereign immunity against liability in its own courts. Had this action remained in state court, the Director would not have enjoyed sovereign immunity against a order directing payment of retroactive benefits. Under our precedent, because the Director enjoyed no sovereign immunity in state court against a order directing payment of retroactive benefits, it follows that the Directorby removing the case to federal courtwaived sovereign immunity in that forum as well. See Embury, 361 F.3d at 566 (citing Lapides v. Board of Regents, 535 U.S. 613, 623-24, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002)) (holding that, in removing a case to federal court, a state defendant waives its Eleventh Amendment immunity); see also Stewart, 393 F.3d at 488. Embury's rule is grounded on the Supreme Court's holding in Lapides, which held that where a state removed a state law defamation action to federal court, it waived its sovereign immunity against the state claim. Id. at 624, 122 S.Ct. 1640. Embury extended Lapides' s principle to federal claims. [20] 361 F.3d at 565-66 (citing Lapides, 535 U.S. at 620, 623-24, 122 S.Ct. 1640). Under Embury, the Director, having waived state court immunity, also waived federal court sovereign immunity by voluntarily removing the action. Because the Director lacked sovereign immunity against retroactive orders, the district court's August 18 order should have applied retroactively. As a result, by basing its order on an erroneous legal standard, the district court erred in eliminating the injunction's retroactive effect. We hold that the district court's injunction should extend to all services covered by that injunction and provided on or after July 1, 2008.
Independent Living also contends that the district court's August 27, 2008 order violated their right to due process, namely, their property right in the judgment reflected in the court's August 18, 2008 order. They also allege that, in modifying the August 18 order, the district court abused its discretion under Federal Rule of Civil Procedure 59(e). Based on our conclusion that the August 27, 2008 order erroneously construed the State's sovereign immunity, we do not reach these claims. | Sovereign Immunity and the Order Modifying the Injunction |
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Malek Yaich, Nicolas Hernandez. Improving Accessibility of SCOTUS Opinions: A Benchmark Study and a New Dataset for Generic Heading Prediction and Specific Heading Generation. The 31st International Conference on Computational Linguistics (COLING 2025), Jan 2025, Abu Dhabi, United Arab Emirates. ⟨hal-04839546⟩
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