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https://www.courtlistener.com/api/rest/v3/opinions/8471544/ | MEMORANDUM **
Allen Wisdom appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action on Rooker-Feldman grounds, among others. He also appeals from an order denying his request to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a jurisdictional dismissal under the Rooker-Feldman doctrine de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). We review denial of a request for IFP status for an abuse of discretion. Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir.1998) (per curiam). We affirm in part, reverse in part, and remand.
At the time that Wisdom filed this action in federal district court against defendants, including his former lawyers and members of the Nevada judiciary, Wisdom’s state court action, arising out of the same facts and against some of the named defendants, was ongoing. Accordingly, the district court should have temporarily stayed Wisdom’s action pursuant to the abstention doctrine developed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (Rooker-Feldman bars “state-*215court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced,” from asking district courts to review and reject those judgments) (emphasis added); Gilbertson v. Albright, 381 F.3d 965, 978-84 (9th Cir.2004) (en banc) (holding that a section 1983 action for damages that would have the practical effect of enjoining an ongoing state judicial proceeding should be stayed under Younger where the state proceeding implicates important state interest, and the plaintiff is not barred from litigating the federal issues in the state proceeding).
On remand, the district court should consider whether a judgment has entered in Wisdom’s state court action, and whether that judgment precludes any of Wisdom’s claims in this action. See Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517 (“In parallel litigation, a federal court may be bound to recognize the claim — and issue-preclusive effects of a state-court judgment, but federal jurisdiction over an action does not terminate automatically on the entry of judgment in the state court.”); Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 808-09 (9th Cir.2007). If some claims remain, the district court should consider whether Younger applies to them.
The district court did not abuse its discretion by denying Wisdom’s motion to proceed in forma pauperis after Wisdom paid the court filing fee. See United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981) (per curiam).
We deny all pending motions.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471337/ | MEMORANDUM **
Shuhua Wang, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review.
The BIA did not abuse its discretion in denying Wang’s motion to reopen as untimely because he filed it over two years after the BIA issued its final order, see 8 C.F.R. § 1003.2(c)(2), and Wang failed to demonstrate changed circumstances in China to qualify for the regulatory exception to the time limit for filing motions to reopen, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471338/ | MEMORANDUM **
Jose Vasquez-Garcia appeals from his guilty-plea conviction and 63-month sen*428tence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Vasquez-Garcia’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*428ed by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471343/ | MEMORANDUM **
Javier Aramburo Osuna appeals from his guilty-plea conviction and 151-month sentence for possession with intent to distribute a controlled substance, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Osuna’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471347/ | MEMORANDUM **
Roberto Vargas appeals from his guilty-plea conviction and 87-month sentence for possession with intent to distribute methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(A). Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Vargas’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471349/ | MEMORANDUM **
Martin Guzman-Guzman appeals from his conviction and sentence for being an alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Guzman-Guzman contends that the district court erred by denying his motion to dismiss the indictment, because the entry of the underlying 1997 removal order and the subsequent 2001 reinstatement of the removal order violated his due process rights. Guzman-Guzman’s due process challenge to the reinstated removal order is foreclosed. See MoralesIzquierdo v. Gonzales, 486 F.3d 484, 498 (9th Cir.2007) (en banc). Because Guzman-Guzman challenges his conviction, his collateral attack on the 1997 removal order is not rendered moot by his removal to Mexico. See United States v. Plancarte-Alvarez, 366 F.3d 1058, 1063-64 (9th Cir.2004) (holding that, because deported defendant might return to this country, deportation does not preclude effectual relief); see also Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir.2005) (holding that prospect of collateral consequences resulting from a criminal conviction establishes a live controversy).
To sustain a collateral attack on a removal order in a subsequent criminal proceeding, a defendant must demonstrate that his due process rights were violated by defects in the underlying removal proceeding, and that he suffered prejudice as a result. See 8 U.S.C. § 1326(d); United States v. Becerril-Lopez, 541 F.3d 881, 885 (9th Cir.2008). At the time of the 1997 removal order, Guzman-Guzman’s state conviction for delivery of a controlled substance qualified as an aggravated felony under the Immigration and Nationality Act (the “INA”), and the Immigration Judge erred by failing to advise him of the possibility of his eligibility for discretionary relief under section 212(c) of the INA. See 8 U.S.C. § 1101(a)(43)(B) (1996) (defining “aggravated felony” to include a drug trafficking crime, without regard to the length of the sentence imposed); United States v. Leon-Paz, 340 F.3d 1003, 1006-07 (9th Cir.2003); see also INS v. St. Cyr, 533 U.S. 289, 326, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001) (holding that the elimination of § 212(c) relief could not be retroactively applied to an alien who was convicted for an offense that would have made him eligible to seek such relief).
Nevertheless, Guzman-Guzman must still demonstrate prejudice, by show*436ing that he had “plausible grounds” for a discretionary grant of relief. See Becerril-Lopez, 541 F.3d at 886. Guzman-Guzman has failed to meet his burden because neither his motion to dismiss in district court nor his opening brief offer any support for the discretionary grant of § 212(c) relief. The district court therefore did not err by denying the motion to dismiss the indictment. See id.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471351/ | ORDER
A majority of the panel votes to grant, in part, the petition for rehearing. The memorandum disposition filed on March 19, 2009, 320 FedAppx. 503, is amended. An amended memorandum disposition will be filed concurrently with this order. A petition for rehearing directed toward the amended memorandum may be filed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471541/ | FERNANDEZ, and FISHER, Circuit Judges. ■
MEMORANDUM **
Ron Troutman appeals the district court order affirming the bankruptcy court’s judgment in an adversary proceeding brought by the Official Committee of Unsecured Creditors of Troutman Investment Co. (“Committee”) in the Chapter 111 proceedings of Troutman Investment Company, d/b/a Troutman’s Emporium (“Emporium”). We affirm.
(1) The bankruptcy court did not err2 when it determined that Troutman owed the amount shown on the books of Emporium as his house account on the date of bankruptcy. That determination was properly made on an account stated theory,3 or on an open book account theory.4 Moreover, to the extent that Trout-man asserts that the amount shown in the account was not accurate at some earlier time, the bankruptcy court did not abuse its discretion5 when it determined that Troutman’s use of the amount shown in the account during his dissolution proceeding in 1996 judicially estopped6 him from claiming that the account was in error as of that time. Moreover, he does not point out any error that might have developed since then.
(2) Nor did the bankruptcy court err when it determined that Troutman owed $150,000 on account of an amount that Emporium ultimately advanced on his behalf. That Emporium obtained that debt from Troutman’s brother, to whom Troutman originally owed the money, did not affect the validity of Emporium’s claim. See Misic v. Building Serv. Employees Health & Welfare Trust, 789 F.2d 1374, 1378 n. 4 (9th Cir.1986); Tumac Lumber Co., Inc. v. United States, 625 F.Supp. 1030, 1032 (D.Or.1985); Commonwealth Elec. Co. v. Fireman’s Fund Ins. Co., 93 Or.App. 435, 438, 762 P.2d 1041, 1042 (1988). Troutman’s assertion that Emporium was going to use the debt to purchase some of his stock in Emporium is futile because that arrangement was never pursued or consummated by either alleged party thereto.7
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. 11 U.S.C. §§ 1101-1174.
. See Cossu v. Jefferson Pilot Sec. Corp. (In re Cossu), 410 F.3d 591, 595 (9th Cir.2005).
. See Hulse v. Ocwen Fed. Bank, FSB, 195 F.Supp.2d 1188, 1200-01 (D.Or.2002); Sunshine Dairy v. Jolly Joan, 234 Or. 84, 85-88, 380 P.2d 637, 638-39 (1963); Tri-County Ins., Inc. v. Marsh, 45 Or.App. 219, 223-24, 608 P.2d 190, 192 (1980).
. See Farmer’s Feed & Supply Co. v. Indus. Leasing Corp., 286 Or. 311, 316, 594 P.2d 397, 400 (1979); Nw. Country Place, Inc. v. NCS Healthcare of Or., Inc., 201 Or.App. 448, 460, 119 P.3d 272, 279 (2005).
. Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782 (9th Cir.2001).
. See Hamilton, 270 F.3d at 782-83; Rissetto v. Plumbers & Steamfitters Local 343, 94 F.3d 597, 600-01, 603 (9th Cir.1996).
. For that reason alone, an amendment to Troutman’s defenses to assert that theory was properly rejected. See Nunes v. Ashcroft, 375 F.3d 805, 808 (9th Cir.2004); see also Allen v. City of Beverly Hills, 911 F.2d 367, 374 (9th Cir.1990). Moreover, the request to amend was not timely. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608-609 (9th | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471543/ | MEMORANDUM **
In these consolidated petitions for review, Irfan Pervai Bhatti, a native and citizen of Pakistan, petitions for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) and the BIA’s order denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), we review for abuse of discretion the denial of a motion to reopen, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) and we review de novo constitutional questions, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petitions for review.
Substantial evidence supports the IJ’s adverse credibility finding based on an inconsistency between Bhatti’s declaration, police certificate, and his testimony regarding whether the police had a record of his arrest, and based on his father’s internally inconsistent testimony regarding the extent and timing of threats to Bhatti from Muslim militants. See Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005); see also Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001). Because the IJ had reason to question Bhatti’s credibility, the IJ reasonably took into account Bhatti’s failure to provide corroborating evidence in support of his claim of persecution, see Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000) and we are not compelled to conclude that corroborating evidence was unavailable, see 8 U.S.C. § 1252(b)(4)(D). Accordingly, we uphold the agency’s denial of asylum and withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
*213Because Bhatti’s CAT claim is based on the same statements the IJ found to be not credible, and he does not point to any other evidence in the record that compels the conclusion that it is more likely than not he would be tortured if returned to Pakistan, substantial evidence supports the IJ’s denial of CAT relief. See id. at 1156-57.
The BIA did not abuse its discretion in denying Bhatti’s motion to reopen as untimely because it was not filed within 90 days of the BIA’s underlying order, see 8 C.F.R. § 1003.2(c)(2), and Bhatti failed to demonstrate changed circumstances in Pakistan to qualify for the regulatory exception to the time limit, see 8 C.F.R. § 1003.2(c)(3)(ii); see also Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.2004) (“The critical question is ... whether circumstances have changed sufficiently that a petitioner who previously did not have a legitimate claim for asylum now has a well-founded fear of future persecution.”).
Bhatti also contends the BIA violated his due process rights by not allowing him to present evidence of changed circumstances at an evidentiary hearing. Because the BIA considered the affidavits and country condition information attached to Bhatti’s motion to reopen, he cannot show a violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (holding petitioner must demonstrate error and substantial prejudice to prevail on a due process claim).
PETITIONS FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471545/ | MEMORANDUM **
Allen Wisdom appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action on Rooker-Feldman grounds, among others. He also appeals from an order denying his request to proceed in forma pauperis (IFP) pursuant to 28 U.S.C. § 1915. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a jurisdictional dismissal under the Rooker-Feldman doctrine de novo. Noel v. Hall, 341 F.3d 1148, 1154 (9th Cir.2003). We review denial of a request for IFP status for an abuse of discretion. Minetti v. Port of Seattle, 152 F.3d 1113, 1114 (9th Cir.1998) (per curiam). We affirm in part, reverse in part, and remand.
At the time that Wisdom filed this action in federal district court against defendants, including his former lawyers and members of the Nevada judiciary, Wisdom’s state court action, arising out of the same facts and against some of the named defendants, was ongoing. Accordingly, the district court should have temporarily stayed Wisdom’s action pursuant to the abstention doctrine developed in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). See Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284, 125 S.Ct. 1517, 161 L.Ed.2d 454 (2005) (Rooker-Feldman bars “state-*215court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced,” from asking district courts to review and reject those judgments) (emphasis added); Gilbertson v. Albright, 381 F.3d 965, 978-84 (9th Cir.2004) (en banc) (holding that a section 1983 action for damages that would have the practical effect of enjoining an ongoing state judicial proceeding should be stayed under Younger where the state proceeding implicates important state interest, and the plaintiff is not barred from litigating the federal issues in the state proceeding).
On remand, the district court should consider whether a judgment has entered in Wisdom’s state court action, and whether that judgment precludes any of Wisdom’s claims in this action. See Exxon Mobil, 544 U.S. at 293, 125 S.Ct. 1517 (“In parallel litigation, a federal court may be bound to recognize the claim — and issue-preclusive effects of a state-court judgment, but federal jurisdiction over an action does not terminate automatically on the entry of judgment in the state court.”); Kay v. City of Rancho Palos Verdes, 504 F.3d 803, 808-09 (9th Cir.2007). If some claims remain, the district court should consider whether Younger applies to them.
The district court did not abuse its discretion by denying Wisdom’s motion to proceed in forma pauperis after Wisdom paid the court filing fee. See United States v. McQuade, 647 F.2d 938, 940 (9th Cir.1981) (per curiam).
We deny all pending motions.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471549/ | MEMORANDUM **
Ronald Del Raine, a federal prisoner, appeals pro se from the district court’s judgment dismissing his action alleging that a number of officials in various federal prisons violated his civil rights and committed common-law torts. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004) (lack of personal jurisdiction), Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003) (exhaustion of administrative remedies), Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam) (failure to state a claim), Kennedy v. S. Cal. Edison, Co., 268 F.3d 763, 767 (9th Cir.2001) (dismissal with leave to amend). We may affirm on any basis supported by the record, Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001), and we affirm in part and dismiss in part.
The district court properly dismissed the claims against defendants Fee-ney (incorrectly sued as Femme), Fanello and Romine, prison officials in Pennsylvania, because it lacked personal jurisdiction over these non-resident defendants. See Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1205 (9th Cir.2006) (requiring a non-resident to have “substantial, continuous, and systematic” contacts in a forum for a court to exercise general jurisdiction, and “purposefully direct his activities” or transactions within the forum for a court to exercise specific jurisdiction).
The district court properly dismissed Del Raine’s claim challenging his placement in administrative segregation at the federal penitentiary in Lompoc because Del Raine failed to exhaust all levels of the administrative appeals process. See 42 U.S.C. § 1997e(a) (requiring inmates to exhaust all available administrative remedies).
We affirm the district court’s dismissal of Del Raine’s vague allegations that his files had been ransacked on the basis that they are insufficient to state a constitutional claim. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.1982) (“Vague and concltisory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”).
We dismiss as moot Del Raine’s appeal seeking injunctive relief in connection with the allegedly unconstitutionally small cells at the Lompoc penitentiary because Del Raine has since been transferred to another prison. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991) (per curiam) (providing that a prisoner’s claims for injunctive relief relating to prison conditions are rendered moot by his transfer to another facility).
Del Raine has abandoned his challenge to the district court’s dismissal of his Federal Tort Claims Act claims. See Cook *222v. Schriro, 538 F.3d 1000, 1014 n. 5 (9th Cir.2008) (noting that issues not raised on appeal are deemed abandoned).
AFFIRMED in part and DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471354/ | MEMORANDUM **
Larry Dominguez, a California state prisoner, appeals pro se from the district court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s application of substantive law de novo and its factual determinations for clear error. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003).
The district court dismissed the action because Dominguez failed to appeal the rejection of his grievance as untimely at each available level of the administrative process. Dist. Ct. Op. at 7. After the district court reached that decision, significant new cases have been decided, including the Supreme Court’s decision in Woodford v. Ngo, 548 U.S. 81, 93-95, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) and our opinion in Marella v. Terhune, 568 F.3d 1024, 1027-28 (9th Cir.2009). Accordingly, the district court did not have the opportunity to make factual findings relevant to the now-governing legal standards. We therefore vacate the district court’s decision and remand to allow that court the opportunity to reconsider Dominguez’s claim in light of intervening developments in the law.
Dominguez’s motion for appointment of counsel is denied.
The previous memorandum disposition is withdrawn.
VACATED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471356/ | MEMORANDUM **
Baldev Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substan*440tial evidence, Popova v. INS, 273 F.3d 1251, 1257 (9th Cir.2001), and we deny the petition for review.
Substantial evidence supports the BIA’s conclusion that, even if Singh suffered past persecution, conditions have changed in India such that Singh no longer has a well-founded fear of persecution. See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 1000-01 (9th Cir.2003) (individualized analysis of changed country conditions rebutted presumption of well-founded fear). Accordingly, petitioner’s asylum and withholding of removal claims fail. See id.
Substantial evidence supports the agency’s denial of CAT relief, because Singh failed to establish that it is more likely than not that he would be tortured if he returned to India. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir.2004).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471548/ | MEMORANDUM **
Ronald Del Raine, a federal prisoner, appeals pro se from the district court’s judgment dismissing his action alleging that a number of officials in various federal prisons violated his civil rights and committed common-law torts. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo. Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 800 (9th Cir.2004) (lack of personal jurisdiction), Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.2003) (exhaustion of administrative remedies), Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam) (failure to state a claim), Kennedy v. S. Cal. Edison, Co., 268 F.3d 763, 767 (9th Cir.2001) (dismissal with leave to amend). We may affirm on any basis supported by the record, Vestar Dev. II, LLC v. Gen. Dynamics Corp., 249 F.3d 958, 960 (9th Cir.2001), and we affirm in part and dismiss in part.
The district court properly dismissed the claims against defendants Fee-ney (incorrectly sued as Femme), Fanello and Romine, prison officials in Pennsylvania, because it lacked personal jurisdiction over these non-resident defendants. See Yahoo! Inc. v. La Ligue Contre Le Racisme, 433 F.3d 1199, 1205 (9th Cir.2006) (requiring a non-resident to have “substantial, continuous, and systematic” contacts in a forum for a court to exercise general jurisdiction, and “purposefully direct his activities” or transactions within the forum for a court to exercise specific jurisdiction).
The district court properly dismissed Del Raine’s claim challenging his placement in administrative segregation at the federal penitentiary in Lompoc because Del Raine failed to exhaust all levels of the administrative appeals process. See 42 U.S.C. § 1997e(a) (requiring inmates to exhaust all available administrative remedies).
We affirm the district court’s dismissal of Del Raine’s vague allegations that his files had been ransacked on the basis that they are insufficient to state a constitutional claim. See Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir.1982) (“Vague and concltisory allegations of official participation in civil rights violations are not sufficient to withstand a motion to dismiss.”).
We dismiss as moot Del Raine’s appeal seeking injunctive relief in connection with the allegedly unconstitutionally small cells at the Lompoc penitentiary because Del Raine has since been transferred to another prison. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir.1991) (per curiam) (providing that a prisoner’s claims for injunctive relief relating to prison conditions are rendered moot by his transfer to another facility).
Del Raine has abandoned his challenge to the district court’s dismissal of his Federal Tort Claims Act claims. See Cook *222v. Schriro, 538 F.3d 1000, 1014 n. 5 (9th Cir.2008) (noting that issues not raised on appeal are deemed abandoned).
AFFIRMED in part and DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471550/ | MEMORANDUM *
Ignacio Martinez-Quezada pleaded guilty to a violation of 8 U.S.C. § 1326 for reentry into the United States after a pri- or deportation. He appeals his sentence of forty months imprisonment and three years supervised release. This Court has jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court did not commit error by enhancing the maximum term *224of Martinez-Quezada’s sentence based on facts not adequately alleged in the indictment or proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States v. Mendoza-Zaragoza, 567 F.3d 431 (9th Cir.2009), held that “[a]n indictment will support the § 1326(b) sentence enhancement if it alleges a removal date, thus enabling a sentencing court to compare that date to the dates of any qualifying felony convictions to determine whether the sentence-enhancing sequence is satisfied.” Id. at 431. The indictment to which Martinez-Quezada pleaded guilty did allege removal dates. There was therefore no Apprendi error.
2. Contrary to Martinez-Quezada’s position, the district court did not commit any procedural errors in sentencing. Martinez-Quezada did not assert any such procedural errors before the district court, so we review for plain error. See United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en bane).
A. The district court must “provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney” during sentencing. Fed. R.Crim.P. 32(i)(4)(A)(iii). In this case, the government’s counsel had recommended both in its sentencing brief and at the beginning of the sentencing hearing a sentence within the suggested Guidelines range.
The prosecution did not rise to speak or otherwise indicate a need to reiterate the government’s views. Martinez-Quezada has not demonstrated “a reasonable probability that he would have received a different sentence” had the court given the prosecutor an express invitation to be heard again, Ameline, 409 F.3d at 1078, and so has not shown that the court’s error, if any, affected his substantial rights. See United States v. Waknine, 543 F.3d 546, 553 (9th Cir.2008). Government counsel did not seek to comment on the district court’s suggestion that it might depart from the range, although there is no reason to think he could not have done so. Moreover, the district court was quite aware of the government’s recommendation: It rejected as unsatisfactory “reasons that were argued to me for staying within the guideline or going below,” yet the government was the only party that recommended a within-Guideline sentence.
B. The district court did not improperly determine the applicable Guidelines sentence, nor was it improperly influenced by what it perceived to be a lenient sentence in Martinez-Quezada’s 2005 Seattle prosecution.
A district court must begin by determining the appropriate Guidelines range applicable to a defendant’s sentence. United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). While the district judge stated that it was possible a 16-level enhancement could have applied in this proceeding, he expressly approved and applied the Presentence Report’s recommendation that the defendant’s. 1994 felony firearm conviction was not an aggravated felony, so no 16-level enhancement applied. The district judge therefore properly determined the applicable Guidelines range.
A district court also commits procedural error if it “choose[s] a sentence based on clearly erroneous facts.” Id. at 993 (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Martinez-Quezada has not shown that the district court relied on any erroneous facts when fashioning his present sentence. The court referred to the Seattle conviction when it initially warned defense counsel that it might impose a sentence above the Guidelines range and *225again while explaining its reasons for imposing a sentence above the Guidelines range. Read in context, however, the statements indicate concerns that the Seattle conviction was part of a lengthy criminal history and that Martinez-Quezada’s prior punishment in Seattle had not deterred him from the later violation, not a determination that Martinez-Quezada had been treated with undue lenience in Seattle.
C. The district court adequately considered the need to avoid unwarranted sentencing disparities in its review of the § 3553 sentencing factors.1 “The district court need not tick off each of the § 3553(a) factors to show that it has considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (en banc). The judge heard argument from MartinezQuezada’s counsel that above-Guideline sentences are rare in “alien cases.” The judge also referred to the § 3553(a) factors and stated that he had considered the arguments made to him “about motivation to return and any other of the specific factors that would have been departures under prior law.” See United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008) (noting that the district court was not “required to explicitly mention the types of sentences received by otherwise similarly situated defendants who pleaded guilty,” and holding that a sentence resulting from a jury trial in a § 1326 case was reasonable).
3. Finally, Martinez-Quezada challenges the substantive reasonableness of his sentence, which we review for an abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). We reject this challenge. The district court explicitly recognized its obligation to impose a sentence that was sufficient but not greater than necessary to fulfill the purposes of § 3553(a): The court stated that it had considered and rejected arguments for a sentence below or within the Sentencing Guidelines and offered several reasons for exceeding the Guidelines range, including that Martinez-Quezada was likely to return to the United States despite his many deportations, had a lengthy criminal history, and showed a lack of respect for the law and the courts as demonstrated by repeated failures to appear and outstanding warrants. Considering the “totality of the circumstances,” Canty, 520 F.3d at 993 (citing Gall, 128 S.Ct. at 597), the district court did not abuse its discretion in imposing Martinez-Quezada’s sentence.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Martinez-Quezada's related argument that the district judge should have considered an upward departure from the criminal history category before imposing an above-Guideline variance also fails. Post-Booker, this Court “treat[s] the scheme of downward and upward 'departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence.” United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.2006). A district court's "decision to sentence outside of the applicable guidelines range is subject to a unitary review for reasonableness, no matter how the district court styles its sentencing decision.” Id. The district court was therefore free to impose an upward variance without first considering a departure, so long as it arrived at a reasonable result. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471552/ | MEMORANDUM **
Arizona state prisoner Kristofer Seneca appeals pro se from the district court’s dismissal of his 42 U.S.C. § 1983 action alleging that the Arizona Department of Corrections (“ADOC”) violated his right to free exercise of religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq. The district court dismissed as moot Seneca’s claims regarding the ADOC’s requirement that prisoners submit a verification letter in order to change their religious designation and the ADOC’s limitations on inmates’ access to religious items, and dismissed Seneca’s claim challenging the ADOC’s policy requiring that all religious items be purchased from the inmate store for failure to exhaust. We have jurisdiction to review the district court’s final orders pursuant to 28 U.S.C. § 1291. We reverse the district court’s dismissal of two of Seneca’s claims as moot, and affirm the district court on all other grounds.
1. We review de novo the dismissal of a claim as moot. Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir.2004). Voluntary cessation of challenged conduct renders a claim moot if “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citations omitted). A defendant’s voluntary change in policy only renders a claim moot if it is “ ‘a permanent change’ in the way it [does] business and [is] not a ‘temporary policy that the agency will refute once this litigation has concluded.’” Smith v. Univ. of *228Wash., Law Sch., 233 F.3d 1188, 1194 (9th Cir.2000) (quoting White v. Lee, 227 F.3d 1214, 1243 (9th Cir.2000)). Further, in establishing mootness, the “defendant bears the burden of showing that its voluntary compliance moots a case by convincing the court that ‘it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Lozano v. AT T Wireless Services, Inc., 504 F.3d 718, 733 (9th Cir.2007) (emphasis in original).
Here, the ADOC merely filed an affidavit stating that the “policy changed” after Seneca filed suit such that inmates were no longer required to present a verification letter, and that Seneca had since been allowed to change his religious designation. Because this evidence fails to establish the permanency of the change in policy, the ADOC did not meet its burden of demonstrating mootness. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Smith, 233 F.3d at 1194. We do not foreclose the possibility that the ADOC may be able to meet its burden with additional evidence of its change in policy. We therefore reverse the dismissal of Seneca’s claim challenging the verification letter requirement and remand for further proceedings.1
We also reverse the dismissal of Seneca’s claim that the policy limiting inmates to seven religious items lacked compelling justification and was not the least restrictive means of furthering ADOC interests, and so violated RLUIPA. The ADOC’s elimination of a numerical limit on items did not resolve Seneca’s claim because the new policy simultaneously eliminated the allowance for oversize items, preventing Seneca from accessing certain large items counted among the twenty items to which he sought access in his complaint. Seneca maintained throughout the litigation that he sought access to these twenty items, and that the ADOC violated his rights by preventing him from accessing the items without compelling reason or use of the least restrictive means. Because the change in policy did not “completely and irrevocably eradicate! ] the effects of the alleged violation,” it did not render his claim moot. Davis, 440 U.S. at 631, 99 S.Ct. 1379.
When considering this claim on remand, the district court should apply the RLUI-PA’s broad definition of “religious exercise” in light of our recent opinions addressing that issue. See Greene v. Solano County Jail, 513 F.3d 982, 986 (9th Cir.2008) (“RLUIPA ‘bars inquiry into whether a particular belief or practice is central to a prisoner’s religion’ ” (quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005))); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008) (focusing on the sincerity rather than centrality of a religious belief); see also 42 U.S.C. § 2000ec-5(7)(A) (defining “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief’).
2. “On a dismissal for failure to exhaust administrative remedies, the district court’s underlying factual determinations are reviewed for clear error, and its application of substantive law is reviewed de novo.” Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.2008). The Prison Litigation Reform Act of 1995 (“PLRA”) requires that inmates exhaust all available administrative remedies before initiating litigation challenging prison conditions. 42 U.S.C. *229§ 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.2006). An inmate’s failure to exhaust administrative remedies before bringing a federal action challenging prison conditions is an affirmative defense. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.2005); Wyatt v. Terhune, 315 F.3d 1108, 1117-18, 1120 (9th Cir.2003).
As an initial matter, we conclude that Defendants preserved the exhaustion defense by asserting it in their initial answer, see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir.2000), and that the district court properly treated the motion for summary judgment on exhaustion grounds as an unenumerated Rule 12(b) motion. Wyatt, 315 F.3d at 1119; Ritza v. Int'l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir.1988).
We also conclude that the district court properly dismissed Seneca’s RLUIPA claims regarding the ADOC’s policy requiring that religious items be purchased from the inmate store and prohibiting receipt of donated religious items. Although the district court did not review the 2003 grievance with which Seneca claimed to have administratively exhausted this claim, the court properly concluded that even assuming the grievance stated what Seneca asserted, such language was far too general, and could not have put prison officials on notice of Seneca’s objection to the donation and purchase policies.2 See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009) (stating that where a grievance lacks factual specificity, it must at least “alert[] the prison to the nature of the wrong for which redress is sought” to satisfy the exhaustion requirement).
3. We review a district court’s decision to deny a motion for contempt for abuse of discretion, Hallett v. Morgan, 296 F.3d 732, 749 (9th Cir.2002), and we conclude that no such abuse occurred here. Seneca moved the district court to hold the ADOC in contempt for requiring him to produce a religious verification letter in order to change his religious designation and obtain a vegetarian diet, arguing that in doing so the ADOC violated the court’s 1986 order in Van Orden v. Lewis, No. CIV-86-211-TUC-ACM. However, the Van Orden order was narrow in scope, only enjoining the ADOC from requiring a religious verification letter before allowing then-inmate David Van Orden an exemption from a hair length policy. Because the ADOC’s actions in this case did not violate that narrow injunction, and the district eourt had not yet analyzed the merits of Seneca’s claim that the verification letter requirement here was unlawful, the district court properly denied the motion.
4. Finally, Seneca briefly argues that the district court erred by failing to consider his claim that Defendants improperly restrict inmates to religious items “normally used” in traditional practice of their religion. Because Seneca did not allege in his complaint or elsewhere before the district court that he has been denied access to any particular item pursuant to this policy, the district court did not err in failing to consider it.
AFFIRMED in part; REVERSED and REMANDED in part. The parties shall bear their own costs of appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. We deny Seneca's motion for leave to present further evidence regarding this claim; the evidence he seeks to introduce was not before the district court and does not bear on mootness of Seneca's religious verification claim.
. Accordingly, we deny Seneca's motion to supplement the record on appeal with the 2003 grievance. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471554/ | *231MEMORANDUM *
Joselito Asican, a native and citizen of the Philippines and a lawful permanent resident, petitions for review of the BIA’s dismissal of his appeal of the Immigration Judge’s discretionary denial of cancellation of removal. We dismiss in part and deny in part the petition for review.
Asican argues in his petition for review, for the first time in this case, that he did not commit two crimes of moral turpitude and the IJ violated due process by not informing him about discretionary domestic victim waivers of removal and developing the administrative record regarding potential domestic abuse. Asican did not raise these claims in his BIA appeal brief. Therefore, he has not exhausted his administrative remedies and we lack jurisdiction to consider the claims. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir.2009); Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir.2009) (en banc).
Nor does the BIA’s citation to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994),1 excuse Asican’s failure to exhaust. Additionally, after Abebe, an independent or de novo review of the record will not exhaust claims not asserted in the BIA appeal brief. Abebe, 554 F.3d at 1208. (“To the extent Ladha v. INS, 215 F.3d 889, 903 (9th Cir.2000), is to the contrary, it is overruled.”).
Asican argues that the IJ applied the incorrect legal standard to cancellation of removal by not considering a crucial positive factor, the hardship to Asican’s three citizen children, when he weighed the positive and negative factors. The record belies this contention. See In re C-V-T, 22 I. & N. Dec. 7, 11 (BIA 1998); In re Edwards, 20 I. & N. Dec. 191, 195-97 (BIA 1990). Because the IJ applied the correct legal standard, we lack jurisdiction to review the IJ’s discretionary determination that Asican is not entitled to cancellation of removal. Mendez-Castro v. Mukasey, 552 F.3d 975, 978-80 (9th Cir.2009).
Finally, Asican asserts that the IJ violated due process by allowing an incomplete or inaccurate translation of the cancellation of removal testimony. To establish his due process claim, Asican must show that an incompetent translation prejudiced his hearing. Perez-Lastor v. INS, 208 F.3d 773, 778-80 (9th Cir.2000). A review of the complete transcript establishes that Asican understood and answered the vast majority of the questions. Unlike Perez-Lastor, Asican never stated that he could not understand or consistently gave answers completely unrelated to the questions. At most, the record established that the interpreter made two mistakes. At the beginning of the hearing, the IJ admonished the interpreter for adding “your honor” to the testimony. Later, the IJ admonished Asican to wait for the translation to answer, admonished the interpreter for adding the year to clarify which conviction was at issue, and had counsel repeat the question. Asican has not shown that the translator was incompetent or that a better translation may have resulted in a discretionary grant of cancellation of removal.
PETITION FOR REVIEW DISMISSED IN PART AND DENIED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. The BIA cited Burbano only for the IJ’s holdings that Asican “did not merit cancellation of removal and was ineligible for all other forms of relief.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477803/ | *118ON MOTION
ORDER
Susan Thompson having failed to comply with the court’s July 17, 2009 order requiring that her brief be filed no later than August 7, 2009, and prohibiting further extensions of time,
IT IS ORDERED THAT:
(1) The petition for review is dismissed for failure to comply with the court’s order. Each side shall bear its own costs.
(2) Thompson’s untimely motion for an additional extension of time is moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471551/ | MEMORANDUM *
Ignacio Martinez-Quezada pleaded guilty to a violation of 8 U.S.C. § 1326 for reentry into the United States after a pri- or deportation. He appeals his sentence of forty months imprisonment and three years supervised release. This Court has jurisdiction under 28 U.S.C. § 1291. We affirm.
1. The district court did not commit error by enhancing the maximum term *224of Martinez-Quezada’s sentence based on facts not adequately alleged in the indictment or proven beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 489, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). United States v. Mendoza-Zaragoza, 567 F.3d 431 (9th Cir.2009), held that “[a]n indictment will support the § 1326(b) sentence enhancement if it alleges a removal date, thus enabling a sentencing court to compare that date to the dates of any qualifying felony convictions to determine whether the sentence-enhancing sequence is satisfied.” Id. at 431. The indictment to which Martinez-Quezada pleaded guilty did allege removal dates. There was therefore no Apprendi error.
2. Contrary to Martinez-Quezada’s position, the district court did not commit any procedural errors in sentencing. Martinez-Quezada did not assert any such procedural errors before the district court, so we review for plain error. See United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir.2005) (en bane).
A. The district court must “provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney” during sentencing. Fed. R.Crim.P. 32(i)(4)(A)(iii). In this case, the government’s counsel had recommended both in its sentencing brief and at the beginning of the sentencing hearing a sentence within the suggested Guidelines range.
The prosecution did not rise to speak or otherwise indicate a need to reiterate the government’s views. Martinez-Quezada has not demonstrated “a reasonable probability that he would have received a different sentence” had the court given the prosecutor an express invitation to be heard again, Ameline, 409 F.3d at 1078, and so has not shown that the court’s error, if any, affected his substantial rights. See United States v. Waknine, 543 F.3d 546, 553 (9th Cir.2008). Government counsel did not seek to comment on the district court’s suggestion that it might depart from the range, although there is no reason to think he could not have done so. Moreover, the district court was quite aware of the government’s recommendation: It rejected as unsatisfactory “reasons that were argued to me for staying within the guideline or going below,” yet the government was the only party that recommended a within-Guideline sentence.
B. The district court did not improperly determine the applicable Guidelines sentence, nor was it improperly influenced by what it perceived to be a lenient sentence in Martinez-Quezada’s 2005 Seattle prosecution.
A district court must begin by determining the appropriate Guidelines range applicable to a defendant’s sentence. United States v. Carty, 520 F.3d 984, 991 (9th Cir.2008) (en banc). While the district judge stated that it was possible a 16-level enhancement could have applied in this proceeding, he expressly approved and applied the Presentence Report’s recommendation that the defendant’s. 1994 felony firearm conviction was not an aggravated felony, so no 16-level enhancement applied. The district judge therefore properly determined the applicable Guidelines range.
A district court also commits procedural error if it “choose[s] a sentence based on clearly erroneous facts.” Id. at 993 (citing Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007)). Martinez-Quezada has not shown that the district court relied on any erroneous facts when fashioning his present sentence. The court referred to the Seattle conviction when it initially warned defense counsel that it might impose a sentence above the Guidelines range and *225again while explaining its reasons for imposing a sentence above the Guidelines range. Read in context, however, the statements indicate concerns that the Seattle conviction was part of a lengthy criminal history and that Martinez-Quezada’s prior punishment in Seattle had not deterred him from the later violation, not a determination that Martinez-Quezada had been treated with undue lenience in Seattle.
C. The district court adequately considered the need to avoid unwarranted sentencing disparities in its review of the § 3553 sentencing factors.1 “The district court need not tick off each of the § 3553(a) factors to show that it has considered them.” United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (en banc). The judge heard argument from MartinezQuezada’s counsel that above-Guideline sentences are rare in “alien cases.” The judge also referred to the § 3553(a) factors and stated that he had considered the arguments made to him “about motivation to return and any other of the specific factors that would have been departures under prior law.” See United States v. Vasquez-Landaver, 527 F.3d 798, 804-05 (9th Cir.2008) (noting that the district court was not “required to explicitly mention the types of sentences received by otherwise similarly situated defendants who pleaded guilty,” and holding that a sentence resulting from a jury trial in a § 1326 case was reasonable).
3. Finally, Martinez-Quezada challenges the substantive reasonableness of his sentence, which we review for an abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009). We reject this challenge. The district court explicitly recognized its obligation to impose a sentence that was sufficient but not greater than necessary to fulfill the purposes of § 3553(a): The court stated that it had considered and rejected arguments for a sentence below or within the Sentencing Guidelines and offered several reasons for exceeding the Guidelines range, including that Martinez-Quezada was likely to return to the United States despite his many deportations, had a lengthy criminal history, and showed a lack of respect for the law and the courts as demonstrated by repeated failures to appear and outstanding warrants. Considering the “totality of the circumstances,” Canty, 520 F.3d at 993 (citing Gall, 128 S.Ct. at 597), the district court did not abuse its discretion in imposing Martinez-Quezada’s sentence.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Martinez-Quezada's related argument that the district judge should have considered an upward departure from the criminal history category before imposing an above-Guideline variance also fails. Post-Booker, this Court “treat[s] the scheme of downward and upward 'departures’ as essentially replaced by the requirement that judges impose a ‘reasonable’ sentence.” United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.2006). A district court's "decision to sentence outside of the applicable guidelines range is subject to a unitary review for reasonableness, no matter how the district court styles its sentencing decision.” Id. The district court was therefore free to impose an upward variance without first considering a departure, so long as it arrived at a reasonable result. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471553/ | MEMORANDUM **
Arizona state prisoner Kristofer Seneca appeals pro se from the district court’s dismissal of his 42 U.S.C. § 1983 action alleging that the Arizona Department of Corrections (“ADOC”) violated his right to free exercise of religion under the First Amendment and the Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc et seq. The district court dismissed as moot Seneca’s claims regarding the ADOC’s requirement that prisoners submit a verification letter in order to change their religious designation and the ADOC’s limitations on inmates’ access to religious items, and dismissed Seneca’s claim challenging the ADOC’s policy requiring that all religious items be purchased from the inmate store for failure to exhaust. We have jurisdiction to review the district court’s final orders pursuant to 28 U.S.C. § 1291. We reverse the district court’s dismissal of two of Seneca’s claims as moot, and affirm the district court on all other grounds.
1. We review de novo the dismissal of a claim as moot. Demery v. Arpaio, 378 F.3d 1020, 1025 (9th Cir.2004). Voluntary cessation of challenged conduct renders a claim moot if “(1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (citations omitted). A defendant’s voluntary change in policy only renders a claim moot if it is “ ‘a permanent change’ in the way it [does] business and [is] not a ‘temporary policy that the agency will refute once this litigation has concluded.’” Smith v. Univ. of *228Wash., Law Sch., 233 F.3d 1188, 1194 (9th Cir.2000) (quoting White v. Lee, 227 F.3d 1214, 1243 (9th Cir.2000)). Further, in establishing mootness, the “defendant bears the burden of showing that its voluntary compliance moots a case by convincing the court that ‘it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” Lozano v. AT T Wireless Services, Inc., 504 F.3d 718, 733 (9th Cir.2007) (emphasis in original).
Here, the ADOC merely filed an affidavit stating that the “policy changed” after Seneca filed suit such that inmates were no longer required to present a verification letter, and that Seneca had since been allowed to change his religious designation. Because this evidence fails to establish the permanency of the change in policy, the ADOC did not meet its burden of demonstrating mootness. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); Smith, 233 F.3d at 1194. We do not foreclose the possibility that the ADOC may be able to meet its burden with additional evidence of its change in policy. We therefore reverse the dismissal of Seneca’s claim challenging the verification letter requirement and remand for further proceedings.1
We also reverse the dismissal of Seneca’s claim that the policy limiting inmates to seven religious items lacked compelling justification and was not the least restrictive means of furthering ADOC interests, and so violated RLUIPA. The ADOC’s elimination of a numerical limit on items did not resolve Seneca’s claim because the new policy simultaneously eliminated the allowance for oversize items, preventing Seneca from accessing certain large items counted among the twenty items to which he sought access in his complaint. Seneca maintained throughout the litigation that he sought access to these twenty items, and that the ADOC violated his rights by preventing him from accessing the items without compelling reason or use of the least restrictive means. Because the change in policy did not “completely and irrevocably eradicate! ] the effects of the alleged violation,” it did not render his claim moot. Davis, 440 U.S. at 631, 99 S.Ct. 1379.
When considering this claim on remand, the district court should apply the RLUI-PA’s broad definition of “religious exercise” in light of our recent opinions addressing that issue. See Greene v. Solano County Jail, 513 F.3d 982, 986 (9th Cir.2008) (“RLUIPA ‘bars inquiry into whether a particular belief or practice is central to a prisoner’s religion’ ” (quoting Cutter v. Wilkinson, 544 U.S. 709, 725 n. 13, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005))); Shakur v. Schriro, 514 F.3d 878, 884-85 (9th Cir.2008) (focusing on the sincerity rather than centrality of a religious belief); see also 42 U.S.C. § 2000ec-5(7)(A) (defining “religious exercise” as “any exercise of religion, whether or not compelled by, or central to, a system of religious belief’).
2. “On a dismissal for failure to exhaust administrative remedies, the district court’s underlying factual determinations are reviewed for clear error, and its application of substantive law is reviewed de novo.” Whitman v. Mineta, 541 F.3d 929, 931 (9th Cir.2008). The Prison Litigation Reform Act of 1995 (“PLRA”) requires that inmates exhaust all available administrative remedies before initiating litigation challenging prison conditions. 42 U.S.C. *229§ 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Vaden v. Summerhill, 449 F.3d 1047, 1051 (9th Cir.2006). An inmate’s failure to exhaust administrative remedies before bringing a federal action challenging prison conditions is an affirmative defense. Lira v. Herrera, 427 F.3d 1164, 1170 (9th Cir.2005); Wyatt v. Terhune, 315 F.3d 1108, 1117-18, 1120 (9th Cir.2003).
As an initial matter, we conclude that Defendants preserved the exhaustion defense by asserting it in their initial answer, see Tahoe-Sierra Preservation Council, Inc. v. Tahoe Reg’l Planning Agency, 216 F.3d 764, 788 (9th Cir.2000), and that the district court properly treated the motion for summary judgment on exhaustion grounds as an unenumerated Rule 12(b) motion. Wyatt, 315 F.3d at 1119; Ritza v. Int'l Longshoremen’s & Warehousemen’s Union, 837 F.2d 365, 368 (9th Cir.1988).
We also conclude that the district court properly dismissed Seneca’s RLUIPA claims regarding the ADOC’s policy requiring that religious items be purchased from the inmate store and prohibiting receipt of donated religious items. Although the district court did not review the 2003 grievance with which Seneca claimed to have administratively exhausted this claim, the court properly concluded that even assuming the grievance stated what Seneca asserted, such language was far too general, and could not have put prison officials on notice of Seneca’s objection to the donation and purchase policies.2 See Griffin v. Arpaio, 557 F.3d 1117, 1120 (9th Cir.2009) (stating that where a grievance lacks factual specificity, it must at least “alert[] the prison to the nature of the wrong for which redress is sought” to satisfy the exhaustion requirement).
3. We review a district court’s decision to deny a motion for contempt for abuse of discretion, Hallett v. Morgan, 296 F.3d 732, 749 (9th Cir.2002), and we conclude that no such abuse occurred here. Seneca moved the district court to hold the ADOC in contempt for requiring him to produce a religious verification letter in order to change his religious designation and obtain a vegetarian diet, arguing that in doing so the ADOC violated the court’s 1986 order in Van Orden v. Lewis, No. CIV-86-211-TUC-ACM. However, the Van Orden order was narrow in scope, only enjoining the ADOC from requiring a religious verification letter before allowing then-inmate David Van Orden an exemption from a hair length policy. Because the ADOC’s actions in this case did not violate that narrow injunction, and the district eourt had not yet analyzed the merits of Seneca’s claim that the verification letter requirement here was unlawful, the district court properly denied the motion.
4. Finally, Seneca briefly argues that the district court erred by failing to consider his claim that Defendants improperly restrict inmates to religious items “normally used” in traditional practice of their religion. Because Seneca did not allege in his complaint or elsewhere before the district court that he has been denied access to any particular item pursuant to this policy, the district court did not err in failing to consider it.
AFFIRMED in part; REVERSED and REMANDED in part. The parties shall bear their own costs of appeal.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. We deny Seneca's motion for leave to present further evidence regarding this claim; the evidence he seeks to introduce was not before the district court and does not bear on mootness of Seneca's religious verification claim.
. Accordingly, we deny Seneca's motion to supplement the record on appeal with the 2003 grievance. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471558/ | MEMORANDUM *
Delta Mechanical, Inc. (“Delta”) appeals the district court’s decision pursuant to Fed.R.Civ.P. 12(b)(6) that it is not a third-party beneficiary to a settlement agree*233ment and thus is not entitled to bring a lawsuit for alleged breach, etc., of that agreement by the settling defendants. Delta also appeals the district court’s decision that it cannot sue the Garden City Group, Inc. (“Garden City”) as a contractual delegatee of the settling defendants.
We reverse in part, affirm in part, and remand for further proceedings.
I
The district court was correct in denying the effects of collateral estoppel to Delta. The Missouri court’s conclusion that Delta was a third-party beneficiary to the settlement agreement was not a critical and necessary part of its judgment that Delta was not entitled to intervene in the action which produced the agreement.
II
The district court erred in concluding pursuant to Rule 12(b)(6) that Delta was not a third-party beneficiary to the agreement. The evidentiary record on this issue demonstrates at this early stage of the case that whether Delta was or was not a third-party beneficiary is a genuine issue of material fact that might survive summary judgment.
A party is a third-party beneficiary to a contract if the terms of the contract “clearly express intent to benefit that party or an identifiable class of which the party is a member.” Nitro Distrib., Inc. v. Dunn, 194 S.W.3d 339, 345 (Mo.2006). “In cases where the contract lacks an express declaration of that intent, there is a strong presumption that the third party is not a beneficiary and that the parties contracted to benefit only themselves.” Id. “Furthermore, a mere incidental benefit to the third party is insufficient to bind that party.” Id.
It is not necessary that the contracting parties’ primary object is to benefit the third parties, “but only that the third parties be primary beneficiaries.” Andes v. Alborto, 853 S.W.2d 936, 942 (Mo.1993). “Third party beneficiary status depends not so much on a desire or purpose to confer a benefit on the third person, but rather on an intent that the promisor assume a direct obligation to him.” Chesus v. Watts, 967 S.W.2d 97, 106 (Mo.Ct.App.1998); see also Teter v. Morris, 650 S.W.2d 277, 282 (Mo.Ct.App.1983).
The district court held that Delta was not a third-party beneficiary because the settlement agreement “does not express any intent that the defendants assume a direct obligation to Delta or other ‘authorized service personnel.’ ” We conclude, however, that the evidence currently in the record viewed in the light most favorable to Delta could support a determination in its favor on this issue. The factual content of the complaint and reasonable inferences therefrom are plausibly suggestive of a claim entitling Delta to relief. See Moss v. U.S. Secret Serv., 572 F.3d 962, 964-66 (9th Cir.2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Section 8 of the agreement sets forth the “Settling Defendants’ Obligations” which outlines the benefits the settling defendants must provide to the class. Class members are entitled to a certificate for a water dip tube replacement upon submitting a timely Proof of Claim form. The class member then has six months to redeem the certificate by using the services of an authorized service personnel who will provide the repair benefits. The class member is required to provide the Proof Documentation and parts and pieces of the dip tube to the approved plumber before he or she is entitled to the Section 8.2 replacement.
*234The agreement establishes an obligation on the part of the settling defendants to pay for the replacement of the water dip tubes:
8. Settling Defendants’ Obligations. Settling Defendants shall provide the following benefits to the Class.
... The names of authorized service personnel who will be available to provide the service will be provided with the certifícate. Settling Defendants shall ensure that adequate and trained service personnel are available to provide service to Class Members in a timely manner.
8.2.4. If a Class Member is experiencing property damage resulting from a Subject Dip Tube, such Class Member shall, in addition to a dip tube replacement, be entitled to repair of property damage caused by, or related to the Subject Dip Tube.
8.2.6. Upon submission of a timely, completed Proof of Claim, such claimant will be provided the identities of approved plumbers who will provide repair benefits.
16. Assignment of Class Members’ Claims Against Perfection. Upon entry of the Final Order and Judgment, each Class Member ... shall be deemed to and does hereby assign, unto the Settling Defendant that is responsible for providing to the Class Member any benefits described in Section 8, any and all claims ... which the Class Member has or may have against [the dip tube manufacturer]....”
25.3. Under the Settlement, each Tank Manufacturer is obligated to provide benefits under Section 8 of the Agreement only for claims made against its water heaters.
Id. at pp. 14-15, 22, 25.
There can be no doubt that Delta qualifies as “authorized service personnel.” Thus, a reasonable fact finder might determine that the settling defendants did intend to assume a direct obligation to Delta for the replacement costs. Accordingly, it was error to dismiss this case pursuant to Rule 12(b)(6). Normally the next step would be to proceed to summary judgment. Vignolo v. Miller, 120 F.3d 1075, 1078 (9th Cir.1997).
Ill
Delta has not raised a claim that it was a third-party beneficiary of an agreement between Garden City and the settling defendants. Therefore, we affirm the district court’s dismissal of Garden City as a defendant. A mere agent of a disclosed principal is not a party to a contract and is not liable for the principal’s nonperformance.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED. The parties shall bear their own costs.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8477202/ | ON MOTION
ORDER
Hardie’s Fruit & Vegetable Company-South, LP (“Hardies”) moves to dismiss this appeal for mootness and vacate the September 15, 2008 judgment of the Court of Federal Claims and the July 15, 2008, decision of the Small Business Administration’s Office of Hearings and Appeals (“SBA”). The United States opposes the request to vacate the aforementioned judgment and decision.
Upon consideration thereof,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) The motion to vacate is denied.
(3)The mandate will issue in due course. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471360/ | MEMORANDUM **
Defendant-Appellant Art Garcia appeals his convictions following a jury trial for the importation of cocaine and possession of cocaine with the intent to distribute, in violation of 21 U.S.C. §§ 841, 952, and 960. We have jurisdiction under 28 U.S.C. § 1291 and we affirm.
Garcia first argues that the district court abused its discretion when it excluded as irrelevant Garcia’s testimony about what he thought about de Leon and de Leon’s boss who had asked him to go and pick up the car that was later determined at the border to contain cocaine.1 Garcia’s general opinion of these individuals was not relevant to whether Garcia knew the car contained the cocaine he was charged with possessing or why Garcia lied to the law enforcement officials. Fed.R.Evid. 401. However, any testimony that Garcia feared de Leon and his boss and lied to the law enforcement officers out of fear that de Leon and his boss might harm Garcia’s family would have been relevant. Nevertheless, the jury heard testimony from Garcia about his retaliation fears, and so to the extent the excluded questions might have elicited relevant testimony, it was plainly cumulative of other admitted testimony and properly excluded under Fed. R.Evid. 403. The district court did not abuse its discretion when it excluded the testimony. See United States v. Boulware, 384 F.3d 794, 805, 808 n. 6 (9th Cir.2004).
*443The same analysis applies to the sustaining of an objection to a defense question about whether Garcia was set up, or when he knew that, because the substance of his other admitted testimony, if credited by the jury, would have supported his theory that he was set up.
Garcia also argues that the district court’s refusal to give his “theory of the defense” instruction was reversible error. Garcia’s theory of the defense was that he did not know there was cocaine in the car. “A defendant is entitled to have the judge instruct the jury on his theory of defense, provided that it is supported by law and has some foundation in the evidence.” United States v. Crandall, 525 F.3d 907, 911 (9th Cir.2008) (brackets omitted). However, “it is not reversible error to reject a defendant’s proposed instruction on his theory of the case if other instructions, in their entirety, adequately cover that defense theory.” United States v. Romm, 455 F.3d 990, 1002 (9th Cir.2006). We agree with the district court that Garcia’s defense was fully encompassed by the other jury instructions. See id.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
. The parties are familiar with the facts of this case and we do not repeat them here. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471364/ | MEMORANDUM *
Myron Motley appeals his convictions, following a conditional guilty plea, for possession with intent to distribute cocaine base and cocaine in violation of 21 U.S.C. § 841(a)(1), (b)(l)(A)(iii), and (b)(1)(C). Motley contends that the district court erred by denying his motion to suppress evidence seized during a pretextual traffic stop of his vehicle. We have jurisdiction under 28 U.S.C. § 1291, and we reverse and remand.
Motley argues that the district court committed legal error by concluding that Trooper Manion had independent probable cause1 to stop Motley’s vehicle, the stop was also justified by Detective Ames’ reasonable suspicion imputed to Manion through the collective knowledge doctrine, and the stop was not unlawfully prolonged while Manion awaited the arrival of a narcotics-detection dog. We review these conclusions of law de novo and underlying factual findings for clear error. United States v. Turvin, 517 F.3d 1097, 1099 (9th Cir.2008).
We need not resolve the question whether Manion had independent probable cause or reasonable suspicion for the stop because even if he did, the length of Motley’s detention exceeded the period of time reasonably necessary to cany out the purposes of the traffic stop. See Illinois v. Caballes, 543 U.S. 405, 407, 125 S.Ct. 834, 160 L.Ed.2d 842 (2005) (“A seizure that is justified solely by the interest in issuing a [traffic] ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”). The district court found that Motley was detained for roughly fifty minutes, at least fifteen to twenty of which were related to the traffic stop, and the remainder of which were spent awaiting the arrival of the narcotics-deteetion dog. In the absence of reasonable suspicion of illegal drug activity, the thirty-minute delay between the time Manion completed his independent investigation and the time the drug dog arrived runs afoul of the Fourth Amendment. See United States v. Luckett, 484 F.2d 89, 91 (9th Cir.1973); see also United States v. Dortch, 199 F.3d 193, 198-200 (5th Cir.1999) (holding that defendant was unlawfully detained when the drug dog arrived “moments” after officers had effectuated the purposes of their initial traffic stop and officers had not obtained facts creating reasonable suspicion that defendant was trafficking drugs).
Because Manion’s traffic stop revealed no independent evidence of illicit narcotics activity, the outcome of this case turns on whether the district court properly concluded that Ames had obtained information amounting to reasonable suspicion that could be imputed to Manion through the collective knowledge doctrine. As a threshold matter, Motley contends that the *447collective knowledge doctrine does not apply because Ames informed Manion that he lacked probable cause and that Manion should develop independent probable cause for the stop. We reject this argument for the simple reason that the district court imputed reasonable suspicion, not probable cause. Reasonable suspicion is a less exacting standard than probable cause, United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989), so even if Ames expressly disclaimed having probable cause, that disclaimer does not necessarily encompass the lower standard of reasonable suspicion. To the extent that Ames had reasonable suspicion that Motley was involved in illegal drug activity, his request that Manion stop Motley is a sufficient communication to impute Ames’ knowledge to Manion under the collective knowledge doctrine. See United States v. Ramirez, 473 F.3d 1026, 1036 & n. 7 (9th Cir.2007).
Motley next argues that the district court erroneously concluded that Ames had reasonable suspicion because it did not apply the legal framework for assessing the reliability of confidential informants. We agree. Ames’ investigation of Motley was prompted by information he received from an unnamed relative of a confidential informant. When evaluating whether such information is sufficient to support a finding of reasonable suspicion, a court “must employ a ‘totality-of-the-circumstances approach’ that takes into consideration the informant’s ‘veracity or ‘reliability’ and his ‘basis of knowledge.’ ” United States v. Rowland, 464 F.3d 899, 907 (9th Cir.2006) (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)). By omitting any discussion of the reliability of the unnamed relative, the district court artificially enhanced the weight of the information that the tipster provided.
Reliability is measured by factors such as whether the informant (1) is known or anonymous, (2) has previously proven himself reliable, (3) reveals the basis of his knowledge, and (4) “provides detailed predictive information about future events that is corroborated by police observation.” Rowland, 464 F.3d at 907-08. Considering, all of these factors under the totality of the circumstances, we conclude that the unnamed relative’s tip deserves little weight. Ames testified that he spoke with the tipster and knew the tipster was a relative of a confidential informant, but there is no indication in the record that Ames actually met, could identify, or knew how or where to find the tipster. Moreover, the record does not demonstrate that Ames previously used the tipster as an informant or that the tipster explained how he or she2 obtained knowledge of Motley’s involvement in drug trafficking.
With respect to the fourth factor, “[p]re-dictive information that reveals a detailed knowledge of an individual’s intimate affairs is more reliable than predictive information that could be observed by the general public, and such self-verifying detail is considerably more valuable if it relates to suspicious activities than if it relates to innocent activities.” Id. at 908 (citations omitted). Even though the tipster’s information accurately led Ames to Motley, the bulk of the tipster’s information was too general, benign, and disconnected from Motley’s future behavior to reflect positively on the tipster’s credibility. See Florida v. J.L., 529 U.S. 266, 271-272, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000) (distinguishing tips that accurately identify a certain person from those that substantiate concealed, illegal activity). Motley was a fixture at Harrah’s for several years prior to his arrest, so the color of his car and his *448general residential patterns at Harrah’s are not the type of details that corroborate insider knowledge of criminal activity. While this type of generic information can help establish a tipster’s reliability if spun in a predictive web, see Alabama v. White, 496 U.S. 325, 332, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990) (holding that a tipster’s accurate description of a suspect’s car was insufficient to establish the tipster’s reliability, but the tipster’s knowledge that the suspect would be entering the car in short order and driving to a specific destination sufficed), the tipster did not make such an offering here.
In fact, the only predictive information provided by the tipster that could have established his or her reliability was that Motley would take up to nineteen ounces of cocaine at a time, transform it into rock cocaine, and sell the crack to middlemen. However, the tipster did not identify any of Motley’s suppliers or middlemen, indicate where Motley rocked the cocaine or kept his drug packaging materials, explain when or how Motley used his car to transport drugs, or provide any details concerning Motley’s whereabouts during his absences from Harrah’s. At the time Manion stopped Motley, Ames had not uncovered evidence fleshing out any of these details. Ames had no evidence of how, when, where, or from whom Motley might obtain cocaine or that Motley possessed or had access to any of the material necessary to transform the cocaine into crack. The effect of this lack of corroboration of the tipster’s predictive information is that the tipster’s general information that Motley was a cocaine dealer should be given minimal weight.
Where, as here, “ ‘a tip has a relatively low degree of reliability, more information will be required to establish the requisite quantum of suspicion than would be required if the tip were more reliable.’” Rowland, 464 F.3d at 907 (quoting White, 496 U.S. at 330, 110 S.Ct. 2412). Apart from the information provided by the tipster, Ames testified to having received information from Harrah’s, including information about an incident in which Motley called security to report the loss of the key to his room safe, but in which the safe was broken into before a maintenance worker arrived to open it; about an associate of Motley’s being arrested in Harrah’s for selling crack cocaine; about calls to and from Motley’s hotel room, the times and frequency of which the hotel staff found suspicious; about an increase, over several years, in the amount of money Motley gambled at Harrah’s; and about Motley’s failure to list a job or employer on the paperwork he filled out for Harrah’s. Ames did not testify as to having any information about the year in which the safe incident took place, or how much time elapsed between Motley’s call to report the missing key and the maintenance person arriving to open the safe; about the nature or extent of Motley’s association with the person arrested for dealing crack cocaine or the year in which the arrest took place; or about whether Motley’s increased transactions at Harrah’s were unattributable to his luck or skill at gambling. Although it is a close call, we conclude that the factors upon which the district court relied to support its finding of reasonable suspicion are insufficient to show that Ames had something more than an “inchoate and un-particularized suspicion” that Motley was dealing drugs. See Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The factors would have been sufficient to create reasonable suspicion if the tipster were reliable, but they amount to nothing more than a hunch of criminal activity when the tipster’s information is given its due degree of weight in the totality of the circumstances.
*449Because Ames himself lacked reasonable suspicion, there is no reasonable suspicion to impute to Manion through the collective knowledge doctrine. Motley’s thirty-minute detention was therefore unlawful. Accordingly, we VACATE Motley’s convictions and REVERSE and REMAND for further proceedings.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Although the district court found that Man-ion had probable cause to stop Motley for a traffic violation, only a finding of reasonable suspicion was required to hold the stop constitutional. See, e.g., United States v. Lopez-Soto, 205 F.3d 1101, 1104 (9th Cir.2000). Motley argues that Manion lacked both probable cause and reasonable suspicion.
. The record does not indicate whether the tipster was male or female. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471365/ | Chief Judge KOZINSKI,
dissenting:
The Supreme Court has described reasonable suspicion as “some minimal level of objective justification” that is “obviously less demanding” than probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). My colleagues purport to apply this standard but, in fact, honor it in the breach.
In Sokolow, the Court found reasonable suspicion to detain a man so that his luggage could be sniffed by a drug dog, just as in our case. Sokolow waited for the dog for three hours, six times as long as Motley. 490 U.S. at 5, 109 S.Ct. 1581. Sokolow was traveling from Honolulu to Miami under a fake name for two days in July. Id. at 3, 5,109 S.Ct. 1581. He bought his ticket with cash, checked no luggage and appeared nervous. Id. The Court recognized that “[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel.” Id. at 9, 109 S.Ct. 1581. Still, the Court explained, the facts “taken together ... amount to reasonable suspicion” that Soko-low was carrying narcotics. Id. at 9, 109 S.Ct. 1581.
The majority works hard to come up with possible innocent explanations for Motley’s odd behavior, like maybe he was able to maintain his extravagant lifestyle through luck or skill at gambling. Maj. at 448. And Sokolow could have been traveling to Miami under a false name in the middle of the summer because he needed embarrassing surgery. 490 U.S. at 8, 109 S.Ct. 1581. Particularly risible is the majority’s intimation that Motley might have broken into his room safe because he got tired of waiting for maintenance to show up. No doubt hotel guests tear open their room safes every day because of lazy locksmiths; it must be a leading source of lost revenue for the hotel industry.
The hotel where Motley was living and gambling gave him its highest grade for gamblers, Seven Stars. It had every reason to avoid losing a high roller who was a steady source of profit, and certainly would have been very careful to avoid exaggerating or making up incriminating facts. That alone gives the security director’s report to the police sufficient weight to provide a “minimal level of objective justification.” 490 U.S. at 7, 109 S.Ct. 1581 (quoting Delgado, 466 U.S. at 217,104 S.Ct. 1758).
The majority also works hard to undermine the reliability of the informant, maj. at 447-48, and I agree that he could have been more reliable. But what my colleagues overlook is that, had the informant been reliable, the tip alone would have provided probable cause, not merely reasonable suspicion. No matter how much we discount the informant’s story, even the majority admits it must be given some weight. Maj. at 447 (“little weight”); id. at 7, 109 S.Ct. 1581 (“minimal weight”). And that weight cannot be further discounted as having a possible innocent explanation. When we take that “little weight” or “minimal weight” and add it to the information from the hotel security director, the police here certainly had as much or more than, say, in Terry v. Ohio, where all they knew was that the suspect had walked up and down the block a few times and looked into a store window. 392 *450U.S. 1, 6, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
We got reversed in Sokolow for doing precisely what we’re doing today. It could happen again and this time there may not even be the comfort of a dissent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471368/ | MEMORANDUM **
Guanzan Jin, a native and citizen of the People’s Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s (“IJ”) order denying Jin’s application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition.
1. The IJ’s adverse credibility determination, which the BIA expressly adopted, is not supported by substantial evidence. See Li v. Holder, 559 F.3d 1096, 1102 (9th Cir.2009) (substantial evidence standard); Mendez-Mendez v. Mukasey, 525 F.3d 828, 832 (9th Cir.2008) (judicial review limited to BIA decision except to the extent BIA expressly adopts IJ opinion).
The IJ viewed a letter from Jin’s pastor with “great suspicion” because the telephone number listed for the church was the same as the telephone number that Jin provided in his asylum application. Instead of asking Jin to explain why the telephone numbers matched, the IJ engaged in an indirect and largely irrelevant line of questioning focused on whether church business was conducted out of Jin’s home. Because the IJ did not afford Jin an opportunity clarify the perceived ambiguity in the evidence, the IJ could not rely on it as a basis for her adverse credibility determination.1 See Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir.2004).
The letter also incorrectly stated that Jin had been a deacon at the church since July 2003; however, Jin explained that he had been a member of the church since that time, that he had become a deacon later, and that his pastor had mistakenly conflated the two events. Even if Jin had not offered a reasonable explanation for this error in the letter, it was an invalid basis for an adverse credibility determination because it was only indirectly related to Jin’s asylum.2 See Li, 559 F.3d at 1106 *452(issues that do “not go to the heart of his claim [have] little bearing on the veracity of the persecution he describes”).
Nor do the IJ’s other findings constitute substantial evidence supporting an adverse credibility determination. Her finding that it “does not make sense for a Christian” not to be baptized was based on her “personal and overly narrow conception of baptism.” See Cosa v. Mukasey, 543 F.3d 1066, 1070 (9th Cir.2008). The IJ imper-missibly drew adverse inferences from Jin’s failure to obtain corroborating testimony from abroad, see Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000), and she demonstrated a lack of knowledge about how the Chinese calculate age when she incorrectly concluded that Jin’s testimony as to his age conflicted with the birth date listed on his hospital release certificate.
The IJ’s conclusion that Jin had not demonstrated knowledge of his faith is contrary to Jin’s correct answers to each question about Christianity and his detailed descriptions of the faith. The IJ also found inconsistencies in Jin’s accounts of the police raid on his church service and of his hospital stay, where, in fact, the record reveals no meaningful discrepancies in his story. Finally, to the extent that the IJ based her adverse credibility determination on Jin’s demeanor, she failed to provide a specific and cogent reference to non-credible aspects of his demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003).
2. The BIA erred in concluding that, even if Jin were found credible, he failed to establish that he was a victim of past persecution or has a well-founded fear of persecution. See Mendez-Mendez, 525 F.3d at 832 (legal questions reviewed de novo). Jin’s account of fines, imprisonment, and beatings at the hands of Chinese authorities is sufficient to establish past persecution. See, e.g., Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir.2004) (cumulative impact of physical assaults and economic harassment compelled finding of persecution). We therefore remand to the BIA for consideration of the remaining issues pursuant to INS v. Orlando Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
PETITION GRANTED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. During oral argument, Jin's counsel suggested that the telephone number on the letter actually belonged to a friend of Jin’s who spoke English. It might be reasonable for Jin, who does not speak English, to use an English — speaking friend’s telephone number on all of his documents. While we do not rely upon counsel’s explanation because it is beyond the record, we mention it because it illustrates that, had the IJ provided Jin the opportunity to explain the phone number, Jin may have been able to provide a reasonable explanation.
. Section 101(a)(3) of the REAL ID Act eliminated the requirement that a basis for an adverse credibility determination must go to the heart of an immigrant’s claim of persecution. 8 U.S.C. § 1158(b)(l)(B)(iii). Because *452Jin filed his application for relief before May 11, 2005, that provision is inapplicable here. See In Re S-B-, 24 I. & N. Dec. 42 (BIA 2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471370/ | MEMORANDUM *
Petitioner Vouty Thol (“Thol”) appeals from the denial of his 28 U.S.C. § 2254 habeas petition, arguing that a jury instruction error had a substantial and injurious effect on the jury’s verdict in his case. We review the district court’s ruling de novo, Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir.2009), and we affirm.1
Thol was tried and convicted of first degree attempted murder and, in the alternative, first degree assault of Bunny Vath (“Vath”). The Washington state court entered judgment and sentenced Thol on the first degree attempted murder charge only. Thol appealed, contending that his conviction and sentence should be reversed because of a faulty jury instruction. The Washington Court of Appeals acknowledged that the accomplice liability instruction given at Thol’s trial was similar to one found to be defective by the Washington *454Supreme Court. State v. Trujillo, 112 Wash.App. 390, 49 P.3d 935, 941 (2002) (citing State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000)). Nevertheless, the Court of Appeals held that “because the record demonstrates conclusively that such error could not have materially affected the jury’s deliberations in this case ... [the error] was harmless beyond a reasonable doubt.” Id.
Contrary to Thol’s assertion in the original briefing, we do not review the Court of Appeals’ decision under a structural error standard. Rather, following the Supreme Court’s directive in Hedgpeth v. Pulido, - U.S. -, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008), we consider the Court of Appeals’ decision under the “substantial and injurious effect” standard established in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
The Court of Appeals determined that the record supported Thol’s conviction as a principal, rendering harmless any jury instruction error regarding accomplice liability. The Court of Appeals analyzed Thol’s claim using the proper harmless error standard, as defined by Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In determining that it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,” id. at 18,119 S.Ct. 1827, the Court of Appeals conducted a thorough examination of the record to determine “whether the record contains evidence that could rationally lead to a contrary finding with respect” to the error. Id. at 19, 119 S.Ct. 1827. The Court of Appeals detailed Thol’s involvement in the attack on Vath, including his recruitment, his attendance at a planning gathering that occurred just before the attack, witness testimony that Thol was present when one of the men detailed the group’s plan to “[k]nock on the door and shoot,” and his presence in one of the vehicles used in the attack. The Court of Appeals’ conclusion was not contrary to nor based on an unreasonable application of Supreme Court law. See 28 U.S.C. § 2254(d).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Thol's Unopposed Motion to Enlarge the Record is granted except as to the two declarations of the allegedly recanting witnesses. Thol's Motion seeking Judicial Notice of Portions of the State Court Record is granted except to the extent such documents were not part of the record before the Washington State Court of Appeals. Waddington's Motion to Strike Supplemental Excerpts of Record is denied as moot because Thol agreed to exclude the declarations referenced above. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471372/ | MEMORANDUM ***
Lorena Landero-Guzman (“Landero”) petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) pretermission of her application for cancellation of removal. The IJ and BIA found that solicitation of possession of narcotic drugs for sale, for which Landero had been convicted under Arizona law (ARiz. Rev. Stat. §§ 13-1002, -3408), was a crime involving moral turpitude (“CIMT”), and that Landero was therefore ineligible for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition for review.
Landero contends that the statute under which she was convicted includes conduct beyond ordinary drug trafficking; therefore, that her crime was not a CIMT under the categorical approach. We disagree. Arizona law distinguishes between the possession of a narcotic drug for sale, Ariz. Rev.Stat. §§ 13-3408(A)(2), and the less serious crime of possession or use of a narcotic drug, Ariz.Rev.Stat. §§ 13-3408(A)(1). Landero’s argument that she could have been convicted of solicitation of the more serious offense merely for attempting to purchase drugs for personal use, or even for making statements in support of drug trafficking, is a highly dubious interpretation of the statutory scheme. It was Landero’s burden, therefore, to show that the State of Arizona had actually prosecuted an offender, either in her own or another case, for the less serious conduct that Landero contends is included in the statute. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007) (“To show that realistic *456possibility [of a nongeneric application of the statute], an offender ... may show that the statute was so applied in his own case ... or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.”).
Landero failed to adduce any such evidence; we therefore interpret the offense for which she was convicted as solicitation of a drug trafficking offense. We have held that drug trafficking crimes are CIMTs. See, e.g., Barragan-Lopez v. Mukasey, 508 F.3d 899, 903-04 (9th Cir.2007); Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th Cir.1987). Because solicitation of an offense requires the intent that the substantive offense be committed, solicitation of a drug trafficking offense is also a CIMT. Barraqan-Lonez, 508 F.3d at 903-04.
The petition for review is DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471374/ | CERTIFICATION OF QUESTIONS OF STATE LAW
EBEL, Circuit Judge.
Pursuant to 10th Cir. R. 27.1 and Okla. Stat tit. 20, § 1602, the United States Court of Appeals for the Tenth Circuit requests that the Oklahoma Supreme Court exercise its discretion to consider several certified questions of Oklahoma law which “may be determinative of an issue” in these appeals currently pending before this court and on which “there is no controlling” Oklahoma law. Okla. Stat. tit. 20, § 1602.
I. FACTS
In 1972, the Logan County, Oklahoma, Board of Commissioners, acting pursuant to state law, created Plaintiff-Appellee Ru*464ral Water, Sewer and Solid Waste Management District No. 1 (“Logan-1”) as “a non-profit association” that would provide water to rural Logan County, except for the area of the county located within the city limits of Guthrie, Oklahoma, as those limits existed at that time. Defendants-Appellants City of Guthrie, Oklahoma, and its Guthrie Public Works Authority (collectively “Guthrie”), already provided water service to the City itself.
Beginning in 1976, Logan-1 obtained several loans from the United States Department of Agriculture (“USDA”). These loans were part of a program established in 1961, when “Congress amended the Consolidated Farm and Rural Development Act, 7 U.S.C. §§ 1921-2009n, to allow nonprofit water associations to borrow federal funds for ‘the conservation, development, use, and control of water ... primarily serving ... rural residents.’ ” Moongate Water Co. v. Dona Ana Mutual Domestic Water Consumers Ass’n, 420 F.3d 1082, 1084 (10th Cir.2005) (“Moon-gate Water”) (quoting 7 U.S.C. § 1926(a)(1)).1 Logan-1 obtained a total of five of these loans, two in 1976, and one each in 1978,1982 and 2003.2
Sometime in 2003, a land developer approached Guthrie, seeking water service for his planned development, the Pleasant Hills Apartments. No one disputes that this development is located within the geographic territory that the Logan County Commissioners assigned to Logan-1 in 1972. Nonetheless, it was Guthrie that extended its water system in order to provide Pleasant Hills with water service.
As a result, Logan-1 sued Guthrie, in July 2005, claiming that Guthrie had unlawfully encroached on Logan-l’s service area, which was protected from competition by 7 U.S.C. § 1926(b) and the terms of its loan agreements which had been authorized by the Oklahoma legislature.3 Section 1926(b) protects any rural water district that remains indebted on loans obtained from the USDA from competition from other water districts “within the borrowing entity’s service area.” Doña Ana Mut. Domestic Water Consumers Ass’n v. City of Las Cruces, 516 F.3d 900, 902-03 (10th Cir.2008) (“Doña Ana”). Section 1926(b) specifically provides:
The service provided or made available through any [indebted rural water] association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit *465as a condition to continuing to serve the area served by the association at the time of the occurrence of such event.
7 U.S.C. § 1926(b).
Section 1926(b)’s protection serves two goals. See Pittsburg County, 358 F.3d at 715. First, it provides “greater security for the federal loans made under the program.” Id. (quotation omitted).
By protecting the territory served by such an association facility against competitive facilities, which might otherwise be developed with the expansion of the boundaries of municipal and other public bodies into an area served by the rural system, § 1926 protects the financial interests of the United States, which is a secured creditor of the water association, from reduction of the water association’s revenue base.
Id. (quotation, citation omitted). “The second interest” served by § 1926(b)’s protection from competition “is the promotion of rural water development by expanding the number of potential users of such systems, thereby decreasing the per-user cost.” Id. (quotation omitted).
“[T]o receive the protection against competition provided by § 1926(b) a water association must (1) have a continuing indebtedness [under loans obtained from] the federal government, and (2) have provided or made available service to the disputed area.” Moongate Water, 420 F.3d at 1084 (quotation, alteration omitted). Thus, this court has held that a water district’s service area protected from competition under 7 U.S.C. § 1926(b) is not necessarily the entire geographic area granted to the district under state law, but is instead the area 1) for which the water district has a right, under state law, to provide service and 2) has actually done so, or could do so in reasonable time. See Sequoyah County, 191 F.3d at 1201-03.
In addition to these principles defining the protection § 1926(b) affords rural water districts from competition, state law cannot change the service area to which the protection applies, after that federal protection has attached. See Pittsburg County, 358 F.3d at 715. For instance, “where the federal § 1926 protections have attached, § 1926 preempts local or state law that can be used to justify a municipality’s encroachment upon disputed area in which an indebted association is legally providing service under state law.” Pitts-burg County, 358 F.3d at 715 (quotation, alteration omitted).
II. SUMMARY OF LEGAL DISPUTE
In the appeals pending before this court, Logan-1 contends that it has authority, under Okla. Stat. tit. 82, § 1324.10(A)(4), to enter into loan agreements with the USDA that include § 1926(b)’s protection from competition,4 and that, having done so, it is entitled here to claim that *466§ 1926(b) protects its right to serve Pleasant Hills from competition from Guthrie.
Guthrie does not appear to dispute that Okla. Stat. tit. 82, § 1324.10(A)(4) authorizes Logan-1 generally to obtain federal loans, but Guthrie argues that, because Logan-l’s USDA loans include the § 1926(b) protection from competition, those loans are contrary to the Oklahoma Constitution, which provides that “[t]he Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.” Okla. Const, art., 5, § 51. Although Guthrie phrases this argument in several different ways, Guthrie’s contention is that the Oklahoma legislature’s enactment of Okla. Stat. tit. 82, § 1324.10 violates Okla. Const, art. 5, § 51 to the extent that § 1324.10(A)(4) authorizes Logan-1 to enter into loans with the USDA that must, as a matter of federal law, contain the protection against competition afforded rural water districts under 7 U.S.C. § 1926(b).
The parties point to three cases, two from Oklahoma and one from this court, that they contend are particularly relevant to this issue. Guthrie relies upon Comanche County Rural Water District No. 1 v. City of Lawton, 501 P.2d 490 (Okla.1972), and Rural Water & Sewer District No. 4 v. Coppage, 47 P.3d 872 (Okla.2002), to support its argument that Logan-1 lacks state-law authority to enter into loan agreements with the USDA that include the § 1926(b) protection from competition. Comanche County and Coppage both appear to indicate that if the Oklahoma legislature granted a water district an “exclusive franchise,” that would violate Okla. Const, art. 5, § 51. See Coppage, 47 P.3d at 875-76; Comanche County, 501 P.2d at 492-93.
The issue presented in this case is whether the Oklahoma Constitution prohibits Logan-1 from claiming an exclusive right to serve a prospective, but not current, customer located within its assigned service area provided that Logan-1 has the legal right and present ability to provide water service to such a prospective customer. On this issue, Logan-1 argues the Oklahoma Constitution does not prevent it from asserting such an exclusive right under § 1926(b), and Guthrie argues that the Oklahoma Constitution does prohibit Logan-1 from asserting such an exclusive right under § 1926(b).
Logan-1, in arguing that its claimed § 1926(b) protection is not contrary to Okla. Const, art. 5, § 51, relies upon Glenpool Utility Services Authority v. Creek County Rural Water District No. 2, 861 F.2d 1211 (10th Cir.1988), which this court decided after Comanche County, but before Coppage. Glenpool held that the § 1926(b) protection Logan-1 claims did not violate Oklahoma Constitution, art. 5, § 51, because 1) any exclusive right that stems from § 1926(b) comes from Congress, and not the Oklahoma legislature; 2) the § 1926(b) protection should be viewed as a contract condition and a security provision rather than an exclusive franchise granted by the state; and 3) any such right that Congress granted is only temporary, rather than permanent, because it is contingent on the continuing existence of a federal debt owed by the protected water district, which the district or the State of Oklahoma could pay off whenever it wishes. See Glenpool, 861 F.2d at 1216.
In addition to this argument, Logan-1 offers an alternative argument in support of its claimed § 1926(b) protection from competition. Logan-1 asserts that, even if its loans incorporating the § 1926(b) protection are contrary to Okla. Const, art. 5, § 51, Oklahoma recognizes exceptions to that state constitutional prohibition that would apply in this case. In Glenpool, for instance, this court noted that “Oklahoma *467case law contains clear reference to exemptions from article 5, § 51 on the basis of police power needed for the public interest, and on the basis of status as a state ‘agency.’ ” 861 F.2d at 1216 n. 2 (citations omitted); see also Kimery v. Pub. Serv. Co. of Okla., 622 P.2d 1066, 1071 (Okla.1980) (holding, in applying Okla. Const, art. 5, § 51, that “[w]here a statute touches upon the public health and welfare, the statute cannot be deemed unconstitutional class legislation, even though a specific class of persons or businesses is singled out, where the legislation in its impact is free of caprice and discrimination and is rationally related to the public good”); Estate of Cabelka ex rel. Cabelka v. Comanche County Hosp., 87 P.3d 1101, 1103 (Okla.Civ.App.2003) (noting suggestion that extending governmental immunity to private or non-public entities would implicate Okla. Const, art. 5, § 51’s prohibition against the legislature granting exclusive rights, privileges or immunities).
Logan-1 invokes these exemptions, and specifically points to the Oklahoma Supreme Court’s decision in Public Service Company of Oklahoma v. Caddo Elec. Coop., 479 P.2d 572 (Okla.1970) (“Caddo ”), as support for its assertion of a police power or public safety exemption to Okla. Const, art. 5, § 51. Caddo addressed a state law that provided a rural electric utility protection from competition much like the protection afforded by § 1926(b). See Caddo, 479 P.2d at 575. The Oklahoma Supreme Court held that state-law protection did not violate Okla. Const, art. 5, § 51’s prohibition against exclusive franchises because it was a “proper exercise of police power” aimed at promoting rural electric service while avoiding the wasteful duplication of such services. See Caddo, 479 P.2d at 577-81.
III. QUESTIONS
Although we recognize our obligation to interpret and apply federal law independently, the parties’ arguments presented in these appeals also require us to apply Oklahoma law. And we are obligated to apply Oklahoma law as decided by the Oklahoma Supreme Court. It is the interpretation of Oklahoma law about which we request guidance here. Therefore, based upon the legal dispute described above, we certify to the Oklahoma Supreme Court the following questions:
1. Whether Okla. Const, art. 5, § 51 precludes Logan-1 from either entering into loan agreements with the USDA that include 7 U.S.C. § 1926(b)’s protection from competition, or enforcing its claimed § 1926(b) protection against other Oklahoma water districts?
2. If either is so, whether there is a police power or public safety exception to the Oklahoma Constitution, art. 5, § 51’s prohibition against exclusive rights, privileges or immunities that would, nevertheless, validate Logan-l’s loan agreements with the USDA that include the § 1926(b) protection from competition in this case involving provision of a rural public water service?
IV. PROCEDURAL ORDERS IMPLEMENTING CERTIFICATION
We appreciate the Oklahoma Supreme Court’s consideration of these certified questions of Oklahoma law. And we recognize that, if the Oklahoma Supreme Court accepts these certified questions, it may, “[p]ursuant to Okla. Stat. tit., 20, §§ 1602.1 and 1604(A)(3), ... reformulate th[ese] question[s] of law.” Pino v. United States, 507 F.3d 1233, 1238 (10th Cir.2007).
We direct the clerk of this court to transmit a copy of this certification order to the parties and to forward a copy of this order, together with the parties’ briefs (which also display the names and addresses of counsel of record, see Okla. Stat. tit. 20, § 1604(A)(4)), to the Okla*468homa Supreme Court pursuant to Okla. Stat. tit. 20, § 1603.1.
Pino, 507 F.3d at 1238. We also direct the clerk of this court to transmit a copy of this certification order to the Clerk of the United States District Court for the Western District of Oklahoma, attention case No. 05-cv-0078-R, See Ball v. Wilshire Ins. Co., 498 F.3d 1084, 1086 (10th Cir.2007). “The treatment of any costs associated with the certification proceedings should be as prescribed by ... Okla. Stat. tit. 20, § 1606.” Randall v. Travelers Cas. & Sur. Co., 450 F.3d 1115, 1117 (10th Cir.2006).
Pursuant to Tenth Circuit R. 27.1(A), we stay these appeals pending the Oklahoma Supreme Court’s consideration of this certification request and, if the request is accepted, the Oklahoma Supreme Court’s resolution of these certified questions. See Ball, 498 F.3d at 1086; Randall, 450 F.3d at 1117.
. Originally the Farmers Home Administration (“FmHA”) administered these loans. See Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 701 (10th Cir.2004) ("Pittsburg County”). Since 1994, however, the Department of Agriculture has operated this loan program, see id. at 701 n. 1, through its Rural Utilities Service. See Rural Water Dist. No. 1. Ellsworth County v. City of Wilson, 243 F.3d 1263, 1269 n. 3 (10th Cir.2001) (citing 7 C.F.R. § 1780.3).
. In 1987, the USDA sold the first four of these loans to Community Program Loan Trust 1987A, a special purpose Massachusetts business trust. That fact, however, does not affect the questions we certify here to the Oklahoma Supreme Court. See Moongate Water Co. v. Butterfield Park Mut. Domestic Water Ass’n, 291 F.3d 1262, 1265-67 (10th Cir.2002) (holding transfer of USDA loans to private lenders did not extinguish a rural water district’s indebted on those loans for purposes of § 1926(b)); see also Sequoyah County Rural Water Dist. No. 7 v. Town of Muldrow, 191 F.3d 1192, 1198 (10th Cir.1999).
.Oklahoma Stat. tit. 82, § 1324.10(A)(4).
. Oklahoma Stat. tit. 82, § 1324.10(A)(4) provides:
Every district incorporated hereunder ... shall have power to:
(4) Borrow money and otherwise contract indebtedness for the purposes set forth in this act, and, without limitation of the generality of the foregoing, to borrow money and accept grants from the United States of America, or from any corporation or agency created or designated by the United States of America, and, in connection with such loan or grant, to enter into such agreements as the United States of America or such corporation or agency may require: and to issue its notes or obligations therefor, and to secure the payment thereof by mortgage, pledge or deed or trust on all or any property, assets, franchises, rights, privileges, licenses, rights-of-way, easements, revenues, or income of the said district.
Okla. Stat. tit. 82, § 1324.10(A) (emphasis added) (footnote omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471377/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471557/ | IKUTA, J.,
concurring in part and dissenting in part:
Although I concur in Sections I and III, I disagree with the analysis in Section II. In considering a motion to dismiss under Rule 12(b)(6), we “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Ashcroft, v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009). “We next consider the factual allegations in respondent’s complaint to determine if they plausibly suggest an entitlement to relief.” Id. at 1951. Under this test, Delta does not allege facts sufficient to survive a motion to dismiss.
*235Setting aside Delta’s conclusory legal allegation that it is an intended third-party beneficiary of the Class Action Settlement Agreement, the essence of Delta’s factual allegations is that 1) defendants failed to issue certificates to eligible class members, 2) such failure was a breach of the Settlement Agreement, and 3) as a result, Delta was not compensated. See Settlement Agreement, Section 8.2.3. Because Delta does not allege that the Settling Defendants agreed in the Settlement Agreement to incur an obligation to Delta, the complaint’s factual allegations do not allow the court to draw the reasonable inference that Delta was an intended third-party beneficiary of the Settlement Agreement or that the defendants are liable to Delta for a breach of that agreement. The language in Section 8 of the Settlement Agreement quoted by the majority does not “plausibly give rise to an entitlement to relief.” Iqbal, 129 S.Ct. at 1950. Accordingly, the district court did not err in dismissing Delta’s complaint. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471362/ | MEMORANDUM **
Robert and Sandra Montgomery appeal from the district court’s partial summary judgment for Kingman Airport Authority, et al. (Kingman). The district court had jurisdiction under 28 U.S.C. §§ 1331 and 1367. We have jurisdiction pursuant to 28 U.S.C. § 1291. We agree with the reasoning of the district judge and affirm.
We will affirm the district court if the Montgomerys’ federal claims are barred by the statute of limitations. Because section 1983 contains no statute of limitations, we apply the statute of limitations applicable to personal injury claims in the state in which the claim accrued. Kimes v. Stone, 84 F.3d 1121, 1128 (9th Cir.1996). The Montgomerys’ claims accrued in Arizona, which applies a two-year statute of limitations to personal injury actions. Ariz.Rev. Stat. § 12-542.
The limitations period “accrues when a party knows or has reason to know of the injury” which forms the basis of the cause of action. Golden Gate Hotel Ass’n v. City & County of San Francisco, 18 F.3d 1482, 1486 (9th Cir.1994). The district court did not clearly err in determining that Robert Montgomery knew, or had reason to know, of the injury forming the basis of the federal claims in 1993. The claims are therefore barred.
The Montgomerys assert that their federal claims arise from separate and distinct injuries caused by Kingman in 2005, and that their claims are therefore not barred by the statute of limitations. The Montgomerys’ theory of separate and distinct injury is asserted for the first time on appeal. The argument is therefore waived. Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.1992). Because the Montgomerys’ separate and distinct injury argument depends on a factual record that was not developed in the district court, we also decline the Mont-gomerys’ request for consideration of their argument as raising a pure issue of law. Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir.2006), citing Bolker v. C.I.R., 760 F.2d 1039, 1042 (9th Cir.1985).
The Montgomerys also assert that one or more disputes of fact exist regarding the policy that gave rise to their injuries, i.e., Kingman’s policy of restricting access to the airstrip of Kingman Airport where “through-the-fenee” aeronautical services are offered or provided to the public. The disputes of fact asserted by the Montgom-erys are not material.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471367/ | Chief Judge KOZINSKI,
dissenting:
The Supreme Court has described reasonable suspicion as “some minimal level of objective justification” that is “obviously less demanding” than probable cause. United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting INS v. Delgado, 466 U.S. 210, 217, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984)). My colleagues purport to apply this standard but, in fact, honor it in the breach.
In Sokolow, the Court found reasonable suspicion to detain a man so that his luggage could be sniffed by a drug dog, just as in our case. Sokolow waited for the dog for three hours, six times as long as Motley. 490 U.S. at 5, 109 S.Ct. 1581. Sokolow was traveling from Honolulu to Miami under a fake name for two days in July. Id. at 3, 5,109 S.Ct. 1581. He bought his ticket with cash, checked no luggage and appeared nervous. Id. The Court recognized that “[a]ny one of these factors is not by itself proof of any illegal conduct and is quite consistent with innocent travel.” Id. at 9, 109 S.Ct. 1581. Still, the Court explained, the facts “taken together ... amount to reasonable suspicion” that Soko-low was carrying narcotics. Id. at 9, 109 S.Ct. 1581.
The majority works hard to come up with possible innocent explanations for Motley’s odd behavior, like maybe he was able to maintain his extravagant lifestyle through luck or skill at gambling. Maj. at 448. And Sokolow could have been traveling to Miami under a false name in the middle of the summer because he needed embarrassing surgery. 490 U.S. at 8, 109 S.Ct. 1581. Particularly risible is the majority’s intimation that Motley might have broken into his room safe because he got tired of waiting for maintenance to show up. No doubt hotel guests tear open their room safes every day because of lazy locksmiths; it must be a leading source of lost revenue for the hotel industry.
The hotel where Motley was living and gambling gave him its highest grade for gamblers, Seven Stars. It had every reason to avoid losing a high roller who was a steady source of profit, and certainly would have been very careful to avoid exaggerating or making up incriminating facts. That alone gives the security director’s report to the police sufficient weight to provide a “minimal level of objective justification.” 490 U.S. at 7, 109 S.Ct. 1581 (quoting Delgado, 466 U.S. at 217,104 S.Ct. 1758).
The majority also works hard to undermine the reliability of the informant, maj. at 447-48, and I agree that he could have been more reliable. But what my colleagues overlook is that, had the informant been reliable, the tip alone would have provided probable cause, not merely reasonable suspicion. No matter how much we discount the informant’s story, even the majority admits it must be given some weight. Maj. at 447 (“little weight”); id. at 7, 109 S.Ct. 1581 (“minimal weight”). And that weight cannot be further discounted as having a possible innocent explanation. When we take that “little weight” or “minimal weight” and add it to the information from the hotel security director, the police here certainly had as much or more than, say, in Terry v. Ohio, where all they knew was that the suspect had walked up and down the block a few times and looked into a store window. 392 *450U.S. 1, 6, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).
We got reversed in Sokolow for doing precisely what we’re doing today. It could happen again and this time there may not even be the comfort of a dissent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471369/ | MEMORANDUM **
Guanzan Jin, a native and citizen of the People’s Republic of China, petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s (“IJ”) order denying Jin’s application for asylum, withholding of removal, and protection under the Convention Against Torture. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition.
1. The IJ’s adverse credibility determination, which the BIA expressly adopted, is not supported by substantial evidence. See Li v. Holder, 559 F.3d 1096, 1102 (9th Cir.2009) (substantial evidence standard); Mendez-Mendez v. Mukasey, 525 F.3d 828, 832 (9th Cir.2008) (judicial review limited to BIA decision except to the extent BIA expressly adopts IJ opinion).
The IJ viewed a letter from Jin’s pastor with “great suspicion” because the telephone number listed for the church was the same as the telephone number that Jin provided in his asylum application. Instead of asking Jin to explain why the telephone numbers matched, the IJ engaged in an indirect and largely irrelevant line of questioning focused on whether church business was conducted out of Jin’s home. Because the IJ did not afford Jin an opportunity clarify the perceived ambiguity in the evidence, the IJ could not rely on it as a basis for her adverse credibility determination.1 See Guo v. Ashcroft, 361 F.3d 1194, 1200 (9th Cir.2004).
The letter also incorrectly stated that Jin had been a deacon at the church since July 2003; however, Jin explained that he had been a member of the church since that time, that he had become a deacon later, and that his pastor had mistakenly conflated the two events. Even if Jin had not offered a reasonable explanation for this error in the letter, it was an invalid basis for an adverse credibility determination because it was only indirectly related to Jin’s asylum.2 See Li, 559 F.3d at 1106 *452(issues that do “not go to the heart of his claim [have] little bearing on the veracity of the persecution he describes”).
Nor do the IJ’s other findings constitute substantial evidence supporting an adverse credibility determination. Her finding that it “does not make sense for a Christian” not to be baptized was based on her “personal and overly narrow conception of baptism.” See Cosa v. Mukasey, 543 F.3d 1066, 1070 (9th Cir.2008). The IJ imper-missibly drew adverse inferences from Jin’s failure to obtain corroborating testimony from abroad, see Sidhu v. INS, 220 F.3d 1085, 1091-92 (9th Cir.2000), and she demonstrated a lack of knowledge about how the Chinese calculate age when she incorrectly concluded that Jin’s testimony as to his age conflicted with the birth date listed on his hospital release certificate.
The IJ’s conclusion that Jin had not demonstrated knowledge of his faith is contrary to Jin’s correct answers to each question about Christianity and his detailed descriptions of the faith. The IJ also found inconsistencies in Jin’s accounts of the police raid on his church service and of his hospital stay, where, in fact, the record reveals no meaningful discrepancies in his story. Finally, to the extent that the IJ based her adverse credibility determination on Jin’s demeanor, she failed to provide a specific and cogent reference to non-credible aspects of his demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003).
2. The BIA erred in concluding that, even if Jin were found credible, he failed to establish that he was a victim of past persecution or has a well-founded fear of persecution. See Mendez-Mendez, 525 F.3d at 832 (legal questions reviewed de novo). Jin’s account of fines, imprisonment, and beatings at the hands of Chinese authorities is sufficient to establish past persecution. See, e.g., Baballah v. Ashcroft, 367 F.3d 1067, 1076 (9th Cir.2004) (cumulative impact of physical assaults and economic harassment compelled finding of persecution). We therefore remand to the BIA for consideration of the remaining issues pursuant to INS v. Orlando Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
PETITION GRANTED AND REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. During oral argument, Jin's counsel suggested that the telephone number on the letter actually belonged to a friend of Jin’s who spoke English. It might be reasonable for Jin, who does not speak English, to use an English — speaking friend’s telephone number on all of his documents. While we do not rely upon counsel’s explanation because it is beyond the record, we mention it because it illustrates that, had the IJ provided Jin the opportunity to explain the phone number, Jin may have been able to provide a reasonable explanation.
. Section 101(a)(3) of the REAL ID Act eliminated the requirement that a basis for an adverse credibility determination must go to the heart of an immigrant’s claim of persecution. 8 U.S.C. § 1158(b)(l)(B)(iii). Because *452Jin filed his application for relief before May 11, 2005, that provision is inapplicable here. See In Re S-B-, 24 I. & N. Dec. 42 (BIA 2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471371/ | MEMORANDUM *
Petitioner Vouty Thol (“Thol”) appeals from the denial of his 28 U.S.C. § 2254 habeas petition, arguing that a jury instruction error had a substantial and injurious effect on the jury’s verdict in his case. We review the district court’s ruling de novo, Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir.2009), and we affirm.1
Thol was tried and convicted of first degree attempted murder and, in the alternative, first degree assault of Bunny Vath (“Vath”). The Washington state court entered judgment and sentenced Thol on the first degree attempted murder charge only. Thol appealed, contending that his conviction and sentence should be reversed because of a faulty jury instruction. The Washington Court of Appeals acknowledged that the accomplice liability instruction given at Thol’s trial was similar to one found to be defective by the Washington *454Supreme Court. State v. Trujillo, 112 Wash.App. 390, 49 P.3d 935, 941 (2002) (citing State v. Roberts, 142 Wash.2d 471, 14 P.3d 713 (2000)). Nevertheless, the Court of Appeals held that “because the record demonstrates conclusively that such error could not have materially affected the jury’s deliberations in this case ... [the error] was harmless beyond a reasonable doubt.” Id.
Contrary to Thol’s assertion in the original briefing, we do not review the Court of Appeals’ decision under a structural error standard. Rather, following the Supreme Court’s directive in Hedgpeth v. Pulido, - U.S. -, 129 S.Ct. 530, 532, 172 L.Ed.2d 388 (2008), we consider the Court of Appeals’ decision under the “substantial and injurious effect” standard established in Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).
The Court of Appeals determined that the record supported Thol’s conviction as a principal, rendering harmless any jury instruction error regarding accomplice liability. The Court of Appeals analyzed Thol’s claim using the proper harmless error standard, as defined by Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999). In determining that it was “clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error,” id. at 18,119 S.Ct. 1827, the Court of Appeals conducted a thorough examination of the record to determine “whether the record contains evidence that could rationally lead to a contrary finding with respect” to the error. Id. at 19, 119 S.Ct. 1827. The Court of Appeals detailed Thol’s involvement in the attack on Vath, including his recruitment, his attendance at a planning gathering that occurred just before the attack, witness testimony that Thol was present when one of the men detailed the group’s plan to “[k]nock on the door and shoot,” and his presence in one of the vehicles used in the attack. The Court of Appeals’ conclusion was not contrary to nor based on an unreasonable application of Supreme Court law. See 28 U.S.C. § 2254(d).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Thol's Unopposed Motion to Enlarge the Record is granted except as to the two declarations of the allegedly recanting witnesses. Thol's Motion seeking Judicial Notice of Portions of the State Court Record is granted except to the extent such documents were not part of the record before the Washington State Court of Appeals. Waddington's Motion to Strike Supplemental Excerpts of Record is denied as moot because Thol agreed to exclude the declarations referenced above. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471373/ | MEMORANDUM ***
Lorena Landero-Guzman (“Landero”) petitions for review of the Board of Immigration Appeals’ (“BIA”) affirmance of the Immigration Judge’s (“IJ”) pretermission of her application for cancellation of removal. The IJ and BIA found that solicitation of possession of narcotic drugs for sale, for which Landero had been convicted under Arizona law (ARiz. Rev. Stat. §§ 13-1002, -3408), was a crime involving moral turpitude (“CIMT”), and that Landero was therefore ineligible for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1), and we deny the petition for review.
Landero contends that the statute under which she was convicted includes conduct beyond ordinary drug trafficking; therefore, that her crime was not a CIMT under the categorical approach. We disagree. Arizona law distinguishes between the possession of a narcotic drug for sale, Ariz. Rev.Stat. §§ 13-3408(A)(2), and the less serious crime of possession or use of a narcotic drug, Ariz.Rev.Stat. §§ 13-3408(A)(1). Landero’s argument that she could have been convicted of solicitation of the more serious offense merely for attempting to purchase drugs for personal use, or even for making statements in support of drug trafficking, is a highly dubious interpretation of the statutory scheme. It was Landero’s burden, therefore, to show that the State of Arizona had actually prosecuted an offender, either in her own or another case, for the less serious conduct that Landero contends is included in the statute. See Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S.Ct. 815, 822, 166 L.Ed.2d 683 (2007) (“To show that realistic *456possibility [of a nongeneric application of the statute], an offender ... may show that the statute was so applied in his own case ... or other cases in which the state courts in fact did apply the statute in the special (nongeneric) manner for which he argues.”).
Landero failed to adduce any such evidence; we therefore interpret the offense for which she was convicted as solicitation of a drug trafficking offense. We have held that drug trafficking crimes are CIMTs. See, e.g., Barragan-Lopez v. Mukasey, 508 F.3d 899, 903-04 (9th Cir.2007); Atl. Richfield Co. v. Guerami, 820 F.2d 280, 282 (9th Cir.1987). Because solicitation of an offense requires the intent that the substantive offense be committed, solicitation of a drug trafficking offense is also a CIMT. Barraqan-Lonez, 508 F.3d at 903-04.
The petition for review is DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471375/ | CERTIFICATION OF QUESTIONS OF STATE LAW
EBEL, Circuit Judge.
Pursuant to 10th Cir. R. 27.1 and Okla. Stat tit. 20, § 1602, the United States Court of Appeals for the Tenth Circuit requests that the Oklahoma Supreme Court exercise its discretion to consider several certified questions of Oklahoma law which “may be determinative of an issue” in these appeals currently pending before this court and on which “there is no controlling” Oklahoma law. Okla. Stat. tit. 20, § 1602.
I. FACTS
In 1972, the Logan County, Oklahoma, Board of Commissioners, acting pursuant to state law, created Plaintiff-Appellee Ru*464ral Water, Sewer and Solid Waste Management District No. 1 (“Logan-1”) as “a non-profit association” that would provide water to rural Logan County, except for the area of the county located within the city limits of Guthrie, Oklahoma, as those limits existed at that time. Defendants-Appellants City of Guthrie, Oklahoma, and its Guthrie Public Works Authority (collectively “Guthrie”), already provided water service to the City itself.
Beginning in 1976, Logan-1 obtained several loans from the United States Department of Agriculture (“USDA”). These loans were part of a program established in 1961, when “Congress amended the Consolidated Farm and Rural Development Act, 7 U.S.C. §§ 1921-2009n, to allow nonprofit water associations to borrow federal funds for ‘the conservation, development, use, and control of water ... primarily serving ... rural residents.’ ” Moongate Water Co. v. Dona Ana Mutual Domestic Water Consumers Ass’n, 420 F.3d 1082, 1084 (10th Cir.2005) (“Moon-gate Water”) (quoting 7 U.S.C. § 1926(a)(1)).1 Logan-1 obtained a total of five of these loans, two in 1976, and one each in 1978,1982 and 2003.2
Sometime in 2003, a land developer approached Guthrie, seeking water service for his planned development, the Pleasant Hills Apartments. No one disputes that this development is located within the geographic territory that the Logan County Commissioners assigned to Logan-1 in 1972. Nonetheless, it was Guthrie that extended its water system in order to provide Pleasant Hills with water service.
As a result, Logan-1 sued Guthrie, in July 2005, claiming that Guthrie had unlawfully encroached on Logan-l’s service area, which was protected from competition by 7 U.S.C. § 1926(b) and the terms of its loan agreements which had been authorized by the Oklahoma legislature.3 Section 1926(b) protects any rural water district that remains indebted on loans obtained from the USDA from competition from other water districts “within the borrowing entity’s service area.” Doña Ana Mut. Domestic Water Consumers Ass’n v. City of Las Cruces, 516 F.3d 900, 902-03 (10th Cir.2008) (“Doña Ana”). Section 1926(b) specifically provides:
The service provided or made available through any [indebted rural water] association shall not be curtailed or limited by inclusion of the area served by such association within the boundaries of any municipal corporation or other public body, or by the granting of any private franchise for similar service within such area during the term of such loan; nor shall the happening of any such event be the basis of requiring such association to secure any franchise, license, or permit *465as a condition to continuing to serve the area served by the association at the time of the occurrence of such event.
7 U.S.C. § 1926(b).
Section 1926(b)’s protection serves two goals. See Pittsburg County, 358 F.3d at 715. First, it provides “greater security for the federal loans made under the program.” Id. (quotation omitted).
By protecting the territory served by such an association facility against competitive facilities, which might otherwise be developed with the expansion of the boundaries of municipal and other public bodies into an area served by the rural system, § 1926 protects the financial interests of the United States, which is a secured creditor of the water association, from reduction of the water association’s revenue base.
Id. (quotation, citation omitted). “The second interest” served by § 1926(b)’s protection from competition “is the promotion of rural water development by expanding the number of potential users of such systems, thereby decreasing the per-user cost.” Id. (quotation omitted).
“[T]o receive the protection against competition provided by § 1926(b) a water association must (1) have a continuing indebtedness [under loans obtained from] the federal government, and (2) have provided or made available service to the disputed area.” Moongate Water, 420 F.3d at 1084 (quotation, alteration omitted). Thus, this court has held that a water district’s service area protected from competition under 7 U.S.C. § 1926(b) is not necessarily the entire geographic area granted to the district under state law, but is instead the area 1) for which the water district has a right, under state law, to provide service and 2) has actually done so, or could do so in reasonable time. See Sequoyah County, 191 F.3d at 1201-03.
In addition to these principles defining the protection § 1926(b) affords rural water districts from competition, state law cannot change the service area to which the protection applies, after that federal protection has attached. See Pittsburg County, 358 F.3d at 715. For instance, “where the federal § 1926 protections have attached, § 1926 preempts local or state law that can be used to justify a municipality’s encroachment upon disputed area in which an indebted association is legally providing service under state law.” Pitts-burg County, 358 F.3d at 715 (quotation, alteration omitted).
II. SUMMARY OF LEGAL DISPUTE
In the appeals pending before this court, Logan-1 contends that it has authority, under Okla. Stat. tit. 82, § 1324.10(A)(4), to enter into loan agreements with the USDA that include § 1926(b)’s protection from competition,4 and that, having done so, it is entitled here to claim that *466§ 1926(b) protects its right to serve Pleasant Hills from competition from Guthrie.
Guthrie does not appear to dispute that Okla. Stat. tit. 82, § 1324.10(A)(4) authorizes Logan-1 generally to obtain federal loans, but Guthrie argues that, because Logan-l’s USDA loans include the § 1926(b) protection from competition, those loans are contrary to the Oklahoma Constitution, which provides that “[t]he Legislature shall pass no law granting to any association, corporation, or individual any exclusive rights, privileges, or immunities within this State.” Okla. Const, art., 5, § 51. Although Guthrie phrases this argument in several different ways, Guthrie’s contention is that the Oklahoma legislature’s enactment of Okla. Stat. tit. 82, § 1324.10 violates Okla. Const, art. 5, § 51 to the extent that § 1324.10(A)(4) authorizes Logan-1 to enter into loans with the USDA that must, as a matter of federal law, contain the protection against competition afforded rural water districts under 7 U.S.C. § 1926(b).
The parties point to three cases, two from Oklahoma and one from this court, that they contend are particularly relevant to this issue. Guthrie relies upon Comanche County Rural Water District No. 1 v. City of Lawton, 501 P.2d 490 (Okla.1972), and Rural Water & Sewer District No. 4 v. Coppage, 47 P.3d 872 (Okla.2002), to support its argument that Logan-1 lacks state-law authority to enter into loan agreements with the USDA that include the § 1926(b) protection from competition. Comanche County and Coppage both appear to indicate that if the Oklahoma legislature granted a water district an “exclusive franchise,” that would violate Okla. Const, art. 5, § 51. See Coppage, 47 P.3d at 875-76; Comanche County, 501 P.2d at 492-93.
The issue presented in this case is whether the Oklahoma Constitution prohibits Logan-1 from claiming an exclusive right to serve a prospective, but not current, customer located within its assigned service area provided that Logan-1 has the legal right and present ability to provide water service to such a prospective customer. On this issue, Logan-1 argues the Oklahoma Constitution does not prevent it from asserting such an exclusive right under § 1926(b), and Guthrie argues that the Oklahoma Constitution does prohibit Logan-1 from asserting such an exclusive right under § 1926(b).
Logan-1, in arguing that its claimed § 1926(b) protection is not contrary to Okla. Const, art. 5, § 51, relies upon Glenpool Utility Services Authority v. Creek County Rural Water District No. 2, 861 F.2d 1211 (10th Cir.1988), which this court decided after Comanche County, but before Coppage. Glenpool held that the § 1926(b) protection Logan-1 claims did not violate Oklahoma Constitution, art. 5, § 51, because 1) any exclusive right that stems from § 1926(b) comes from Congress, and not the Oklahoma legislature; 2) the § 1926(b) protection should be viewed as a contract condition and a security provision rather than an exclusive franchise granted by the state; and 3) any such right that Congress granted is only temporary, rather than permanent, because it is contingent on the continuing existence of a federal debt owed by the protected water district, which the district or the State of Oklahoma could pay off whenever it wishes. See Glenpool, 861 F.2d at 1216.
In addition to this argument, Logan-1 offers an alternative argument in support of its claimed § 1926(b) protection from competition. Logan-1 asserts that, even if its loans incorporating the § 1926(b) protection are contrary to Okla. Const, art. 5, § 51, Oklahoma recognizes exceptions to that state constitutional prohibition that would apply in this case. In Glenpool, for instance, this court noted that “Oklahoma *467case law contains clear reference to exemptions from article 5, § 51 on the basis of police power needed for the public interest, and on the basis of status as a state ‘agency.’ ” 861 F.2d at 1216 n. 2 (citations omitted); see also Kimery v. Pub. Serv. Co. of Okla., 622 P.2d 1066, 1071 (Okla.1980) (holding, in applying Okla. Const, art. 5, § 51, that “[w]here a statute touches upon the public health and welfare, the statute cannot be deemed unconstitutional class legislation, even though a specific class of persons or businesses is singled out, where the legislation in its impact is free of caprice and discrimination and is rationally related to the public good”); Estate of Cabelka ex rel. Cabelka v. Comanche County Hosp., 87 P.3d 1101, 1103 (Okla.Civ.App.2003) (noting suggestion that extending governmental immunity to private or non-public entities would implicate Okla. Const, art. 5, § 51’s prohibition against the legislature granting exclusive rights, privileges or immunities).
Logan-1 invokes these exemptions, and specifically points to the Oklahoma Supreme Court’s decision in Public Service Company of Oklahoma v. Caddo Elec. Coop., 479 P.2d 572 (Okla.1970) (“Caddo ”), as support for its assertion of a police power or public safety exemption to Okla. Const, art. 5, § 51. Caddo addressed a state law that provided a rural electric utility protection from competition much like the protection afforded by § 1926(b). See Caddo, 479 P.2d at 575. The Oklahoma Supreme Court held that state-law protection did not violate Okla. Const, art. 5, § 51’s prohibition against exclusive franchises because it was a “proper exercise of police power” aimed at promoting rural electric service while avoiding the wasteful duplication of such services. See Caddo, 479 P.2d at 577-81.
III. QUESTIONS
Although we recognize our obligation to interpret and apply federal law independently, the parties’ arguments presented in these appeals also require us to apply Oklahoma law. And we are obligated to apply Oklahoma law as decided by the Oklahoma Supreme Court. It is the interpretation of Oklahoma law about which we request guidance here. Therefore, based upon the legal dispute described above, we certify to the Oklahoma Supreme Court the following questions:
1. Whether Okla. Const, art. 5, § 51 precludes Logan-1 from either entering into loan agreements with the USDA that include 7 U.S.C. § 1926(b)’s protection from competition, or enforcing its claimed § 1926(b) protection against other Oklahoma water districts?
2. If either is so, whether there is a police power or public safety exception to the Oklahoma Constitution, art. 5, § 51’s prohibition against exclusive rights, privileges or immunities that would, nevertheless, validate Logan-l’s loan agreements with the USDA that include the § 1926(b) protection from competition in this case involving provision of a rural public water service?
IV. PROCEDURAL ORDERS IMPLEMENTING CERTIFICATION
We appreciate the Oklahoma Supreme Court’s consideration of these certified questions of Oklahoma law. And we recognize that, if the Oklahoma Supreme Court accepts these certified questions, it may, “[p]ursuant to Okla. Stat. tit., 20, §§ 1602.1 and 1604(A)(3), ... reformulate th[ese] question[s] of law.” Pino v. United States, 507 F.3d 1233, 1238 (10th Cir.2007).
We direct the clerk of this court to transmit a copy of this certification order to the parties and to forward a copy of this order, together with the parties’ briefs (which also display the names and addresses of counsel of record, see Okla. Stat. tit. 20, § 1604(A)(4)), to the Okla*468homa Supreme Court pursuant to Okla. Stat. tit. 20, § 1603.1.
Pino, 507 F.3d at 1238. We also direct the clerk of this court to transmit a copy of this certification order to the Clerk of the United States District Court for the Western District of Oklahoma, attention case No. 05-cv-0078-R, See Ball v. Wilshire Ins. Co., 498 F.3d 1084, 1086 (10th Cir.2007). “The treatment of any costs associated with the certification proceedings should be as prescribed by ... Okla. Stat. tit. 20, § 1606.” Randall v. Travelers Cas. & Sur. Co., 450 F.3d 1115, 1117 (10th Cir.2006).
Pursuant to Tenth Circuit R. 27.1(A), we stay these appeals pending the Oklahoma Supreme Court’s consideration of this certification request and, if the request is accepted, the Oklahoma Supreme Court’s resolution of these certified questions. See Ball, 498 F.3d at 1086; Randall, 450 F.3d at 1117.
. Originally the Farmers Home Administration (“FmHA”) administered these loans. See Pittsburg County Rural Water Dist. No. 7 v. City of McAlester, 358 F.3d 694, 701 (10th Cir.2004) ("Pittsburg County”). Since 1994, however, the Department of Agriculture has operated this loan program, see id. at 701 n. 1, through its Rural Utilities Service. See Rural Water Dist. No. 1. Ellsworth County v. City of Wilson, 243 F.3d 1263, 1269 n. 3 (10th Cir.2001) (citing 7 C.F.R. § 1780.3).
. In 1987, the USDA sold the first four of these loans to Community Program Loan Trust 1987A, a special purpose Massachusetts business trust. That fact, however, does not affect the questions we certify here to the Oklahoma Supreme Court. See Moongate Water Co. v. Butterfield Park Mut. Domestic Water Ass’n, 291 F.3d 1262, 1265-67 (10th Cir.2002) (holding transfer of USDA loans to private lenders did not extinguish a rural water district’s indebted on those loans for purposes of § 1926(b)); see also Sequoyah County Rural Water Dist. No. 7 v. Town of Muldrow, 191 F.3d 1192, 1198 (10th Cir.1999).
.Oklahoma Stat. tit. 82, § 1324.10(A)(4).
. Oklahoma Stat. tit. 82, § 1324.10(A)(4) provides:
Every district incorporated hereunder ... shall have power to:
(4) Borrow money and otherwise contract indebtedness for the purposes set forth in this act, and, without limitation of the generality of the foregoing, to borrow money and accept grants from the United States of America, or from any corporation or agency created or designated by the United States of America, and, in connection with such loan or grant, to enter into such agreements as the United States of America or such corporation or agency may require: and to issue its notes or obligations therefor, and to secure the payment thereof by mortgage, pledge or deed or trust on all or any property, assets, franchises, rights, privileges, licenses, rights-of-way, easements, revenues, or income of the said district.
Okla. Stat. tit. 82, § 1324.10(A) (emphasis added) (footnote omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471376/ | Judgment
PER CURIAM.
This CAUSE having been heard and considered, it is
ORDERED and ADJUDGED:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471381/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed July 8, 2008, 2008 WL 2686817, be affirmed. The district court properly dismissed appellant’s *622complaint, because it did not state a claim within the meaning of the False Claims Act, 31 U.S.C. § 3729(a). See generally U.S. ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., 393 F.3d 1321 (D.C.Cir.2005). And even though the gravamen of the complaint was a violation of the False Claims Act, appellant waived that argument on appeal, by arguing instead, and for the first time, an Eighth Amendment willful and deliberate indifference claim. See Potter v. District of Columbia, 558 F.3d 542, 547 (D.C.Cir.2009) (and cases cited therein) (this court reviews only those arguments that were made in the district court); Ben-Kotel v. Howard University, 319 F.3d 532, 535 (D.C.Cir.2003) (the court of appeals does not entertain an argument made for the first time on appeal).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471383/ | SUMMARY ORDER
Plaintiff-appellant John G. Donovan appeals from a judgment of the United States District Court for the Eastern District of New York (Lindsay, M.J.) entered on March 12, 2008, following a jury trial, in favor of defendants-appellees. We assume *627the parties’ familiarity with the underlying facts and procedural history of the case.
Donovan challenges four evidentiary rulings by the district court, arguing that the harm resulting from those rulings, both individually and collectively, warrants a new trial. We review a district court’s decision to exclude evidence for abuse of discretion. See Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 136 (2d Cir.2008). Even where a district court erroneously excludes evidence, “a new trial should be granted only if a substantial right of a party is affected — as when a jury’s judgment would be swayed in a material fashion by the error.” Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007). In light of this standard, it is plain that none of Donovan’s challenges has merit.
Donovan contends that the district court should have permitted him to testify about events occurring prior to August 5, 2002, notwithstanding the fact that those events fell outside the applicable statute-of-limitations period, because in a retaliation case such as this one, where causation is at issue, “evidence regarding time-barred adverse acts is ahvays relevant and admissible as background evidence in support of the plaintiffs timely claims.” Appellant’s Br. at 25 (emphasis added). Specifically, Donovan argues that he should have been allowed to testify that (1) he resigned from the Police Benevolent Association (“PBA”) Executive Board in 2002 because he thought that doing so would help him get promoted, and (2) he thought he had been passed over for promotions prior to 2002 because he was a member of the PBA Executive Board.
As an initial matter, Donovan’s understanding of the law is incorrect. See, e.g., Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 112, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (stating in the Title VII context that time-barred acts “ ‘may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue’” (emphasis added) (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977))); Malarkey v. Texaco, Inc., 983 F.2d 1204, 1211 (2d Cir.1993) (concluding that Evans “merely states that earlier discriminatory acts may constitute relevant background evidence” (internal quotation marks omitted)). Furthermore, we see no abuse of discretion in the district court’s rulings that (1) Donovan’s reason for leaving the PBA Executive Board in 2002 was irrelevant, and (2) Donovan’s own thoughts as to why he was passed over for promotions was unduly prejudicial, given that the issue being tried was whether the defendants’ decision not to promote Donovan in 2005 was made in retaliation for his support of Andrew Cher-noff, a non-incumbent candidate in the election for the Board of Trustees.
Donovan next challenges the district court’s decision to exclude testimony from Donovan’s supervisor, Lieutenant Frisenda, about Donovan’s generally positive job performance. Donovan offered this testimony for two purposes: (1) to show that the Board of Trustees’ reliance on three specific negative incidents involving Donovan was pretextual; and (2) to rebut comments made by defense counsel during his opening statement. With respect to the first purpose, Frisenda conceded that he never provided any evaluation of Donovan’s job performance to any of the Trustees. Thus, we see no abuse of discretion in the district court’s ruling that this testimony was irrelevant. Further, assuming arguendo that the district court should have permitted Frisenda’s complete testimony to rebut defense counsel’s opening statement, that error was harmless given that Frisenda was permitted to testify that (1) Donovan regularly exceeded the *628minimum number of miles required on a patrol shift, and (2) Donovan never had formal disciplinary charges filed against him regarding any of the three incidents.
Donovan asserts next that the district court abused its discretion when it prevented John Catanno, the PBA Board President, from answering a question about whether he had any fear of testifying at trial, because Catanno’s answer would have demonstrated that the defendants were aware of their own retaliatory acts vis-a-vis Donovan. What Catanno would have said had he been permitted to answer, however, is pure speculation because Donovan made no proffer during the trial as to what Catanno would testify to in response to the question. We note also that, to the extent Donovan offered Catanno’s testimony to prove that a defendant Trustee called the police chief to pass on the message that the officers should pressure Donovan to drop his suit, the district court properly excluded it as inadmissible hearsay.1 See Fed.R.Evid. 801(c), 802.
Finally, Donovan challenges the district court’s decision to exclude two letters sent by the New York Civil Liberties Union to the Village of Málveme. The purported value of the letters appears to be that they could have permitted the jury to draw the inference that the defendants knew that Donovan was campaigning for Andrew Chernoff, and that the decision not to promote him was in retaliation for that activity. The district court did not abuse its discretion by excluding these letters. But assuming arguendo that it had, that error was harmless because the jury found that each defendant knew that Donovan was campaigning for Chernoff.
We have considered all of Donovan’s arguments and find them to be without merit. Accordingly, for the reasons set forth above, the judgment of the district court is AFFIRMED.
. Donovan argues also that the district court should have permitted testimony from Robert Donovan ("Robert”), his brother, regarding a conversation Robert had with the Chief of Police about Donovan. But although Robert testified about this conversation during his deposition, the trial transcript does not indicate that Robert was asked about the conversation during trial. Nor does Donovan point to anywhere in the trial record where the district judge actually decided to exclude this testimony. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471385/ | SUMMARY ORDER
Defendant-appellant Norddeutsche Lan-desbank Girozentrale (“NORD/LB”) appeals from an amended judgment entered July 18, 2008, awarding plaintiff back pay, compensatory damages, punitive damages, attorneys’ fees, and costs after a jury trial. Plaintiff-appellee cross appeals from the judgment insofar as it reduces the jury’s punitive damages award to $600,000. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.
We review a district court’s evidentiary rulings under a deferential abuse of discretion standard “and give district court judges wide latitude in determining whether evidence is admissible at trial.” Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 148 (2d Cir.2001) (internal quotation marks omitted). Moreover, under Rule 61, an error in admitting evidence is not grounds for granting a new trial unless the error affects a party’s “substantial rights.” Fed. R.Civ.P. 61. ‘Whether an evidentiary error implicates a substantial right depends on the likelihood that the error affected the outcome of the case.... [A]n eviden-tiary error in a civil case is harmless unless [the appellant demonstrates that] it is likely that in some material respect the factfinder’s judgment was swayed by the error.” Tesser v. Bd. of Educ., 370 F.3d 314, 319 (2d Cir.2004) (second alteration in original; citations and internal quotation marks omitted). After thoroughly reviewing the trial record in this case, we conclude that none of the evidentiary rulings that NORD/LB challenges on appeal were an abuse of discretion. We also conclude that the district court did not err in permitting Zakre to present a hostile work environment claim to the jury.
We review a lower court’s determination of the constitutionality of a punitive damages award de novo, Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001), deferring to the district court’s findings of fact unless they are clearly erroneous, Motorola Credit Corp. v. Uzan, 509 F.3d 74, 81 (2d Cir.2007). A punitive damages award will not be upheld where it is so “grossly excessive” that it arbitrarily deprives the defendant of property. See State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416-17, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). In BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), the Supreme Court set forth three categories of factors to be considered in assessing the validity of a punitive damage *631award. These factors include:. (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. Id. at 574-75, 116 S.Ct. 1589.
The district court properly analyzed the degree of reprehensibility of NORD/LB’s misconduct and the disparity between the actual harm suffered by Zakre and the punitive damages award in this ease. As to the third BMW factor, while Title VII does not provide for civil penalties, the New York City Administrative Code provides for civil penalties of no more than $125,000 for an unlawful discriminatory practice and no more than $250,000 if the discriminatory practice was the result of a “willful, wanton or malicious act” or if discriminatory harassment or violence occurred. N.Y. City Admin. Code § 8-126(a). Therefore, the district court did not err in reducing the punitive damages award in this case to $600,000.
We have considered all of NORD/LB’s arguments and find them without merit. Therefore, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471389/ | SUMMARY ORDER
Plaintiff-Appellant Daniel Bruno appeals from the dismissal of two claims against the Defendant-Appellee, Metropolitan Transportation Authority (“MTA”) under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. (“FELA”). The United States District Court for the Southern District of New York (Marrero, J.) dismissed his first claim on the ground of failure to state a claim and dismissed his second claim because the three year statute of limitations had expired. We assume the parties’ familiarity with the underlying *636facts, procedural history, and issues on appeal.
We review motions to dismiss de novo. Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 343 (2d Cir.2006). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, -U.S.-,--, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A complaint is not required to have “ ‘detailed factual allegations,’ but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 129 S.Ct. at 1950.
Under FELA, any railroad engaging in interstate commerce “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 45 U.S.C. § 51. To prevail on a FELA action, “the plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” Tufariello v. Long Island R.R., 458 F.3d 80, 87 (2d Cir.2006).
We conclude that both of Bruno’s claims fail to pass this test. Bruno’s first claim is that he suffered “severe and disabling injuries” as a result of the MTA’s policy that requires its employees who are not on active work status to remain at home during working hours, unless they receive a “no work” status. Bruno’s claim is implausible on its face. The complaint fails to allege that the MTA had any duty to grant the no work status, or that there is any causal link between the MTA policy and Bruno’s injuries. Further, Bruno offers no facts apai't from conclusory assertions as to how the MTA’s denial of his no work status caused unspecified “severe and disabling injuries.” As such, this claim is frivolous.
Bruno’s second claim also fails. Bruno’s complaint alleges that on or prior to September 13, 2001, the MTA assigned Bruno to work at or near the World Trade Center, and that he sustained “severe and disabling injuries” by reason of the MTA’s negligence. However, Bruno conceded at oral argument that, in the absence of fraud, he is precluded from bringing this claim by a general release he signed in connection with a previous lawsuit. Bruno also conceded that he has not pleaded fraud. Accordingly, Bruno’s claim is barred by the release. To the extent Bruno argues that the district court should have sua sponte granted him leave to amend his complaint to address this deficiency, he is incorrect. See, e.g., Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 106 (2d Cir.1998) (“[T]he district court did not abuse its discretion in granting summary judgment without sua sponte granting leave to replead.”); In re Am. Exp. Co. Shareholder Litig., 39 F.3d 395, 402 (2d Cir.1994) (“The district court surely did not abuse its discretion in not sua sponte granting leave to replead.”).
Given the frivolousness of this appeal, appellee MTA may apply for damages and/or double costs. See Fed. R.App. P. 38.
Therefore, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471390/ | SUMMARY ORDER
Defendants appeal a money judgment entered after a jury trial in favor of plaintiff Patricia Luca on her Title VII claim, see 42 U.S.C. § 2000e et seq., that defendants denied her employment as a police officer in retaliation for a lawsuit she filed charging her employer, the Nassau County Sheriffs Department, with sexual harassment. Defendants assert that the trial court (1) made comments that deprived them of a fair trial, (2) failed adequately to inquire about witness-juror contact, (3) improperly calculated front pay, and (4) improperly calculated attorneys’ fees. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Fair Trial Claim
a. The Comment to Eileen Creswell
The crux of defendants’ fair trial claim concerns a colloquy between the district judge and defendant Eileen Creswell. In explaining at trial why defendants did not hire Luca as a police officer, Creswell testified that “criminal activity ... was swii’l-ing around [Luca].” Trial Tr. at 855. When Creswell attributed this information to a confidential source that she declined to name, the trial judge struck the testimony and admonished Creswell. Id. at 856. Soon thereafter, when Creswell testified that Luca’s car had been “used for an *639insurance scam,” the district court made the comment here at issue: “What insurance scam? I didn’t hear about insurance scam here. You sure you’re not making this all up? Next question.” Id. at 857.
The comment prompted defendants to move for a mistrial, which the district court denied. Nevertheless, the judge charged the jury that at no time had he “expressed nor attempted to intimate an opinion about how [the jury] should decide” the case. Id. at 1055. The judge elaborated: “It could be that based upon who the witness was and the questions that I was asking the temptation might be great for you to think that the Judge was signaling something to you, that I believed the person or I didn’t believe the person, but I want you to resist that temptation.” Id. at 1056.
The law governing defendants’ fair trial claim is well established: A district court “may actively participate [in a trial] and give its own impressions of the evidence or question witnesses, as an aid to the jury, so long as it does not step across the line and become an advocate for one side.” United States v. Filani, 74 F.Sd 878, 385 (2d Cir.1996). While a judge should strive to create an “atmosphere of perfect impartiality,” Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 98 (2d Cir.1998) (internal quotation marks omitted), the law assures litigants a fair trial, not a perfect one, Zinman v. Black & Decker (U.S.), Inc., 983 F.2d 431, 436 (2d Cir.1993). Thus “[i]n reviewing a challenge to a trial judge’s conduct, we determine not whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid[, but] ... whether the judge’s behavior was so prejudicial that it denied [a party] a fair, as opposed to a perfect, trial.” Shah v. Pan Am. World Servs., Inc., 148 F.3d at 98 (internal quotation marks omitted, second and third alterations in original).
In this case, we conclude that the “making this up” comment crossed the line of impartiality and would have been better left unsaid. Nevertheless, when viewed in the context of a six-day trial generating a transcript of over 1000 pages, we are not persuaded that the error was so prejudicial as to deny defendants a fair trial. Cf. Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265, 273-75 (2d Cir.1996) (vacating judgment where district court displayed “antipathy” to plaintiffs claim “[throughout the trial,” held plaintiffs attorney in contempt, and ordered local counsel to substitute for plaintiffs attorney without permitting adequate time for preparation); United States v. Filani, 74 F.3d at 386 (vacating judgment where, inter alia, “of the roughly 60 pages of the trial transcript covering appellant’s testimony, the trial judge substantively challenged the defendant on 16, or over 25 percent, of them”). The trial judge was careful to give a remedial instruction to cure any prejudice from its comment, and we have no reason to think that the jury could not follow this instruction. See United States v. White, 552 F.3d 240, 250 (2d Cir.2009) (holding, where defendant claimed supplemental jury charge expressed court’s negative assessment of his credibility, but court provided curative instruction, that “[w]e ordinarily presume that the jury adheres to curative instructions and see no reason to depart from that general rule here”); United States v. Cox, 324 F.3d 77, 87 (2d Cir.2003) (“[A]bsent evidence to the contrary, we presume that jurors remain true to their oath and conscientiously observe the instructions and admonitions of the court.” (internal quotation marks omitted, alteration in original)).
*640b. Other Conduct
To the extent defendants complain about other conduct by the trial judge, because no objection was raised in the district court, our review is limited to fundamental error, and we identify none in this case. See Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 795 (2d Cir.2002) (“In the civil context ... we reverse only if there has been fundamental error. Fundamental error is more egregious than the ‘plain’ error that can excuse a procedural default in a criminal trial, and is so serious and flagrant that it goes to the very integrity of the [proceeding].” (internal quotation marks omitted, alteration in original)). The limitations placed by the trial judge on defendants’ presentation of evidence fell well within his discretion in managing the examination of witnesses. See United States v. Local 1804-1, Int’l Longshoremen’s Ass’n, AFL-CIO, 44 F.3d 1091, 1095 (2d Cir.1995). Nor are we persuaded that the trial judge erred by “generally injecting [himself] into trial.” Appellant Br. at 27. A trial judge must “set the tone of the proceedings and exercise sufficient control to insure that the trial will be an orderly one in which the jury will have the evidence clearly presented.” Anderson v. Great Lakes Dredge & Dock Co., 509 F.2d 1119, 1131 (2d Cir.1974). The record in this case demonstrates that the trial judge’s interventions, with the exception of the single comment discussed in the preceding section, served to clarify facts for the jury and to move the proceedings forward.
Accordingly, we reject defendants’ misconduct claim as without merit.
2. Juror-Witness Contact
Defendants complain that the district court mishandled an incident of juror-witness contact by failing to interview the juror involved. To secure reversal on this ground, defendants must demonstrate both juror misconduct and ensuing prejudice. United States v. Cox, 324 F.3d at 86; see also Manley v. AmBase Corp., 337 F.3d 237, 251 (2d Cir.2003) (“The issue ... is not the mere fact of [jury] infiltration ... but the nature of what has been infiltrated and the probability of prejudice.” (internal quotation marks omitted, alteration in original)). We generally review a trial court’s handling of alleged juror misconduct for abuse of discretion. United States v. Abrams, 137 F.3d 704, 708 (2d Cir.1998). Where, as here, no objection was raised at trial, we review only for fundamental error. Taylor v. Vt. Dep’t of Educ., 313 F.3d at 795. This case satisfies neither standard.
After a juror and witness were observed in conversation during the lunch recess, the district court questioned the witness, who explained that he had not realized he was speaking with a juror and that their conversation had been limited to the previous night’s Yankees game. The court accepted this account and did not question the juror; nor was it asked to do so by any party. The court did, however, repeat to the entire jury its earlier admonition not to converse with anyone associated with the case. No objection was raised to this procedure.
Because we recognize that in handling incidents of possible juror misconduct, a trial court confronts a “delicate and complex task,” we accord it “broad flexibility.” United States v. Cox, 324 F.3d at 86 (internal quotation marks omitted). The court must be sure that any investigation it conducts does not “create prejudice by exaggerating the importance and impact of what may have been an insignificant incident.” United States v. Abrams, 137 F.3d at 708. Moreover, “[i]n many instances, the court’s reiteration of its cautionary instructions to the jury is all that is neces*641sary.” Id. (internal quotation marks omitted). Applying these principles to this case, we are satisfied that the district judge was well positioned to assess the credibility of the witness’s explanation as to the circumstances and content of the conversation at issue and to determine without further inquiry of the juror that the fairness of the trial had not been compromised.
Accordingly, we identify no error, let alone fundamental error.
3. The Award of Front Pay
On this appeal, defendants do not challenge the district court’s decision to award front pay, but only the amount of its award: $604,589, which represents the difference between what Luca would have earned as a probation officer and what she will earn as a corrections officer if she works until age sixty-two, reduced to present value. Defendants acknowledge that Luca testified that she intended to work until age sixty-two, but note that during her testimony, she remarked that she intended to work for twenty-five years, or until age fifty-one, after which, in a colloquy with the court, she corrected herself. Defendants submit that on this record, any award of front-pay beyond three years was unduly speculative.
We agree with Luca that defendants’ argument is essentially a challenge to the district court’s assessment of her credibility. In the absence of clear error, we defer to a district court’s credibility determinations, including its resolution of testimonial inconsistencies. See Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 76 (2d Cir.2005) (“[Cjlear error review mandates that we defer to the district court’s factual findings, particularly those involving credibility determinations.”); Mathie v. Fries, 121 F.3d 808, 811-12 (2d Cir.1997) (upholding decision of judge at bench trial to credit partially inconsistent testimony of plaintiff). Ordinarily, we will not disturb a trial court’s decision to credit live testimony unless the testimony is incoherent, facially implausible, or contradicted by extrinsic evidence. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). That is not this case. The trial judge was in the best position to determine whether Luca’s correction was bona fide, and we have no reason to disturb his assessment. See id. (observing that judge was in best position to observe “variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said”).
In their reply brief and at argument, defendants urged that an award of this length was, as a matter of law, overly speculative and thus beyond the trial judge’s discretion. Leaving aside the question of whether this argument was adequately presented in defendants’ main brief, we find it meritless. We have repeatedly upheld awards of front pay through retirement where the record contained evidence sufficient to find that a plaintiff had “no reasonable prospect of obtaining comparable alternative employment” and to calculate the resulting salary disparity. Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 126 (2d Cir.1996); see also, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir.1992). Accordingly, we identify no error in the front-pay award.
4. Attorneys ’ Fees
In calculating the award of attorneys’ fees, the district court looked to the prevailing hourly rates in both the Eastern and Southern Districts of New York. As we recently explained in Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir.2009), however, an examination of *642out-of-district rates is proper only in a narrow set of circumstances. Because the fees in this case were awarded prior to Simmons, the record is insufficient to determine whether those circumstances obtain here. Accordingly, the district court’s award of attorneys’ fees is vacated and remanded for further analysis in light of our decision in Simmons.
We have reviewed defendants’ remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is VACATED and REMANDED for a new calculation of attorneys’ fees, and AFFIRMED in all other respects. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471392/ | SUMMARY ORDER
Plaintiffs-appellants appeal from (1) the judgment of the United States District Court for the District of Connecticut (Ar-terton, J.), dismissing their claims against all defendants, and (2) the denial of their motion to modify the judgment to grant leave to file an amended complaint. We assume the parties’ familiarity with the underlying facts and procedural history of this case, as well as the issues presented on appeal.
We conclude that the district court correctly held that the Consolidated Amended Complaint (the “Complaint”) failed to state a claim for securities fraud. Long before the price of Star Gas Partners, L.P. (“Star Gas”) securities fell in October 2004, the defendants disclosed customer attrition figures to the public and made it clear that Star Gas’s Business Improvement Plan (the “BIP”) was facing significant challenges.1 For example, in a *644July 2004 press release, defendant Sevin described the implementation of the BÍP as “particularly challenging” and disclosed that Star Gas’s operating income had decreased by approximately $4 million due in part to the effect of “an approximate 4% net customer loss resulting from both high energy prices and diminished service levels ... associated with the initial stages of [the BIP].” To the extent that any of Sevin’s earlier positive statements about the progress of the BIP could have misled investors, Sevin’s July 2004 disclosures defeat the claim that the October 2004 announcement “belatedly revealed” that Star Gas suffered high customer attrition principally related to the BIP, causing security prices to fall. Accordingly, the Complaint fails to adequately allege that any of Sev-in’s early positive statements concealed something from the market that, when disclosed in October 2004, caused the fall in securities prices. See Lentell v. Merrill Lynch & Co., 396 F.3d 161, 173 (2d Cir.2005).
Further, although Sevin’s July 2004 disclosure also included positive statements about the BIP, including that “we are beginning to see many of the operational and customer satisfaction benefits originally anticipated” and that he was optimistic “because we have a company under control,” there is no “substantial likelihood” that a “reasonable investor would have considered [these statements] significant in making investment decisions.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 161-62 (2d Cir.2000) (internal quotation marks omitted). Sevin’s positive statements about the BIP’s present stability were sufficiently vague and generalized that no reasonable investor would have relied upon them, particularly when coupled with Sevin’s concurrent disclosures about the BIP’s problems to date.2 As to Sevin’s forward-looking statements, the Complaint fails to allege facts supporting the conclusion that Sevin made optimistic statements in bad faith or without a reasonable basis. See San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 813 (2d Cir.1996). Because Sevin’s statements constitute mere “expressions of puffery and corporate optimism,” they “do not give rise to securities violations.” Rombach v. Chang, 355 F.3d 164, 174 (2d Cir.2004).
We conclude also that the district court did not abuse its discretion in dismissing the Complaint with prejudice, despite plaintiffs-appellants’ footnote request in their opposition brief for leave to amend if the district court “deems the claims against Defendants insufficiently pleaded.” See In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006) (“It is within the court’s discretion to deny leave to amend implicitly by not addressing the request when leave is requested informally in a brief filed in opposition to a motion to dismiss.”). Nor did the district court abuse its discretion in denying plaintiffs-appellants’ motion to modify the judgment, see Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir.2007) (“Generally, we review a district court’s denial of a motion to amend under the abuse of discretion standard.”), even assuming arguendo the applicability of the *645liberal Rule 15(a) standard. See In re Star Gas Sec. Litig., 241 F.R.D. 428, 433 (D.Conn.2007) (denying plaintiffs’ motion “even taking into account the liberal policy of Rule 15(a)” (internal quotation marks omitted)). The district court gave plaintiffs-appellants the opportunity to amend the Complaint after a pre-motion telephone conference where the defendants described them arguments in favor of dismissal. Plaintiffs-appellants declined to do so. Thereafter, plaintiffs-appellants did not move to amend the Complaint after the defendants filed their briefs in support of dismissal. Although plaintiffs-appellants informally requested leave to amend in their motion papers, they did not submit proposed amendments or otherwise indicate how they would correct any deficiencies in the Complaint. Under these circumstances, it was within the district court’s discretion to dismiss the Complaint with prejudice. See Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir.2006) (per curiam) (rejecting “a broad rule to the effect that, in the case of a counseled plaintiff, abuse of discretion will be found and the case remanded whenever a district court fails to provide for repleading”).
For the foregoing reasons, the judgment of the district court dismissing the Complaint and denying the post-judgment motion to amend the Complaint is AFFIRMED.
. Although the Complaint raises additional fraud claims, plaintiffs-appellants conceded during oral argument that this appeal chai-*644lenges only the dismissal of their fraud claims arising from alleged misrepresentations about the progress of the BIP.
. We note that plaintiffs-appellants' brief refers to allegedly misleading statements that appear only in their proposed Consolidated Second Amended Complaint, which they submitted to the district court after it dismissed the Complaint. Because these allegations were not included in the Complaint, we do not consider them in reviewing the district court's order of dismissal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471395/ | SUMMARY ORDER
Plaintiffs-appellants appeal from an interlocutory order of the United States District Court for the Northern District of New York (McAvoy, J.), denying their motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.
Plaintiffs are the parents of students who attended the Academy at Ivy Ridge and the students themselves. The Academy at Ivy Ridge is a school for troubled youth. Plaintiffs allege that defendants misrepresented Ivy Ridge’s accreditation status and authorization to issue diplomas and credits in order to induce parents to send their children to Ivy Ridge. Plaintiffs brought claims under the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1962(c) and (d), claims of negligent misrepresentation, negligence, and breach of contract, and several fraud-based claims. Plaintiffs sought issue certification under Rule 23(c)(4) on particular elements of these claims, but not on the issues of reliance or damages. The district court denied class certification, concluding “that the issues of reliance, causation, and damages will predominate over this case and that certification, or issue certification, will not reduce the range of issues in dispute and promote judicial economy.”
A district court’s denial of class certification is reviewed for abuse of discretion. Heerwagen v. Clear Channel Communs., 435 F.3d 219, 225 (2d Cir.2006). However, we “review de novo the district court’s conclusions of law that informed its decision to deny class certification.” Parker v. Time Warner Entertainment Co., 331 F.3d 13, 18 (2d Cir.2003) (quotation marks omitted). Our review of a denial of class certification is “noticeably less deferential [than] when [the district court] has certified a class.” Id. (quotation marks omitted).
We have held that “a court may employ [Rule 23(c)(4) ] to certify a class as to liability regardless of whether the claim as a whole satisfies Rule 23(b)(3)’s predominance requirement.” In re Nassau County Strip Search Cases, 461 F.3d 219, 223 (2d Cir.2006). In so holding, we rejected the more stringent rule of the Fifth Circuit “ ‘that a cause of action, as a whole, must satisfy the predominance requirement of (b)(3) and that (c)(4) is a housekeeping rule that allows courts to sever the common issues for a class trial.’ ” Id. at 226 (quoting Castano v. Am. Tobacco Co., 84 F.3d 734, 745 n. 21 (5th Cir.1996)).
Plaintiffs argue that the district court relied on the Fifth Circuit’s rule rejected *648by our Court in the Nassau County Strip Search Cases. Although the district court included two citations to the Fifth Circuit’s Castaño decision, it accurately identified and applied this Circuit’s standard for Rule 23(c)(4) issue certification. The district court observed that parents’ reasons for sending their children to Ivy Ridge included “geographic location, cost, available extracurricular activities, educational programming, character development programs, the ability to earn ‘credits,’ the ability to obtain a diploma, etc.,” and determined that the significance of individualized issues of reliance, causation, and damages in this case meant that issue certification “would not meaningfully reduce the range of issues in dispute and promote judicial economy.” In this case, the district court did not abuse its discretion in reaching this conclusion. See McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 234 (2d Cir.2008) (concluding that, “given the number of questions that would remain for individual adjudication, issue certification would not ‘reduce the range of issues in dispute and promote judicial economy ” (quoting Robinson v. Metro-N. Commuter R.R., 267 F.3d 147, 168 (2d Cir.2001))). We have considered plaintiffs’ remaining arguments and consider them to be without merit.
For the foregoing reasons, we AFFIRM the judgment of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471398/ | SUMMARY ORDER
Appellants John C. White and White Investment L.P. (collectively “White”) appeal from a partial final judgment of the district court granting Appellees’ motion for summary judgment. In granting that motion, the district court granted Appel-lees (collectively “Petrello”) specific performance of their real estate contract with White, and granted summary judgment to Appellees on several of White’s counterclaims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues presented on appeal.
We review the district court’s grant of summary judgment de novo, construing the facts in the light most favorable to the non-movant and resolving all ambiguities against the movant. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Higazy v. Templeton, 505 F.3d 161, 168-69 (2d Cir.2007).
Turning first to White’s fraud in the inducement counterclaim, White contends that the district court erred in finding that he could not have reasonably relied on Petrello’s oral representations in entering into the contract for the sale of the Whites’ land. Fraud in the inducement must be pled with particularity, in that a plaintiff must allege: (1) that the defendant made a representation; (2) as to a material existing fact; (3) which was false; (4) and known to be false by the defendant; (5) that the representation was made for the purpose of inducing the-*653plaintiff to rely upon it; and (6) that the plaintiff reasonably did so rely; (7) in ignorance of its falsity; (8) to his injury. See Computerized Radiological Servs. v. Syntex Corp., 786 F.2d 72, 76 (2d Cir.1986); see also Fax Telecommunicaciones Inc. v. AT & T, 188 F.3d 479, 490 (2d Cir.1998).
We agree with the district court that White could not have reasonably relied on Petrello’s oral representations. First, White’s independent counsel advised him that the promises would be more difficult to enforce if not in writing. See Lazard Freres & Co. v. Protective Life Ins. Co., 108 F.3d 1531, 1543 (2d Cir.1997) (“ ‘[Wjhere, as here, a party has been put on notice of the existence of material facts which have not been documented and he nevertheless proceeds with a transaction without ... inserting appropriate language in the agreement for his protection, he may truly be said to have willingly assumed the business risk that the facts may be not as represented.’ ” (quoting Rodas v. Manitaras, 159 A.D.2d 341, 343, 552 N.Y.S.2d 618, 620 (App.Div.1990))); Arnold Constable Corp. v. Chase Manhattan Mortgage & Realty Trust, 59 A.D.2d 666, 667, 398 N.Y.S.2d 422, 423 (App.Div.1977). Second, at least with respect to the promise regarding the size of the house, the fact that the “architectural input” provision in the 1995 Memorandum of Sale was not a provision in the final contract further undermines White’s argument that then* continued reliance on that promise was reasonable. Third, as the district court found, the basic material terms of the sale were evolving and changing over the three-year period between the 1995 Memorandum of Sale and the 1998 Contract of Sale (the “Contract”). White’s continued reliance on the oral promises throughout this period of flux strikes us as all the more unreasonable. For these reasons, we conclude that the district court properly granted Petrello summary judgment on White’s fraudulent inducement counterclaim.
White also argues that the district court erred in granting summary judgment to Petrello on his breach of fiduciary duty counterclaim. In order to state a claim for breach of fiduciary duty, a plaintiff must show (1) the existence of a fiduciary duty owing to him by the defendant; (2) the defendant’s breach of that duty; and (3) damages suffered by the plaintiff proximately caused by the breach. See SCS Commc’ns, Inc. v. Herrick Co., 360 F.3d 329, 342 (2d Cir.2004). In New York, an attorney entering into a contractual relationship with another party does not automatically have a fiduciary duty towards that party; if the attorney is “engaged in an arm’s length business transaction,” he owes no such duty. Rooney v. Slomowitz, 11 A.D.3d 864, 868, 784 N.Y.S.2d 189, 194 (App.Div.2004).
We conclude that Petrello, who was not counsel for White and who stood clearly adverse to him in an arm’s length commercial transaction, owed no fiduciary duty to White. Although White argues that his retention of Baker & McKenzie, at which Petrello was Of Counsel and a former partner, for estate planning purposes suggests that Petrello owed White a fiduciary duty, we find this evidence insufficient to raise a genuine issue of material fact on White’s breach of fiduciary duty counterclaim. Moreover, even assuming that this transaction took place at something less than “arm’s length,” White has failed to offer evidence that would permit a reasonable fact-finder to conclude that Petrello exercised “de facto control” or “dominance” over him, both “[ejssential elements” of a fiduciary duty claim. AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 11 N.Y.3d 146, 158, 866 N.Y.S.2d 578, 585, 896 N.E.2d 61 (2008) (internal quotation marks omitted). Ac*654cordingly, we conclude that the district court properly granted summary judgment to Petrello on this counterclaim as well.
We have considered White’s remaining contentions and find that they are without merit.
For the reasons stated above, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471404/ | SUMMARY ORDER
Petitioner appeals that part of the decision of the Board of Immigration Appeals (“BIA”) which denied her appeal of the decision of an Immigration Judge (“IJ”) finding her removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony at any time after admission. We assume the parties’ familiarity with the facts of the case, its *659procedural history, and the scope of the issues on appeal.
“When the BIA issues an opinion, that decision becomes the focus of our review.” Dong Gao v. BIA, 482 F.3d 122, 125 (2d Cir.2007). “[W]hen, in the course of interpreting the INA, the BIA has interpreted state or federal criminal laws, we review its decision de novo.” James v. Mukasey, 522 F.3d 250, 254 (2d Cir.2008).
Castro-Batista argued before the BIA that the statute under which she was convicted, N.Y. Penal Law § 130.45, has two subsections, and that only the first subsection, and not the second, entails a violation that necessarily constitutes “sexual abuse of a minor,” i.e., an aggravated felony under the INA, see 8 U.S.C. § 1101(a)(43)(A). Under our traditional “categorical approach” to determining whether a crime is an aggravated felony, “the singular circumstances of an individual petitioner’s crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.” James, 522 F.3d at 254 (modification omitted) (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001)). But when a criminal statute encompasses more than one class of criminal acts, and only some of the classes necessarily constitute aggravated felonies, “the agency may then ‘refer to the record of conviction for the limited purpose of determining whether the alien’s conviction was under the branch of the statute that permits removal.’ ” Id. (quoting Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir.2003)) (modification omitted). Originally, the Government argued that this is what we should do in this case, and on that basis affirm the BIA.
Now, however, in a Fed. RApp. P. 28(j) letter dated July 30, 2009, the Government has pointed out, and Castro-Batista has conceded, that the second subsection was not in force in December 2000 when she was convicted. At that time, the statute read in its entirety: “A person is guilty of sodomy in the second degree when, being eighteen years old or more, he engages in deviate sexual intercourse with another person less than fourteen years old.” N.Y. Penal Law § 130.45 (2000). It is therefore clear that Castro-Batista was convicted under a statute any violation of which constitutes an aggravated felony. See Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir.2006) (per curiam).
While the BIA did err by addressing the incorrect version of N.Y. Penal Law § 130.45, “we are not required to remand where there is no realistic possibility that, absent the errors, the IJ or BIA would have reached a different conclusion.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir.2005). In this case, where we “can confidently predict that the agency would reach the same decision absent the errors that were made,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006), remand would be futile. Therefore, “[b]ecause petitioner pled guilty to an aggravated felony, and was ordered removed on the basis of that plea pursuant to 8 U.S.C. § 1227(a)(2)(a)(iii), we do not have jurisdiction to grant [her] petition for review.” Santos, 436 F.3d at 325 (citing 8 U.S.C. § 1252(a)(2)(C)).
For these reasons, the petition for review is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471410/ | SUMMARY ORDER
Petitioner Sanjar Kayumovich Muhitdi-nov, a native and citizen of Uzbekistan, seeks review of a September 17, 2008 order of the BIA affirming the November 2, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Sanjar Kayumovich Muhitdinov, No. A97 528 715 (B.I.A. Sept. 17, 2008), aff'g No. A97 528 715 (Immig. Ct. N.Y. City Nov. 2, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). However, when the BIA affirms the IJ’s decision in some respects but not others, we review the IJ’s decision as modified by the BIA’s decision, i.e. minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, the BIA agreed with the IJ’s adverse credibility finding. It is unclear, however, whether the BIA agreed with the IJ’s finding that even assuming his credibility, Muhitdinov failed to demonstrate his eligibility for relief. Because the agency’s adverse credibility finding is dispositive, we dispose of the petition for review on that basis.
We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence stan*667dard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
Because Muhitdinov filed his asylum application after May 11, 2005, the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 apply to his asylum application. See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005). “For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go ‘to the heart of the applicant’s claim.’ ” Diallo v. U.S. Dep’t of Justice, 548 F.3d 232, 234 n. 1 (2d Cir.2008) (quoting 8 U.S.C. § 1158(b)(l)(B)(iii)).
Substantial evidence supports the IJ’s adverse credibility determination. The agency found inconsistencies within Muhit-dinov’s testimony and between his testimony and his asylum application. As the IJ found, Muhitdinov first testified that he was attacked by “anonymous youths” at a bus stop in November 2005 (after he was already in the United States), and then stated that the incident took place in March 2005. Furthermore, Muhitdinov indicated on his asylum application that he and his father were questioned by police for being at a mosque and then released, and that “a few persons were detained.” Yet in his testimony, he stated that he and his father were taken to the police station, detained for over ten hours, his father was beaten during that detention, and everyone was arrested. Accordingly, substantial evidence supports the agency’s findings where “the cumulative effect of these inconsistencies could have led a reasonable fact-finder to find that [the applicant] was not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
Having called Muhitdinov’s credibility into question, it was not improper for the IJ to note the absence of certain corroborating evidence that may have otherwise rehabilitated his testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Thus, based on the totality of the circumstances, substantial evidence supports the agency’s adverse credibility determination and its resulting denial of Muhitdinov’s application for asylum. See 8 U.S.C. § 1158(b)(l)(B)(iii).
Finally, because the only evidence of a threat to Muhitdinov’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. I.N.S., 344 F.3d 272, 275-76 (2d Cir.2003); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471412/ | SUMMARY ORDER
Petitioner Vincent C. Lukose, a native and citizen of India, seeks review of a September 18, 2008 decision of the BIA. Petitioner argues as follows: (1) the BIA erred when it affirmed the immigration judge’s (“IJ”) decision to decline to reopen proceedings sua sponte to allow petitioner to apply for adjustment of status; and (2) the BIA erred when it denied Lukose’s motion to rescind the 1998 in absentia deportation order after it found that petitioner failed to rebut the presumption of effective service. We assume the parties’ familiarity with the underlying facts and procedural history in this case.
*669The fugitive disentitlement doctrine permits us to summarily dismiss Lukose’s petition for review -without reaching the merits. Under the fugitive disentitlement doctrine, we have the discretion to dismiss a petitioner’s appeal if that petitioner is “a fugitive from justice during the pendency of the appeal.” Gao v. Gonzales, 481 F.3d 173, 175 (2d Cir.2007). For the purposes of this doctrine, “an alien who fails to comply with a notice to surrender for deportation” is considered a fugitive. Id. at 176. Lukose, like the petitioner in Gao, disregarded a notice to surrender for deportation. And Lukose, again like the petitioner in Gao, “continued to carry on his life in complete disregard of the outstanding ... deportation order against him” including marrying and having two children. Id. at 175. Although these circumstances may now entitle him to relief, we recognize that “[allowing his motion to reopen to go forward would have the perverse effect of encouraging aliens to evade lawful deportation orders in the hope that, while they remain fugitives, they may contrive through their own efforts a new basis for challenging deportation.” Id. at 178. For this reason, we exercise our discretion and summarily dismiss the petition for review.
For the foregoing reason, the petition for review is DISMISSED. Inasmuch as we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471414/ | SUMMARY ORDER
Petitioner, a native and citizen of Indonesia, seeks review of a November 28, 2008 order of the BIA affirming the April 18, 2007 decision of Immigration Judge (“IJ”) Brigitte Laforest, which denied Petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Siau Pin Hon, No. A099 928 149 (B.I.A. Nov. 28, 2008), aff'g No. A098 928 149 (Immig. Ct. N.Y. City Apr. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA 482 F.3d 122, 126 (2d Cir.2007); see also Gjolaj v. BCIS, 468 F.3d 140, 143 (2d Cir.2006) (reviewing the question of nexus for substantial evidence). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). As Horis asylum application was filed with the IJ after May 11, 2005, the provisions of the REAL ID Act apply. See Matter of S-B- 24 I. & N. Dec. 42, 45 (BIA 2006).
We find no error in the agency’s denial of Hon’s application for asylum and withholding of removal. As a preliminary matter, it is not entirely clear whether the agency found that the incidents Hon described were not severe enough to constitute persecution or whether it found that the incidents bore no nexus to a protected ground. A reviewing court must “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (same). But see Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.2006) (finding that “the IJ’s explanation ... was insufficient to permit meaningful review of whether the IJ correctly applied the standards”). Here, although somewhat less than clear, we construe the agency’s decisions as having found that Hon did not establish that he suffered past persecution, both because he could not show that the majority of the incidents he described bore any nexus to a protected ground and because the one incident that did bear such a nexus was not severe enough to rise to the level of persecution.
The BIA has defined persecution as a “threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), overruled, in part, on other grounds, INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In determining whether harm rises to the level of persecution, the harm must be sufficiently severe, rising above “mere harassment.” Ivanishvili v. U.S. *671Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006). In addition, as amended by the REAL ID Act, Title 8, Section 1158(b)(l)(B)(i) of the U.S. Code provides that an asylum “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” While Hon’s arguments offer the possibility that a reasonable adjudicator could have found that his assailants were motivated to persecute him in part because of his ethnicity or religion, we are not “compelled” to find — contrary to the agency — that these were “central” motives. See 8 U.S.C. §§ 1158(b)(l)(B)(i), 1252(b)(4)(B).
As the agency noted, the incidents Hon described involved criminal extortion, and none of his assailants continued to harass Hon after receiving the money or goods that they were after. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir.2009) (“[T]o demonstrate that a protected ground was ‘at least one central reason’ for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.”); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.2007) (observing that “it would be impractical for IJs to distinguish between petitioners who are targeted or held to ransom because of their class status or merely because that’s where the money is”).
Moreover, as to the single incident the IJ found “could constitute a persecutory event,”2 we agree with the agency that the incident did not rise to the level of persecution. Indeed, during the incident ten-year old Hon was taunted by four or five “native Indonesian kids around [his same] age.” See Ivanishvili, 433 F.3d at 341 (finding that, to constitute persecution, the harm an applicant fears must be sufficiently severe, rising above “mere harassment”); see also Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir.2005) (“[P]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive.”) (citing Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995), overruled, in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 306 (2d Cir.2007) (en banc); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (Alito, J.)) (“[P]er-secution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”). Therefore, the record supports the agency’s finding that Hon failed to demonstrate that he endured persecution on account of a protected ground. 8 U.S.C. § 1158(b)(l)(B)(i); see also Gjolaj, 468 F.3d at 142-43.
Because Hon failed to demonstrate that he suffered past persecution, he was not entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b). We find no error in the agency’s holding that Hon failed to demonstrate a reasonable fear of persecution based on a pattern or practice of persecution of ethnic Chinese Christians in Indonesia.3 See Matter of A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (finding that there was not a pattern or practice of persecution against ethnic Chinese Christians in Indonesia); Mufied v. Mukasey, 508 F.3d 88, 93 (2d Cir.2007). The BIA explicitly considered Hon’s pattern or *672practice claim, see Mufied, 508 F.Sd at 91 (remanding because both the IJ and the BIA ignored petitioner’s pattern or practice claim), and this Court “presumes that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). Therefore, because nothing in the record compels us to conclude that the BIA’s analysis of Hon’s pattern or practice claim was erroneous, we find no error in the agency’s denial of his application for asylum and withholding of removal. 8 U.S.C. § 1252(b)(4)(B).
Because the agency reasonably found that Hon failed to demonstrate past persecution or a well-founded fear of future persecution, it reasonably denied his application for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Moreover, because Hon failed to sufficiently challenge the agency’s denial of his CAT claim in his brief to this Court, he has waived that claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. We take the IJ's statement to mean that this incident did bear a nexus to a protected ground.
. We note that, as the Government observes, Hon did not claim to be a Christian in his brief to the BIA, asserting instead that there was a pattern or practice against ethnic Chinese Buddhists in Indonesia. Nonetheless, as Hon has consistently argued that there is a pattern or practice of persecution against ethnic Chinese “non-Muslims” in Indonesia, we consider his claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471418/ | SUMMARY ORDER
Petitioner Chikun Chen, a citizen of China, seeks review of a June 17, 2008 order of the Board of Immigration Appeals (“BIA”) affirming Immigration Judge (“IJ”) Helen Sichel’s October 31, 2006 decision denying Chen’s application for asylum, withholding of removal, and relief under the Convention Against Torture. In re Chikun Chen, No. A97 391 248 (B.I.A. June 17, 2008), affg No. A97 391 248 (Im-mig. Ct. N.Y. City October 31, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, overturning them only if any reasonable adjudicator would be compelled to conclude to the contrary. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
We find no error in the IJ’s adverse credibility determination. It was based on the IJ’s observations of Chen’s demeanor, his failure to offer sufficient documentary evidence to corroborate his claims, and inherently implausible aspects of his claims.
This Court gives particular deference to an IJ’s assessment of an applicant’s demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). Further, there was no error in the IJ’s determination that Chen’s documents were entitled to “diminished weight.” Indeed, the weight afford*676ed to a petitioner’s documentary evidence “lies largely within the discretion of the agency.” Xiao Ji Chen v. U.S Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.2006). Although an IJ may err in rejecting a document solely based on the alien’s failure to authenticate pursuant to 8 C.F.R. § 287.6, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-06 (2d Cir.2005), there is no error where, as here, the decision to reject the document is based on legitimate credibility concerns and the IJ relies only in part on the fact that the document was not authenticated, see Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.2007).
Chen argues that in finding him not credible, the IJ erred in relying on minor inconsistencies related to his possession of a national identification card. The IJ’s finding on this issue, however, is more accurately characterized as a conclusion that it was implausible that Chen’s family would have been able to obtain his identification card after he had been arrested and escaped from police custody. We are not compelled to disturb that finding. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.2007); Ying Li v. Bureau of Citizenship and Immigration Servs., 529 F.3d 79, 82 (2d Cir.2008). Although Chen offered an explanation — that the office that issued national identification cards was separate from the police or other law enforcement — nothing in the record would compel a reasonable fact finder to accept that explanation. See Majidi, 430 F.3d at 81 n. 1. Further, the IJ’s rejection of Chen’s explanation was not based on improper speculation regarding practices in China, see Cao He Lin, 428 F.3d at 404, but, rather, on the inherent implausibility of Chen’s claim that the Public Security Bureau would issue a fugitive a national identification card.
Having called Chen’s credibility into question, the IJ did not err in noting his failure to produce a witness who could corroborate his claim that he practices Fa-lun Gong in this country. See Xiao Ji Chen, 471 F.3d at 341 (noting that an IJ does not err in citing inadequate corroboration as a basis for denying relief where a petitioner is not otherwise credible). Chen’s failure to produce such corroborative evidence undermined his claim that he feared persecution on account of his current practice of Falun Gong.
Because the only evidence of a threat to Chen’s life or freedom depended upon his credibility, the adverse credibility finding in this case necessary precludes success on his claim for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). Finally, because Chen offered no independent evidence that he would be tortured if returned to China, the adverse credibility determination in this case also precludes success on his claim for CAT relief. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005); cf. Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.2004) (holding that the agency may not deny a CAT claim solely on the basis of an adverse credibility finding made in the asylum context, where the CAT claim did not turn upon credibility).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471420/ | SUMMARY ORDER
Hua Li (“Li”) petitions this Court to review a final order of removal issued by the Board of Immigration Appeals (“Board”) on May 8, 2008. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
On appeal, Li, who has three American-born children, argues that she is eligible for withholding of removal because in China there is a “pattern or practice” of sterilizing persons with two or more children.1 We have some doubt as to whether Li preserved this issue for judicial review, but we nonetheless reach it because the Board appears to have. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir.2007).
‘We review factual findings for ‘substantial evidence,’ and will not disturb them *678‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir.2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). Upon review, we conclude that the Board’s determination is supported by substantial evidence. The IJ found Li not to be credible, a finding which the Board affirmed, and which our review of the record reveals no basis to disturb. Further, on the facts of this case, neither the so-called Guo documents nor the newspaper articles Li points to would compel a reasonable adjudicator to grant Li’s application. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142 (2d Cir.2008). Finally, we decline Li’s invitation to overturn Shao. See County of Allegheny v. ACLU, 492 U.S. 573, 668, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part) (“[T]he principle of stare decisis directs [the Court] to adhere ... to the holdings of [its] prior cases .... ”).
Accordingly, the petition for review is DENIED.
. Li concedes that the Real ID Act governs review of her claim and has also waived review of "any and all arguments" concerning the insertion of an IUD. Further, by not arguing them in her brief, Li has waived review of the findings that: (I) her asylum application was time barred; (2) she was not credible; (3) she did not suffer past persecution; (4) she is ineligible for CAT protection; and (5) she did not satisfy the requirements of a motion to remand. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005) (stating that issues not argued in the briefs are considered waived and will not be addressed on appeal). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471424/ | SUMMARY ORDER
Petitioner, Yong Gang Zou, a native and citizen of China, seeks review of an April 17, 2007 order of the- BIA affirming the June 28, 2005 decision of Immigration Judge (“IJ”) Brigitte Laforest pretermit-ting petitioner’s asylum application and denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Yong Gang Zou, No. A 97 240 808 (B.I.A. Apr. 17, 2007), aff'g No. A 97 240 808 (Immig. Ct. N.Y. City June 28, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the ease.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in pari on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir.2007).
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). While the courts retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D) to review constitutional claims and “questions of law,” the petitioner in this case has challenged only purely factual determinations underlying the asserted asylum claim. The Court therefore lacks jurisdiction to review the agency’s denial of asylum. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326-29 (2d Cir.2006), and to that extent the petition is dismissed.
With respect to Zou’s withholding of removal and CAT claims, substantial evidence supports the agency’s adverse credibility determination, which was based on: (1) Zou’s demeanor, which the IJ found to be evasive and unresponsive; and (2) the implausibility that Zou could not remember any details concerning two incidents material to his claim. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang, 386 F.3d at 73 & n. 7.
This Court affords significant deference to the agency’s determinations regarding demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005); Zhou Yun Zhang, 386 F.3d at 73-74. Here, the record evidence supports the IJ’s demeanor finding where Zou failed to respond directly to questions, failed to answer some questions, and continually repeated questions. Substantial evidence also supports the IJ’s implausibility findings. Id. The agency appropriately found implausible Zou’s testimony that (1) he was arrested as a result of a conversation with a coworker but could not remember any details of the conversation except that it was about Falun Gong; and (2) he was hospitalized for a week but could not identify the extent of his injury or the treatment received as related to the length of his *682hospital stay. See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007).
To the extent that Zou challenges the agency’s other findings supporting the adverse credibility determination, we decline to consider these arguments because, even if there were error, remand would be futile as it can be confidently predicted that the agency would reach the same conclusion on remand. See Xiao Ji Chen, 471 F.3d at 339. Ultimately, substantial evidence supports the IJ’s adverse credibility determination. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang, 386 F.3d at 73 & n. 7. Because the only evidence that Zou’s life or freedom would be threatened or that he was likely to be tortured depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on the withholding of removal and CAT claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471428/ | SUMMARY ORDER
Robert E. Hewitt appeals a September 30, 2008, judgment of the district court sentencing him, after a plea of guilty, to a term of imprisonment of five years for his crime of arson in violation of 18 U.S.C. § 844(i). Hewitt argues that the district court should have applied Section 5G1.3(b) of the United States Sentencing Guidelines to adjust his sentence to give him credit for time he served on a Pennsylvania state-court conviction for assault. We as*686sume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Section 5G1.3(b) applies where, inter alia, “a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction” and was the basis for an increase in the defendant’s offense level under Chapter Three of the Guidelines. U.S.S.G. § 5G1.3(b); see also United States v. Rivers, 329 F.3d 119, 121 (2d Cir.2003). Hewitt argues that the assault underlying his Pennsylvania state-court conviction, against his then-girlfriend Melissa Brown, was committed in an attempt to deter Brown from turning him over to the police for the arson, and therefore, the district court erred in failing to increase his offense level for obstruction of justice under U.S.S.G. § 3C1.1, and accordingly erred in failing to adjust his sentence under U.S.S.G. § 5G1.3(b).
We review the district court’s factual determination for clear error. See United States v. Salim, 549 F.3d 67, 72, 75 (2d Cir.2008). As “the district court’s account of the evidence is plausible in light of the record viewed in its entirety,” this argument fails. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The district court concluded that Hewitt did not assault Brown in an attempt to obstruct justice. We do not agree with Hewitt that the district court’s conclusion was clearly erroneous, in light of the evidence that Hewitt’s vicious assault on Brown was part of an ongoing pattern in an abusive relationship marked with physical violence and extensive substance abuse, even before Brown threatened to contact the police. Brown’s statement that Hewitt assaulted her after she told him she planned to inform the police about the arson may permit an inference of a cause-and-effect relationship, but the district court was not required to draw that inference. See, e.g., In re CBI Holding Co., Inc., 529 F.3d 432, 450 (2d Cir.2008) (holding that “[i]n reviewing findings for clear error, [an appellate court is] not allowed to second guess ... the trial court’s ... choice between permissible competing inferences” (quotation marks omitted; alterations in original)).
Because we conclude that the district court did not err in declining to impose an obstruction of justice enhancement, and therefore, Section 5G1.3(b) did not apply, we do not reach the merits of the other issues raised by the parties on appeal. Accordingly, the judgment of the district court hereby is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471379/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs and appendices filed by the parties. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed May 13, 2008, denying reconsideration of its order filed March 28, 2008, be affirmed. The district court properly concluded that appellants cannot state a claim for relief because the judges named as defendants are immune from suit, and the judicial entities named as defendants are not subject to suit. See Roth v. King, 449 F.3d 1272, 1286-87 (D.C.Cir.2006) (judges acting in judicial capacity are immune from suit); Blackmar v. Guerre, 342 U.S. 512, *621514-15, 72 S.Ct. 410, 96 L.Ed. 534 (1952) (entity established by Congress may not be sued in its own name unless Congress has authorized the entity to be sued either with explicit language or by implication). Nor did the district court abuse its discretion when it denied declaratory relief. See Wilton v. Seven Falls Co., 515 U.S. 277, 287, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing or petition for hearing en bane. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471380/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed July 8, 2008, 2008 WL 2686817, be affirmed. The district court properly dismissed appellant’s *622complaint, because it did not state a claim within the meaning of the False Claims Act, 31 U.S.C. § 3729(a). See generally U.S. ex rel. Bettis v. Odebrecht Contractors of Cal., Inc., 393 F.3d 1321 (D.C.Cir.2005). And even though the gravamen of the complaint was a violation of the False Claims Act, appellant waived that argument on appeal, by arguing instead, and for the first time, an Eighth Amendment willful and deliberate indifference claim. See Potter v. District of Columbia, 558 F.3d 542, 547 (D.C.Cir.2009) (and cases cited therein) (this court reviews only those arguments that were made in the district court); Ben-Kotel v. Howard University, 319 F.3d 532, 535 (D.C.Cir.2003) (the court of appeals does not entertain an argument made for the first time on appeal).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471386/ | SUMMARY ORDER
Appellants challenge an order of the District Court for the District of Connecticut (Dorsey, J.), filed May 5, 2008, staying their action to enforce a $116 million default judgment of the District Court for the District of Rhode Island against the Palestinian Authority (the “PA”) and the Palestine Liberation Organization (“PLO”) until the final resolution of a motion for vacatur pending in the District of Rhode Island. By virtue of the Rhode Island default judgment, Appellants claim ownership over the Palestine Investment Fund (“PIF”), an entity apparently holding assets of the PA. Appellants further assert ownership over the PIF’s interest in Canaan Equity Offshore C.V., Canaan Equity II Offshore C.V., and Canaan Equity III Offshore C.V. (the “Canaan Funds”), through their claimed ownership of the *633PIF. At oral argument the Appellants informed the Court that the Rhode Island district court had issued an order denying the motion to vacate, and on June 2, 2009 the PA and PLO filed a notice that they are appealing that order to the First Circuit.
As a threshold matter, Appellants assert that we have jurisdiction over this appeal either because the stay is final, 28 U.S.C. § 1291, because the stay is an appealable interlocutory order, 28 U.S.C. § 1292(a)(1), or because the district court acted ultra vires in granting the stay, justifying mandamus jurisdiction. None of these provides a valid basis for us to exercise jurisdiction.
With respect to finality of the order, Appellants argue that the district comb’s order stayed enforcement of the judgment indefinitely and, therefore, rendered the order final within the meaning of 28 U.S.C. § 1291 because the order stayed the enforcement action “to await a more precise defining of the issues by the Rhode Island District Court” and because the final order on the motion to vacate is “subject to [First] Circuit and perhaps Supreme Court appeals.” This, according to Appellants, is akin to the situation in Idlewild Bon Voyage Liquor Corp. v. Rohan, 289 F.2d 426 (2d Cir.1961), reasoning affirmed and remanded on other grounds by 370 U.S. 713, 82 S.Ct. 1294, 8 L.Ed.2d 794 (1962), in which this Court found error in a district court decision not to impanel a threejudge district court on the chance that a state court action would be filed requiring adjudication of the same issues. Even were we to assume the stay in this situation—pending the resolution of a Federal Rule of Civil Procedure 60(b) motion to vacate a default judgment in another district court and any appeal taken from that resolution—is analogous to the denial of an application for a three-judge district court panel, we would still conclude that Idlewild is inapposite. The basis for this court’s decision in Idlewild was that the contemplated state adjudication was purely speculative. Here a motion was made in another district that could determine the outcome of the action in Connecticut, while in Idlewild there was no other action pending. “Idlewild does not disturb the usual rule that a stay is not ordinarily a final decision for purposes of § 1291, since most stays do not put the plaintiff ‘effectively out of court.’” Moses H. Cone Mem’l Hasp. v. Mercury Constr. Corp., 460 U.S. 1, 10 n. 11, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983).
Nor do we have jurisdiction under 28 U.S.C. § 1292(a)(1), which provides for appeals of orders “granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions.” Even if Appellants’ turnover motion properly could be characterized as a request for injunctive relief, and the stay an order of the requisite nature, Appellants “have not shown that all the relief sought will be unavailable if we wait until after the district court proceedings are final before hearing an appeal.” Sahu v. Union Carbide Corp., 475 F.3d 465, 468 (2d Cir.2007) (citing Cuomo v. Barr, 7 F.3d 17, 19 (2d Cir.1993)).
Appellants have likewise not demonstrated that the district court’s stay merits the extraordinary remedy of mandamus. “[T]he Court of Appeals may exercise its power to issue the writ only upon a finding of exceptional circumstances amounting to a judicial ‘usurpation of power,’ or a ‘clear abuse of discretion.’ ” Cheney v. United States Dist. Court for the Dist. of Columbia, 542 U.S. 367, 390, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (citations and internal quotation marks omitted). There are no such circumstances present in this case. The district court did *634not need to apply Federal Rule of Civil Procedure 62(b), as Appellants contend. This is not a case of the district court staying enforcement of its own judgment, the district court’s stay does not affect other proceedings Appellants may have begun in order to enforce the Rhode Island judgment, and the relationship between Appellees and the judgment debtors remains unclear at this point in the litigation.
The stay, unlike that in In re Zapata Gulf Marine Corp., 941 F.2d 293 (5th Cir. 1991), falls under the inherent power of the court to control its own docket. See Clinton v. Jones, 520 U.S. 681, 707, 117 S.Ct. 1636, 137 L.Ed.2d 945 (1997). While some courts, like the Fifth Circuit in Zapata, have exercised mandamus jurisdiction to lift “immoderate” stays, it is not obvious to us that the district court’s stay pending resolution of the motion to vacate in Rhode Island is immoderate. Moreover, although Appellees posted no bond, Canaan Funds assert that they must honor a Rhode Island injunction and Conn. Gen.Stat. § 52-356c(d),1 which prohibit distributions that normally would have been paid to PIF and Becont. This is not a situation in which “discretion was abused by a stay of indefinite duration in the absence of a pressing need.” Landis v. N. Am. Co., 299 U.S. 248, 255, 57 S.Ct. 163, 81 L.Ed. 153 (1936).
Appellees Becont, Ltd. and PIF, through purported counsel Dewey & Le~ boeuf, argue that the district court did not have ancillary subject matter jurisdiction under Peacock v. Thomas, 516 U.S. 349, 116 S.Ct. 862, 133 L.Ed.2d 817 (1996), because they are separate legal entities from those involved in the Rhode Island proceeding. See Knox v. Orascom Tele-com Holding S.A.E., 477 F.Supp.2d 642, 647-48 (S.D.N.Y.2007). However, Appel-lees’ motions to dismiss on this basis remain pending before the district court, and determinations of the relationships of the parties vis-á-vis one another and the Rhode Island judgment are integral to the proceedings below. We decline to rule on this issue when the district court has not yet done so.
Accordingly, the appeal is DISMISSED for lack of appellate jurisdiction.
. Conn. Gen.Stat. § 52-356c(d) applies to post-judgment determinations of interests in disputed property and reads: “Pending the hearing on the claim and subject to further order of the court, any property in dispute shall continue to be held by the person then in possession and shall not be transferred to any person who is not a party to the supplemental proceeding. If previously seized by or delivered to a levying officer, the property shall remain in the custody of the levying officer.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471388/ | SUMMARY ORDER
Plaintiff-Appellant Daniel Bruno appeals from the dismissal of two claims against the Defendant-Appellee, Metropolitan Transportation Authority (“MTA”) under the Federal Employers’ Liability Act, 45 U.S.C. § 51, et seq. (“FELA”). The United States District Court for the Southern District of New York (Marrero, J.) dismissed his first claim on the ground of failure to state a claim and dismissed his second claim because the three year statute of limitations had expired. We assume the parties’ familiarity with the underlying *636facts, procedural history, and issues on appeal.
We review motions to dismiss de novo. Amron v. Morgan Stanley Inv. Advisors Inc., 464 F.3d 338, 343 (2d Cir.2006). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, -U.S.-,--, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). A complaint is not required to have “ ‘detailed factual allegations,’ but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation.” Id. at 1949 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 129 S.Ct. at 1950.
Under FELA, any railroad engaging in interstate commerce “shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier.” 45 U.S.C. § 51. To prevail on a FELA action, “the plaintiff must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causation.” Tufariello v. Long Island R.R., 458 F.3d 80, 87 (2d Cir.2006).
We conclude that both of Bruno’s claims fail to pass this test. Bruno’s first claim is that he suffered “severe and disabling injuries” as a result of the MTA’s policy that requires its employees who are not on active work status to remain at home during working hours, unless they receive a “no work” status. Bruno’s claim is implausible on its face. The complaint fails to allege that the MTA had any duty to grant the no work status, or that there is any causal link between the MTA policy and Bruno’s injuries. Further, Bruno offers no facts apai't from conclusory assertions as to how the MTA’s denial of his no work status caused unspecified “severe and disabling injuries.” As such, this claim is frivolous.
Bruno’s second claim also fails. Bruno’s complaint alleges that on or prior to September 13, 2001, the MTA assigned Bruno to work at or near the World Trade Center, and that he sustained “severe and disabling injuries” by reason of the MTA’s negligence. However, Bruno conceded at oral argument that, in the absence of fraud, he is precluded from bringing this claim by a general release he signed in connection with a previous lawsuit. Bruno also conceded that he has not pleaded fraud. Accordingly, Bruno’s claim is barred by the release. To the extent Bruno argues that the district court should have sua sponte granted him leave to amend his complaint to address this deficiency, he is incorrect. See, e.g., Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 106 (2d Cir.1998) (“[T]he district court did not abuse its discretion in granting summary judgment without sua sponte granting leave to replead.”); In re Am. Exp. Co. Shareholder Litig., 39 F.3d 395, 402 (2d Cir.1994) (“The district court surely did not abuse its discretion in not sua sponte granting leave to replead.”).
Given the frivolousness of this appeal, appellee MTA may apply for damages and/or double costs. See Fed. R.App. P. 38.
Therefore, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471391/ | SUMMARY ORDER
Defendants appeal a money judgment entered after a jury trial in favor of plaintiff Patricia Luca on her Title VII claim, see 42 U.S.C. § 2000e et seq., that defendants denied her employment as a police officer in retaliation for a lawsuit she filed charging her employer, the Nassau County Sheriffs Department, with sexual harassment. Defendants assert that the trial court (1) made comments that deprived them of a fair trial, (2) failed adequately to inquire about witness-juror contact, (3) improperly calculated front pay, and (4) improperly calculated attorneys’ fees. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Fair Trial Claim
a. The Comment to Eileen Creswell
The crux of defendants’ fair trial claim concerns a colloquy between the district judge and defendant Eileen Creswell. In explaining at trial why defendants did not hire Luca as a police officer, Creswell testified that “criminal activity ... was swii’l-ing around [Luca].” Trial Tr. at 855. When Creswell attributed this information to a confidential source that she declined to name, the trial judge struck the testimony and admonished Creswell. Id. at 856. Soon thereafter, when Creswell testified that Luca’s car had been “used for an *639insurance scam,” the district court made the comment here at issue: “What insurance scam? I didn’t hear about insurance scam here. You sure you’re not making this all up? Next question.” Id. at 857.
The comment prompted defendants to move for a mistrial, which the district court denied. Nevertheless, the judge charged the jury that at no time had he “expressed nor attempted to intimate an opinion about how [the jury] should decide” the case. Id. at 1055. The judge elaborated: “It could be that based upon who the witness was and the questions that I was asking the temptation might be great for you to think that the Judge was signaling something to you, that I believed the person or I didn’t believe the person, but I want you to resist that temptation.” Id. at 1056.
The law governing defendants’ fair trial claim is well established: A district court “may actively participate [in a trial] and give its own impressions of the evidence or question witnesses, as an aid to the jury, so long as it does not step across the line and become an advocate for one side.” United States v. Filani, 74 F.Sd 878, 385 (2d Cir.1996). While a judge should strive to create an “atmosphere of perfect impartiality,” Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 98 (2d Cir.1998) (internal quotation marks omitted), the law assures litigants a fair trial, not a perfect one, Zinman v. Black & Decker (U.S.), Inc., 983 F.2d 431, 436 (2d Cir.1993). Thus “[i]n reviewing a challenge to a trial judge’s conduct, we determine not whether the trial judge’s conduct left something to be desired, or even whether some comments would have been better left unsaid[, but] ... whether the judge’s behavior was so prejudicial that it denied [a party] a fair, as opposed to a perfect, trial.” Shah v. Pan Am. World Servs., Inc., 148 F.3d at 98 (internal quotation marks omitted, second and third alterations in original).
In this case, we conclude that the “making this up” comment crossed the line of impartiality and would have been better left unsaid. Nevertheless, when viewed in the context of a six-day trial generating a transcript of over 1000 pages, we are not persuaded that the error was so prejudicial as to deny defendants a fair trial. Cf. Santa Maria v. Metro-North Commuter R.R., 81 F.3d 265, 273-75 (2d Cir.1996) (vacating judgment where district court displayed “antipathy” to plaintiffs claim “[throughout the trial,” held plaintiffs attorney in contempt, and ordered local counsel to substitute for plaintiffs attorney without permitting adequate time for preparation); United States v. Filani, 74 F.3d at 386 (vacating judgment where, inter alia, “of the roughly 60 pages of the trial transcript covering appellant’s testimony, the trial judge substantively challenged the defendant on 16, or over 25 percent, of them”). The trial judge was careful to give a remedial instruction to cure any prejudice from its comment, and we have no reason to think that the jury could not follow this instruction. See United States v. White, 552 F.3d 240, 250 (2d Cir.2009) (holding, where defendant claimed supplemental jury charge expressed court’s negative assessment of his credibility, but court provided curative instruction, that “[w]e ordinarily presume that the jury adheres to curative instructions and see no reason to depart from that general rule here”); United States v. Cox, 324 F.3d 77, 87 (2d Cir.2003) (“[A]bsent evidence to the contrary, we presume that jurors remain true to their oath and conscientiously observe the instructions and admonitions of the court.” (internal quotation marks omitted, alteration in original)).
*640b. Other Conduct
To the extent defendants complain about other conduct by the trial judge, because no objection was raised in the district court, our review is limited to fundamental error, and we identify none in this case. See Taylor v. Vt. Dep’t of Educ., 313 F.3d 768, 795 (2d Cir.2002) (“In the civil context ... we reverse only if there has been fundamental error. Fundamental error is more egregious than the ‘plain’ error that can excuse a procedural default in a criminal trial, and is so serious and flagrant that it goes to the very integrity of the [proceeding].” (internal quotation marks omitted, alteration in original)). The limitations placed by the trial judge on defendants’ presentation of evidence fell well within his discretion in managing the examination of witnesses. See United States v. Local 1804-1, Int’l Longshoremen’s Ass’n, AFL-CIO, 44 F.3d 1091, 1095 (2d Cir.1995). Nor are we persuaded that the trial judge erred by “generally injecting [himself] into trial.” Appellant Br. at 27. A trial judge must “set the tone of the proceedings and exercise sufficient control to insure that the trial will be an orderly one in which the jury will have the evidence clearly presented.” Anderson v. Great Lakes Dredge & Dock Co., 509 F.2d 1119, 1131 (2d Cir.1974). The record in this case demonstrates that the trial judge’s interventions, with the exception of the single comment discussed in the preceding section, served to clarify facts for the jury and to move the proceedings forward.
Accordingly, we reject defendants’ misconduct claim as without merit.
2. Juror-Witness Contact
Defendants complain that the district court mishandled an incident of juror-witness contact by failing to interview the juror involved. To secure reversal on this ground, defendants must demonstrate both juror misconduct and ensuing prejudice. United States v. Cox, 324 F.3d at 86; see also Manley v. AmBase Corp., 337 F.3d 237, 251 (2d Cir.2003) (“The issue ... is not the mere fact of [jury] infiltration ... but the nature of what has been infiltrated and the probability of prejudice.” (internal quotation marks omitted, alteration in original)). We generally review a trial court’s handling of alleged juror misconduct for abuse of discretion. United States v. Abrams, 137 F.3d 704, 708 (2d Cir.1998). Where, as here, no objection was raised at trial, we review only for fundamental error. Taylor v. Vt. Dep’t of Educ., 313 F.3d at 795. This case satisfies neither standard.
After a juror and witness were observed in conversation during the lunch recess, the district court questioned the witness, who explained that he had not realized he was speaking with a juror and that their conversation had been limited to the previous night’s Yankees game. The court accepted this account and did not question the juror; nor was it asked to do so by any party. The court did, however, repeat to the entire jury its earlier admonition not to converse with anyone associated with the case. No objection was raised to this procedure.
Because we recognize that in handling incidents of possible juror misconduct, a trial court confronts a “delicate and complex task,” we accord it “broad flexibility.” United States v. Cox, 324 F.3d at 86 (internal quotation marks omitted). The court must be sure that any investigation it conducts does not “create prejudice by exaggerating the importance and impact of what may have been an insignificant incident.” United States v. Abrams, 137 F.3d at 708. Moreover, “[i]n many instances, the court’s reiteration of its cautionary instructions to the jury is all that is neces*641sary.” Id. (internal quotation marks omitted). Applying these principles to this case, we are satisfied that the district judge was well positioned to assess the credibility of the witness’s explanation as to the circumstances and content of the conversation at issue and to determine without further inquiry of the juror that the fairness of the trial had not been compromised.
Accordingly, we identify no error, let alone fundamental error.
3. The Award of Front Pay
On this appeal, defendants do not challenge the district court’s decision to award front pay, but only the amount of its award: $604,589, which represents the difference between what Luca would have earned as a probation officer and what she will earn as a corrections officer if she works until age sixty-two, reduced to present value. Defendants acknowledge that Luca testified that she intended to work until age sixty-two, but note that during her testimony, she remarked that she intended to work for twenty-five years, or until age fifty-one, after which, in a colloquy with the court, she corrected herself. Defendants submit that on this record, any award of front-pay beyond three years was unduly speculative.
We agree with Luca that defendants’ argument is essentially a challenge to the district court’s assessment of her credibility. In the absence of clear error, we defer to a district court’s credibility determinations, including its resolution of testimonial inconsistencies. See Phoenix Global Ventures, LLC v. Phoenix Hotel Assocs., Ltd., 422 F.3d 72, 76 (2d Cir.2005) (“[Cjlear error review mandates that we defer to the district court’s factual findings, particularly those involving credibility determinations.”); Mathie v. Fries, 121 F.3d 808, 811-12 (2d Cir.1997) (upholding decision of judge at bench trial to credit partially inconsistent testimony of plaintiff). Ordinarily, we will not disturb a trial court’s decision to credit live testimony unless the testimony is incoherent, facially implausible, or contradicted by extrinsic evidence. Anderson v. City of Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). That is not this case. The trial judge was in the best position to determine whether Luca’s correction was bona fide, and we have no reason to disturb his assessment. See id. (observing that judge was in best position to observe “variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said”).
In their reply brief and at argument, defendants urged that an award of this length was, as a matter of law, overly speculative and thus beyond the trial judge’s discretion. Leaving aside the question of whether this argument was adequately presented in defendants’ main brief, we find it meritless. We have repeatedly upheld awards of front pay through retirement where the record contained evidence sufficient to find that a plaintiff had “no reasonable prospect of obtaining comparable alternative employment” and to calculate the resulting salary disparity. Padilla v. Metro-North Commuter R.R., 92 F.3d 117, 126 (2d Cir.1996); see also, e.g., Tyler v. Bethlehem Steel Corp., 958 F.2d 1176 (2d Cir.1992). Accordingly, we identify no error in the front-pay award.
4. Attorneys ’ Fees
In calculating the award of attorneys’ fees, the district court looked to the prevailing hourly rates in both the Eastern and Southern Districts of New York. As we recently explained in Simmons v. New York City Transit Authority, 575 F.3d 170 (2d Cir.2009), however, an examination of *642out-of-district rates is proper only in a narrow set of circumstances. Because the fees in this case were awarded prior to Simmons, the record is insufficient to determine whether those circumstances obtain here. Accordingly, the district court’s award of attorneys’ fees is vacated and remanded for further analysis in light of our decision in Simmons.
We have reviewed defendants’ remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is VACATED and REMANDED for a new calculation of attorneys’ fees, and AFFIRMED in all other respects. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471393/ | SUMMARY ORDER
Plaintiffs-appellants appeal from (1) the judgment of the United States District Court for the District of Connecticut (Ar-terton, J.), dismissing their claims against all defendants, and (2) the denial of their motion to modify the judgment to grant leave to file an amended complaint. We assume the parties’ familiarity with the underlying facts and procedural history of this case, as well as the issues presented on appeal.
We conclude that the district court correctly held that the Consolidated Amended Complaint (the “Complaint”) failed to state a claim for securities fraud. Long before the price of Star Gas Partners, L.P. (“Star Gas”) securities fell in October 2004, the defendants disclosed customer attrition figures to the public and made it clear that Star Gas’s Business Improvement Plan (the “BIP”) was facing significant challenges.1 For example, in a *644July 2004 press release, defendant Sevin described the implementation of the BÍP as “particularly challenging” and disclosed that Star Gas’s operating income had decreased by approximately $4 million due in part to the effect of “an approximate 4% net customer loss resulting from both high energy prices and diminished service levels ... associated with the initial stages of [the BIP].” To the extent that any of Sevin’s earlier positive statements about the progress of the BIP could have misled investors, Sevin’s July 2004 disclosures defeat the claim that the October 2004 announcement “belatedly revealed” that Star Gas suffered high customer attrition principally related to the BIP, causing security prices to fall. Accordingly, the Complaint fails to adequately allege that any of Sev-in’s early positive statements concealed something from the market that, when disclosed in October 2004, caused the fall in securities prices. See Lentell v. Merrill Lynch & Co., 396 F.3d 161, 173 (2d Cir.2005).
Further, although Sevin’s July 2004 disclosure also included positive statements about the BIP, including that “we are beginning to see many of the operational and customer satisfaction benefits originally anticipated” and that he was optimistic “because we have a company under control,” there is no “substantial likelihood” that a “reasonable investor would have considered [these statements] significant in making investment decisions.” Ganino v. Citizens Utils. Co., 228 F.3d 154, 161-62 (2d Cir.2000) (internal quotation marks omitted). Sevin’s positive statements about the BIP’s present stability were sufficiently vague and generalized that no reasonable investor would have relied upon them, particularly when coupled with Sevin’s concurrent disclosures about the BIP’s problems to date.2 As to Sevin’s forward-looking statements, the Complaint fails to allege facts supporting the conclusion that Sevin made optimistic statements in bad faith or without a reasonable basis. See San Leandro Emergency Med. Group Profit Sharing Plan v. Philip Morris Cos., 75 F.3d 801, 813 (2d Cir.1996). Because Sevin’s statements constitute mere “expressions of puffery and corporate optimism,” they “do not give rise to securities violations.” Rombach v. Chang, 355 F.3d 164, 174 (2d Cir.2004).
We conclude also that the district court did not abuse its discretion in dismissing the Complaint with prejudice, despite plaintiffs-appellants’ footnote request in their opposition brief for leave to amend if the district court “deems the claims against Defendants insufficiently pleaded.” See In re Tamoxifen Citrate Antitrust Litig., 466 F.3d 187, 220 (2d Cir.2006) (“It is within the court’s discretion to deny leave to amend implicitly by not addressing the request when leave is requested informally in a brief filed in opposition to a motion to dismiss.”). Nor did the district court abuse its discretion in denying plaintiffs-appellants’ motion to modify the judgment, see Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir.2007) (“Generally, we review a district court’s denial of a motion to amend under the abuse of discretion standard.”), even assuming arguendo the applicability of the *645liberal Rule 15(a) standard. See In re Star Gas Sec. Litig., 241 F.R.D. 428, 433 (D.Conn.2007) (denying plaintiffs’ motion “even taking into account the liberal policy of Rule 15(a)” (internal quotation marks omitted)). The district court gave plaintiffs-appellants the opportunity to amend the Complaint after a pre-motion telephone conference where the defendants described them arguments in favor of dismissal. Plaintiffs-appellants declined to do so. Thereafter, plaintiffs-appellants did not move to amend the Complaint after the defendants filed their briefs in support of dismissal. Although plaintiffs-appellants informally requested leave to amend in their motion papers, they did not submit proposed amendments or otherwise indicate how they would correct any deficiencies in the Complaint. Under these circumstances, it was within the district court’s discretion to dismiss the Complaint with prejudice. See Porat v. Lincoln Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir.2006) (per curiam) (rejecting “a broad rule to the effect that, in the case of a counseled plaintiff, abuse of discretion will be found and the case remanded whenever a district court fails to provide for repleading”).
For the foregoing reasons, the judgment of the district court dismissing the Complaint and denying the post-judgment motion to amend the Complaint is AFFIRMED.
. Although the Complaint raises additional fraud claims, plaintiffs-appellants conceded during oral argument that this appeal chai-*644lenges only the dismissal of their fraud claims arising from alleged misrepresentations about the progress of the BIP.
. We note that plaintiffs-appellants' brief refers to allegedly misleading statements that appear only in their proposed Consolidated Second Amended Complaint, which they submitted to the district court after it dismissed the Complaint. Because these allegations were not included in the Complaint, we do not consider them in reviewing the district court's order of dismissal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471401/ | *655
SUMMARY ORDER
Joyce Parks appeals from a judgment of the district court dismissing her amended complaint alleging selective prosecution against defendants Arresting Officer, District Attorney, and Assistant District Attorney, all of the Town of Greenburgh. The Arresting Officer claims on appeal that the district court properly dismissed Parks’s amended complaint. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues and hold as follows.
Defendant Arresting Officer moved for summary judgment and, while the district court did not explicitly indicate whether it was granting this motion or the simultaneously filed motion to dismiss, the District Court referenced and relied upon facts that were not alleged in the amended complaint. For this reason, we construe the District Court’s order as one granting the Arresting Officer’s motion for summary judgment. We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). An independent and de novo review of the record and case law makes clear that the district court did not err in granting summary judgment to the Arresting Officer, since Parks failed to establish that she was selectively treated. See Zahra v. Town of Southold, 48 F.3d 674, 683-84 (2d Cir.1995); see also United States v. Armstrong, 517 U.S. 456, 465, 470, 116 S.Ct. 1480, 134 L.Ed.2d 687 (1996). Both she and her co-defendant were subject to the same criminal charge and her co-defendant in fact pleaded guilty to a greater charge than did Parks, undermining her claim that she was prosecuted based on her skin color and gender, while her co-defendant was not prosecuted at all.
The remaining defendants, the District Attorney and the Assistant District Attorney for the Town of Greenburgh, neither answered Parks’s amended complaint nor filed any motions on their own behalf. Nonetheless, the district court did not err in sua sponte dismissing the amended complaint against them, because we have held that, “[wjhere it appears clearly upon the record that all of the evidentiary materials that a party might submit in response to a motion for summary judgment are before the court” and “those materials show that no material dispute of fact exists and that the other party is entitled to judgment as a matter of law,” a district court does not err in sua sponte granting summary judgment against the plaintiff. Ramsey v. Coughlin, 94 F.3d 71, 74 (2d Cir.1996). In this case, Parks had the opportunity to submit evidence in opposition to the Arresting Officer’s summary judgment motion, and in fact did so, admitting in her affidavit that her co-defendant had been prosecuted and had pled guilty to the original charge. Given that Parks’s claim of selective treatment was identical as it related to the Arresting Officer and the remaining defendants, Parks’s admissions in her affidavit showed that no material dispute of facts existed, and the district court was thus not in error to sua sponte grant summary judgment to the District Attorney and Assistant District Attorney.
In any event, the district court had the power, pursuant to 28 U.S.C. § 1915(e), to sua sponte dismiss Parks’s appeal for failure to state a claim on which relief may be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii). We review a district court’s sua sponte dismissal under § 1915(e) de novo. See Giano v. Goord, 250 F.3d 146, 149-50 (2d *656Cir.2001). We “constru[e] the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). Our de novo review of the record and case law reveals no error in the district court’s sua sponte dismissal order as to the remaining defendants. Although the district court failed to articulate the basis for its reliance on matters outside the pleadings, it is plain that the dispositions of both Parks’s and Martin’s cases were matters of public record and it is “well established that a district court may rely on matters of public record in deciding .a motion to dismiss under rule 12(b)(6)[.]” Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir.1998); see also Blue Tree Hotels Inv. (Can.), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir.2004) (courts “may also look to public records, including complaints filed in state court, in deciding a motion to dismiss”).
We therefore AFFIRM the district court’s judgment. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471403/ | SUMMARY ORDER
This is an appeal from a May 19, 2008 order and May 29, 2008 judgment of the Southern District of New York (Jones, J.) granting Petitioner-Appellee Leon Smith’s petition for habeas corpus and vacating his conviction for robbery in the second degree on the basis that it was objectively unreasonable for the state trial court not to order sua sponte a hearing regarding Smith’s competency to stand trial. “We review a district court’s decision to grant or deny a habeas petition de novo and its findings of fact for clear error.” Hemstreet v. Greiner, 491 F.3d 84, 89 (2d Cir.2007). Smith is entitled to habeas relief only if he can demonstrate that the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C. § 2254(d)(1). It is not enough that the state court simply erred in its application of governing federal law; for a federal court to grant habeas, any such error must have been “objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409-11, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
It is well established that where the evidence “raise[s] a sufficient doubt as to a defendant’s competence to stand trial, the failure of the trial court to conduct a competency hearing sua sponte violates due process.” Nicks v. United States, 955 F.2d 161, 168 (2d Cir.1992) (citing Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966)). On direct appeal, the Appellate Division, First Department stated, “[w]e see nothing in the record to indicate that the trial court improvidently exercised its discretion in failing to order, sua sponte, a CPL article 730 examination to determine whether [Smith] was competent to stand trial. In this regard, we do not view the remarks made by the [trial] court during the CPL 440.10 hearing as an indication that the court viewed defendant as incompetent at the time of the trial.” New York v. Smith, 4 A.D.3d 163, 165, 772 N.Y.S.2d 34 (2004) (citations omitted). However, the correct inquiry is not whether the trial court viewed the defendant as competent, but whether it had “reasonable ground ... to conclude that the defendant may not be competent to stand trial.” Nicks, 955 F.2d at 168.
After an independent review of the record, we conclude, for the reasons stated by the district court in its comprehensive and well-reasoned opinion, that “the trial judge had sufficient doubt as to Smith’s competence to require a competency hearing before further proceedings, and that both the Appellate Division and the trial judge’s application of the relevant legal standards were objectively unreasonable.” Smith v. Rock, 554 F.Supp.2d 505, 513 (S.D.N.Y.2008).
*658Accordingly, the order and judgment of the district court granting the petition for habeas corpus relief are hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471405/ | SUMMARY ORDER
Petitioner appeals that part of the decision of the Board of Immigration Appeals (“BIA”) which denied her appeal of the decision of an Immigration Judge (“IJ”) finding her removable under 8 U.S.C. § 1227(a)(2)(A)(iii) for having been convicted of an aggravated felony at any time after admission. We assume the parties’ familiarity with the facts of the case, its *659procedural history, and the scope of the issues on appeal.
“When the BIA issues an opinion, that decision becomes the focus of our review.” Dong Gao v. BIA, 482 F.3d 122, 125 (2d Cir.2007). “[W]hen, in the course of interpreting the INA, the BIA has interpreted state or federal criminal laws, we review its decision de novo.” James v. Mukasey, 522 F.3d 250, 254 (2d Cir.2008).
Castro-Batista argued before the BIA that the statute under which she was convicted, N.Y. Penal Law § 130.45, has two subsections, and that only the first subsection, and not the second, entails a violation that necessarily constitutes “sexual abuse of a minor,” i.e., an aggravated felony under the INA, see 8 U.S.C. § 1101(a)(43)(A). Under our traditional “categorical approach” to determining whether a crime is an aggravated felony, “the singular circumstances of an individual petitioner’s crimes should not be considered, and only the minimum criminal conduct necessary to sustain a conviction under a given statute is relevant.” James, 522 F.3d at 254 (modification omitted) (quoting Dalton v. Ashcroft, 257 F.3d 200, 204 (2d Cir.2001)). But when a criminal statute encompasses more than one class of criminal acts, and only some of the classes necessarily constitute aggravated felonies, “the agency may then ‘refer to the record of conviction for the limited purpose of determining whether the alien’s conviction was under the branch of the statute that permits removal.’ ” Id. (quoting Dickson v. Ashcroft, 346 F.3d 44, 48-49 (2d Cir.2003)) (modification omitted). Originally, the Government argued that this is what we should do in this case, and on that basis affirm the BIA.
Now, however, in a Fed. RApp. P. 28(j) letter dated July 30, 2009, the Government has pointed out, and Castro-Batista has conceded, that the second subsection was not in force in December 2000 when she was convicted. At that time, the statute read in its entirety: “A person is guilty of sodomy in the second degree when, being eighteen years old or more, he engages in deviate sexual intercourse with another person less than fourteen years old.” N.Y. Penal Law § 130.45 (2000). It is therefore clear that Castro-Batista was convicted under a statute any violation of which constitutes an aggravated felony. See Santos v. Gonzales, 436 F.3d 323, 325 (2d Cir.2006) (per curiam).
While the BIA did err by addressing the incorrect version of N.Y. Penal Law § 130.45, “we are not required to remand where there is no realistic possibility that, absent the errors, the IJ or BIA would have reached a different conclusion.” Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 401 (2d Cir.2005). In this case, where we “can confidently predict that the agency would reach the same decision absent the errors that were made,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 339 (2d Cir.2006), remand would be futile. Therefore, “[b]ecause petitioner pled guilty to an aggravated felony, and was ordered removed on the basis of that plea pursuant to 8 U.S.C. § 1227(a)(2)(a)(iii), we do not have jurisdiction to grant [her] petition for review.” Santos, 436 F.3d at 325 (citing 8 U.S.C. § 1252(a)(2)(C)).
For these reasons, the petition for review is DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471411/ | SUMMARY ORDER
Petitioner Sanjar Kayumovich Muhitdi-nov, a native and citizen of Uzbekistan, seeks review of a September 17, 2008 order of the BIA affirming the November 2, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Sanjar Kayumovich Muhitdinov, No. A97 528 715 (B.I.A. Sept. 17, 2008), aff'g No. A97 528 715 (Immig. Ct. N.Y. City Nov. 2, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). However, when the BIA affirms the IJ’s decision in some respects but not others, we review the IJ’s decision as modified by the BIA’s decision, i.e. minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, the BIA agreed with the IJ’s adverse credibility finding. It is unclear, however, whether the BIA agreed with the IJ’s finding that even assuming his credibility, Muhitdinov failed to demonstrate his eligibility for relief. Because the agency’s adverse credibility finding is dispositive, we dispose of the petition for review on that basis.
We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence stan*667dard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
Because Muhitdinov filed his asylum application after May 11, 2005, the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005 apply to his asylum application. See Pub.L. No. 109-13, § 101(h)(2), 119 Stat. 231, 305 (2005). “For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go ‘to the heart of the applicant’s claim.’ ” Diallo v. U.S. Dep’t of Justice, 548 F.3d 232, 234 n. 1 (2d Cir.2008) (quoting 8 U.S.C. § 1158(b)(l)(B)(iii)).
Substantial evidence supports the IJ’s adverse credibility determination. The agency found inconsistencies within Muhit-dinov’s testimony and between his testimony and his asylum application. As the IJ found, Muhitdinov first testified that he was attacked by “anonymous youths” at a bus stop in November 2005 (after he was already in the United States), and then stated that the incident took place in March 2005. Furthermore, Muhitdinov indicated on his asylum application that he and his father were questioned by police for being at a mosque and then released, and that “a few persons were detained.” Yet in his testimony, he stated that he and his father were taken to the police station, detained for over ten hours, his father was beaten during that detention, and everyone was arrested. Accordingly, substantial evidence supports the agency’s findings where “the cumulative effect of these inconsistencies could have led a reasonable fact-finder to find that [the applicant] was not credible.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
Having called Muhitdinov’s credibility into question, it was not improper for the IJ to note the absence of certain corroborating evidence that may have otherwise rehabilitated his testimony. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Thus, based on the totality of the circumstances, substantial evidence supports the agency’s adverse credibility determination and its resulting denial of Muhitdinov’s application for asylum. See 8 U.S.C. § 1158(b)(l)(B)(iii).
Finally, because the only evidence of a threat to Muhitdinov’s life or freedom depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. I.N.S., 344 F.3d 272, 275-76 (2d Cir.2003); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471413/ | SUMMARY ORDER
Petitioner Vincent C. Lukose, a native and citizen of India, seeks review of a September 18, 2008 decision of the BIA. Petitioner argues as follows: (1) the BIA erred when it affirmed the immigration judge’s (“IJ”) decision to decline to reopen proceedings sua sponte to allow petitioner to apply for adjustment of status; and (2) the BIA erred when it denied Lukose’s motion to rescind the 1998 in absentia deportation order after it found that petitioner failed to rebut the presumption of effective service. We assume the parties’ familiarity with the underlying facts and procedural history in this case.
*669The fugitive disentitlement doctrine permits us to summarily dismiss Lukose’s petition for review -without reaching the merits. Under the fugitive disentitlement doctrine, we have the discretion to dismiss a petitioner’s appeal if that petitioner is “a fugitive from justice during the pendency of the appeal.” Gao v. Gonzales, 481 F.3d 173, 175 (2d Cir.2007). For the purposes of this doctrine, “an alien who fails to comply with a notice to surrender for deportation” is considered a fugitive. Id. at 176. Lukose, like the petitioner in Gao, disregarded a notice to surrender for deportation. And Lukose, again like the petitioner in Gao, “continued to carry on his life in complete disregard of the outstanding ... deportation order against him” including marrying and having two children. Id. at 175. Although these circumstances may now entitle him to relief, we recognize that “[allowing his motion to reopen to go forward would have the perverse effect of encouraging aliens to evade lawful deportation orders in the hope that, while they remain fugitives, they may contrive through their own efforts a new basis for challenging deportation.” Id. at 178. For this reason, we exercise our discretion and summarily dismiss the petition for review.
For the foregoing reason, the petition for review is DISMISSED. Inasmuch as we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471415/ | SUMMARY ORDER
Petitioner, a native and citizen of Indonesia, seeks review of a November 28, 2008 order of the BIA affirming the April 18, 2007 decision of Immigration Judge (“IJ”) Brigitte Laforest, which denied Petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Siau Pin Hon, No. A099 928 149 (B.I.A. Nov. 28, 2008), aff'g No. A098 928 149 (Immig. Ct. N.Y. City Apr. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we may consider both the IJ’s and the BIA’s opinions “for the sake of completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA 482 F.3d 122, 126 (2d Cir.2007); see also Gjolaj v. BCIS, 468 F.3d 140, 143 (2d Cir.2006) (reviewing the question of nexus for substantial evidence). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). As Horis asylum application was filed with the IJ after May 11, 2005, the provisions of the REAL ID Act apply. See Matter of S-B- 24 I. & N. Dec. 42, 45 (BIA 2006).
We find no error in the agency’s denial of Hon’s application for asylum and withholding of removal. As a preliminary matter, it is not entirely clear whether the agency found that the incidents Hon described were not severe enough to constitute persecution or whether it found that the incidents bore no nexus to a protected ground. A reviewing court must “uphold a decision of less than ideal clarity if the agency’s path may reasonably be discerned.” Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 286, 95 S.Ct. 438, 42 L.Ed.2d 447 (1974); see also Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983) (same). But see Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.2006) (finding that “the IJ’s explanation ... was insufficient to permit meaningful review of whether the IJ correctly applied the standards”). Here, although somewhat less than clear, we construe the agency’s decisions as having found that Hon did not establish that he suffered past persecution, both because he could not show that the majority of the incidents he described bore any nexus to a protected ground and because the one incident that did bear such a nexus was not severe enough to rise to the level of persecution.
The BIA has defined persecution as a “threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive.” Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985), overruled, in part, on other grounds, INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). In determining whether harm rises to the level of persecution, the harm must be sufficiently severe, rising above “mere harassment.” Ivanishvili v. U.S. *671Dep’t of Justice, 433 F.3d 332, 341 (2d Cir.2006). In addition, as amended by the REAL ID Act, Title 8, Section 1158(b)(l)(B)(i) of the U.S. Code provides that an asylum “applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” While Hon’s arguments offer the possibility that a reasonable adjudicator could have found that his assailants were motivated to persecute him in part because of his ethnicity or religion, we are not “compelled” to find — contrary to the agency — that these were “central” motives. See 8 U.S.C. §§ 1158(b)(l)(B)(i), 1252(b)(4)(B).
As the agency noted, the incidents Hon described involved criminal extortion, and none of his assailants continued to harass Hon after receiving the money or goods that they were after. See Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir.2009) (“[T]o demonstrate that a protected ground was ‘at least one central reason’ for persecution, an applicant must prove that such ground was a cause of the persecutors’ acts.”); Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir.2007) (observing that “it would be impractical for IJs to distinguish between petitioners who are targeted or held to ransom because of their class status or merely because that’s where the money is”).
Moreover, as to the single incident the IJ found “could constitute a persecutory event,”2 we agree with the agency that the incident did not rise to the level of persecution. Indeed, during the incident ten-year old Hon was taunted by four or five “native Indonesian kids around [his same] age.” See Ivanishvili, 433 F.3d at 341 (finding that, to constitute persecution, the harm an applicant fears must be sufficiently severe, rising above “mere harassment”); see also Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d 192, 198 (2d Cir.2005) (“[P]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive.”) (citing Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995), overruled, in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 306 (2d Cir.2007) (en banc); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (Alito, J.)) (“[P]er-secution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”). Therefore, the record supports the agency’s finding that Hon failed to demonstrate that he endured persecution on account of a protected ground. 8 U.S.C. § 1158(b)(l)(B)(i); see also Gjolaj, 468 F.3d at 142-43.
Because Hon failed to demonstrate that he suffered past persecution, he was not entitled to a presumption of a well-founded fear of future persecution. See 8 C.F.R. § 1208.13(b). We find no error in the agency’s holding that Hon failed to demonstrate a reasonable fear of persecution based on a pattern or practice of persecution of ethnic Chinese Christians in Indonesia.3 See Matter of A-M-, 23 I. & N. Dec. 737, 741 (BIA 2005) (finding that there was not a pattern or practice of persecution against ethnic Chinese Christians in Indonesia); Mufied v. Mukasey, 508 F.3d 88, 93 (2d Cir.2007). The BIA explicitly considered Hon’s pattern or *672practice claim, see Mufied, 508 F.Sd at 91 (remanding because both the IJ and the BIA ignored petitioner’s pattern or practice claim), and this Court “presumes that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 n. 17 (2d Cir.2006). Therefore, because nothing in the record compels us to conclude that the BIA’s analysis of Hon’s pattern or practice claim was erroneous, we find no error in the agency’s denial of his application for asylum and withholding of removal. 8 U.S.C. § 1252(b)(4)(B).
Because the agency reasonably found that Hon failed to demonstrate past persecution or a well-founded fear of future persecution, it reasonably denied his application for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Moreover, because Hon failed to sufficiently challenge the agency’s denial of his CAT claim in his brief to this Court, he has waived that claim. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 n. 7 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. We take the IJ's statement to mean that this incident did bear a nexus to a protected ground.
. We note that, as the Government observes, Hon did not claim to be a Christian in his brief to the BIA, asserting instead that there was a pattern or practice against ethnic Chinese Buddhists in Indonesia. Nonetheless, as Hon has consistently argued that there is a pattern or practice of persecution against ethnic Chinese “non-Muslims” in Indonesia, we consider his claim. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471416/ | SUMMARY ORDER
Petitioner Yu Fin Wan, a native and citizen of the People’s Republic of China, seeks review of a July 31, 2008 order of the BIA denying his motion to reopen. In re Yu Fin Wan, No. A74 153 681 (B.I.A. July 31, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
As an initial matter, contrary to the government’s argument, we conclude that Wan does not waive any challenge to the BIA’s determination that he failed to demonstrate changed country conditions excusing the time and numerical limitations for filing his motion to reopen. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Indeed, in his brief Wan argues that he submitted to the BIA “new and previously unavailable evidence of changed country conditions.”
The government correctly argues that Wan failed to exhaust his argument that the BIA violated his due process rights by denying his second motion to *674reopen. That motion asserted that the prior analysis of the U.S. Department of State 2007 report, China: Profile of Asylum Claims and Country Conditions, cited an incorrectly translated copy of the 2001 Fujian Province Population and Family Planning Law (“2001 Law”). Indeed, although Wan titled his motion before the BIA “Due Process Motion to Reopen,” he only argued that mistranslations in the 2001 Law rendered certain precedential BIA decisions flawed. Accordingly, we decline to consider Wan’s unexhausted due process argument. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
The government also argues that Wan failed to exhaust his argument that the corrected translation of the 2001 Law constituted “previously unavailable evidence of changed country conditions.” Although Wan failed to argue before the BIA that he was submitting evidence of changed country conditions sufficient to excuse the time and numerical limitation for filing his motion to reopen, because the BIA explicitly considered whether Wan had demonstrated such conditions, we consider this issue exhausted. See Xian Tuan Ye v. DHS, 446 F.3d 289, 296-97 (2d Cir.2006).
The agency did not abuse its discretion in denying Wan’s motion to reopen as untimely and number-barred. An alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). However, there is no time limit for filing a motion to reopen if it is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii). Here, the BIA reasonably concluded that Wan had not demonstrated that the time and numerical limitations for filing his motion to reopen were excused by changed country conditions where he submitted no evidence of such conditions in support of his motion. The BIA also reasonably denied Wan’s motion to reopen based on his failure to submit evidence that was not previously available. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471419/ | SUMMARY ORDER
Petitioner Chikun Chen, a citizen of China, seeks review of a June 17, 2008 order of the Board of Immigration Appeals (“BIA”) affirming Immigration Judge (“IJ”) Helen Sichel’s October 31, 2006 decision denying Chen’s application for asylum, withholding of removal, and relief under the Convention Against Torture. In re Chikun Chen, No. A97 391 248 (B.I.A. June 17, 2008), affg No. A97 391 248 (Im-mig. Ct. N.Y. City October 31, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, overturning them only if any reasonable adjudicator would be compelled to conclude to the contrary. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
We find no error in the IJ’s adverse credibility determination. It was based on the IJ’s observations of Chen’s demeanor, his failure to offer sufficient documentary evidence to corroborate his claims, and inherently implausible aspects of his claims.
This Court gives particular deference to an IJ’s assessment of an applicant’s demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). Further, there was no error in the IJ’s determination that Chen’s documents were entitled to “diminished weight.” Indeed, the weight afford*676ed to a petitioner’s documentary evidence “lies largely within the discretion of the agency.” Xiao Ji Chen v. U.S Dep’t of Justice, 471 F.3d 315, 341-42 (2d Cir.2006). Although an IJ may err in rejecting a document solely based on the alien’s failure to authenticate pursuant to 8 C.F.R. § 287.6, see Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 404-06 (2d Cir.2005), there is no error where, as here, the decision to reject the document is based on legitimate credibility concerns and the IJ relies only in part on the fact that the document was not authenticated, see Qin Wen Zheng v. Gonzales, 500 F.3d 143, 146-49 (2d Cir.2007).
Chen argues that in finding him not credible, the IJ erred in relying on minor inconsistencies related to his possession of a national identification card. The IJ’s finding on this issue, however, is more accurately characterized as a conclusion that it was implausible that Chen’s family would have been able to obtain his identification card after he had been arrested and escaped from police custody. We are not compelled to disturb that finding. See Wensheng Yan v. Mukasey, 509 F.3d 63, 67 (2d Cir.2007); Ying Li v. Bureau of Citizenship and Immigration Servs., 529 F.3d 79, 82 (2d Cir.2008). Although Chen offered an explanation — that the office that issued national identification cards was separate from the police or other law enforcement — nothing in the record would compel a reasonable fact finder to accept that explanation. See Majidi, 430 F.3d at 81 n. 1. Further, the IJ’s rejection of Chen’s explanation was not based on improper speculation regarding practices in China, see Cao He Lin, 428 F.3d at 404, but, rather, on the inherent implausibility of Chen’s claim that the Public Security Bureau would issue a fugitive a national identification card.
Having called Chen’s credibility into question, the IJ did not err in noting his failure to produce a witness who could corroborate his claim that he practices Fa-lun Gong in this country. See Xiao Ji Chen, 471 F.3d at 341 (noting that an IJ does not err in citing inadequate corroboration as a basis for denying relief where a petitioner is not otherwise credible). Chen’s failure to produce such corroborative evidence undermined his claim that he feared persecution on account of his current practice of Falun Gong.
Because the only evidence of a threat to Chen’s life or freedom depended upon his credibility, the adverse credibility finding in this case necessary precludes success on his claim for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Wu Biao Chen v. INS, 344 F.3d 272, 275 (2d Cir.2003). Finally, because Chen offered no independent evidence that he would be tortured if returned to China, the adverse credibility determination in this case also precludes success on his claim for CAT relief. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005); cf. Ramsameachire v. Ashcroft, 357 F.3d 169, 184-85 (2d Cir.2004) (holding that the agency may not deny a CAT claim solely on the basis of an adverse credibility finding made in the asylum context, where the CAT claim did not turn upon credibility).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471421/ | SUMMARY ORDER
Hua Li (“Li”) petitions this Court to review a final order of removal issued by the Board of Immigration Appeals (“Board”) on May 8, 2008. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
On appeal, Li, who has three American-born children, argues that she is eligible for withholding of removal because in China there is a “pattern or practice” of sterilizing persons with two or more children.1 We have some doubt as to whether Li preserved this issue for judicial review, but we nonetheless reach it because the Board appears to have. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 122 (2d Cir.2007).
‘We review factual findings for ‘substantial evidence,’ and will not disturb them *678‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’ ” Xiao Kui Lin v. Mukasey, 553 F.3d 217, 220 (2d Cir.2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). Upon review, we conclude that the Board’s determination is supported by substantial evidence. The IJ found Li not to be credible, a finding which the Board affirmed, and which our review of the record reveals no basis to disturb. Further, on the facts of this case, neither the so-called Guo documents nor the newspaper articles Li points to would compel a reasonable adjudicator to grant Li’s application. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 142 (2d Cir.2008). Finally, we decline Li’s invitation to overturn Shao. See County of Allegheny v. ACLU, 492 U.S. 573, 668, 109 S.Ct. 3086, 106 L.Ed.2d 472 (1989) (Kennedy, J., concurring in judgment in part and dissenting in part) (“[T]he principle of stare decisis directs [the Court] to adhere ... to the holdings of [its] prior cases .... ”).
Accordingly, the petition for review is DENIED.
. Li concedes that the Real ID Act governs review of her claim and has also waived review of "any and all arguments" concerning the insertion of an IUD. Further, by not arguing them in her brief, Li has waived review of the findings that: (I) her asylum application was time barred; (2) she was not credible; (3) she did not suffer past persecution; (4) she is ineligible for CAT protection; and (5) she did not satisfy the requirements of a motion to remand. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005) (stating that issues not argued in the briefs are considered waived and will not be addressed on appeal). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471423/ | SUMMARY ORDER
Petitioner Khondaker Maksud Alam, a native and citizen of Bangladesh, seeks review of the November 2, 2007 order of the BIA denying his motion to reopen his removal proceedings. In re Khondaker Maksud Alam, No. A096 427 070 (B.I.A. Nov. 2, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court’s admonition that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). Under 8 C.F.R. § 1003.2(c)(2), an applicant may file only one motion to reopen his proceedings and that motion must be filed within 90 days of the entry of the final decision in the underlying proceeding.
Because Alam filed his motion to reopen in August 2007 — nearly two years after the BIA dismissed his appeal from the IJ’s denial of his application for relief — it was clearly untimely. Nonetheless, an applicant may be excused from compliance with the time and numerical limitations on motions to reopen if he submits evidence establishing “changed country conditions arising in the country of nationality....” 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(e)(3)(ii). Such a motion shall not be granted unless it appears that the evidence offered in support of the motion “is material and was not available and could not have been discovered or presented” at the previous hearing. 8 C.F.R. § 1003.2(c)(1).
Here, the BIA did not abuse its discretion in denying Alam’s motion to reopen. As the BIA noted, because Alam had previously been found not credible in his underlying proceedings, general information on country conditions was insufficient to demonstrate his prima facie eligibility for relief. Indeed, in the underlying proceeding, the agency found not credible Alam’s claim that he had been persecuted as a result of his involvement with the Awami League. Therefore, the BIA did not abuse its discretion in rejecting Alam’s motion to reopen where he made much the same claim. See Kaur v. BIA, 413 F.3d 232 (2d Cir.2005) (per curiam )(finding no error in the agency’s denial of petitioner’s motion to reopen where petitioner did not overcome prior adverse credibility determination); see also Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147-48 (2d Cir.2007)(finding no error where the BIA relied on the IJ’s prior adverse credibility finding in refusing to credit evidence the petitioner submitted in support of a motion to reopen).
Alam argues that the underlying credibility determination should not undermine his motion to reopen because that credibility finding did not discredit his asserted membership in the Awami League. Contrary to his argument, the IJ expressly determined that Alam’s assertions of his past persecution arising from his political activities on behalf of the Awami League were not credible. Regardless, however, the BIA’s use of the IJ’s prior adverse credibility determination to support its refusal to credit the new evidence Alam submitted with his motion was appropriate. See Qin Wen Zheng, 500 F.3d at 147 (“[A] single document or a single instance of false testimony may (if attributable to the petitioner) infect the balance of the alien’s uncorroborated or unauthenticated evi-denee.”)(quoting Siewe v. Gonzales, 480 F.3d 160, 170 (2d Cir.2007)).
Finally, despite Alam’s argument, we are not compelled to conclude that the BIA *680failed to consider the evidence he submitted. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006) (“[We] presume that [the agency] has taken into account all the evidence before [it], unless the record compelling suggests otherwise.”); Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (expressly applying this standard to the BIA’s consideration of evidence in support of a motion to reopen).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471425/ | SUMMARY ORDER
Petitioner, Yong Gang Zou, a native and citizen of China, seeks review of an April 17, 2007 order of the- BIA affirming the June 28, 2005 decision of Immigration Judge (“IJ”) Brigitte Laforest pretermit-ting petitioner’s asylum application and denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). In re Yong Gang Zou, No. A 97 240 808 (B.I.A. Apr. 17, 2007), aff'g No. A 97 240 808 (Immig. Ct. N.Y. City June 28, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the ease.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Zhou Yun Zhang v. U.S. INS, 386 F.3d 66, 73 & n. 7 (2d Cir.2004), overruled in pari on other grounds by Shi Liang Lin v. U.S. Dept. of Justice, 494 F.3d 296, 305 (2d Cir.2007).
Title 8, Section 1158(a)(3) of the United States Code provides that no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or its finding of neither changed nor extraordinary circumstances excusing the untimeliness under 8 U.S.C. § 1158(a)(2)(D). While the courts retain jurisdiction, under 8 U.S.C. § 1252(a)(2)(D) to review constitutional claims and “questions of law,” the petitioner in this case has challenged only purely factual determinations underlying the asserted asylum claim. The Court therefore lacks jurisdiction to review the agency’s denial of asylum. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 326-29 (2d Cir.2006), and to that extent the petition is dismissed.
With respect to Zou’s withholding of removal and CAT claims, substantial evidence supports the agency’s adverse credibility determination, which was based on: (1) Zou’s demeanor, which the IJ found to be evasive and unresponsive; and (2) the implausibility that Zou could not remember any details concerning two incidents material to his claim. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang, 386 F.3d at 73 & n. 7.
This Court affords significant deference to the agency’s determinations regarding demeanor. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005); Zhou Yun Zhang, 386 F.3d at 73-74. Here, the record evidence supports the IJ’s demeanor finding where Zou failed to respond directly to questions, failed to answer some questions, and continually repeated questions. Substantial evidence also supports the IJ’s implausibility findings. Id. The agency appropriately found implausible Zou’s testimony that (1) he was arrested as a result of a conversation with a coworker but could not remember any details of the conversation except that it was about Falun Gong; and (2) he was hospitalized for a week but could not identify the extent of his injury or the treatment received as related to the length of his *682hospital stay. See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007).
To the extent that Zou challenges the agency’s other findings supporting the adverse credibility determination, we decline to consider these arguments because, even if there were error, remand would be futile as it can be confidently predicted that the agency would reach the same conclusion on remand. See Xiao Ji Chen, 471 F.3d at 339. Ultimately, substantial evidence supports the IJ’s adverse credibility determination. See 8 U.S.C. § 1252(b)(4)(B); Zhou Yun Zhang, 386 F.3d at 73 & n. 7. Because the only evidence that Zou’s life or freedom would be threatened or that he was likely to be tortured depended upon his credibility, the adverse credibility determination in this case necessarily precludes success on the withholding of removal and CAT claims. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(d)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471427/ | SUMMARY ORDER
Petitioner, Bi Qing Cao, a native and citizen of the People’s Republic of China, seeks review of an August 29, 2007 order of the BIA denying her motion to reopen her removal proceedings. In re Bi Qing Cao, No. A 073 600 720 (B.I.A. Aug. 29, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As a preliminary matter, to the extent that Cao attempts to challenge the merits of the agency’s underlying denial of her applications for asylum, withholding of removal, and Convention Against Torture (“CAT”) relief, that decision is not properly before this Court and we dismiss the petition for review to that extent. See Stone v. INS, 514 U.S. 386, 405, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995); Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 89-90 (2d Cir.2001). Only the BIA’s August 2007 decision is before us as that is the only decision from which a petition for review was timely filed. See 8 U.S.C. § 1252(b)(1). Additionally, this Court lacks jurisdiction to review the BIA’s decision not to reopen Cao’s proceedings sua sponte under 8 C.F.R. § 1003.2(a), because such a decision is “entirely discretionary.” See Azmond Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). *684Where the BIA considers relevant evidence of country conditions in evaluating a motion to reopen, we review the BIA’s factual findings under the substantial evidence standard. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008).
We find that the BIA did not err in denying Cao’s untimely motion to reopen. An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). However, there is no time or numerical limitation where the alien establishes materially “changed circumstances arising in the country of nationality.” 8 C.F.R. § 1003.2(c)(3)(h). Here, the BIA did not abuse its discretion in denying Cao’s motion to reopen as untimely where it was filed almost five years after the agency’s final order of removal. See 8 C.F.R. § 1003.2(c)(2). Moreover, substantial evidence supports the BIA’s conclusion that Cao failed to establish materially changed conditions in China. See Jian Hui Shao, 546 F.3d at 169.
We have previously reviewed the BIA’s consideration of evidence similar to that submitted by Cao in the context of an untimely motion to reopen and have found no error in its conclusion that such evidence was insufficient to establish either material changed country conditions or an objectively reasonable fear of persecution. See id. at 169-72 (noting that “[w]e do not ourselves attempt to resolve conflicts in record evidence, a task largely within the discretion of the agency”); see also Wei Guang Wang v. BIA, 437 F.3d 270, 275 (2d Cir.2006) (noting that while the BIA must consider evidence such as “the oft-cited Aird affidavit, which [it] is asked to consider time and again[,] ... it may do so in summary fashion without a reviewing court presuming that it has abused its discretion”). Additionally the BIA properly found that the doctor’s letter Cao submitted was identical to the one she submitted before the immigration judge (“IJ”) in support of her asylum application and, therefore, it did not demonstrate changed conditions. See Jian Hui Shao, 546 F.3d at 169.
The BIA also did not err in finding that its decision in Matter of Y-T-L-, 23 I. & N. Dec. 601 (B.I.A.2003), was inapposite. In that case, the BIA found that once an applicant demonstrates past persecution by establishing that he or she endured forced sterilization, the IJ errs in finding that the passage of time since that sterilization combined with a lack of enforcement efforts by family planning officials constitutes a “fundamental change” in circumstances rebutting any presumption of a well-founded fear of persecution. Matter of Y-T-L-, 23 I. & N. Dec. at 605-07. However, Cao never demonstrated that she suffered past persecution.
Finally, contrary to Cao’s argument, the BIA did not err in declining to reopen her deportation proceedings based on her eligibility for adjustment of status because that eligibility would not excuse the untimely filing of her motion to reopen. See 8 C.F.R. § 1003.2(c)(3). Accordingly, we conclude that the BIA’s denial of Cao’s motion to reopen was not an abuse of discretion.
For the foregoing reasons, the petition for review is DISMISSED, in part, and DENIED, in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471429/ | SUMMARY ORDER
Robert E. Hewitt appeals a September 30, 2008, judgment of the district court sentencing him, after a plea of guilty, to a term of imprisonment of five years for his crime of arson in violation of 18 U.S.C. § 844(i). Hewitt argues that the district court should have applied Section 5G1.3(b) of the United States Sentencing Guidelines to adjust his sentence to give him credit for time he served on a Pennsylvania state-court conviction for assault. We as*686sume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
Section 5G1.3(b) applies where, inter alia, “a term of imprisonment resulted from another offense that is relevant conduct to the instant offense of conviction” and was the basis for an increase in the defendant’s offense level under Chapter Three of the Guidelines. U.S.S.G. § 5G1.3(b); see also United States v. Rivers, 329 F.3d 119, 121 (2d Cir.2003). Hewitt argues that the assault underlying his Pennsylvania state-court conviction, against his then-girlfriend Melissa Brown, was committed in an attempt to deter Brown from turning him over to the police for the arson, and therefore, the district court erred in failing to increase his offense level for obstruction of justice under U.S.S.G. § 3C1.1, and accordingly erred in failing to adjust his sentence under U.S.S.G. § 5G1.3(b).
We review the district court’s factual determination for clear error. See United States v. Salim, 549 F.3d 67, 72, 75 (2d Cir.2008). As “the district court’s account of the evidence is plausible in light of the record viewed in its entirety,” this argument fails. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). The district court concluded that Hewitt did not assault Brown in an attempt to obstruct justice. We do not agree with Hewitt that the district court’s conclusion was clearly erroneous, in light of the evidence that Hewitt’s vicious assault on Brown was part of an ongoing pattern in an abusive relationship marked with physical violence and extensive substance abuse, even before Brown threatened to contact the police. Brown’s statement that Hewitt assaulted her after she told him she planned to inform the police about the arson may permit an inference of a cause-and-effect relationship, but the district court was not required to draw that inference. See, e.g., In re CBI Holding Co., Inc., 529 F.3d 432, 450 (2d Cir.2008) (holding that “[i]n reviewing findings for clear error, [an appellate court is] not allowed to second guess ... the trial court’s ... choice between permissible competing inferences” (quotation marks omitted; alterations in original)).
Because we conclude that the district court did not err in declining to impose an obstruction of justice enhancement, and therefore, Section 5G1.3(b) did not apply, we do not reach the merits of the other issues raised by the parties on appeal. Accordingly, the judgment of the district court hereby is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471595/ | MEMORANDUM ***
Defendant Manuel Danny Guerrero appeals his jury conviction of one count of importation of 500 grams or more of a mixture and substance containing methamphetamine, in violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2; and one count of possession of 500 grams or more of a mixture and substance containing methamphetamine with intent to distribute, in violation of 21 U.S.C. § 841 and 18 U.S.C. § 2. He also challenges the district court’s imposition of a 240-month sentence. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
The evidence viewed in the light most favorable to the government was sufficient to support Guerrero’s conviction on both counts. See United States v. Norwood, 555 F.3d 1061, 1065 (9th Cir.2009). The codefendant’s testimony establishing that Guerrero was aware of the plan to import the drugs in the car registered to Guerrero was not facially incredible and was partially corroborated by independent evidence that Guerrero and the codefen-dant had entered the country in the car on several other occasions. See United States v. Yossunthorn, 167 F.3d 1267, 1270 (9th Cir.1999) (“Because the witnesses’ testimony was not incredible on its face, and was, in fact, corroborated [by independent evidence], [defendant’s] conspiracy conviction must be affirmed.”). Although the code-fendant had credibility issues, the “jury was aware of the [codefendant’s] involvement in the scheme as well as [his] potential biases when it made its credibility finding.” United States v. Tam, 240 F.3d 797, 806 (9th Cir.2001); see also id. (“Absent facial incredibility, it is not our role to question the jury’s assessment of witness credibility.”).
The district court did not clearly err in rejecting Guerrero’s request for a minor participant adjustment under U.S.S.G. § 3B1.2(b). Trial testimony established Guerrero transported drugs across the border five times, registered the car used to smuggle the drugs and allowed it to be modified so drugs could be secreted in the gas tank, often retained possession of that car between smuggling ventures, and interacted directly with the drug suppliers on several occasions. Although someone who acts solely as a courier may be entitled to a minor participant adjustment, “we have denied downward adjustments to defendants who were couriers where some additional factor showing that they were not a minor or minimal participant[] existed.” United States v. Davis, 36 F.3d 1424, 1436-37 (9th Cir.1994) (emphasis in original). In light of Guerrero’s level of involvement in an ongo*276ing drug smuggling operation, the district court did not clearly err in denying the minor participant adjustment. See id.; see also United States v. Cantrell, 433 F.3d 1269, 1283 (9th Cir.2006) (affirming district court’s denial of minor participant adjustment where defendant “went on several drug pick-ups, each of which involved a minimum of a pound of methamphetamine”).
The district court did not improperly confuse the standard for determining whether a defendant is a minor participant under U.S.S.G. § 3B1.2(b) with the standard for determining whether a defendant engaged in aberrant behavior under U.S.S.G. § 5K2.20. In context, the district court’s references to Guerrero’s participation in multiple trips smuggling drugs across the border focused on his level of involvement in the ongoing scheme, a proper consideration for assessing the propriety of a minor participant adjustment. See Cantrell, 433 F.3d at 1283.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471432/ | SUMMARY ORDER
Appellant Amanda Edmond appeals from the judgment of the district court granting summary judgment to Appellee Hartford Underwriters Insurance Company in Appellant’s action for breach of contract. Appellee argues that the district court correctly granted the motion for summary judgment. We assume the parties’ familiarity with the facts, proceedings below, and specification of appellate issues and hold as follows.
Where a district court grants summary judgment, we review the decision de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). “In determining whether there are genuine issues of material fact, [a court is] required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (quotation marks omitted). However, “eonclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d Cir.2002).
Having conducted an independent and de novo review, we affirm for substantially the same reasons stated by the district court in its thorough and well-reasoned opinion. We have considered all of Appellant’s arguments on appeal and find them to be without merit. In addition, Appellant’s motion to strike is denied as without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471438/ | SUMMARY ORDER
John Nolan appeals from the April 16, 2008, 2008 WL 1758644, judgement of the district court, which dismissed his case with prejudice pursuant to Fed.R.Civ.P. 41(b). We assume the parties’ familiarity with the facts, proceedings below, and specification of the issues on appeal. Nolan alleges in his complaint that he entered into a contract with defendant Primagency, Inc. in 2004 for providing leads in connection with its credit financing business. Nolan alleges that defendants breached this contract and engaged in mail fraud.
On March 3, 2008, citing repeated failures of the plaintiffs counsel, Mr. Piccone, to comply with court orders, the district court sanctioned and fined Mr. Piccone (as well as defendant’s counsel, Mr. Flaum), and warned that further delays would result in dismissal pursuant to Fed.R.Civ.P. 41(b). After another month of delays, on April 16, 2008, the district court finally ordered dismissal.
Under Federal Rule of Civil Procedure 41(b), a district court may dismiss a case “[i]f the plaintiff fails to prosecute or to comply with these rules or a court order. ...” We review a district court’s dismissal of a case under Rule 41(b) for abuse of discretion. See Ruzsa v. Rubenstein & Sendy Atty’s at Law, 520 F.3d 176, 177 (2d *694Cir.2008). We have also recognized that “dismissal is a harsh remedy and is appropriate only in extreme situations.” Lucas v. Miles, 84 F.3d 532, 535 (2d Cir.1996).
When reviewing a district court’s dismissal under 41(b) for failure to prosecute or failure to follow court orders, we focus on five factors. United States ex rel. Drake v. Norden Sys., Inc., 375 F.3d 248, 254 (2d Cir.2004). We consider 1) whether the delay was of significant duration; 2) whether the plaintiff received adequate notice that additional delay would result in dismissal; 3) the risk of prejudice to the defendant by further delay; 4) the balance between the need to alleviate court congestion and the plaintiffs right to be heard; and 5) the trial court’s consideration of lesser sanctions. Id.; Lucas, 84 F.3d 532, 535 (2d Cir.1996).
We find that these factors weigh in favor of dismissal. First, the delay caused by Mr. Piccone’s failure to respond to court orders was longer than six months. Drake, 375 F.3d at 255. We have previously found six months delay to be adequate to warrant dismissal. See Chira v. Lockheed Aircraft Corp., 634 F.2d 664, 666-68 (2d Cir.1980).
Second, the district court’s March 3 order, which indicated the possibility of dismissal, served as adequate notice. Drake, 375 F.3d at 254. Mr. Piccone’s submission that he was out of the country and wrongly incarcerated during some portion of the delays does not mitigate his burden to faithfully prosecute his client’s case and maintain contact with the court. The fact that he may have had greater difficulty communicating with the court and following the progress of his case is no excuse for his repeated failures to comply with court orders.
The district court concluded that prejudice does not support dismissal in this case, because defendants also contributed to the delays. Id. The extensive efforts by the district court to encourage compliance with its orders indicate that the burden on its docket was substantial. Finally, perhaps most compellingly, the district court turned first to lesser sanctions before dismissal, when it held plaintiffs and defendants’ counsel in civil contempt on March 3, 2008.
In the context of the possibility of lesser sanctions, it is important to consider the relative balance of responsibility between plaintiff and his attorney. Dodson v. Runyon, 86 F.3d 37, 40 (2d Cir.1996). From our review of the record, it is abundantly clear that Mr. Piccone bears a great deal of responsibility for the delays in this case. Mr. Piccone was certainly more at fault than his client. In Dodson v. Runyon, 86 F.3d at 40, we observed that “[i]n deciding on the suitability of lesser sanctions, and whether the sanctions should be aimed primarily against the party or the attorney, it can be important for the district court to assess the relative roles of the attorney and client in causing the delay, as well as whether a tactical benefit was sought by the delay.”
There is no evidence of a tactical benefit to the client here, and there is nothing in the record to suggest that the client contributed to the delays, except by continuing to employ Mr. Piccone. On the other hand, the district court first attempted to sanction plaintiffs attorney before ordering dismissal, and waited over one month before doing so. Cf. id. at 41 (finding that the district court had failed to consider sanctioning plaintiffs attorney). During this time, plaintiff had ample opportunity to remove Mr. Piccone and obtain different counsel. Given that lesser sanctions were not only considered but imposed, the relative responsibility of plaintiff and his attorney also weighs in favor of dismissal.
Having considered the relevant factors, we conclude that the district court was *695within its discretion to order dismissal pursuant to Fed.R.CivJ?. 41(b).
Finally, we turn to appellant’s claim that the district court erred in denying plaintiffs motion for a default judgement against defendant Rivertown Financial, Inc. pursuant to Fed.R.Civ.P. 55. See American Alliance Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 59 (2d Cir.1996). This Circuit has noted that it is “well established the default judgements are disfavored.” Pecarsky v. Galaxiworld.com, Ltd., 249 F.3d 167, 174 (2d Cir.2001). Having reviewed the record, we conclude that the district court’s denial of the plaintiffs motion for a default judgement was well within its discretion.
For the foregoing reasons, the judgment and order of the district court are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471440/ | SUMMARY ORDER
Petitioner Be Song Zong, a native and citizen of the People’s Republic of China, seeks review of a January 9, 2009 order of the BIA denying his motion to reopen. In re Be Song Zong, No. A077 745 682 (B.I.A. Jan. 9, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). The BIA’s regulations require an alien seeking to reopen proceedings to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is no dispute that Zong’s August 2008 motion was untimely where the agency issued its final order of removal in September 2004. However, there is no time limit for filing a motion to reopen “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” Id. § 1003.2(c)(3)(ii). Here, the BIA properly found that Zong’s motion did not qualify for such an exception.
It is well-settled that a change in personal circumstances does not excuse the time limit for filing a motion to reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005). The BIA reasonably found that Zong’s newly commenced participation in the China Democracy Party (“CDP”) was just such a changed personal circumstance.
The BIA also evaluated whether Zong’s evidence demonstrated changed country conditions in China related to that country’s treatment of CDP members. We find no error in its conclusion that petitioner failed to meet his burden of showing changes in country conditions sufficient to avoid the time bar on his motion to reopen. See 8 C.F.R. § 1003.2(c)(3)(ii). Moreover, as the Government asserts, Zong failed to present any evidence as to the Chinese government’s treatment of political dissidents at the time he departed China in 2000 or prior to his final order of removal in 2003, rendering him unable to show that country conditions have materially changed since his final order of removal. See id.
Accordingly, as Zong is under a final order of removal and did not file a timely motion to reopen or demonstrate materially changed country conditions excusing the untimeliness of his motion, the BIA did not abuse its discretion in denying his motion to reopen. See 8 U.S.C. § 1229a(c) (7) (C) (ii); 8 C.F.R. § 1003.2(c)(3)(ii).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471443/ | SUMMARY ORDER
Plaintiff Michael J. Tori appeals from a judgment of the district court (Karas, J.) entered September 12, 2008, granting defendant Marist College’s (“Marist”) motion for summary judgment and closing the case. Dr. Tori — a single, white, male, Christian — brought claims under, inter alia, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and various state laws, alleging discrimination on the basis of race, gender, marital status, and religion and retaliation for protected conduct arising from Marist’s denying Dr. Tori tenure in June 2004 and refusing to hire him as an adjunct professor to teach a five-week summer course in June 2005. We assume the parties’ familiarity with the facts, procedural history, and issues on appeal.
On a motion for summary judgment, the moving party bears the initial burden of establishing that there are no genuine is*699sues of material fact. However, once such a showing is made, the non-moving party “must set forth specific facts showing that there is a genuine issue for trial.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (internal quotation marks omitted). In this regard, “unsupported allegations do not create a material issue of fact.” Id.
In a discrimination case such as this, where there is no direct evidence of discriminatory conduct, we employ the three-part burden shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Fisher v. Vassar Coll., 114 F.3d 1332, 1335-36 (2d Cir.1997) (en banc), abrogated on other grounds by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Under this familiar framework, the plaintiff must first establish a prima facie case of discrimination by showing that: (1) he is a member of a protected class; (2) he was qualified to be a tenured professor; (3) he suffered an adverse employment action in the denial of tenure; and (4) the circumstances give rise to an inference of discrimination. See Wein-stock, 224 F.3d at 42. The defendant must then articulate a legitimate, non-discriminatory reason for the denial of tenure. Once the defendant has articulated such a reason, the presumption of discrimination disappears, and the question in reviewing a motion for summary judgment becomes whether the evidence, when viewed in the light most favorable to the plaintiff, is sufficient to sustain a reasonable finding that the denial of tenure was motivated, at least in part, by discrimination. See Tomassi v. Insignia Fin. Group, Inc., 478 F.3d 111, 114 (2d Cir.2007). In this regard, “[t]he plaintiff must produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action .... To get to the jury, it is not enough ... to disbelieve the employer; the factfinder must also believe the plaintiffs explanation of intentional discrimination.” Weinstock, 224 F.3d at 42 (internal quotation marks and alterations omitted and emphasis added); see also Reeves, 530 U.S. at 143,120 S.Ct. 2097.
Retaliation claims are analyzed under the same three-part burden shifting framework. The plaintiff must first establish a prima facie case by showing that: (1) he participated in a protected activity; (2) the defendant knew of the protected activity; (3) he suffered an adverse employment action; and (4) a causal connection exists between the protected activity and the adverse action. McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir.2001). If the plaintiff sustains this burden, the employer must then articulate a legitimate, non-retaliatory reason for the adverse employment action. Once the employer offers such a reason, the presumption of retaliation disappears and “the employee must show that retaliation was a substantial reason for the adverse employment action.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir.2005).
As to the denial of tenure in June 2004, “tenure decisions in an academic setting involve a combination of factors which tend to set them apart from employment decisions generally,” and courts are “understandably reluctant to review the merits of a tenure decision.” Zahorik v. Cornell Univ., 729 F.2d 85, 92, 93 (2d Cir.1984).
[F]or a plaintiff to succeed in carrying the burden of persuasion, the evidence as a whole must show more than a denial of tenure in the context of disagreement about the scholarly merits of the candidate’s academic work, the candi*700date’s teaching abilities or the academic needs of the department or university. Absent evidence sufficient to support a finding that such disagreements or doubts are influenced by forbidden considerations such as sex or race, universities are free to establish departmental priorities, to set their own required levels of academic potential and achievement and to act upon the good faith judgments of their departmental faculties or reviewing authorities.
Id. at 94 (emphasis added).
In this case, Dr. Tori’s discrimination claim fails because he has introduced no evidence to suggest that the denial of tenure was motivated, at least in part, by discrimination on the basis of race, gender, marital status, or religion.
Dr. Tori first argues that Marist’s legitimate, non-discriminatory reason for the tenure denial, namely that Dr. Tori’s scholarship was unsatisfactory, is pretextual because Academic Vice President (“AVP”) Artin Arslanian advised him, prior to his hire, that acceptance for publication of at least one peer reviewed published article would be all that was required to meet the scholarship requirements for tenure, and Dean Thomas Wermuth told members of Dr. Tori’s department that two refereed articles would constitute satisfactory scholarship for a tenure candidate. None of this establishes that Marist had an objective “two peer-reviewed published articles standard,” as Dr. Tori claims, and, even if it did, Tori has introduced no evidence to rebut the evidence submitted by Marist that the college judged the quality, not just the quantity, of its professors’ scholarly work for tenure-review purposes. Indeed, Dean Wermuth’s 2002 evaluation, upon which Dr. Tori relies, notified Tori in writing that “[a]s you approach your tenure-review, you will need, at the very least, one more, strong article-length contribution in a peer-reviewed journal appropriate to your field.” This warning was repeated in Dr. Tori’s 2003 review.
Dr. Tori also points to the fact that two outside scholars, whose views he solicited after the Peer Review Committee (“PRC”) voted to deny tenure, concluded that his published articles were strong; that Professor Mar Peter-Raoul, the only tenured Religious Studies professor at Marist, concluded that Dr. Tori’s output stood “well with other candidates being recommended for tenure”; and that the four members of the Rank and Tenure Committee who recommended granting tenure found Dr. Tori’s scholarship satisfactory. However, “[wjhere the tenure file contains the conflicting views of specialized scholars, triers of fact cannot hope to master the academic field sufficiently to review the merits of such views and resolve the differences of scholarly opinion.” Zahorik, 729 F.2d at 93. The fact that some scholars viewed Dr. Tori’s scholarship as satisfactory or even exemplary does not create a genuine issue of material fact to preclude summary judgment.
Dr. Tori also points to four individuals (two women, one black male, and one Jewish male) whose scholarship, he argues, was less satisfactory than his, and yet, who were granted tenure. However, the conelusory assertion that women or minority candidates who were granted tenure were less qualified than Dr. Tori “adds nothing to [his] claim since the record at best indicates a difference of opinion in evaluation of scholarly merit.” Id. at 94. Moreover, none of these individuals worked in Dr. Tori’s department. One was an Assistant Professor of Business, one was an Assistant Professor of Broadcast Journalism, one was an Assistant Professor of Environmental Science, and one was an Assistant Professor of Teacher Education. As we have previously held, “[a] denial of tenure by [one] department simply cannot *701be compared with a grant of tenure in [other] departments.” Id. at 93.
Dr. Tori also points to a number of alleged procedural irregularities that infected his tenure review process. While departures from tenure procedures “can raise a question as to the good faith of the process where the departure may reasonably affect the decision,” summary judgment is appropriate where there is no evidence that discrimination played a role in any alleged procedural irregularities. Weinstoek, 224 F.3d at 45 (internal quotation marks and emphasis omitted). In this case, there is no evidence to support many of the procedural irregularities on which Dr. Tori relies.
First, the faculty handbook requires that the Peer Review Committee for tenure candidates consist of “all tenured Faculty members in the discipline,” except those who are on sabbatical or other official leave, or who sit on the Rank and Tenure Committee. Dr. Tori has introduced no evidence to support his assertion that while he was a member of the Philosophy and Religious Studies Department, Philosophy and Religious Studies are two different academic disciplines and therefore the Faculty Handbook required Dean Wer-muth to select members for the Peer Review Committee from among faculty members in a related discipline and not from members of his department. Nor has he introduced evidence that he ever attempted to challenge the selections from outside of his discipline, as the Handbook permitted him to do. Second, Dr. Tori points to no rule that precluded the Peer Review Committee from considering a letter that had been submitted, and then withdrawn, by a student four years earlier.2 Therefore, these alleged procedural irregularities do not create a genuine issue of material fact as to whether the college was motivated, at least in part, by discrimination on the basis of gender, race, marital status, or religion. In fact, of forty white male candidates who were considered by Marist for tenure or promotion between 1998 and 2006, 95% received tenure, promotion, or both. For women or other minority candidates, the rate was 83.9%.
As to Dr. Tori’s retaliation claim, there is no evidence to suggest that retaliation was a substantial reason for the denial of his application for tenure. Dr. Tori has introduced no evidence to support his theory that, in 2004, Professor Ed Donahue sabotaged his tenure application in retaliation for Dr. Tori complaining, in 1998-99, that the faculty search committee’s refusal to consider Dr. Kim Paffen-roth, after it was discovered that he was male, constituted reverse discrimination. Dr. Tori obviously cannot rely on temporal proximity to establish the requisite causal link between his protected activity in 1998-99 and the denial of tenure more than five years later. See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001). He has also introduced no direct evidence of retaliatory animus on the part of Professor Donahue. Although he now claims that Donahue had retaliated against him for years, in all of the complaints that Dr. Tori lodged against Professor Donahue for alleged mistreatment, Dr. Tori never once alleged that the mistreatment was in retaliation for the incident involving Dr. Paffenroth in 1998-99.
The same is true for Marist’s refusal to hire Dr. Tori as an adjunct professor to teach a five week class during the summer of 2005. Even if the three months *702between the time Dr. Tori filed his EEOC complaint and the time he was not hired for the position were sufficient to establish a causal connection for purposes of the prima facie case, but see Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir.1990) (three month period not sufficient to establish causal nexus for purposes of pri-ma facie case), Marist came forth with a legitimate, non-discriminatory reason for the decision, to wit, Arslanian believed that it was the practice of Marist not to bring back faculty members who had gone through the formal tenure review process, been denied, and whose contracts had then been allowed to expire.
Dr. Tori has introduced no evidence to suggest that this reason was pretextual and that retaliation was a substantial reason for the decision. Indeed, according to Dr. Tori, on June 9, 2004, President Murray said that it would “not be a problem” if Dr. Tori applied for future positions at Marist. Moreover, on June 15, 2005, Dr. Joseph D. Ross emailed Dr. Tori to inquire about his availability to teach, as an adjunct professor, a World Views and Values class during July and August of that year. This was two months after Dr. Tori filed his complaint with the EEOC, and therefore constitutes strong evidence that Marist did not act with retaliatory animus.
We have considered all of Plaintiffs other arguments and find them without merit. Accordingly, the judgment of the district court is AFFIRMED.
. The fact that the Ad Hoc Grievance Committee created to investigate Dr. Tori’s grievance complaint concluded that the PRC's reli-anee on the letter violated Dr. Ton’s right to review all of the information contained in his file does not change our decision. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471445/ | SUMMARY ORDER
Plaintiffs-appellants Eastman Kodak Company (“Kodak”) and Martin M. Coyne (“Coyne”) appeal from an order granting summary judgment for defendants-appel-lees Bayer Corp., the Supplemental Benefit Plan Committee of Sterling Drug Inc., and the Sterling Drug Inc. Supplemental Benefit Plan (jointly, “defendants”), in plaintiff Coyne’s action under the Employment Retirement Income Security Act (“ERISA”) seeking payment of benefits as authorized by 29 U.S.C. § 1132(a)(1)(B) as well as Kodak’s accompanying claim for indemnification. The District Court granted defendants’ motion for summary judgment, holding that Coyne is not entitled to the benefits he seeks, and entered final judgment on September 4, 2008; as a result, Kodak’s claim for indemnification on those benefits was made moot. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues on appeal.
We review de novo a district court’s grant of summary judgment. See, e.g., Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir.2002). Coyne argues that the District Court erred in granting defendant’s motion for summary judgment and holding that Coyne is not entitled to benefits under the Supplemental Benefit Plan (the “Supplemental Plan”) of Sterling Drug Inc. (“Sterling”) after leaving Sterling to work for Kodak, the company that had acquired Sterling.
Eligibility for benefits under the Sterling Supplemental Plan is established as follows:
‘Eligible Person’ means either (a) any person employed by [Sterling] who is a Participant in [the Kodak Retirement Income Plan] (“KRIP”) or (b) any person who had previously been, but is not currently, employed by [Sterling] who has a benefit payable under KRIP, whose benefits under KRIP are subject to the Section 401(a)(17) Limitation or the Section 415 Limitation.
Eastman Kodak Co. v. Bayer Corp., 576 F.Supp.2d 548, 551 (S.D.N.Y.2008). Judge Cederbaum noted that “[t]he parties agree that when Coyne left Sterling, in October of 1994, Coyne was not an Eligible Person *704and therefore was not a Participant under the Sterling Supplemental Plan.” Id. Coyne contends, however, that he “subsequently became an Eligible Person” as a result of being hired by Kodak, which had acquired Sterling in 1988. Defendants defend the District Court’s interpretation of the Supplemental Plan, arguing that the plain meaning of the eligibility provision “will not support plaintiffs’ argument that one can grow into a prong (b) Eligible Person.... The class of previous employees who were ‘Eligible Persons’ was a closed class when the Supplemental Plan was adopted.” Appellees’ Br. at 18.
We agree with the District Court that “[t]he plain language of the [Supplemental Plan] supports [defendants’ interpretation.” Eastman Kodak Co., 576 F.Supp.2d at 552. “[B]y using the present tense,” the Supplemental Plan’s definition (b) of an Eligible Person “restricts eligibility to people who had already retired from Sterling at the time the Sterling Supplemental Plan was adopted. Under definition (b), eligibility for benefits extends to anyone who once worked for Sterling but ‘is’ not currently employed by Sterling and ‘has’ benefits under the KRIP that ‘are’ subject to the § 401(a)(17) limitation. Definition (b) does not encompass people who will retire in the future and will have KRIP benefits, which mil be subject to the § 401(a)(17) limitation.” Id. (emphasis added).
We also agree with the District Court that Plaintiff Coyne’s interpretation does not create ambiguity in interpreting the Supplemental Plan provision because it is not a reasonable interpretation. As the District Court explained, “Coyne worked for Kodak for almost ten years, then retired and began to receive pension benefits under Kodak’s top hat plan because his salary at Kodak rose above the § 401(a)(17) limitation. Coyne now presses for additional top hat benefits under Sterling’s plan, arguing that Sterling’s obligation to pay these benefits was triggered by the high salary he attained at an entirely different company. Coyne’s argument is not reasonable.” Id. at 552-53.
Because Coyne is not entitled to benefits under Sterling’s Supplemental Plan, Kodak’s claim for indemnification for those benefits was made moot and thus appropriately resolved by summary judgment.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471447/ | SUMMARY ORDER
Petitioner Qiu-Yun Zheng, a native and citizen of China, seeks review of a September 11, 2007 order of the BIA affirming the January 5, 2006 decision of Immigration Judge (“IJ”) Robert D. Weisel denying Zheng’s applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Qiu-Yun Zheng, No. A 97 331 563 (B.I.A. Sept. 11, 2007), aff'g No. A 97 331 563 (Immig. Ct. N.Y. City Jan. 5, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in some respects but not others, this Court reviews the IJ’s decision as modified by the BIA decision, i.e., minus the arguments for denying relief that were rejected by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). Here, because the BIA rejected the IJ’s adverse credibility determination, we review only the IJ’s finding, as modified by the BIA, that Zheng failed to establish eligibility for relief even assuming her credibility. Id.; see also Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see *706also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Petitioner’s brief leaves us little to review. In addition to the statutory requirement that petitioners exhaust the categories of relief they seek, 8 U.S.C. § 1252(d)(1), petitioners must also raise to the BIA the specific issues they later raise in this Court. See Foster v. INS, 376 F.3d 75, 78 (2d Cir.2004). While not jurisdictional, this judicially imposed exhaustion requirement is mandatory. Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007). As such, because Zheng failed to raise before the BIA any argument that the IJ erred in failing to properly develop the record, and because the Government has raised this failure to exhaust in its brief to this Court, we decline to consider this issue. See id. at 124. Additionally, because Zheng does not challenge in her brief before this Court the agency’s dispositive finding that she failed to establish eligibility for asylum and withholding of removal, we deem any such challenges waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Zheng’s waiver of any challenge to the agency’s nexus finding is fatal to her challenge to the agency’s denial of her application for asylum and withholding of removal.
Concerning her CAT claim, Zheng argues that this Court should remand her case for a separate determination because the IJ relied on the same credibility finding that the BIA reversed. That argument is unavailing. While the BIA did not adopt the IJ’s adverse credibility determination, it separately found that Zheng failed to establish that she would be tortured by or with the acquiescence of the government. The BIA’s analysis was thus sufficient. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471451/ | SUMMARY ORDER
Plaintiffs-appellants Margaret E. Loris and Kelli Hibbard, who are Caucasian women, challenge an August 20, 2008 judgment of the District Court granting defendants-appellees’ motion for summary judgment and dismissing with prejudice then-suit alleging unlawful employment discrimination and retaliation under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq, and the Connecticut Fair Employment Practices Act, Conn. Gen.Stat. § 46a-60, et seq., negligent hiring, Conn. Gen Stat., 31-51q, 31-51m. Plaintiffs also alleged, under § 1983, a violation of their due process rights. See Loris v. Moore, No. 3:04-cv-1036, 2008 WL 3891730 (D.Conn. Aug. 20, 2008). On appeal, plaintiffs argue that the District Court erred in granting summary judgment to defendants with respect to (1) Loris’s claim for discrimination in violation of Title VII and the Equal Protection Clause based on defendants’ failure to hire her for the position of Subject Area Leader; (2) plaintiffs’ claims for retaliation and discrimination based on their exercise of their right to free speech under the First Amendment; and (3) plaintiffs’ due process claims. Plaintiffs also contend that the District Court erred in holding that they failed to present evidence of discrimi*712natory or retaliatory animus in their Title VII or First Amendment claims. We assume the parties’ familiarity with the facts and procedural history of the case.
We review the District Court’s grant of summary judgment de novo, construing all facts in favor of the non-moving party. See, e.g., Graves v. Finch Pruyn & Co., 457 F.3d 181, 183 (2d Cir.2006). Summary judgment is warranted only upon a showing “that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed R. Civ. P. 56(c).
We agree with the District Court that Loris failed to establish a genuine issue as to whether defendant’s proffered explanation for its decision to hire another applicant, who was black, for the position of Subject Area Leader was a pretext for unlawful discrimination or retaliation. We have explained that where, as here,
a plaintiff seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer, that discrepancy must bear the entire burden of allowing a reasonable trier of fact to not only conclude the employer’s explanation was pretextual, but that the pretext served to mask unlawful discrimination. In effect, the plaintiffs credentials would have to be so superior to the credentials of the person selected for the job that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir.2001) (internal quotation marks omitted); cf. Simms v. Oklahoma, 165 F.3d 1321, 1330 (10th Cir.1999) (“Our role is to prevent unlawful hiring practices, not to act as a ‘super personnel department’ that second guesses employers’ business judgments.”). In the pending case, Loris has failed to adduce any competent evidence of the qualifications of the individual selected for the position of Subject Area Leader. It follows that she cannot demonstrate that her qualifications were “so superior to the credentials of the person selected” as to give rise to an inference of discrimination.
The District Court properly held that plaintiffs did not state a prima facie case for First Amendment discrimination or retaliation because they failed to demonstrate that they engaged in conduct protected by the First Amendment. Specifically, we agree with the District Court’s conclusion that plaintiffs’ filing of administrative grievances and complaints did not amount to speech as “citizens for First Amendment purposes.” Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006).
Plaintiffs’ due process claims are without merit inasmuch as plaintiffs have failed to demonstrate the existence of a constitutionally protected liberty or property interest. See, e.g., Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972) (“Property interests ... are not created by the Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law....”).
Finally, we hold that the District Court did not err in concluding that plaintiffs had not demonstrated that they were subject to adverse employment actions as a result of retaliatory or discriminatory animus. Even assuming that plaintiffs’ allegations make out a prima facie case, plaintiffs failed to provide evidence that could rebut defendants’ asserted non-retaliatory business reasons. See, e.g., Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1181 (2d Cir.1996).
For reasons stated above, the August 20, 2008 judgment of the District Court is *713AFFIRMED, substantially for the reasons stated by Judge Eginton in his Memorandum of Decision of August 20, 2008. See Loris v. Moore, No. 04-cv-1036, 2008 WL 3891730 (D.Conn. Aug. 20, 2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471455/ | SUMMARY ORDER
Linda Bahar, Fnu Mujiyono, and Surya Pratama, natives and citizen of Indonesia, seek review of a November 5, 2008 order of the BIA affirming the September 11, 2006 decision of Immigration Judge (“IJ”) Douglas Schoppert, which denied their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).2 In re Linda Bahar, *716Fnu Mujiyono, Surya Pratama, Nos. A097 189 399/400/401 (B.I.A. Nov. 5, 2008), aff'g Nos. A097 189 399/400/401 (Immig. Ct. N.Y. City Sep. 11, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both decisions — or more precisely, we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. We give significant deference to the IJ’s finding that Bahar’s demeanor indicated that she was not testifying in a credible manner. See Majidi v. Gonzales, 430 F.3d 77, 81 n. 1 (2d Cir.2005). The IJ observed that she was evasive and unresponsive during her testimony. We are not compelled to disturb that finding.
Substantial evidence also supports the balance of the IJ’s adverse credibility findings. Specifically, while Bahar stated in her asylum application that she was attacked during her birthday party in 2002, during cross-examination, she testified that this event occurred in 1998. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.2006). While Petitioners argue that this inconsistency was minor and did not go to the heart of their claim, the BIA reasonably found that the discrepancy was “significant as this attack [was] allegedly the event that precipitated [Bahar’s] flight from the country in 2002 in order to protect her life.” See Secaida-Rosales v. INS, 331 F.3d 297, 307-09 (2d Cir.2003).
Additionally, the IJ noted that Bahar’s asylum application stated that she was “coming home” from Christmas shopping when she was attacked on a bus in 1997; however, Bahar testified that she was attacked on the bus as she was “heading out to go shopping.” Petitioners argue that this discrepancy was also too minor to support an adverse credibility finding; however, the IJ reasonably relied on it because Bahar indicated that “she had been shopping and she had purchased a bible and it was the discovery of that bible that led to [her] assault.” Id.
In further support of his adverse credibility determination, the IJ observed that Bahar’s Indonesian identification card indicated that she was Muslim, contrary to her testimony that she had been a Christian since she was a child. While Bahar explained that her card stated that she was Muslim because she did not want to experience problems as a Christian in Indonesia, the IJ reasonably declined to credit this explanation, finding that it contradicted her documentary evidence which indicated that she did not decide to become a Christian until 2005, after she arrived in the United States. See Majidi, 430 F.3d at 80-81.
Additionally, when confronted with an affidavit from the Department of Homeland Security indicating that Bahar lived with a man who had been convicted of asylum fraud, Bahar denied that she lived with him, stating that she lived with a man that she did not know. The IJ reasonably found this assertion implausible. See Siewe v. Gonzales, 480 F.3d 160, 168-69 (2d Cir.2007).
Ultimately, because the IJ’s credibility findings were “based upon neither a mis*717statement of the facts in the record nor bald speculation or caprice,” we will not disturb them. See Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004) (internal quotation marks omitted), overruled in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007). Because Petitioners based their claims for withholding of removal and CAT relief on the same factual predicate, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Bahar listed her husband, Mujiyono, and their son, Pratama, as derivative applicants on her asylum application. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471457/ | SUMMARY ORDER
Plaintiffs West Virginia Investment Management Board, Angel A. Burckhart, and Administración de Compensaciones por Accidentes de Automóviles (jointly, “plaintiffs”) appeal from the July 9, 2008 judgment dismissing plaintiffs’ complaint with prejudice. Plaintiffs allege that defendant PricewaterhouseCoopers LLP (“Pricewaterhouse”), along with various others, violated Section 10(b) of the Securities and Exchange Act of 1934 (“Section *71910(b)”) and Rule 10b-5 promulgated thereunder by issuing four audits and one report for Doral Financial Corporation (“Doral”) between 2000 and 2005 that were materially false. Because of these audits and reports, plaintiffs allege, Doral was able to conceal substantial frauds, which ultimately required Doral to disclose that it had overstated its pre-tax income by $920 million and understated its debt by approximately $3.3 billion. After this earnings restatement, investors suffered substantial losses.
On September 15, 2006, defendants-ap-pellees and other defendants moved to dismiss the complaint. Pricewaterhouse, in particular, moved to dismiss for failure to state a claim on which relief can be granted under Fed.R.Civ.P. 12(b)(6) for failing to plead facts giving rise to the strong inference of scienter required by Fed. R.Civ.P. 9(b) and the Private Securities Litigation Reform Act of 1995, Pub.L. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 U.S.C.) (“PSLRA”). While this motion was pending, all defendants except Pricewaterhouse settled with plaintiffs. In May 2008, the sole remaining claim — the claim against Pricewaterhouse — was reassigned from Judge Owen to Judge Rakoff. After hearing oral argument on June 4 and June 19, 2008, Judge Rakoff granted defendants’ motion to dismiss on July 8, 2008 in a thoughtful and well-reasoned opinion. In re Doral Financial Corp. Securities Litigation, 563 F.Supp.2d 461 (S.D.N.Y.2008). Plaintiffs now appeal. We assume the parties’ familiarity with the facts and procedural history of this case.
We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo, “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007).
In addition, the PSLRA requires that to successfully state a claim under federal securities law, a plaintiff must “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind.” 15 U.S.C. § 78u-4(b)(2) (emphasis supplied). Under Section 10(b) and Rule 10b-5, the required state of mind is “scienter” or an intent “to deceive, manipulate, or defraud.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 313, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007). To have a “strong inference” of scienter, as required by the PSLRA, the inference must be such that a “reasonable person would deem the inference of scien-ter cogent and at least as compelling as any opposing inference one could draw from the facts alleged.” Id. at 324, 127 S.Ct. 2499. Plaintiffs may meet this burden by alleging facts “(1) showing that the defendants had both motive and opportunity to commit the fraud or (2) constituting strong circumstantial evidence of conscious misbehavior or recklessness. ” ATSI Commc’ns, Inc., 493 F.3d at 99 (emphasis added).
When reviewing judgments of a district court that address whether the pleaded facts give rise to a “strong inference” of scienter, courts of appeals “must take into account plausible opposing inferences.” Tellabs, Inc., 551 U.S. at 323, 127 S.Ct. 2499. This includes considering inferences that neither party raised. See generally id.1
*720At issue in this appeal is whether the District Court properly concluded that plaintiffs did not state sufficient facts to raise a strong inference of recklessness. Recklessness is conduct that is “highly unreasonable and which represents an extreme departure from the standards of ordinary care.” Chill v. General Elec. Co., 101 F.3d 263, 269 (2d Cir.1996). In the accounting context, failure “to identify problems with the defendant-company’s internal controls and accounting practices does not constitute reckless conduct sufficient for [Section] 10(b) liability.” Novak v. Kasaks, 216 F.3d 300, 309 (2d Cir.2000) (emphasis added). Similarly, failure to comply with Generally Accepted Accounting Practices or other such irregularities are insufficient to establish recklessness. Id. To rise to the state of mind required, these allegations must be coupled with evidence of “corresponding fraudulent intent.” Id. (citations omitted).
We agree with the District Court that plaintiffs’ numerous allegations of carelessness by Pricewaterhouse do not create a strong inference of scienter. As the Supreme Court observed in Tellabs, Inc., the inference of scienter must be at least as compelling as an opposing inference, though it need not be more probable than not. Tellabs, Inc., 551 U.S. at 314, 127 S.Ct. 2499. In this case, the opposing inference—that Doral concealed its fraud from Pricewaterhouse, just as it concealed its fraud from investors—is objectively more compelling than plaintiffs’ allegations of recklessness. For example, plaintiffs allege that Pricewaterhouse was reckless when it failed to uncover secret side agreements that altered the terms of a sale of securities. But as the plaintiffs themselves allege, these agreements were a tightly-held secret—only a few managers knew of them. If these agreements were kept secret even from Doral’s employees, it seems more plausible that Doral’s managers concealed them from Pricewater-house than that Pricewaterhouse recklessly failed to discover them.
Similarly, plaintiffs allege that Pricewaterhouse was reckless when it failed to discover problems with the valuation of several of Doral’s assets. Plaintiffs, however, also allege that Doral had manipulated valuations of these assets by Morgan Stanley and Popular Securities—the valuations on which Pricewaterhouse relied. Although it may be arguable that Pricewaterhouse would have been more prudent if it had independently investigated the assumptions underlying these evaluations, the U.S. Auditing Standards expressly allow auditors to rely on outside valuations. U.S. Auditing Standard AU § 326A.21(a). Again, the more compelling inference arising from this constellation of facts is that Doral deceived Pricewater-house with its manipulated “independent” valuations, rather than that Pricewater-house was reckless in its audits.
Finally, plaintiffs allege that Price-waterhouse was reckless when it failed to identify problems with Doral’s internal controls to prevent fraudulent financial statements. However, we have specifically held that failing to identify problems with internal controls does not establish reckless behavior under Section 10(b). *721Novak, 216 F.3d at 309 (“[T]he failure of a non-fiduciary accounting firm to identify problems with the defendant-company’s internal controls and accounting practices does not constitute reckless conduct sufficient for § 10(b) liability.”). In any event, plaintiffs allege that Doral overrode several of its controls — including when managers manipulated the required independent valuations of certain securities. Even if Pricewaterhouse should have reported potentially problematic controls, plaintiffs’ allegations that Doral consciously and continually attempted to override those controls undermines any inference of Price-waterhouse’s recklessness.
Although plaintiffs’ allegations that Pricewaterhouse was reckless are arguably “plausible” under the general pleading standards established by the Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) and Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), the PSLRA requires in this litigation context more than mere plausibility. Instead, the allegations must create an inference “at least as compelling as any opposing inference one could draw from the facts alleged.” Tellabs, Inc., 551 U.S. at 324, 127 S.Ct. 2499. Because the competing inference that Pricewaterhouse was deceived is stronger than the inference that they were reckless, we conclude that plaintiffs’ complaint does not meet the pleading requirements of the PSLRA, and therefore that it was proper for the District Court to dismiss it.
CONCLUSION
We have considered all of plaintiffs arguments and find them to be without merit, substantially for the reasons stated in the District Court’s well-reasoned opinion. In re Doral Financial Corp. Securities Litigation, 563 F.Supp.2d. 461 (S.D.N.Y.2008). Accordingly, the judgment of the District Court is AFFIRMED.
. In Tellabs, Inc., the Supreme Court expressly rejected the Seventh Circuit’s argument that engaging in this comparative inquiry is comparable to engaging in the finding of facts and usurping the authority of the jury and therefore is a violation of the Seventh Amendment right to a jury trial in civil cases. Tel-*720labs, Inc., 551 U.S. at 326-27, 127 S.Ct. 2499. The Court explained:
[T]he Seventh Circuit explained that the court thought it wise to adopt an approach that could not be misunderstood as a usurpation of the jury’s role. In our view, the Seventh Circuit’s concern was undue. A court's comparative assessment of plausible inferences, while constantly assuming the plaintiff's allegations to be true, we think it plain, does not impinge upon the Seventh Amendment right to jury trial.
Id. (internal alterations, citations, and quotation marks omitted). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471459/ | *723OPINION
PER CURIAM.
Brian Griffin appeals pro se from the District Court’s order dismissing his action filed pursuant to 42 U.S.C. § 1983 for failure to exhaust administrative remedies. For the reasons that follow, we will summarily affirm.
Because we write primarily for the parties, it is not necessary to recite the facts or procedural history of this case except insofar as they are helpful to our discussion. In December 2006, Griffin filed a complaint alleging First and Fourteenth Amendment violations by various prison officials. Griffin, who was housed at SCI-Huntingdon, mailed a letter to prison officials at the central office at SCI-Camp Hill. The letter contained abusive language that threatened prison employees with bodily harm. Consequently, Griffin received a misconduct report and was sentenced to sixty days in Disciplinary Custody in the Restrictive Housing Unit (“RHU”). Griffin’s confinement in RHU was prolonged, however, and he claims that this additional confinement denied him due process of law. In addition, Griffin alleges that his First Amendment rights were violated because he received the misconduct report in retaliation for writing the letter, which contained protected speech.
Defendants filed an answer that included several affirmative defenses, one of which is that Griffin failed to exhaust administrative remedies. The court permitted discovery and both parties filed motions for summary judgment. After ruling on these motions, the District Court determined that the following issues were to be resolved at a bench trial: Griffin’s First Amendment claim, defendants’ argument that there was a legitimate governmental interest in punishing an inmate for using abusive language, and whether Griffin could show personal involvement by the named defendants.
Defendants filed a pretrial memorandum, which included a statement that Griffin did not appeal the matter to the second level of appeal. Defendants also included such a statement in their proposed findings of fact. At trial, one of their witnesses produced a Misconduct Tracking System Report showing that Griffin had only appealed the misconduct to the first level. Griffin also conceded during cross-examination that he did not appeal to the second and third levels available to him.
The District Court determined that Griffin did not satisfy the exhaustion requirement set forth in 42 U.S.C. 1997e(a) and dismissed the action. Griffin timely appealed. In support of his appeal, Griffin argues that defendants had waived their affirmative defense and that the District Court erred in denying him the opportunity to amend his complaint.
We have jurisdiction under 28 U.S.C. § 1291. Because Griffin is proceeding in forma pauperis, we must dismiss the appeal under 28 U.S.C. § 1915(e)(2)(B) if it is legally frivolous. We may summarily affirm the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. After a bench trial, we review the District Court’s factual findings for clear error and exercise plenary review over its conclusions of law. Am. Soc’y for Testing & Materials v. Corrpro Cos., 478 F.3d 557, 566 (3d Cir.2007). We review denial of a motion to amend the complaint for abuse of discretion. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
The Prison Litigation Reform Act of 1996 (PLRA) provides that no action shall be brought with respect to prison conditions under 42 U.S.C. § 1983 by a prisoner confined in any jail, prison, or other correctional facility until such administrative *724remedies as are available are exhausted. 42 U.S.C. § 1997e(a). Failure to exhaust administrative remedies is an affirmative defense that defendants must plead and prove. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002). The defense must be raised early in litigation. Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir.2002); Bradford-White Corp. v. Ernst & Whinney, 872 F.2d 1153, 1160-61 (3d Cir.1989).
Griffin argues that the defendants waived the defense. However, as the District Court properly found, defendants pled that Griffin failed to exhaust administrative remedies as their first affirmative defense in their answer. Defendants also argued this defense in their pretrial memorandum and in their proposed findings of fact, and supported their defense at trial via witness testimony and the Misconduct Tracking System Report. Moreover, Griffin admitted on cross-examination that he did not appeal to the second and third levels available to him. Accordingly, there is no merit in Griffin’s argument. Griffin’s alternative argument, that he exhausted this matter by filing a petition for writ of habeas corpus in state court, does not satisfy 42 U.S.C. § 1997e(a). See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir.2004) (discussing the Pennsylvania Department of Corrections three-tier grievance system as the available administrative remedy).
Finally, to the extent that Griffin appeals the District Court’s refusal to permit him to amend his complaint, we conclude that the District Court did not abuse its discretion. On several occasions, the District Court explicitly ordered Griffin to comply with the Local Rules and/or the Federal Rules of Civil Procedure for properly filing an amended complaint. Although the court provided him with detailed instructions, Griffin failed to comply.
As Griffin’s appeal presents no substantial question, we will summarily affirm the District Court’s judgment. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471461/ | OPINION
PER CURIAM.
Eugene Spuglio appeals from an order of the District Court dismissing his pro se personal injury action. For the reasons that follow, we will summarily affirm.
Spuglio, a resident of Pennsylvania, alleged that, in November 2008, while a patron at the Cabaret Lounge in Massachusetts, he was assaulted by four or five members of the Hells Angels. He further alleged that the Cabaret Lounge employees did nothing to stop the attack and did not call the police or 911.
Spuglio, proceeding pro se, later filed a diversity action in the United States District Court for the Eastern District of Pennsylvania seeking damages against Cabaret Lounge (“Defendant”) for personal injuries. He alleged that the Defendant’s employees were negligent in their failure to help him during the attack. The Defendant moved for dismissal for lack of personal jurisdiction or, in the alternative, improper venue. See Fed.R.Civ.P. 12(b)(2) — (3). The Defendant asserted, among other things, that it did not do business in or have contacts with Pennsylvania, that it did not own any property in Pennsylvania, and that it did not advertise in Pennsylvania.
In response, Spuglio argued that jurisdiction in Pennsylvania was proper because the Defendant advertised throughout the United States via the Internet. In support of his response, Spuglio submitted a printout of a Google1 search that showed the address of and directions to the Defendant’s business. The Defendant responded by arguing that it had no control over Google’s website and, even if it did, the website was “passive” for jurisdictional purposes. See Zippo Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1124 (W.D.Pa.1997); see also Toys “R” Us, Inc. v. Step Two, S.A., 318 F.3d 446, 452 (3d Cir.2003) (applying the Zippo test to a case involving non-resident website operators).
By order entered March 27, 2009, the District Court granted the Defendant’s motion to dismiss, and dismissed the complaint without prejudice for lack of personal jurisdiction. Spuglio filed a motion for a “Non-Pro-Tonk Evidence Hearing,” attempting to demonstrate that the Defendant operated an “active” website; the District Court denied the motion. Spuglio then filed a timely notice of appeal, again arguing that the Defendant’s website, which he claimed it had since taken down, was “active,” thus making the Defendant amenable to suit in Pennsylvania.
There are two types of personal jurisdiction: general and specific. General jurisdiction results from, among other things, “systematic and continuous” contact between a non-resident defendant and the forum state. See Int’l Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 90 L.Ed. 95 (1945). General jurisdiction allows the forum state to exercise personal *726jurisdiction over non-resident defendants, even for non-forum-related activities. Specific jurisdiction allows for the exercise of personal jurisdiction over a non-resident defendant for actions arising out of the defendant’s contact with the forum. See Mellon Bank (East) PSFS, Nat’l Assn. v. Farino, 960 F.2d 1217, 1221 (3d Cir.1992). Spuglio did not specify which type of jurisdiction that Pennsylvania could properly exercise over the Defendant. He alleged, however, that the Defendant’s contact with Pennsylvania consisted of Internet advertisements. Spuglio’s injuries, which he suffered while patronizing the Defendant’s Massachusetts business, did not arise out of the Defendant’s alleged contact with Pennsylvania. Therefore, Spuglio must establish that the Defendant is subject to general jurisdiction in Pennsylvania.
The likelihood that a state can exercise personal jurisdiction over a non-resident defendant website owner depends on “the nature and quality of commercial activity that [the defendant] conducts over the Internet.” Zippo, 952 F.Supp. at 1124; Toys “R” Us, 318 F.3d at 453. We examine that commercial activity to determine where it falls on what has come to be known as the Zippo sliding scale. On one end of the sliding scale are defendants who actively do business over the Internet. An example would be one who “enters into contracts with residents of a foreign jurisdiction that involve the knowing and repeated transmission of computer files over the Internet.” Zippo, 952 F.Supp. at 1124. For such “active” defendants, the exercise of personal jurisdiction is proper. Id. On the other end of the scale are those who merely make information available on the Internet. Id. The exercise of personal jurisdiction over such “passive” defendants is improper.2 Id.
The ability to use Google to locate the Defendant’s address and directions to its business does not make the Defendant subject to personal jurisdiction in Pennsylvania. The Defendant does not have control over Google’s website, and even if it did, the Google website that allows users to search for information about businesses is passive, as it does nothing more than provide information about businesses. Google also allows people to write reviews about the businesses that they have patronized. Potential customers can read these reviews. Spuglio refers to these reviews as advertisements. We disagree. The Defendant neither pays for nor controls these reviews. Even if these reviews are advertisements, “the mere posting of information or advertisements on an Internet website does not confer nationwide personal jurisdiction.” Remick v. Manfredy, 238 F.3d 248, 259 n. 3 (3d Cir.2001). To exercise personal jurisdiction over the Defendant on the basis of the information found on a Google search would not “comport with fair play and substantial justice.” Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985) (internal quotations omitted).
In his argument for appeal, Spuglio also claims that the Defendant took its website down after he initiated this suit. Since Google is still accessible, we assume that Spuglio is referring to some other website. Spuglio called this website “active” because it contained hyperlinks to the website’s administrator’s email address. Spuglio argued that, because emails sent to the administrator include the sender’s *727email address, the Defendant learns that address and can then sell it.
We find this argument unpersuasive. The hyperlinks that Spuglio mentioned are the functional equivalent of printing the administrator’s email address on the website. This amounts to nothing more than making information (i.e., the administrator’s email address) available on the Internet, and does not amount to using the computer to enter into contracts with residents of other jurisdictions in the way that the Zippo test envisions for “active” defendants. By making the email address of its website’s administrator available, the Defendant did not direct its activities into Pennsylvania. To hale the Defendant into Pennsylvania to defend this suit would not “comport with fair play and substantial justice.” Id.
For the foregoing reasons, we conclude that this appeal presents no substantial question. Accordingly, we will affirm the judgment of the District Court.
. Google operates a website that includes, among other things, an Internet search engine, which allows users to search for websites, products, and images.
. There is also a middle ground between active and passive websites. In the cases that fall in the middle, the proper exercise of personal jurisdiction “is determined by examining the level of interactivity and commercial nature of the exchange of information that occurs on the Web site.” Zippo, 952 F.Supp. at 1124. Because we agree with the Defendant that the websites mentioned by Spuglio are passive, the middle category does not apply in this case. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471463/ | OPINION
PER CURIAM.
James B. Thomas, Sr., proceeding pro se, appeals from the District Court’s order remanding his case to New Jersey state court for lack of subject matter jurisdiction. Because the appeal presents no substantial question, we will summarily affirm the District Court’s order. See 3d Cir. LAR 27.4; I.O.P. 10.6.
*728Thomas filed a notice in the United States District Court for the District of New Jersey seeking to remove, pursuant to 28 U.S.C. § 1443 and several other statutes, criminal actions that were pending in Lawrence Township Municipal Court. In his “answer and verified cross-complaint” to the State of New Jersey’s (the “State”) criminal complaint, Thomas included several counterclaims alleging that the State and its employees violated his rights under 42 U.S.C. § 1983.
The District Court entered a memorandum and order granting Thomas’s application for leave to proceed in forma pauperis, but, after concluding that § 1443 did not apply to Thomas’s case, remanded it to the state court for lack of subject matter jurisdiction. See 28 U.S.C. § 1447(c) (“If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.”). This appeal followed.
“An order remanding a case to the State court from which it was removed is not reviewable on appeal” unless the case was removed pursuant to § 1443. 28 U.S.C. § 1447(d). Thus, to the extent that Thomas challenges the District Court’s remand order with respect to any bases for removal other than § 1443, we will dismiss the appeal for lack of jurisdiction. Davis v. Glanton, 107 F.3d 1044, 1047 (3d Cir.1997). We have jurisdiction to review the remand order to the extent that Thomas asserts that removal was proper under § 1443. Id.
Section 1443 authorizes the removal of a state law action “[ajgainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.” 28 U.S.C. § 1443(1). For this provision to apply, “a state court defendant must demonstrate both: (1) that he is being deprived of rights guaranteed by a federal law ‘providing for ... equal civil rights’; and (2) that he is ‘denied or cannot enforce that right in the courts’ of the state.” Davis, 107 F.3d at 1047 (quoting State of Georgia v. Rachel, 384 U.S. 780, 788, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966)). Under the first requirement, the defendant must allege a deprivation of rights guaranteed by a federal law “providing for specific civil rights stated in terms of racial equality.” Id. (internal citations and quotations omitted). Under the second requirement, removal is available where the defendant’s federal civil rights would “inevitably be denied by the very act of being brought to trial in state court.” Id. at 1049 (internal citations and quotations omitted).
As the District Court determined, Thomas has not shown that § 1443 provides a basis for removal of the State’s criminal prosecution.1 Further, Thomas’s counterclaims against the State also do not fall under the auspices of § 1443 as he did not assert the State’s alleged deprivation of his rights was based upon his race. Moreover, he did not claim an inability to enforce his civil rights in state court.2 Ac*729cordingly, the District Court correctly determined that § 1443 did not apply to Thomas’s notice of removal and appropriately remanded the case for lack of subject matter jurisdiction.
For these reasons, we will summarily affirm the District Court’s order entered on January 16, 2009. We deny all Thomas’s remaining motions and requests for relief, including his motion for release pending review of a motion for writ of habeas corpus that he has apparently filed in the District Court, and his motion for expedited review.
. It is not clear whether the State is currently prosecuting Thomas on all of the charges that he references or if some of the prosecutions have been completed.
. After the District Court issued the remand order, Thomas filed several additional motions, including one for leave to amend the notice of removal. The District Court denied the motions because it was “completely divested of jurisdiction once it mailfed] a certified copy of the [remand] order to the clerk of the state court.” Hunt v. Acromed Corp., 961 F.2d 1079, 1081 (3d Cir.1992). To demonstrate that his counterclaims fall under § 1443, Thomas now cites to the amended notice of removal, which refers to hate crimes that the State allegedly carried out and the State's alleged "policy of racial discrimination.” Because the District Court denied *729Thomas's request to file an amended notice of removal, and because the amended notice of removal was thus never filed, we do not consider it now. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471465/ | OPINION
PER CURIAM.
Appellant Ronald Riñes pleaded guilty to four counts of armed bank robbery in *730violation of 18 U.S.C. § 2113(a) and (d). See United States v. Rines, D.C.Crim. Nos. 00-cr-00334 & 01-cr-00228. He was sentenced on October 25, 2002 in United States District Court for the Eastern District of Pennsylvania to a term of imprisonment of 188 months on each count, the sentences to run concurrently. A five-year term of supervised release also was imposed, along with a fine and restitution. Riñes was sentenced as a career offender pursuant to United States Sentencing Guidelines § 4B1.1. As a career offender, his total offense level was set at 34 and his criminal history category was set at VI. On direct appeal, Riñes challenged the District Court’s discretionary decision not to depart from the Sentencing Guidelines, and we held that we lacked jurisdiction to review that decision. See United States v. Rines, 77 Fed.Appx. 109 (3d Cir.2003).
On July 8, 2004, Riñes filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255, in which he claimed that the District Court miscalculated his criminal history category, and that counsel was ineffective in failing to challenge the miscalculation. The District Court denied the motion on January 14, 2005. In a thorough opinion, the court set forth in detail Rines’s extensive prior history of criminal convictions and determined that his sentence was proper under the Sentencing Guidelines. The court had not erred in finding that he belonged in criminal history category VI, nor did criminal history category VT misrepresent or overstate the seriousness of his prior conduct or his risk of recidivism. Riñes had argued that, under § 4A1.2(e), only three criminal history points should have been attributed to him (instead of fifteen). The court did not agree and held that the additional twelve points— three points each for federal bank robbery convictions from 1980 and 1983, and six points total for a series of six state robbery convictions from 1974- — properly were calculated, and, in any event, Riñes would fall into criminal history category VI regardless of criminal history points counted under § 4A because of the operation of § 4B. The court explained:
Under USSG § 4B, Riñes would fall into criminal history category VI regardless of the number of criminal history points the Court counted under USSG § 4A. It is evident from the review of his criminal history that Riñes had more than two prior felony convictions for crimes of violence, as defined by USSG § 4B1.2. Therefore, Riñes is a career offender, as defined by USSG § 4B, and a career offender’s criminal history category is always category VI.
Rines v. United States, 352 F.Supp.2d 569, 575 (E.D.Pa.2005).1 The District Court therefore held that counsel’s alleged ineffective performance did not prejudice Riñes. Riñes did not appeal the denial of his section 2255 motion.
At issue in the instant appeal, on March 20, 2009, Riñes filed an “ex parte application for a nisi decree,” in which he again challenged the number of criminal history points the District Court counted under § 4A1.2.2 The District Court denied this application for lack of jurisdiction, and Riñes appeals.
*731Our Clerk advised Riñes that his appeal was subject to summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He was invited to submit argument in writing, and he has done so. We have carefully reviewed that submission.
We have jurisdiction under 28 U.S.C. § 1291. Under Third Circuit LAR 27.4 and I.O.P. 10.6, we may summarily dispose of an appeal when it clearly appears that no substantial question is presented by the appeal. Our review is plenary. United States v. Thompson, 70 F.3d 279, 280-81 (3d Cir.1995).
We will summarily affirm the order of the District Court because no substantial question is presented by this appeal. A motion to vacate sentence pursuant to 28 U.S.C. § 2255 is the exclusive means to challenge collaterally a federal conviction or sentence. Under the explicit terms of 28 U.S.C. § 2255, unless a section 2255 motion would be “inadequate or ineffective,” even a habeas corpus petition cannot be entertained by a court. See Application of Galante, 437 F.2d 1164, 1165 (3d Cir.1971). Riñes appears to bring his petition as an independent action in equity, cf. United States v. Beggerly, 524 U.S. 38, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998) (addressing Federal Rule of Procedure 60(b)), but an independent action for relief from judgment is available only to prevent a grave miscarriage of justice, see id. at 47, 118 S.Ct. 1862. Riñes has shown no basis upon which to maintain an independent action.
Section 2255 is not inadequate or ineffective simply because Riñes is prevented by the gatekeeping provisions of the statute, see 28 U.S.C. § 2255(h), from re-litigating his Sentencing Guidelines claim.3 “It is the efficacy of the remedy, not the personal inability to use it, that is determinative.” Cradle v. United States ex rel. Miner, 290 F.3d 536, 538-39 (3d Cir.2002) (per curiam) (citing Garris v. Lindsay, 794 F.2d 722, 727 (D.C.Cir.1986).) At a minimum, it is adequate that Riñes could have appealed the District Court’s decision denying his July 2004 section 2255 motion. Moreover, the safety valve provided under 28 U.S.C. § 2255 is narrow, In re Dorsainvil, 119 F.3d 245, 251 (3d Cir.1997), and would not apply to an effort to re-litigate a Guidelines claim that was previously considered in a section 2255 motion and denied on the merits.
For the foregoing reasons, we will summarily affirm the order of the District Court, denying appellant’s application for a nisi decree. Appellant’s motion to remand is denied.
. Section 4Bl.l(a) provides that: "A defendant is a career offender if (1) the defendant was at least eighteen years old at the time the defendant committed the instant offense of conviction; (2) the instant offense of conviction is a felony that is either a crime of violence or a controlled substance offense; and (3) the defendant has at least two prior felony convictions of either a crime of violence or a controlled substance offense.”
. A decree is a judgment of a court of equity, and a decree nisi is a "provisional decree, which will be made absolute on motion unless cause be shown against it.” Black's Law Dictionary 411 (6th ed.1990).
. A second or successive section 2255 motion must be authorized by a court of appeals to contain: “(1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reason-_ able factfinder would have found the movant guilty of the offense; or (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. § 2255(h). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471469/ | *742OPINION OF THE COURT
DITTER, District Judge.
Appellant, Jacqueline Smith, a sergeant on the East Greenwich Police Department, brings this appeal from a decision of the District Court granting summary-judgment in favor of the appellees, the Township of East Greenwich, the East Greenwich Police Department, Police Chief William E. Giordano, and Deputy Chief Scott A. Goess, on all counts raised in Smith’s complaint. We will affirm the thorough and well-reasoned decision of the District Court.
I. Factual and Procedural Background
Jacqueline Smith has been a police officer with the Township of East Greenwich since August 1988. During her tenure, Smith has been the only female officer employed by the township.
In 1994, William Giordano was appointed chief of police. Thereafter, a lieutenant position became available in the department. Chief Giordano amended the position criteria to include the requirement that applicants for the position must have three years of supervisory experience. Smith was ineligible because she did not have this experience. Goess, who was then a patrolman and was the only applicant, was promoted to lieutenant. Smith did not challenge this promotion.
In 1996, Chief Giordano implemented a new promotional procedure for the position of sergeant by specifying certain evaluative criteria and assigning each category a weight. The criteria were as follows: psychological assessment (15%); written examination (20%); oral examination (20%); personnel file and profile (20%); seniority (5%); recommendation of the Chief (10%); and Township Committee interview (10%). Smith and four other officers applied for the promotion. Smith received the highest overall score and was recommended by Chief Giordano for the promotion. In his letter of recommendation, Chief Giordano expressed his confidence in Smith’s abilities and noted that her integrity, loyalty, and dedication to duty were exemplary. Smith was promoted to sergeant on January 14,1997.
In 1999, Smith had a child. When Smith returned to work from maternity leave, she was permitted to switch shifts with another sergeant to accommodate the needs of her new family. Smith thanked Chief Giordano for his approval of this shift change and commented on the department’s progressiveness and sensitivity to family issues.
In December 1999, Smith became the subject of an internal affair’s investigation. Lieutenant Goess conducted the investigation and recommended disciplinary action be taken against Smith. On December 9, 1999, an informal hearing was held and Smith was found guilty of four charges of falsifying reports, one charge of improper shift relief, and one charge of failing to properly supervise a probationary employee. Chief Giordano offered Smith a one-day suspension and a one-day loss of time as the discipline. Smith opted to pursue her right to a hearing before the East Greenwich Township Committee. Hearings were held before the township committee over a period of time from July 2000 through October 2000. The township committee found Smith guilty of all charges and suspended her for seven days on each of the four falsifying patrol reports charges, one day for leaving a shift early, and one day for improper supervision of a probationary officer. The suspensions were imposed concurrently.
On August 21, 2000, Smith filed a complaint with the Equal Employment Opportunity Commission (“EEOC”), challenging this disciplinary action and alleging disparate treatment and sexual harassment in violation of Title VII of the Civil Rights Act. The EEOC was “unable to conclude *743that the information obtained establishes violations of statutes” and closed her file. Smith did not pursue her claims further.
Smith was the subject of a second internal affairs investigation that began in 2003. This investigation resulted from the complaints of two of Smith’s subordinate police officers, John Seas and William Crothers. These officers complained to now Captain Goess that Smith failed to back up their calls. After an investigation, eleven charges were filed against Smith that included failing to back up officers, ordering an officer to change his report, lack of candor during the investigation, and failure to supervise.
An independent hearing officer, Daniel Bernardin, Esq., conducted the hearing on these charges over a period of several months from July 2004 through October 2004. Smith claimed the allegations were motivated by gender bias and were an effort by the department and Captain Goess to thwart her career advancement.
In November 2004, while this disciplinary action was still pending, a lieutenant position became available. On December 8, 2004, Chief Giordano changed the criteria for promotion to both the lieutenant and sergeant positions.1 Smith confronted Chief Giordano with her objections to the changes and she contends he yelled at her and stated, “I’m sick of hearing it. I’ve been chief here long enough to know what’s important.” (J.A. 81.)
Smith applied for the lieutenant position in December 2004. Smith had the highest cumulative score in the written examination, oral examination, and township interview categories. She received zero out of fifty points for the recommendation of the chief (which accounted for 25% of her total score), and zero of twenty points for her discipline record (one subsection of the personnel file and profile section).
On February 23, 2005, Hearing Officer Bernardin issued his decision finding Smith guilty on two2 of the disciplinary charges: failing to supervise Seas after he made an arrest and ordering Crothers to falsify a report.3 Bernardin imposed a penalty of concurrent ninety-day suspensions on each charge. Bernardin found no merit to Smith’s claims of gender bias on the part of either the department or Captain Goess.4
*744By letter dated March 8, 2005, Chief Giordano informed Smith that she had not been selected by the Township for the lieutenant position. A male applicant was given the promotion. Smith filed a complaint in the United States District Court for the District of New Jersey on August 25, 2005. Smith claimed violations of 42 U.S.C. § 1983 (Count One), the New Jersey Law Against Discrimination (“NJLAD”), N.J. Stat. Ann. §§ 10:5-1 to - 42 (Count Two), the Conscientious Employee Protection Act (“CEPA”), N.J. Stat. Ann. §§ 34:19-1 to -8 (Count Three), and intentional infliction of emotional distress (Count Four). Defendants’ motion for summary judgment was granted on October 30, 2007. This appeal followed.
II. Discussion
We have jurisdiction over this appeal of the final order of the District Court pursuant to 28 U.S.C. § 1291. Our review of an order granting summary judgment is plenary. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c).
Smith raises seven interrelated issues on appeal that essentially challenge the District Court’s conclusion that there were no genuine issues of material fact that would permit the jury to find in favor of Smith on any of her four counts. Smith asserts that she presented sufficient evidence to raise an issue of material fact with regard to her claim that the defendants’ reasons for pursuing the 1999 and 2004 disciplinary actions, and for not promoting Smith to lieutenant in 2005, were merely a pretext and these acts were motivated by gender discrimination. She contends the District Court made the same error in finding that she did not establish a prima facie case under the CEPA. In support of these assertions, Smith points to what she describes as a pattern of discriminatory conduct that began in 1994 when Giordano became chief and that was evidenced by her ineligibility for certain promotions based on changing criteria and the disciplinary actions taken against her.
The District Court analyzed her discrimination complaints under the theory of disparate treatment. First, the District Court applied the two-year statute of limitations of both § 1983 and NJLAD and concluded that all of her claims were barred except for the failure to promote her to lieutenant in 2005 and for the disciplinary action that was initiated for conduct that occurred in 2003. The District Court properly rejected Smith’s continuing violation theory because each alleged act of discrimination was a discrete employment act — either a failure to promote or a disciplinary action. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113-14, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (“Each discrete discriminatory act starts a new clock for filing charges alleging that act.... Discrete acts such as ... failure to promote ... are easy to identify. Each incident of discrimination and each retaliatory adverse employment decision constitutes a separate actionable ‘unlawful employment practice.’ ”); O’Connor v. City of Newark, 440 F.3d 125, 127 (3d Cir.2006) (“Morgan established a bright-line distinction between discrete acts, which are individually actionable, and acts which are not individually actionable but may be aggregated to make out a hostile work environment claim. The former must be raised within the applicable limitation period....”)
The District Court considered Smith’s remaining § 1983 and NJLAD claims together as they arise out of the same actions and are reviewed under the standard *745set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Thus, Smith was required to establish that she received different treatment from that received by other officers similarly situated and that the disparate treatment was based on her gender.
A. Failure to Promote
The District Court found Smith had established the minimal requirements of a prima facie case of discrimination because she had demonstrated that she was sufficiently qualified to be considered for the position of lieutenant and the promotion was given to a male applicant. We agree. Smith was the highest scoring applicant on her oral and written evaluations, and it was not asserted that her disciplinary record alone would disqualify her for this position. The subjective nature of the chiefs recommendation renders it inappropriate for consideration at the prima facie stage of the evaluation. See Ezold v. Wolf Block, Schorr & Solis-Cohen, 983 F.2d 509, 523 (3d Cir.1992) (a denial of promotion based on disputed qualifications will satisfy the prima facie stage if there was some objective evidence that the plaintiff was qualified to be among the candidates considered).
Thus, the inquiry turns to whether the defendants established a legitimate, nondiscriminatory reason for their actions. If the defendants meet their burden, Smith then has the opportunity to demonstrate that the defendants’ reasons are a mere pretext. To establish pretext, Smith “must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s articulated, legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer’s action.” Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir.1994).
The record established that the promotional criteria for lieutenant and sergeant were changed just after the November 2004 announcement of a lieutenant position opening. Chief Giordano testified that he changed the criteria to place more emphasis on an officer’s work history than on his or her ability to score well on examinations. Smith had the highest scores on the oral and written examinations, but the total weight was now 25% rather than 40%, with a maximum point value of 25 for each category. The weight assigned to the personnel file and profile was changed from 20% to 40%, with a maximum value of 80 points assessed by evaluating various subcategories. In the discipline record subcategory an applicant could earn a maximum of twenty points but Smith received no points. The chiefs recommendation was 25% of the evaluation with a maximum of 50 available points. Smith also received a zero in this category. Smith was the most senior candidate applying for this position, but consistent with Standard Operating Procedures (“SOP”) # 855 promulgated in 1996, seniority was no longer a separate category considered *746for promotion. The defendants cite Smith’s disciplinary record, including the charges that were pending at the time she applied for this position, as supporting her scores. We agree with the District Court that the defendants have articulated legitimate, non-discriminatory reasons for not promoting Smith.
The burden now shifts to Smith to establish that the defendants’ reasons are mere pretext. In this regard, “Smith does contend that Giordano’s action in allocating ‘zero’ points in the ‘Recommendation of Chief section of the evaluative criteria, after increasing its weight ... evidences pretext.” (Appellant’s Reply Br. 4.) Instead, she relies on “a myriad of additional evidence from which a reasonable fact finder could find pretext.” (Appellant’s Reply Br. 4.) Smith contends the following facts support a finding of pretext: (1) Chief Giordano’s addition of three years supervisory experience to be eligible for a promotion to lieutenant in 1994; (2) his 1994 promotion of a Goess, a male patrolman, to lieutenant prior to the written examination requirement; (3) the 1996 promulgation of SOP # 85 limiting applicants promotion to the next consecutive rank; (4) the 2004 change in the promotional criteria for sergeant and lieutenant to increase the weight of the chiefs recommendation and the subjective nature of the recommendation; and (5) his manipulation of the promotional criteria in 2004 to preclude any opportunity for Smith to meet the requirements for promotion to lieutenant. (Appellant’s Reply Br. 5-6.)
Smith contends that these promotion criteria changes were really Chief Giorda-no’s way of preventing her from advancing within the department. She contends that her twenty-three years in police work, with eight years as a sergeant, and her superior examination scores are sufficient to raise an issue as to the bias of the chiefs subjective ratings. Smith does not dispute her disciplinary record, or that she was the subject of a disciplinary hearing at the time Chief Giordano modified the promotional criteria for supervisory positions and made his recommendation.
These assertions do not suggest that the new promotional criteria, or Smith’s score under those criteria, were a pretext for discrimination. The flaw in Smith’s claims under both federal and New Jersey law is that she has not shown any evidence that the new promotional criteria were inappropriate. Fuentes, 32 F.3d at 765; Jason v. Showboat Hotel & Casino, 329 N.J.Super. 295, 747 A.2d 802, 809 (N.J.Super.Ct.App.Div.2000) (noting that state law evaluation is consistent with Title VII and that the court will not second guess a good faith business judgment of highly subjective criteria absent some evidence of impermissible motives). Further, Smith has not shown that male candidates received satisfactory evaluations from Chief Giorda-no despite comparable disciplinary records. Without such evidence, there is no basis on which a fact finder could conclude that the defendants were motivated by a gender bias or even consider whether Smith was the more qualified candidate. As we stated in Ezold,
Where an employer produces evidence that the plaintiff was not promoted because of its view that the plaintiff lacked a particular qualification the employer deemed essential to the position sought, a district court should focus on the qualification the employer found lacking in determining whether non-members of the protected class were treated more favorably.
983 F.2d at 528.
B. Discriminatory Disciplinary Charges
Smith also contends that she had been subjected to discriminatory and retaliatory *747disciplinary actions. Smith concedes that her claims concerning disciplinary actions taken prior to the 2003 investigation are time-barred.
Smith’s claim that the 2003 disciplinary action was discriminatory is without merit. The record of the disciplinary proceedings reveals that Smith was provided an opportunity to test the charges against her in a hearing presided over by an independent hearing officer. Smith makes no claim of bias on the part of Hearing Officer Bernardin. It was his recommendations that were approved by the Township. Although the penalty was later reduced on appeal, the hearing officer’s findings of guilt on two charges were affirmed.
Again, Smith fails to present evidence that individuals outside the protected class were treated more favorably. Her general assertion that “just about everyone” had falsified reports (J.A. 361) without any specifics as to the who, what, or when of such allegations and without evidence that Chief Giordano was aware of her claims, does not establish pretext.
The one specific instance of disparate impact proffered by Smith involved her allegation that Captain Goess had also changed a police report but was not subject to disciplinary action. This incident involved a report of a missing jacket in 2001. The jacket was originally reported as stolen. Goess testified that he modified the original report to add that the jacket may have been lost or misplaced and clearly noted on the report that he was responsible for making the additional notation. This incident is not sufficiently similar to the charges against Smith for pressuring a subordinate to change his police report concerning the potentially criminal behavior of Smith’s friends. It is also significant that the report in Smith’s case did not include any notation that Smith was responsible for any changes to the report. The conduct is simply not comparable. There was also no evidence that anyone knew Goess had changed a report prior to his deposition testimony on March 16, 2007. With no knowledge of the incident, the defendants had nothing to investigate, even if the acts of Captain Goess would have led to an investigation. Smith has failed to provide evidence that the defendants investigated and disciplined her based on her gender.
C. Retaliation
Next, Smith raises a claim of retaliation under CEPA.6 To prevail on this claim, Smith must show: (1) a reasonable belief that her employer’s conduct violated a law, rule, or regulation; (2) a whistle-blowing activity; (3) an adverse employment action; and (4) a causal connection between her whistle-blowing activity and the adverse employment action. See Caver v. City of Trenton, 420 F.3d 243, 254 (3d Cir.2005) (citing Dzwonar v. McDevitt, 177 N.J. 451, 828 A.2d 893, 900 (2003)). As with discrimination claims, if Smith establishes a prima facie case, the burden shifts to the defendants to articulate a legitimate, non-discriminatory reason for its actions, Blackburn v. United Parcel Serv., Inc., 179 F.3d 81, 92 (3d Cir.1999), and then back to Smith to rebut the reasons offered by the defendants by establishing pretext, Bowles v. City of Camden, 993 F.Supp. 255, 262 (D.N.J.1998).
Smith contends she has established a prima facie case. Smith asserts that she satisfied steps one and two when she filed a discrimination complaint with the EEOC in 2000, and when she testified in the disciplinary hearing in 2003 that the *748charges filed against her were motivated by gender bias and by Captain Goess’s desire to thwart her career advancement. Smith asserts that, as a result, the defendants retaliated against Smith for her whistle-blowing activities by: (1) permitting Captain Goess to engage in a fishing expedition that resulted in disciplinary charges being filed against her; (2) denying Smith the opportunity to attend the “Program at West Point;” (3) daily actions of degradation and humiliation; (4) pursuing her termination after two of the 2003 disciplinary charges were sustained by the hearing officer; (5) Chief Giordano’s changes to the evaluation criteria for the lieutenant promotion and his negative assessment of Smith in the “Recommendation of Chief’ section of the evaluation; and (6) the failure to promote Smith to lieutenant in 2005.
As is required in consideration of a motion for summary judgment, we view the facts in the light most favorable to the non-moving party and give Smith the benefit of any doubt the she has established the first two prongs of a prima facie case, as did the District Court. Next, we consider whether she has established the remaining two prongs: that she suffered an adverse employment action that was causally connected to her whistle-blowing activity.
This analysis requires that we review each of Smith’s asserted retaliatory acts committed by the defendants. CEPA defines a retaliatory action as “the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.” N.J. Stat. Ann. § 34:19-2(e). The New Jersey courts have interpreted this provision to require the employer’s actions to have “either impacted on the employee’s compensation or rank or be virtually equivalent to discharge in order to give rise to the level of a retaliatory action required for a CEPA claim.” Caver, 420 F.3d at 255 (internal quotation marks omitted). An action filed for a violation of CEPA must be initiated within one year of the alleged violation. N.J. Stat. Ann. § 34:19-5.
With this criteria in mind, we must reject as time-barred any claim arising from alleged retaliatory conduct occurring prior to August 25, 2004. The District Court was correct in determining that the withdrawal of Smith’s opportunity to participate in the West Point program occurred prior to August 25, 2004, and is therefore an untimely claim of retaliation. We also concur with the determination of the District Court that the denial of the opportunity to attend a leadership program is not a retaliatory act under CEPA. While this would be a good learning opportunity for any police officer, the record does not show any connection between attendance at such a program and compensation, rank, or any other affect on Smith’s employment status. It is also illogical to conclude that Smith’s 2000 EEOC complaint caused the retaliation because Chief Giordano sponsored Smith for the program and because of the three years that had elapsed since she filed her complaint. The record established that it was only after new charges resulted in another internal investigation that the opportunity was rescinded. No reasonable fact finder could conclude that the chiefs withdrawal of his sponsorship was based on anything other than the new disciplinary action that resulted in charges that were ultimately upheld by the state court.
There was no causal connection between the 2000 EEOC complaint and the 2003 internal affairs investigation. This investigation was prompted by the complaints of two of Smith’s subordinates. It was not initiated by Chief Giordano or Captain Goess. Smith’s reference to a *749fishing expedition is not supported by the facts. A full investigation of serious charges was conducted and resulted in the filing of eleven charges. An independent hearing officer heard the evidence and found Smith guilty of two serious charges. Smith does not challenge the motivations of the hearing officer.
CEPA “does not insulate the complaining employee from discharge or other disciplinary action for reasons unrelated to the complaint.” Higgins v. Pascack Valley Hosp., 158 N.J. 404, 730 A.2d 327, 338 (1999). It follows that a properly conducted investigation resulting in substantiated disciplinary charges that establish a valid basis for the complaint is not a retaliatory act under CEPA. See Beasley v. Passaic County, 377 N.J.Super. 585, 873 A.2d 673, 684-85 (N.J.Super.Ct.App.Div.2005); Hancock v. Borough of Oaklyn, 347 N.J.Super. 350, 790 A.2d 186, 193 (N.J.Super.Ct.App.Div.2002).
Smith has not set forth a basis on which a fact finder could conclude that the chiefs change in the evaluation criteria for promotion to lieutenant, his poor recommendation, and the 2005 failure to promote her to lieutenant were in retaliation for any whistle-blowing activity. Smith testified at the hearings conducted from July through October 2004, the exact date of her testimony is not provided. The change in promotion criteria occurred in December 2004. This temporal proximity alone is not sufficient to establish a causal connection. See Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177-78 (3d Cir.1997).
Chief Giordano testified that the changes to the promotion criteria for both sergeant and lieutenant were promulgated based on his determination that test performance was not the best indicator of ability and that greater emphasis should be placed on past work and supervisory experience. This was not the first time Chief Giordano changed promotion criteria. The evaluation criteria for lieutenant were changed in 1994, and for sergeant in 1996. Smith provides no evidence to rebut the department’s legitimate, nondiserimi-natory reasons for the changes other than the fact she did not get the promotion.
This change in criteria put greater emphasis on the chiefs recommendation than in prior evaluations. Smith contends this recommendation prevented her promotion. In Smith’s case, her disciplinary history and the pending investigation caused the chief to give her a poor recommendation. Where the disciplinary proceedings were justified, they do not serve to establish any discriminatory animus when considered by the chief in his evaluation of her fitness for promotion. Again, Smith fails to set forth a basis for finding that the chiefs recommendation was motivated by an intent to retaliate against Smith for her testimony in the disciplinary hearings.7
III. Conclusion
After a de novo review of the record and consideration of the arguments presented, we find that summary judgment was properly granted in favor of the defendants and we will affirm the judgment of the District Court.
. The criteria and weighting were changed as follows: written examination (12.5%); oral examination (12.5%); personnel file and profile (40%); recommendation of the chief (25%); and interview by Township Public Safety Committee (10%).
. In her brief. Smith repeatedly refers to the fact that she was found guilty of only two of thirty-five charges, but a review of the internal affairs investigation report (J.A. 229-231) and the determination of the hearing officer (J.A. 233-34), it appears that eleven charges were filed against her.
. Both charges arose from events on the evening of July 4, 2003. Seas arrested a motor vehicle operator on an outstanding warrant and notified Smith, who was required by the department’s standard operating procedures to return to headquarters and supervise Seas and ensure that the proper procedures were being followed. Meanwhile, Crothers had responded to complaints at a house where a party was being held and fireworks were being discharged. Attendees of the party at this house were friends of Smith and contacted her to complain that Crothers had confiscated the fireworks. Smith stopped at the house to speak with her friends before returning to assist Seas. When she returned to headquarters she told Crothers to omit any reference to drinking, intoxication, and abusive language from his report on the incident involving her friends.
.On appeal to the Superior Court of New Jersey, Smith's charges were upheld but her suspension was reduced to concurrent thirty-day suspensions. The Superior Court also found no merit to Smith's claim that the allegations were based on any discriminatory or retaliatory motives. (J.A. 260.)
. SOP # 85 sets forth the department’s promotion process and for the first time required that "[a]ll promotions shall be from a candidate's existing rank to the next consecutive rank. In the case of promotion to Chief, the pool of candidates shall consist of all Lieutenants and Captains. In the event that the candidates for promotion do not satisfactorily complete the promotion process, the process will be open to officers of the next subordinate rank.” (J.A. 88.) This SOP also required candidates for promotion “take examinations for the desired position,” and determined that it was in the best interests of the department to repeal its prior practice of "seniority and merit promotions.” (J.A. 89.) The length and merit of a candidate's service was only to be considered if two candidates scored equally under these promotion procedures. (J.A. 89.)
. The District Court dismissed Smith's NJLAD retaliation claims finding they are subsumed under CEPA. Smith does not challenge that determination on appeal.
. In Smith's final claim of retaliation for engaging in protected activities, she contends that the defendants subjected her to daily acts of degradation and humiliation. This claim is summarily rejected because she has failed to discuss this claim in her brief. In the absence of any specific description of acts committed by the defendants, no further discussion is required. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471471/ | OPINION OF THE COURT
PER CURIAM.
Lukito Hadisaputra, a native and citizen of Indonesia, petitions this Court for review of a final order of removal entered by the Board of Immigration Appeals (“BIA”). We will deny the petition.
In 2003, the Department of Homeland Security commenced removal proceedings against Hadisaputra, a fifty-five-year-old ethnic Chinese Christian who entered the United States in 1998 on a non-immigrant visitor visa. Hadisaputra conceded his overstay and applied for asylum, withholding of removal, relief under the Convention Against Torture (“CAT”), and, alternatively, voluntary departure. Hadisaputra sought relief due to alleged past persecution and a fear of future persecution based on his ethnicity and religion.
At a hearing before the Immigration Judge (“U”), Hadisaputra testified that he is married and has an adult child who attends a university in Indonesia. As a child in the 1960s, Hadisaputra attended a Chinese school until grade six, at which time the Indonesian government closed the *751Chinese schools. After working in a family furniture business for ten years, Hadisa-putra was employed for approximately twenty-three years as a watch repairman for the Seiko company. During that time, Hadisaputra owned a home in a predominantly Muslim neighborhood in Surabaya, Indonesia. He was the neighborhood’s only ethnic Chinese Christian homeowner.
On December 31, 1995, a group of young Muslim males came to Hadisaputra’s home seeking to sell perfume. Hadisaputra refused to buy the perfume, and the group assaulted him and his wife, and threatened to burn down the home. Hadisaputra claimed that the assault was due to the fact that he was an ethnic Chinese Christian. Hadisaputra suffered bruises on the back of his head. His wife was diagnosed following the incident as having a heart condition that required surgery. Hadisa-putra’s home was looted and damaged but not burned. Hadisaputra’s Muslim neighbors intervened and convinced the young men not to burn the home. Hadisaputra reported the incident, but “there was no result from the police.” Hadisaputra then moved into the home of a sibling in the same neighborhood. He remained there for approximately three years without incident before leaving for the United States. His wife, child, and three siblings — all ethnic Chinese Christians — -remain in Indonesia unharmed.
On cross-examination, Hadisaputra added that he once witnessed an assault by Muslim men upon an ethnic Chinese man near a marketplace, and that these same men also assaulted Hadisaputra, causing minor injury. In addition, he recalled an incident in which thieves stole two motorbikes from his property. The bikes belonged to guests of Hadisaputra’s visiting brother-in-law. Hadisaputra believed that the theft was due to his ethnicity, and it apparently occurred prior to the 1995 assault incident. The thieves sought a ransom for the bikes, but Hadisaputra testified that he refused to pay.
The IJ denied asylum because Hadisa-putra untimely filed his application more than five years after arriving in the United States. The IJ also denied withholding of removal and CAT relief, but granted voluntary departure. The BIA dismissed Hadisaputra’s appeal, noting that because Hadisaputra did not contest the denial of asylum, review was limited to the withholding and CAT claims. The BIA held that Hadisaputra failed to establish a clear probability of persecution on account of a statutorily protected ground if removed to Indonesia. The BIA noted that the Indonesian government has sought to abolish restrictive laws directed at the ethnic Chinese, and it agreed with the IJ that the reasonableness of Hadisaputra’s fear of persecution is undermined by the continued presence in Indonesia of his wife, child, and siblings. The BIA also found that Hadisaputra failed to present evidence of a pattern or practice of persecution against ethnic Chinese Christians. Finally, the BIA agreed with the denial of CAT relief.
Hadisaputra timely filed a petition for review in this Court. We have jurisdiction under 8 U.S.C. § 1252(a). “Where, as here, the BIA issues a decision on the merits and not simply a summary affir-mance, we review the BIA’s, and not the Id’s, decision.” Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006). “The BIA’s conclusions regarding evidence of past persecution and the well-founded fear of persecution are findings of fact, and we therefore review these conclusions under the deferential substantial evidence standard.” Id. We will uphold the BIA’s conclusions if they are supported by “ ‘reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Id. (quoting INS v. Elias-Zacarias, 502 U.S. *752478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). “A BIA decision can only be reversed if the evidence is such that a reasonable factfinder would be compelled to conclude otherwise.” Id.
We must first consider which of Hadisa-putra’s claims are properly before this Court for review. Hadisaputra raised no challenge before the BIA to the IJ’s holding that the asylum claim is time barred. Consequently, because he failed to exhaust administrative review, see Mudric v. Att’y Gen., 469 F.3d 94, 97 (3d Cir.2006), and because, in any event, we lack jurisdiction to review a determination that an asylum application is time barred, Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003), we do not review the asylum claim. In addition, we agree with the government that Hadisaputra’s brief in this Court does not properly assert a challenge to the BIA’s rejection of his CAT claim, and thus that issue is waived. See Lie v. Ashcroft, 396 F.3d 530, 532 n. 1 (3d Cir.2005). Our review, therefore, is limited to withholding of removal.
Hadisaputra contends that the BIA erred because his evidence established that he suffered past persecution in Indonesia, and assuming there is insufficient evidence of past persecution, he fears future persecution because of a pattern or practice of persecution against ethnic Chinese Christians in Indonesia.1
“The threshold for establishing eligibility for withholding of removal is higher than that for establishing entitlement to asylum and requires the alien to demonstrate a ‘clear probability* that, upon removal to the country of origin, his or her ‘life or freedom would be threatened on account of one of the statutorily enumerated factors.’ ” Obale v. Att’y Gen., 453 F.3d 151, 161 (3d Cir.2006) (quoting Senathirajah v. INS, 157 F.3d 210, 215 (3d Cir.1998)). Hadisaputra can establish eligibility for withholding of removal either by demonstrating past persecution, which creates a rebuttable presumption of future persecution, or by showing that it is more likely than not that he will suffer future persecution. See 8 C.F.R. § 1208.16(b)(1)-(2).
Hadisaputra appears to argue that the treatment he received in Indonesia — the closing of his elementary school in the 1960s; the 1995 assault in his home; the assault in the marketplace; and the motorbike theft — cumulatively amount to past persecution. While we agree that these incidents are troubling, the record does not compel the conclusion that they rise to the level of “persecution.” See Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993) (defining persecution as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” and explaining that persecution “does not encompass all treatment that our society regards as unfair, unjust or even unlawful or unconstitutional”); Wong v. Att’y Gen., 539 F.3d 225, 236 (3d Cir.2008) (observing that “harassment and discrimination do not constitute persecution”); Lie, 396 F.3d at 536 (holding that “two isolated criminal acts, perpetrated by unknown assailants, ... [are] not sufficiently severe to be considered persecution”).
As to future persecution, Hadisaputra makes no claim that he will be singled out upon return to Indonesia, and he argues instead that there exists a “pattern or practice” of discrimination against ethnic Chinese Christians. This argument, how*753ever, is indistinguishable from those that we have rejected in the past. See Wong, 539 F.3d at 233-34 (rejecting as “without merit” the contention that “the State Department reports and other background materials document a pattern or practice of persecution of Chinese Christians in Indonesia” and observing that more recent State Department reports describe improved conditions); Lie, 396 F.3d at 537-38 (rejecting claim that evidence of past attacks upon Chinese Christians in Indonesia amounts to pattern or practice of persecution). The BIA also correctly observed that the continued presence in Indonesia of Hadisaputra’s wife, adult child, and siblings undermines his claimed fear of future persecution. See Wong, 539 F.3d at 236; Lie, 396 F.3d at 537.
For these reasons, we will deny the petition for review.2
. The government argues that Hadisaputra has waived the past persecution issue by failing to provide analysis or legal argument in his brief to support it. We conclude that Hadisaputra does offer a supporting analysis (albeit a poorly developed analysis), and thus we will address this issue on the merits.
. Hadisaputra's request for a stay of removal pending this Court’s review, see Petitioner’s Br. at 13, is denied as moot in light of our disposition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471473/ | OPINION OF THE COURT
RENDELL, Circuit Judge.
Daryle Pitts appeals from the order of the District Court dismissing his complaint under Fed.R.Civ.P. 12(b)(6). Pitts, an inmate at the New Jersey State Prison in Trenton, New Jersey, alleged that he was denied necessary medical treatment while in prison. He filed a complaint pro se, asserting claims under 42 U.S.C. § 1983 for violations of his Eighth and Fourteenth Amendment rights under the U.S. Constitution; violations of Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794; and various claims under New Jersey tort law. Without providing Pitts an opportunity to amend his complaint, the District Court dismissed Pitts’s federal claims under Fed.R.CivP. 12(b)(6).1
“[Tjhis court has consistently held that when an individual has filed a complaint under § 1983 which is dismissable [sic] for lack of factual specificity, he should be given a reasonable opportunity to cure the defect, if he can, by amendment of the complaint and that denial of an application for leave to amend under these circumstances is an abuse of discretion.” Shane v. Fauver, 213 F.3d 113, 116 (3d Cir.2000) (quoting Darr v. Wolfe, 767 F.2d 79, 81 (3d Cir.1985)). If a plaintiff fails to request leave to amend in such a circumstance, the court must inform him that he may amend his complaint within a specific time period, unless amendment would be futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir.2002).
In the present case, the District Court dismissed Pitts’s complaint because it failed to plead allegations with the requisite specificity. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The District Court reasoned that Pitts failed to allege that the named defendants were personally responsible for denying him treatment, and that the acts or omissions were severe enough to offend “evolving standards of decency.” The District Court also noted that Pitts failed to name the New Jersey Department of Corrections as a defendant — since it is the department, not its employees, that receives federal funds — and failed to specify which of his conditions constitutes a disability under the ADA. We conclude that these are technical pleading errors readily addressed in an amended complaint. This is especially true here, where plaintiff obtained counsel after filing his original complaint.
*755Because the District Court should have provided Pitts with leave to amend his complaint before granting the motion to dismiss, we will VACATE the order of the District Court and REMAND the case, instructing the District Court to grant Pitts leave to amend his complaint under Fed.R.Civ.P. 15(a).2
. The District Court had jurisdiction under 28 U.S.C. § 1331. We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.
. We need not address Pitts's alternative contention — that his original complaint complies with Fed.R.Civ.P. 8(a) — as we conclude that he is entitled to file an amended complaint, and we assume that newly appointed counsel would desire to do so. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471475/ | OPINION
PER CURIAM.
Freddie Richardson, an inmate at the Northern State Prison in Newark, New Jersey, appeals pro se from the District Court’s dismissal of his complaint. Because we conclude that this appeal presents no substantial question, we will summarily affirm. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6
I.
Richardson filed an application to proceed in forma pauperis and a complaint against Lydell Sherrer, Peggy Brooks, S.C.O. Westry, S.C.O. Rayford, and Sergeant Nicolai, wherein he claimed that he was subjected to retaliatory discipline, searches, and harassment, and placed in unsanitary conditions of confinement.
Richardson alleges that, while he working on garbage disposal duty, Westry harassed him about what she believed to be his unauthorized “headwear.” Westry wrote a disciplinary report, which was ultimately dismissed. After the dismissal, Richardson alleges, Rayford and Nicolai placed him in a cold, unsanitary barber shop and strip-searched him. They then searched his cell and claimed to have found a handcuff key. Richardson states that he was placed in segregated housing in a cell without running water1 until approximately three weeks later when the charges were dismissed.
Richardson claims that Sherrer, the administrator of the prison, was aware of the other defendants’ illegal actions, and failed to take any corrective action. He claims that Brooks, the remedy form coordinator, failed to respond to his numerous remedy forms, and disclosed information about the *757remedy forms to the correctional officers who in turn harassed him. Richardson alleges that Westry initiated the harassment and retaliated against him by filing a false misconduct report, which resulted in Richardson’s confinement in segregated housing. He also alleges that Rayford and Nicolai, who were both present when “the handcuff key was placed in [his] cell,” retaliated against him after the disciplinary report was dismissed. He seeks compensatory and punitive damages, and injunc-tive relief requiring all handcuff keys to be registered and kept in a “specific data bank.”
The District Court granted Richardson leave to proceed in forma pauperis, dismissed his Eighth Amendment verbal harassment and Fourteenth Amendment due process claims "with prejudice, and allowed his First Amendment retaliation claim to proceed. In December 2008, the court granted Sherrer’s and Brooks’ motion to dismiss for failure to state a claim upon which relief could be granted.2 In March 2009, the court granted the remaining defendants’ motion to dismiss for failure to exhaust administrative remedies. The court also denied Richardson’s request for appointment of counsel. Richardson timely appealed.
II.
We exercise plenary review over the District Court’s sua sponte dismissal of Richardson’s Eighth and Fourteenth Amendment claims under sections 1915(e)(2)(B) and 1915A(b)(l), see Allah v. Seiverling, 229 F.Sd 220, 223 (3d Cir.2000), and over the orders granting the motions to dismiss, see Santiago v. GMAC Mortg. Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. ——, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In deciding a motion to dismiss, a court must determine whether the complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
III.
A. The District Couri’s Sua Sponte Dismissal of 8th and 11th Amendment claims
The District Court correctly concluded that Richardson’s claim against Westry and Nicolai regarding their alleged verbal abuse of him was not viable under 42 U.S.C. § 1983. Richardson alleges only that Westry made “idle threats of verbal harassment,” and that Nicolai threatened to “shut [him] up” if he was not quiet. Verbal harassment of a prisoner, without more, does not violate the Eighth Amendment. See, e.g., McBride v. Deer, 240 F.3d 1287, 1291 n. 3 (10th Cir.2001); DeWalt v. Carter, 224 F.3d 607, 612 (7th Cir.2000).
The District Court considered Richardson’s allegation that he was subjected to false discipline as a Fourteenth Amendment due process claim, and as part of his claim for retaliation, which we will address separately. The District Court concluded that filing false disciplinary charges does not itself violate a prisoner’s constitutional rights, so long as procedural due process protections were provided. See e.g., Freeman v. Rideout, 808 F.2d 949, 952-53 (2d Cir.1986) (the filing of false charges does not constitute a claim under *758§ 1983 so long as the inmate was granted a hearing and an opportunity to rebut the chai’ges); Hanrahan v. Lane, 747 F.2d 1137, 1140 (7th Cir.1984). Richardson does not allege that he was denied a hearing or an opportunity to present a defense. Therefore, to the extent Richardson asserts a due process violation, the District Court properly dismissed his claim.
B. Motion to Dismiss—Sherrer and Brooks
We agree with the District Court that Richardson failed to plead sufficient facts to demonstrate Sherrer’s and Brooks’ personal involvement in any alleged retaliatory acts against him. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). “Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence.” Id. Richardson’s allegations against Sherrer—that Sherrer did not stop to talk to Richardson during rounds, and that Sherrer failed to look into Richardson’s complaints—do not qualify as “personal direction” or “actual knowledge or acquiescence.” As the District Court pointed out, Richardson does not explain what information he communicated to Sherrer, other than that he did not describe “the whole incident.” Likewise, he does not allege any personal interaction with Brooks, nor does he provide any descriptions of the remedy forms he claims he submitted. Finally, Richardson’s allegation that Brooks notified the other defendants that Richardson had filed remedy forms, which incited retaliatory actions, does not suffice to show the “personal involvement” by Brooks in the alleged retaliation.
C. Motion to Dismiss/for Summary Judgment—Westry, Rayford, and Ni-colai
The remaining defendants filed a motion to dismiss, or, alternatively, for summary judgment, on the ground that Richardson had failed to exhaust his administrative remedies. Under the Prison Litigation Reform Act of 1995 (“PLRA”) a prisoner, prior to seeking relief in federal court, must properly exhaust all available administrative remedies at the prison. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). “[Ejxhaustion is mandatory under the PLRA and ... unex-hausted claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007).
In support of their motion, defendants attached the three administrative remedy forms and one inmate request form that Richardson had filed while at Northern State Prison, none of which relate to the allegations in his complaint. Richardson did not submit a brief in opposition to the defendants’ motion, and he has not otherwise addressed the issue of exhaustion or provided evidence that he has complied with the prison’s grievance procedure. Under the circumstances, we agree that Richardson failed to exhaust his available administrative remedies.
D.Motion for Counsel
Finally, we consider whether the District Court properly denied Richardson’s motion for appointment of counsel. An indigent plaintiff seeking the appointment of counsel must present a claim having “some merit in fact and law.” Parham v. Johnson, 126 F.3d 454, 457 (3d Cir.1997); Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.1993). Richardson’s claims lack merit for the reasons already discussed. Additionally, through his pro se submissions, Richardson has demonstrated an ability to present his case. Tabron, 6 F.3d at 156. Accordingly, the District Court did not abuse its discretion in denying Richardson’s motion.
*759IV
For the foregoing reasons, we conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P. 10.6.
. Richardson also complains that another inmate broke a sprinkler that caused Richardson's cell to fill with water that lingered for two days as "further punishment.”
. The District Court did not reach the issue of whether Richardson had exhausted his administrative remedies. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471478/ | OPINION
PER CURIAM.
Nina Shahin, proceeding pro se, filed the underlying action alleging employment discrimination against the Department of Finance for the State of Delaware (“Delaware”). She alleges Delaware discriminated against her on the basis of age in December 2004 when it decided not to employ her. She later filed an amended complaint, which included ten additional alleged incidents of discrimination. In March 2008, the District Court granted in part and denied in part Delaware’s motion to dismiss. The court denied the motion to the extent it that sought dismissal of Shahin’s request for prospective injunctive relief, and granted it in all other respects. The court also denied Shahin’s second motion to amend the original complaint as moot and her request for waiver of costs, and ordered that her amended complaint be stricken. Shahin appealed, and we dis*766missed the appeal for lack of jurisdiction pursuant to 28 U.S.C. § 1291.
Delaware filed a motion for reargument, which the District Court treated as a motion for reconsideration, to which Shahin did not respond. Shahin filed motions to consolidate cases and for sanctions against counsel for Delaware. On February 25, 2009, 2009 WL 463969, the District Court granted Delaware’s motion for reconsideration and dismissed the case, declining to exercise jurisdiction over any supplemental state law claims. The court also denied Shahin’s motions as moot. Shahin timely appealed.
In this case, our review of the District Courts’ orders is plenary.1 See Santiago v. GMAC Mortg. Group, Inc., 417 F.3d 384, 386 (3d Cir.2005). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. —, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). In deciding a motion to dismiss, a court must determine whether the complaint “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id.
A complaint brought under the Age Discrimination in Employment Act (“ADEA”) “will be dismissed for failure to exhaust administrative remedies if a supporting EEOC charge was not filed within 180 or 300 days (depending on state law) of notification to the employee of the adverse employment action.” Ruehl v. Viacom, Inc., 500 F.3d 375, 382 (3d Cir.2007); 29 U.S.C. § 626(d). This requirement is a “non-jurisdictional prerequisite.” Ruehl, 500 F.3d at 384. The record reveals that Shahin exhausted only the claim that is the subject of her original complaint. The District Court, therefore, properly struck the amended complaint, which attempted to add ten additional and unexhausted claims. Likewise, the court properly exercised its discretion in denying Shahin’s second motion to amend the complaint to add additional unexhausted claims because such an amendment would have been futile. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
Shahin alleges that Delaware discriminated against her on the basis of age, in violation of the ADEA, and she seeks damages and injunctive relief. The ADEA includes in its definition of employer “a State or political subdivision of a State and any agency ... of a state.” 29 U.S.C. § 630(b)(2). However, the Supreme Court has held that, in the ADEA, Congress did not validly abrogate the states’ sovereign immunity to suits for money damages by private individuals under the Eleventh Amendment. Kimel v. Fl. Bd. of Regents, 528 U.S. 62, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). The Eleventh Amendment permits suits for prospective injunctive relief against state officials. Ex Parte v. Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). However, this doctrine “has no application in suits against the States and their agencies, which are barred regardless of the relief sought.” Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) (citations omitted). Shahin filed her suit against the Department of Finance and did not name any state officials.2 Therefore, the District *767Court correctly dismissed this action.
For the foregoing reasons, we conclude that the appeal presents no substantial question. Accordingly, we will summarily affirm the District Court’s judgment. See 3d Cir. LAR. 27.4; 3d Cir. I.O.P. 10.6.
. We generally review a district court's decision on a motion for reconsideration for abuse of discretion. Max’s Seafood Café ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d 669, 673 (3d Cir.1999). However, where, as in the instant appeal, the decision is "predicated on an issue of law, such an issue is reviewed de novo ....” Id.
. As discussed above, Shahin attempted to amend her complaint to include claims *767against state officials, but failed to exhaust her administrative remedies as to those claims. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471481/ | OPINION
SMITH, Circuit Judge.
Charles Moore pleaded guilty to a one count information that charged him with tax evasion, in violation of 26 U.S.C. § 7201. The Sentencing Guidelines recommended a sentence that included an 18-to 24-month term of imprisonment. The District Court, however, sentenced Moore to a below-Guidelines sentence of 5 years of probation, a $25,000 fíne, and $100 special assessment. The Government filed a timely appeal challenging the reasonableness of Moore’s sentence. We will affirm.
I.
Inasmuch as we write primarily for the parties, who are familiar with this case, we need not recite additional factual or procedural background.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231, and we have jurisdiction to review the Government’s appeal under 18 U.S.C. § 3742(b) and 28 U.S.C. § 1291. We first review Moore’s sentence for significant procedural error, then for substantive reasonableness. United States v. Tomko, 562 F.3d 558, 567 (3d Cir.2009) (en banc). At both stages, we apply the abuse of discretion standard. Id. “[A]n abuse of discretion has occurred if a district court based its decision on a clearly erroneous factual conclusion or an erroneous legal conclusion.” Id. at 567-68.
II.
A. Procedural Error
The Government claims that the District Court based its sentence on two clearly erroneous factual findings: 1) Moore’s “law abiding lifestyle throughout [his] life except for the tax offense” (J.A. 35);1 and 2) Moore’s “full[ ] cooperation]” with the Government’s investigatory efforts into the amount of his own tax evasion and other potential tax evaders (J.A. 37). “A finding is clearly erroneous when although there is evidence to support it, the reviewing body on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. Wise, 515 F.3d 207, 218 (3d Cir.2008) (internal quotations and citation omitted). After carefully reviewing the record, we are left without such a conviction.
First, the Government asserts that Moore committed various other crimes to further his tax evasion, such as using false Social Security numbers and titling real estate and vehicles in names other than his own. But the Government has offered no evidence that Moore engaged in any significant criminal conduct that was unrelated to his tax evasion. Absent such a showing, we cannot say that it was clearly erroneous for the District Court to conclude that Moore led an otherwise law-abiding life aside from evading taxes.
Second, the Government cites Moore’s continued failure to file certain tax forms, failure to correct incomplete or inaccurate information contained in other forms, and inability to provide complete and accurate identification information for other poten*769tial tax evaders as evidence that Moore did not fully cooperate with the Government. The Government, however, ignores the litany of evidence before the District Court that supports a conclusion that Moore cooperated fully. At sentencing, the Government readily admitted that Moore’s cooperation saved its investigators “six to eight months in investigative time,” which it deemed “significant.” (J.A. 30.) The Government also pointed out that Moore disclosed that he had about $700,000 in a commercial credit card account that, despite knowing the title of the account, Government investigators “[hjadn’t looked in it yet.” (Id.) According to the Government, this too was “significant.” (Id.) Finally, Moore explained that he gave the Government all the information that he had concerning the other potential tax evaders. Taken as a whole, the evidence of Moore’s cooperation does not leave us with a “definite and firm conviction that a mistake has been committed” here. Wise, 515 F.3d at 218 (internal quotations and citation omitted).
The Government also argues that the District Court failed to acknowledge its arguments at sentencing. But we have held that “[t]he court need not discuss every argument made by a litigant if an argument is clearly without merit ... [n]or must a court discuss and make findings as to each of the § 3553(a) factors if the record makes clear the court took the factors into account in sentencing.” United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006). Nevertheless, “we certainly always demand more than a rote recitation of the § 3553(a) factors if at sentencing either defendant or the prosecution properly raises a ground of recognized legal merit (provided it has a factual basis) and the court fails to address it.” Tomko, 562 F.3d at 567 (internal quotations and citation omitted). Here, far from providing, as the Government claims, “an empty litany of the § 3553(a) factors,” (Appellant’s Br. 29) the District Court addressed the § 3553(a) factors at length, focusing on Moore’s lack of significant criminal history, his upbringing, his serious gambling problem, his ability to always provide for his family, his cooperation with the Government, available sentencing alternatives to imprisonment, and sentencing statistics for other convicted tax criminals. Therefore, the District Court’s explanation was “sufficient for us to see that the particular circumstances of the case have been given meaningful consideration within the parameters of § 3553(a).” United States v. Levinson, 543 F.3d 190, 196 (3d Cir.2008). Accordingly, the District Court committed no significant procedural error at sentencing.
B. Substantive Reasonableness
The Government’s objection to the substantive reasonableness of Moore’s sentence is essentially a plea for us to weigh the § 3553(a) factors differently than the District Court did. According to the Government, doing so would cause us to arrive at a sentence that includes a term of imprisonment. But on sentencing review, “[w]e do not seek to second guess. Given the widely recognized institutional advantages that district courts have in access to and consideration of evidence, we would be foolish to try.” Levinson, 543 F.3d at 196. Instead, “if the district court’s sentence is procedurally sound, we will affirm it unless no reasonable sentencing court would have imposed the same sentence on that particular defendant for the reasons the district court provided.” Tomko, 562 F.3d at 568. Here, based on the comprehensive reasons that the District Court provided, we cannot conclude that the District Court abused its discretion in sentencing Moore to 5 years of probation, a $25,000 fine, and a $100 special assessment. In other words, “the record demonstrates the District Court’s thoughtful attempt to tailor *770the off-the-rack Guidelines recommendations into a sentence that fits [the defendant] personally.” Id. at 575. Accordingly, we will affirm Moore’s sentence.
. The District Court later stated that Moore "ha[d] been a ... law-abiding citizen throughout [his] life.” (J.A. 37.) We believe it clear from the record that the Court was not making a separate finding of fact with that statement, but was instead referencing its earlier finding that Moore led a law-abiding lifestyle "except for the tax offense.” (J.A. 35.) | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471483/ | *771OPINION
FUENTES, Circuit Judge:
Banta Tile and Marble Company, Inc. (“Banta”) appeals from the District Court’s grant of summary judgment in favor of International Union of Bricklayers and A-lied Craftworkers, Local 5 (“Local 5”). Banta alleges that the District Court erred when it held that Banta was required to arbitrate a grievance filed by Local 5 even though Banta was no longer a party to any agreement with Local 5. For the reasons stated below, we will affirm.1
I. Facts and Procedural History
Because we write exclusively for the parties, we only discuss the facts and proceedings to the extent necessary for resolution of this case.
Banta is a tile installation corporation in Lancaster, Pennsylvania, where local tile workers are represented by Local 5. Banta and Local 5 previously had been parties to a succession of collective bargaining agreements, but Banta terminated its contract with Local 5 in April 2006. Local 5 remained a party to a similar contract with other employers in the area.
Banta was also a signatory to two collective bargaining agreements between International Union of Bricklayers and Alied Craftworkers, Local Union No. 1 (“Local 1”), a Philadelphia-area group, and the Associated Tile Contractors of Philadelphia and Suburbs (“the Association”). Banta was not a member of the Association, but signed the agreements as an independent signatory employer in 1997. Both of these agreements contained the following “me too” and “evergreen” language:
This Agreement shall remain in full force and effect through April 30, 1998 and shall continue thereafter unless there has been given not less than 90 days written notice ..., by either party hereto, of the desire to modify and amend this Agreement through negotiations. In the absence of such notice, the employer and the union agree to be bound by the area-wide negotiated contracts with the [Association] and extending this Agreement for the life of the newly-negotiated contract.
(emphasis added). At no time did either Banta or Local 1 express a desire to modify or amend the agreements.
In 2004, the Association and Local 1 negotiated a successor agreement. The successor agreement contained a “traveling contractors” clause, which required employers to comply with the terms of any other Bricklayers Local Union standard agreement when employers sent union members outside the Philadelphia area to work. Local 5 is a party to one standard collective bargaining agreement with all employers within its jurisdiction. This standard agreement is in effect from May 2006 until April 2010. Banta was not a signatory to the 2004 agreement.
In May 2006, Local 5 discovered that Banta had employees in the Lancaster area, but was not in compliance with the terms of the standard collective bargaining agreement. In August 2006, Local 5 filed a grievance asserting that Banta had violated the “traveling contractors” provision, contained within the Local 1 agreement. The matter was submitted to arbitration, and the arbitrator ruled in Local 5’s favor. Local 5 then filed a complaint in the District Court, seeking to enforce the arbitration award. Both Local 5 and Banta filed motions for summary judgment.
*772The only issue in the District Court, and on appeal, is Banta’s argument that the case was improperly submitted to arbitration.2 Specifically, Banta argued that Local 5 brought the case before the arbitrator by invoking the terms of Local 5’s standard collective bargaining agreement. Banta argued that it was not a signatory to that contract because it terminated its agreement with Local 5 in 2006.
The District Court concluded that because the agreement between Banta and Local 1 intended to confer benefits on third parties such as Local 5 (via the “traveling contractors” clause), Local 5 could invoke the arbitration clause. As a result, the District Court granted summary judgment to Local 5. Banta appeals, arguing that the District Court erred when it held that this dispute was arbitrable.3
II. Discussion
“[Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.” United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960). When determining whether a dispute is arbitrable, a court must analyze two issues: (1) whether the parties have entered into a written agreement to arbitrate, and (2) whether the dispute in question falls within the scope of that agreement. Nationwide Mut. Ins. Co. v. Cosenza, 258 F.3d 197, 202 (3d Cir.2001). When confronting questions of ar-bitrability, a court should “independently review the agreement” and “should not give deference to the arbitrator’s decision ..., but should exercise plenary review to determine whether the matter is arbitra-ble.” McKinstry Co. v. Sheet Metal Workers’ Int’l Ass’n, Local Union No. 16, 859 F.2d 1382, 1385 (9th Cir.1988) (citing AT & T, Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 649, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986)). “However, where one of the parties seeking arbitration is not a signatory to the underlying agreement, a further step is added to the inquiry. Before the presumption of arbitrability can apply, the non-signatory party must show that the signatories intended it to derive benefits from the agreement.” Id. at 1384. “Where such intent can be shown, and where the arbitration clause is susceptible to the interpretation that the non-signatory has the right to enforce these benefits, then arbitration is proper.” Id. at 1384-85.
1. “Me Too” Clauses
“Me too” clauses of the type in the agreement between Banta and Local 1 are common and generally enforceable. The Ninth Circuit has defined “me too” clauses as
allowing] independent, usually smaller, employers to obtain all the benefits of the master [collective bargaining agreement] that is negotiated by the principal employers in the industry without having to participate in the industry negotiations, or to engage in separate negotiations, every few years. Thus, the independent employer is assured that (1) it will not be subject to a contract containing more onerous conditions than are applicable to its competitors, (2) it will obtain whatever protections or advantages the industry collective bargaining agreement provides other em*773ployers, (3) it will be saved the cost of expensive negotiations, and most pertinent here, (4) it will be covered by an agreement whenever the rest of the industry is covered and not subject to an agreement whenever the rest of the industry is not.
Arizona Laborers, Teamsters, and Cement Masons Local 395 v. Conquer Cartage Co., 753 F.2d 1512, 1518-19 (9th Cir.1985).
In Berwind Corp. v. Comm’r of Soc. Sec., 307 F.3d 222 (3d Cir.2002), this Court held that “a ‘me too’ agreement is an agreement whereby an employer who is not a member of [a trade association] agrees with a union to be bound by the terms of a [national wage agreement].” Id. at 237 n. 18. Further, the Court noted that “a ‘me too’ agreement has terms identical to the terms of [a national wage agreement] and there is no distinction regarding an employer’s contractual rights and obligations. Thus, the distinction between a ... signatory [to the national wage agreement] and a ‘me too’ signatory is without a difference.” Id.; see also Shenango, Inc. v. Apfel, 307 F.3d 174, 188 n. 9 (3d Cir.2002) (holding same). This interpretation of “me too” clauses is in line with decisions from other courts of appeal. See, e.g., N.L.R.B. v. Boston Dist. Council of Carpenters, 80 F.3d 662, 664 (1st Cir.1996) (A “[u]nion exercises the collective bargaining authority of its constituent locals in negotiating a ... Master Agreement (“MA”) with several multi-employer associations. Once a MA has been negotiated with these ... associations, the Union customarily offers the same MA to other area employers, including those which neither belong to a[n] ... association nor otherwise participate in negotiations. These nonparticipating employers may bind themselves to the negotiated MA simply by executing what are known as “me too” acceptances .... ”); Davon, Inc. v. Shalala, 75 F.3d 1114, 1117 (7th Cir.1996) (interpreting “me too” clause in the same manner).
Banta argues that the “me too” provisions of the contracts it signed in 1997 were only meant to extend the existing terms of the 1997 Agreements for the duration of any subsequently negotiated area wide contract. In other words, Banta would have us read the provisions as nothing more than “evergreen” clauses by which the existing contract could be renewed indefinitely. However, Banta ignores the crucial “me too” language by which it “agree[d] to be bound by the area wide negotiated contracts with the” Association. Under any fair reading of this language, Banta agreed to be bound by the terms of subsequent area wide contracts between Local 1 and the Association, not just the duration of such contracts.
Here, Banta is a smaller employer which benefited from obtaining all the benefits attendant to the master collective bargaining agreement via the “me too” clause without having to itself engage in collective bargaining. The “me too” clause protected Banta by ensuring that its contracts were in line with, and were not more onerous, than its competitors’ contracts. Although Banta signed the agreements with the “me too” provision, presumably to avail itself of the benefits of the clause, it now wants to distance itself from the clause by arguing that it never agreed to incorporate the “traveling contractors” clause, discussed below.
The District Court was correct when it held that, by signing the collective bargaining agreement that contained the “me too” clause with Local 1 in 1997, and never modifying, amending, or terminating that agreement, Banta agreed, under widely accepted law governing collective bargaining agreements, to be bound by any successor master agreement negotiated by the Association and Local 1. Given the unambigu*774ous language in the 1997 contracts, and settled law recognizing the enforceability of “me too” clauses, we cannot accept Ban-ta’s argument that it meant to only be bound in perpetuity to the terms of the 1997 collective bargaining agreements as they existed at that time.
2. “Traveling Contractors ” Clauses
“Traveling contractors” clauses, such as the one contained in the agreement between the Association and Local 1 in this case, are common in the construction industry. See, e.g., McKinstry, 859 F.2d at 1389 (“We note that the position asserted by Local 16 in the underlying dispute is not alien or new to construction industry contracts. Collective bargaining patterns in the construction industry typically share the same overall pattern as that used to arrive at the agreement in this case: a standard form agreement or master agreement is reached by bargaining representatives at the national level, with modifications-typically having to do with wage schedules-made between local unions and regional contractors’ associations.”). Although there is no case law in this Circuit to guide the analysis regarding the “traveling contractors” clause, there is persuasive case law from other Circuits that supports the District Court’s decision to allow Local 5 to arbitrate their grievance against Banta.
In McKinstry, the Ninth Circuit held that a “traveling contractors” clause, similar to the one at issue in this case, “was clearly intended to extend certain direct and indirect benefits to workers other than those represented by [the local union which was the signatory].” Id. at 1386. Accordingly, the Ninth Circuit held that a sister, non-signatory union, such as Local 5 in this case, could bring a grievance against the employer that had operated outside the area governed by the agreement. Id. Likewise, the Eighth Circuit held that identical language in an agreement extended benefits to workers other than those represented by the signatory local union. Local Union No. 36 Sheet Metal Workers’ Int'l Assoc. v. Atlas Air Conditioning, 926 F.2d 770, 772-73 (8th Cir.1991). See also Flynn v. Corp., 481 F.3d 824, 830-31 (D.C.Cir.2007) (holding that, in light of the “broad understanding” of traveling contractors clauses, the clause in the contract at issue bound the defendant company to the collective bargaining agreement in force at a foreign jobsite even though that company was not a signatory to the foreign agreement).
The “traveling contractors” language at issue in this case is as follows:
When the employer has any work of the type covered by this Agreement to be performed outside of the area covered by the Agreement and within the area covered by a standard Collective Bargaining Agreement of another affiliate of the International Union of Bricklayers and Allied Craftworkers, the Employer agrees to abide by the full terms and conditions of the standard Agreement in effect on the job site area with respect to all employees, wherever hired, who perform such work, except as provided in the next sentence of the paragraph.
Employees, covered by this Agreement who are sent to projects outside of the area covered by this Agreement shall be paid at least the established minimum wage scale required under this Agreement but in no less than the established minimum wage scale of the local Agreement covering the territory in which such work is being performed plus all contributions specified in the job site local Agreement.
As noted above, the relevant inquiry when deciding if a non-signatory to this agreement can invoke the arbitration clause is whether the non-signatory party, *775here Local 5, can show that the signatories intended it to derive benefits from the agreement. Local 5 has met this burden by showing that the agreement was clearly intended to convey benefits to unions besides those who were represented by the union which signed the agreement.
Banta’s main argument is that while the “traveling contractors” clause may, in general, be meant to benefit non-signatories like Local 5, Banta itself never intended to acquiesce to that clause in the Agreement between the Association and Local 1, therefore it could not have intended to benefit non-signatories like Local 5. This argument does not gel with the law governing “me too” and “evergreen” clauses in collective bargaining contracts. Banta agreed to be bound to the collective bargaining agreements negotiated by Local 1 and the Association, in addition to future amendments of that Agreement via the “me too” clause, unless and until Banta said otherwise. Banta never said otherwise, including after Local 1 and the Association added the “traveling contractors” clause in a successor agreement. Therefore, Banta cannot now say that it never meant for the “traveling contractors” clause, later added to the Agreement, to benefit others. By signing and never amending the “me too” clause, Banta is bound.
III. Conclusion
For the foregoing reasons, we will affirm the District Court’s grant of summary judgment in favor of Local 5.
. The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
. Banta raised several affirmative defenses in the District Court, but the District Court correctly found that because Banta failed to move to vacate or modify the arbitration award within thirty days, the statute of limitations period had run.
. We exercise plenary review over a district court's summary judgment ruling. Twp. of Piscalaway v. Duke Energy, 488 F.3d 203, 208 (3d Cir.2007). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471485/ | OPINION OF THE COURT
CHAGARES, Circuit Judge.
This appeal presents several challenges to District Council 33’s (“DC 33”) collection of fees from City of Philadelphia (“City”) employees who are not members of the DC 33 union but who are represented by that union for collective bargaining purposes. We will affirm the District Court’s judgment in all respects.
I.
Because we write solely for the benefit of the parties, we will recite only the essential facts.
DC 33 is the branch of the International American Federation of State, County, and Municipal Employees (“AFSCME”) that represents City employees for collective bargaining purposes. DC 33 is affiliated with 14 local unions (“locals”), and each employee is assigned to one local. Though each employee is represented by DC 33 for collective-bargaining purposes, some employees choose not to become members of the union, which, along with its affiliates, engages in political lobbying and ideological activity separate from collective bargaining. Employees who opt out of union membership (“non-members”) do not pay full union dues. They pay a so-called “fair share” fee: the percentage of the full union fee that corresponds to expenses incurred for collective-bargaining-related activities only (“chargeable” expenses).
In December 1997, DC 33 sent each non-member a notice breaking down the fail* share fee set to take effect in July 1998. Each non-member was given a detailed breakdown of AFSCME’s chargeable expenses. Each non-member also was given a detailed breakdown of DC 33’s chargeable expenses. But rather than be given a detailed breakdown of the chargeable expenses of Ms or her particular local, each non-member was given a detailed breakdown of the chargeable expenses aggregated across all the locals. The fair share fee was the sum of the pro-rata shares of each of these three amounts.
DC 33 continued to collect fair share fees at the January 1998 rate until September 2000, when it issued another notice. That notice, again aggregating local expenses, explained the breakdown of the fair share fee that should have taken effect in July 1998 and the fair share fee that *778should have taken effect in July 1999. In January 2001, aggregating local expenses once again, DC 33 issued a notice breaking down the fair share fee that should have taken effect in July 2000. The July 1998 rate was less than what the non-members were actually charged, but the July 1999 rate and July 2000 rate were more. By May 2001, DC 33 had refunded each nonmember those differences.1
DC 33 relies primarily on one individual, Vernon Person, to calculate the fair share fee and prepare the notice. Person’s wife fell ill in late 1998, and he stopped working in order to care for her. He was not able to resume his DC 33 responsibilities until January 2000. This is why DC 33 did not issue any notices between December 1997 and September 2000.
Some of the non-members filed a federal class-action complaint against DC 33, the City, and various City officials, pursuant to 42 U.S.C. § 1983, alleging that they failed to comply with the constitutional requirements for collecting fair share fees imposed by the Supreme Court in Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 106 S.Ct. 1066, 89 L.Ed.2d 232 (1986). The non-members argued that DC 33 had failed to provide advance notice of the fair share fees it ended up extracting between January 1998 and September 2000, and that the late notices it did provide did not contain an audited breakdown of expenses that was detailed enough to allow each non-member to determine whether the local portion of his or her fair share fee was proper. They demanded total disgorgement of all the fees that DC 33 had collected (notwithstanding the refunds), arguing in part that such relief was awardable as punitive damages for DC 33’s knowing failure to issue Hudson notices while Person was away from work.
On cross-motions for summary judgment, the District Court held that DC 33 had violated Hudson by failing to provide advance notices. But it also held that the notices that eventually were provided were sufficiently detailed. It held that the correct measure of damages was actual damages — the portion of the fair share fee collected that was attributable to nonchargeable expenses — and scheduled a bench trial on that issue. At trial, the District Court allowed DC 33 to call witnesses who were not identified as potential witnesses in DC 33’s pre-trial submissions and to introduce exhibits not listed in those submissions. It also allowed DC 33 to designate Person as an expert witness despite DC 33’s failure to submit a written report concerning the opinions DC 33 anticipated him to offer, and the factual basis for those opinions.
After trial, the District Court determined that DC 33 had carried its burden of proving chargeability of (among other items) the portion of the fair share fee attributable to AFSCME’s “assistance to affiliates” fee, which supplies AFSCME with funds to assist its locals on an as-needed basis with collective-bargaining issues that may arise from time to time; and DC 33’s and each local’s personnel expenses.
The non-members then filed this appeal.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1331. We have jurisdiction pursuant to 28 U.S.C. § 1291.
This appeal presents five issues: (1) whether a fair share notice that provides an audited breakdown of a non-member’s pro-rata share of the aggregate expenses *779of all DC 33 locals — rather than the expenses of that non-member’s particular local — satisfies Hudson’s financial disclosure requirement; (2) whether the remedy for knowingly collecting a fair share fee without providing advance notice, in violation of Hudson, is return of the entire fee collected (as restitution or punitive damages); (3) whether the District Court’s failure to enforce the Federal Rules of Civil Procedure, Eastern District of Pennsylvania Local Rules, and the District Court’s own announced procedures warrants a new damages trial; (4) whether DC 33 carried its burden of proving changeability of AFSCME’s “assistance to affiliates” fee at the damages trial; and (5) whether DC 33 carried its burden of proving changeability of its and the locals’ personnel costs at the damages trial. We will address each issue in turn.
III.
The non-members argue that DC 33’s fair share notices violate Hudson’s financial-disclosure requirement because they provide an audited breakdown only of the locals’ aggregate chargeable expenses, not of each non-member’s particular local’s chargeable expenses. The adequacy of a fair share fee notice under Hudson is an issue of law, so we engage in plenary review of the District Court’s ruling. Walden v. Georgia-Pacific Corp., 126 F.3d 506, 522 (3d Cir.1997).
A fair share fee notice must provide non-members with “sufficient information to gauge the propriety” of the fee. Hudson, 475 U.S. at 306, 106 S.Ct. 1066. “[A]dequate disclosure surely would include the major categories of expenses, as well as verification by an independent auditor.” Id. at 307 n. 18, 106 S.Ct. 1066. But, “absolute precision” in the form of an “exhaustive and detailed list” of all expenditures is not required. Id.
Providing sufficient information to gauge the propriety of the local portion of the fair share fee has presented a recurring problem. For example, in Hohe v. Casey, 956 F.2d 399 (3d Cir.1992), an AFSCME district council (comparable to DC 33) provided a Hudson notice that, in describing the local portion of the fair share fee, disclosed only the aggregate amount of the locals’ expenditures, and stated that the percentage of those expenditures that were chargeable to non-members was at least as great as the percentage of the district council’s expenditures that were chargeable. Id. We held that this disclosure was inadequate. Id. True, because non-members were charged their pro-rata share of this percentage of the district council’s expenses, the disclosure accurately revealed how the fee was calculated. Id. But it did not reveal enough to allow non-members to determine whether that fee was proper. Id. For example,
the notice ... did not disclose the affiliated locals’ “major categories of expenses” nor was there any assertion that the locals’ categories of expenses mirrored those of [the district council]. Moreover, although the notice stated that [the district council] had assumed that affiliated locals’ percentage of chargeable expenses was at least as great as its own, the notice offered no reason or explanation why [the district council] was justified in making this assumption.
Id. (quoting Hudson, 475 U.S. at 307 n. 18, 106 S.Ct. 1066). We did not squarely hold that disclosure of the aggregate expenses of all the locals would have satisfied Hudson, although that was the argument made by the non-member appellants — who were represented by the same organization that represents the non-member appellants in this case — in whose favor we ruled. See Non-members’ Br., Hohe v. Casey, 956 F.2d 399 (3d Cir.1992) (No. 91-5002), 1991 *780WL 11245162 (“Adequate disclosure under Hudson could simply include major categories of expenses for chargeable purposes, aggregated for all locals.... ”).
We indirectly endorsed this aggregate approach in the later case of Otto v. Pa. State Educ. Ass’n-NEA, 330 F.3d 125 (3d Cir.2003). There, we held that all the locals’ expenses must undergo an independent audit. Id. But, we stated that this audit may be performed on an aggregate (rather than local-by-local) basis: “unions without the financial wherewithal to afford the Hudsoiu-requireá audit might choose to enter into combinations with other small unions to achieve necessary economies of scale.” Id. at 135. And it would make little sense to allow local unions to aggregate their expenses for an audit but then force them to disaggregate their expenses before the Hudson disclosures are made.
Our approval of aggregate audits in Otto, coupled with the Supreme Court’s holding in Hudson that absolute precision in computing the fair share fee (and therefore in disclosing how that fee was computed) is not required, leads us to conclude that the late Hudson notices provided an adequate financial disclosure.
IV.
The non-members argue that the District Court erred in declining to order DC 33 to return the entire fee it collected (as a form of restitution or punitive damages) while knowingly failing to provide advance notice, in violation of Hudson. They argue that it was improper for the District Court to award only nominal damages on the ground that DC 33 had already refunded any overcharges.
Because restitution is an equitable remedy, we review the District Court’s decision not to award restitution for an abuse of discretion. See Voest-Alpine Trading USA Corp. v. Vantage Steel Cmp., 919 F.2d 206, 211 (3d Cir.1990). We review the District Court’s decision not to award punitive damages for an abuse of discretion, as well. See Cooper Indus. v. Leatherman Tool Grp., 532 U.S. 424, 433, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001).
Whether restitution is appropriate depends upon whether it is necessary to prevent unjust enrichment or to deter future similar misconduct. See Wessel v. City of Albuquerque, 463 F.3d 1138, 1147 (10th Cir.2006). Punitive damages in § 1983 cases are available where the defendants have acted with a “reckless or callous disregard of, or indifference to, the rights and safety of others.” Keenan v. City of Phila., 983 F.2d 459, 469-70 (3d Cir.1992). Punitive damages are to be “reserved for special circumstances,” id. at 470 (quoting Savarese v. Agriss, 883 F.2d 1194, 1205 (3d Cir.1989)), that is, for “cases in which the defendant’s conduct amounts to something more than a bare violation justifying compensatory damages or injunctive relief,” id. (quoting Cochetti v. Desmond, 572 F.2d 102, 105-06 (3d Cir.1978)). The Supreme Court and this Court have also addressed the issue of disgorgement in the fair share fee context, in particular. The Supreme Court in Hudson and this Court in Hohe have cautioned against depriving a union of “fees to which it is unquestionably entitled.” 475 U.S. at 310, 106 S.Ct. 1066, 956 F.2d at 406. By definition, a union is “unquestionably entitled” to the portion of the fair share fee collected properly attributable to chargeable expenses. See, e.g., Wessel v. City of Albuquerque, 299 F.3d 1186, 1194-95 (10th Cir.2002) (“A union’s violation of procedural requirements for the collection of fair share fees does not entitle nonmembers to a ‘free ride’ but only to a refund of the portion of the amounts collected that exceed what could be properly charged.” (citing Prescott v. County of El Dorado, 177 F.3d 1102, 1109 (9th Cir.1999); Weaver v. Univ. of Cincinnati, 970 F.2d 1523, 1533 (6th Cir.1992); *781Hohe, 956 F.2d at 415-16; Gilpin v. AFSCME, 875 F.2d 1310, 1314-16 (7th Cir.1989))).
The District Court acted well within its discretion in concluding that DC 33’s and the City’s actions were not willful and malicious, but merely were the result of an excusable, one-time lapse of an otherwise dedicated employee. For this same reason, ordering full restitution would not have increased DC 33’s and the City’s likelihood of future compliance. Thus, the District Court did not abuse its discretion in declining to order full disgorgement via punitive damages or equitable restitution.
V.
The non-members argue that the District Court’s failure to enforce Federal Rule of Civil Procedure 26(a) (because it allowed Person to testify as an expert without making certain required disclosures), Eastern District of Pennsylvania Local Rule 16. 1, and the District Judge’s own announced procedures (because it allowed DC 33 to call other witnesses and present exhibits not expressly identified in DC 33’s pre-trial submissions) warrants a new damages trial. We review the District Court’s application of these Federal and local rules, to which objections were made during trial, for abuse of discretion. See Rinehimer v. Cemcolift, Inc., 292 F.3d 375, 382-83 (3d Cir.2002); United States v. Eleven Vehicles, 200 F.3d 203, 215 (3d Cir.2000).
Federal Rule of Civil Procedure 37(c)(1) provides that expert testimony used at trial despite a failure to make the disclosures required by Rule 26(a) need not be disallowed if the failure is “harmless.” Eastern District of Pennsylvania Local Rule 16.1(a) provides that “variations from the pre-trial procedures established by the Rule may be ordered by the assigned judge to fit the circumstances of a particular case.” Violation of a Local Rule justifies a new trial only where the complaining party has suffered unfair prejudice. See Eleven Vehicles, 200 F.3d at 215. Further, District Judges have inherent authority to depart from their own pre-trial procedures. See In re School Asbestos Litig., 977 F.2d 764, 793-94 (3d Cir.1992). Violation of such pre-trial procedure, like violation of a Local Rule, justifies a new trial only where the complaining party has suffered unfair prejudice. See Eleven Vehicles, 200 F.3d at 215.
The District Court’s failure to enforce Federal Rule of Civil Procedure 26(a) was not an abuse of discretion. The non-members suffered no prejudice from the District Court’s decision to allow Person to testify as an expert. They deposed him two years before trial, had access to the materials he used to form his opinions for even longer than that, and were given the opportunity to cross-examine him at length at trial. Neither was its decision to allow DC 33 to present witnesses and exhibits not identified in DC 33’s pre-trial submissions. The District Court was authorized to relax the pre-trial witness and exhibit identification requirement by the very text of Local Rule 16.1. Finally, the District Court did not abuse its discretion in varying from its own pre-trial procedures, because it had inherent authority to do just that. In any event, the non-members have not endeavored to explain how any of these actions prejudiced their ability to participate effectively at trial.
VI.
The non-members argue that DC 33 failed to carry its burden of proving chargeability of AFSCME’s “assistance to affiliates” fee at the damages trial. We engage in cleariy-erroneous review of the District Court’s findings of fact, Gordon v. Lewistown Hosp., 423 F.3d 184, 201 (3d Cir.2005), and plenary review of its conclu*782sions of law, Blasband v. Rales, 971 F.2d 1034, 1040 (3d Cir.1992).
A non-member properly may be charged for his “pro-rata share of the costs associated with otherwise chargeable activities of [his local’s] state and national affiliates, even if those activities were not performed for the direct benefit of [his local].” Lehnert v. Ferris Faculty Ass’n, 500 U.S. 507, 524, 111 S.Ct. 1950, 114 L.Ed.2d 572 (1991). Thus, expenses incurred by a parent union (like AFSCME) may properly be chargeable to a non-member even if those expenses are for services that do not have a “direct and tangible impact” on his local. Id. Particularly relevant here, a fee “which contributes to the pool of resources potentially available to the local is assessed for the [local’s] protection” is chargeable, “even if it is not actually expended on that [local] in any particular membership year.” Id. at 523, 111 S.Ct. 1950.
As for the quantum of evidence needed to sustain such a showing, all that is required is “some indication that the payment is for services that may ultimately inure to the benefit of the members of the local union by virtue of [its] membership in the parent organization.” Id. at 524, 111 S.Ct. 1950 (emphasis added). The union must prove this “indication” by a preponderance of the evidence. Ellis v. Bhd. Ry., Airline & S.S. Clerks, 466 U.S. 435, 457 n. 15, 104 S.Ct. 1883, 80 L.Ed.2d 428 (1984). That is, the union must prove that such an “indication” more likely than not exists.
The District Court did not err in holding that the evidence presented at trial cleared this very low hurdle. For example, AFSCME’s accounting manager testified that it provides a wide variety of support to the locals:
They receive all types of support and it depends if [AFSCME] thinks that we should be doing some of the support or if the individual affiliate calls in and requests a particular kind of support. Maybe they need their budget analyzed, maybe they need some help in them contract negotiations, maybe there’s an organizing drive that [AFSCME] says that they want to produce so they will be the ones that will say, you know, we need to, you know, work in conjunction with this. But this is what we do.
Joint Appendix 588. The District Court ■ was entitled to find that this testimony, more likely than not, provided “some indication” that the “assistance to affiliates” fee is for services that “may ultimately inure” to the locals’ benefit.
VII.
The non-members argue that DC 33 failed to carry its burden of proving the changeability of its and the locals’ personnel costs at the damages trial. We engage in clearly-erroneous review of the District Court’s findings of fact, Gordon, 423 F.3d at 201, and plenary review of its conclusions of law, Blasband, 971 F.2d at 1040.
In general, a union expense is chargeable if it is
necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit.
Ellis, 466 U.S. at 448, 104 S.Ct. 1883. DC 33 must prove chargeability by a preponderance of the evidence. Id. at 457 n. 15, 104 S.Ct. 1883.
*783First, the non-members argue that the District Court impermissibly placed the burden on them to disprove chargeability (rather than on the union to prove charge-ability). The District Court did this, they contend, by allowing DC 33 to take advantage of Person’s treating all time as chargeable, by default, and then deducting provably non-chargeable time from this total to arrive at a final figure. We confronted this argument in Hoke, and we rejected it. See 956 F.2d at 414-15.
Second, the non-members argue that the District Court erred in allowing DC 33 to carry its burden by presenting evidence other than “contemporaneously-recorded hard data concerning its expenses and employees’ time....” Nonmembers’ Br. at 51. But the non-members point us to no court of appeals authority standing for this proposition. True, such evidence may be more credible than after-the-fact interviews with employees (of the sort Person did here), but that does not mean that the District Court was foreclosed from considering other types of proof (even if less reliable). Cf. Fed. R.Evid. 611(a) (“The court shall exercise reasonable control over the mode ... of ... presenting evidence.... ”).2
VIII.
For the reasons given above, we will affirm the District Court’s judgment in all respects.
. Thus the refund, like the fee originally collected, was based upon the aggregate chargeable expenses of all the locals, not the chargeable expenses of the particular local to which the non-member receiving the refund belonged.
. The non-members, in their reply brief, make detailed hearsay challenges to some of DC 33’s evidence. But, in their opening brief, they do nothing more than mention the word “hearsay” several times. They do not appear even to have cited the Federal Rules of Evidence in the relevant portion of the argument section of their opening brief. Therefore, these challenges are waived. See, e.g., Mitchell v. Cellone, 389 F.3d 86, 92 (3d Cir.2004) (holding that appellant waives claim that is not "substantively argued” in opening brief). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471487/ | OPINION
PER CURIAM.
On July 27, 2009, Philip Frazier filed this pro se mandamus petition seeking review of the Magistrate Judge’s refusal to recuse himself from presiding over pretrial matters in Frazier’s pro se civil rights action.1 For the reasons that follow, we conclude that mandamus relief is not warranted.
Frazier, an inmate at SCI Rockview, filed an action pursuant to 42 U.S.C. § 1983 against prison officials at SCI Smithfield, the prison where Frazier had previously been incarcerated. He alleged that he received what the prison medical staff claimed were immunizations for pneumonia and tetanus, but were actually, according to Frazier, injections containing atropine and scopolamine derivatives, as well as something that Frazier called “atropoline.”
Throughout the course of the pretrial proceedings, Frazier repeatedly filed motions to compel discovery, seeking the disclosure of the names of the staff members who attended to him while he received his immunizations, as well as his medical and psychiatric records. The Magistrate Judge repeatedly denied these motions on the ground that Frazier could access the requested information by following the procedures outlined in the Pennsylvania Department of Corrections policy for “Release of Information.” Frazier moved for recusal of the Magistrate Judge pursuant to 28 U.S.C. 455, arguing that the Magistrate Judge attempted to prevent Frazier from accessing the evidence that he needed to litigate his claim. The Magistrate Judge denied the motion. Frazier then filed this petition for mandamus.2
Mandamus is a proper means by which we review the denial of a recusal motion filed pursuant to § 455.3 Alexander v. Primerica Holdings, Inc., 10 F.3d 155, 163 (3d Cir.1993). We would grant mandamus relief only if a judge’s refusal to recuse were egregious. See, e.g., In re Antar, 71 F.3d 97, 101 (3d Cir.1995). Our inquiry is *785“whether the record, viewed objectively, reasonably supports the appearance of prejudice or bias.” Id. “[Jjudicial rulings alone almost never constitute a valid basis for a bias or impartiality motion.” Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
Here, the record does not reasonably support the appearance of bias or prejudice on the part of the Magistrate Judge. Certainly, the Magistrate Judge’s rulings denying Frazier’s discovery motions did not constitute such a gross abuse of discretion that recusal is required. To the extent that Frazier claims error in the Magistrate Judge’s rulings, Frazier can appeal after the case is disposed of in the District Court. See id. (“[ajlmost invariably, [judicial rulings] are proper grounds for appeal, not for recusal.”).
Accordingly, we will deny Frazier’s mandamus petition.
. We also have the benefit of an addendum that Frazier filed on August 20, after the Magistrate Judge recommended that Frazier's action be dismissed. As of this writing, the District Court has not acted on the Magistrate Judge’s recommendation.
. Frazier first filed a motion for a "writ of mandamus” in the district court, also seeking recusal of the Magistrate Judge. The District Court declined to take action on the motion.
.Frazier did not seek relief pursuant to 28 U.S.C. § 144. Mandamus relief is an improper means of correcting a judge’s refusal to recuse himself pursuant to § 144. See In re School Asbestos Litigation, 977 F.2d 764, 776 (3d Cir.1992). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471489/ | OPINION OF THE COURT
PER CURIAM.
The plaintiffs in these three cases— which we shall refer to as Romero I, Romero II, and EEOC — allege that they were harmed by Allstate’s transition from a system where insurance agents were company employees to a system where the agents were independent contractors, and by Allstate’s alteration of its employee retirement plan.1 After many years of litigation, the District Court granted Allstate’s dispositive motions in a two-page order. The order is conclusory in tone and con*788tent and simply fails to do justice to the myriad issues before the court. This has made our ability to carry out our review function difficult, indeed. We will vacate the order and remand the cases to the District Court. Given what we perceive to be the disinclination of the District Court to give full consideration to the procedural and substantive nuances of those cases, we will direct that the matter be reassigned.
1. Background2
In the course of Allstate’s transition from an employee-agent program to an independent-contractor program, in 2000, all employee agents operating under the earlier agreements known as R830 and R1500 contracts were terminated. They were given four post-termination options, the first three of which involved the signing of a release that barred future claims against Allstate. Under the options that required the signing of the release, each employee would: 1) become an independent contractor; or 2) become an independent contractor temporarily and then sell the book of business to an Allstate-approved buyer; or 3) leave Allstate and receive a full year’s salary as severance pay. The fourth option, and the only one that did not require signing of the release, was to receive 13 weeks’ salary as severance. Virtually all of the eligible employee agents took one of the first three options and signed the release. All of the current plaintiffs signed the release.3
In 1991, before the conversion to an all-independent-contractor workforce, Allstate retroactively amended its pension plan. Allstate says that it made these amendments in response to the Tax Reform Act of 1986, which required companies to adopt benefits formulas that did not discriminate in favor of highly compensated employees. The amendments included changes to the way Allstate calculated early retirement benefits. In 1994, Allstate re-adopted its 1991 plan amendments, some of which were the subject of litigation at that time in Scott v. Admin. Comm. of the Allstate Agents Pension Plan, No. 93-1419, 1995 WL 661096 (M.D.Fla. Sept.15, 1995), and adopted a new amendment changing eligibility for early retirement benefits.
The three cases on appeal were filed in 2001. Over the course of the subsequent eight years, there have been numerous motions to dismiss, motions for summary judgment, motions to compel, and motions for reconsideration, as well as a 2004 declaratory judgment that the releases were voidable, and an appeal to our court and a remand to the District Court in Romero II.
On March 21, 2007, after the plaintiffs had asked Chief Judge Bai’tle to reassign the cases because of the District Court’s ongoing failure to act on pending motions, the District Court entered an order stating its intent to grant Allstate’s outstanding motions (for dismissal in Romero II and for summary judgment in Romero I/EEOC) based on several other cases that the court said had already considered and ruled on the transactions at issue, Isbell v. Allstate Ins. Co., 418 F.3d 788 (7th Cir.2005),4 Scott v. Admin. Comm. of the Allstate Agents Pension Plan, 113 F.3d 1193 *789(11th Cir.1997),5 and Swain v. Allstate Ins. Co., No. 96-0998 (S.D.Fla. Jan. 22, 1999).6 The court also advised the parties that it was rethinking its 2004 ruling that the releases were voidable, and believed it was in error and should be vacated. It gave the parties 20 days to file additional mem-oranda. The plaintiffs responded to the District Court’s order, arguing, in part, that the releases were part of an illegal scheme, that their execution was not knowing or voluntary, and that they were unconscionable. The plaintiffs also protested that they had not had the opportunity for discovery beyond a brief period of class discovery.
On June 20, 2007, the District Court issued an order granting Allstate’s motion to dismiss in Romero II and its motion for summary judgment in Romero I/EEOC. The court said that “for the reasons stated in” Scott and Swain, the amendments to Allstate’s pension plan at issue in Romero II were validly adopted and effective. It also stated that Isbell “warrants the conclusion that plaintiffs’ claims of ERISA violations, age discrimination, and retaliation must fail.” (Joint App. 13.) The court ordered that, “[t]o the extent that this Court’s Order of March 3[sic], 2004 declared that the releases were voidable, that decision was in error and is hereby vacated. Alternatively, the validity of the releases has become moot.” (Joint App. 13.) The order gave the parties 20 days to submit “any issues that must be resolved before the case-files are closed.” (Joint App. 14.) The parties submitted additional papers. The District Court did not issue a final judgment.7 The plaintiffs *790filed a notice of appeal on November 26, 2007.
II. Discussion8
The plaintiffs in these cases raise numerous ways in which the District Court’s opinion and conduct of the proceedings fell short, including, but not limited to, its failure to explain why Scott, Swain, and Isbell should be given res judicata or collateral estoppel effect, or controlling-weight, here (especially since Scott and Swain did not consider the anti-cutback amendments); why the plaintiffs are not entitled to the discovery they requested; why the ADEA claims are controlled by Isbell; and how the court resolved the counts which were not reached in its opinion. We do not seek to address all of these issues here: indeed, the lack of explication by the District Court renders our review function as to these aspects of the cases nearly impossible. In this opinion, we focus on the release signed by all of the current plaintiffs. If the release is valid, it bars the claims of the plaintiffs in Romero I, Count II of Romero II, and EEOC.9 The plaintiffs, however, did not have sufficient discovery into the facts surrounding the signing of the releases, or sufficient time to produce it, given the court’s about-face in 2007, and there is insufficient evidence in the record, let alone in the reasoning provided by the court, as to whether the releases were signed knowingly or voluntarily, or were unconscionable. If the releases are not valid, then the District Court needs to address a number of issues, namely the merits of all the claims in Romero II and the common law claims of breach of contract and breach of fiduciary duty in Romero I, that it must consider in the first instance. We will remand to the District Court for further discovery into the validity of the releases.
It is arguable that, even if the releases are not valid, the ERISA § 510 claims and the ADEA claims of discrimination and retaliation were properly dismissed because of the plaintiffs’ failure to adduce *791evidence showing a dispute as to a genuine issue of material fact on those issues. However, it is difficult on the record before us to determine whether discovery on these claims was sufficient. We will therefore remand to the District Court for further consideration of these claims. In so doing, we charge the District Court with reviewing the discovery requests and determining whether the plaintiffs were afforded sufficient opportunity for discovery on the ERISA § 510 and the ADEA discrimination and retaliation claims. If not, the District Court should permit further discovery as necessary.
A. The Release
The release that the plaintiffs signed is very broad. We reproduce the waiver language here:
In return for the consideration that I am receiving under the Program, I hereby release, waive, and forever discharge Allstate Insurance Company ... from any and all liability, actions, charges, causes of action, demands, damages, entitlements or claims for relief or remuneration of any kind whatsoever, whether known or unknown, or whether previously asserted or unas-serted, stated or unstated, arising out of, connected with, or related to, my employment and/or the termination of my employment and my R830 or R1500 Agent Agreement with Allstate, or my transition to independent contractor status, including, but not limited to, all matters in law, in equity, in contract, or in tort, or pursuant to statute, including any claim for age or other types of discrimination prohibited under the Age Discrimination in Employment Act of 1967, Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Employee Retirement Income Security Act (“ERISA”), the Illinois Human Rights Act, and the West Virginia Human Rights Act as those acts have been amended, or any other federal, state, or local law or ordinance or the common law. I further agree that if any claim is made in my behalf with respect to any matter released and waived above, I hereby waive any rights I may have with respect thereto and agree not to take any payments or other benefits from such claim. I understand that this release and waiver does not apply to any future claims that may arise after I sign this Release or to any benefits to which I am entitled in accordance with any Allstate plan subject to ERISA by virtue of my employment with Allstate prior to my employment termination date.
(Joint App. 2352.) The release also includes an acknowledgment for signers:
I acknowledge that:
(a) I have read this Release, and I understand its legal and binding effect. I am acting voluntarily and of my own free will in executing this Release.
(b) I have had the opportunity to seek, and I was advised in writing to seek the advice of an attorney prior to signing this release....
(c) I was given at least 45 days to consider the terms of the Program, including this Release, before signing it. I understand that I may make an election under the Program before forty-five (45) days, but I am under no obligation to do so.
(Joint App. 2352.)
The release also includes a revocation period:
I understand that if I sign this Release, I can change my mind and revoke it within seven days after signing it. I understand that the Release and Waiver set forth in the first paragraph and the consideration available under the Program above will not be effective until *792after this seven-day period has expired .... I understand that a decision to revoke or rescind within such period should be submitted in writing to my Human Resource Manager. If I do not revoke within the seven-day period discussed above ..., then the Release will become fully effective.
(Joint App. 2352.)
1. The District Court’s Decisions Regarding the Release
In March of 2004, the District Court found that the release was voidable “at the option of the employee-agent” because the Older Workers Benefit Protection Act (“OWBPA”) says that no waiver agreement can prohibit an individual from filing a charge of discrimination with the EEOC. See 29 U.S.C. § 626; 29 C.F.R. § 1625.22(I)(2) (“[N]o waiver agreement may include any provision prohibiting any individual from ... filing a charge or complaint, including a challenge to the validity of the waiver agreement, with the EEOC.”) The District Court issued a declaratory judgment allowing each plaintiff who signed the release to tender back10 the benefits he had received in order to void the release.
In December of 2005, Allstate filed a motion for summary judgment in Romero I/EEOC, arguing, in part, that the release was valid. Allstate cited Isbell v. Allstate Ins. Co., 418 F.3d 788, 797 (7th Cir.2005), a case in which two former Allstate employee agents, one of whom signed the release and one of whom did not, alleged retaliation, discrimination, and unlawful termination in connection with Allstate’s transition to the independent contractor program. The United States Court of Appeals for the Seventh Circuit held that the release was valid and found no discrimínation or retaliation under the ADEA, the ADA, Title VII, or ERISA. In its Romero I/EEOC summary judgment motion, Allstate also argued that the District Court’s reasoning that the charge-filing ban in the release made it voidable was contrary to our decision in Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 290 (3d Cir.2003), in which we upheld the validity of a release despite the fact that it contained a charge-filing ban. In Wastak, we held that 29 U.S.C. § 626(f)(4) made it unlawful to enforce a ban on filing an EEOC charge, but that the statute contained no language to suggest that “the mere presence of that contractual language would void an otherwise knowing and voluntary waiver.” Id. The District Court cited Isbell in its June 20, 2007, order granting Allstate’s dispositive motions and vacating its previous order that the releases were voidable.
2. The Parties’ Arguments About the Release
From the start of the litigation, the plaintiffs have argued that the releases are invalid. On appeal, they argue that genuine issues of material fact exist as to whether the plaintiffs signed the releases knowingly and voluntarily. The plaintiffs allege that Allstate refused to negotiate the release and exerted extreme economic pressure, made misrepresentations about the independent contractor program, and did not comply with disclosure requirements under the OWBPA. The plaintiffs also contend that the release is part of an illegal scheme, and that it is unconscionable both procedurally and substantively because the release is so favorable to Allstate.
*793Plaintiffs argue, further, that they did not have sufficient discovery into the facts surrounding the signing of the releases. From March of 2004 to December of 2005, they had proceeded under the District Court’s declaratory judgment that the release was voidable. With Allstate’s motion for summary judgment, the release was at issue again. The plaintiffs filed a motion to deny or stay the summary judgment motion so that they could conduct merits discovery, and they filed a Rule 56(f) affidavit that described the brief period that the District Court had allowed for “class discovery” in 2002 and 2003, the plaintiffs’ multiple document requests, and the motions to compel discovery that the District Court had denied without resolving the underlying disputes. The court did not rule on the motion to stay.
Allstate counters that discovery was not limited to class issues, and points to its production of three Fed.R.Civ.P. Rule 30(b)(6) witnesses and 126,000 pages of documents produced, (including 68,000 pages from the Isbell litigation). It argues that not only was discovery sufficient, but that the release is valid: the plaintiffs are well-educated, experienced businesspeople whose work involved parsing contract language; they had almost six months to consider signing the release and a week after signing in which to revoke; they were encouraged to consult attorneys before signing; they received ample consideration in exchange for their assent; and they expressly represented that they signed the releases voluntarily and of their own free will.
3. Why the Release is Potentially Dispositive
If the release is valid, it bars the plaintiffs’ claims in Romero I, where the plaintiffs allege violations of the ADEA and ERISA, as well as common law claims of breach of contract and breach of fiduciary duty. It would also bar the claims in EEOC that Allstate retaliated against the plaintiffs in violation of the ADEA. All of these claims are covered by the broad language of the release, which specifically mentions both those statutes and common law claims. It also bars the plaintiffs’ claims in Count II of Romero II, where the plaintiffs claim violations of ERISA § 404, which provides an equitable remedy for a breach of fiduciary duty claim.11
We believe the District Court should reexamine the validity of the release, after allowing further discovery into the facts surrounding the signing of the releases. The plaintiffs had a relatively short period of class discovery, and approximately half of the documents Allstate produced were documents from the Isbell litigation. While Isbell is certainly relevant to the plaintiffs’ cases here, the plaintiffs are entitled to discovery that is responsive to their requests related to the specific release-related issues the plaintiffs raised with the District Court in their response to its March 21, 2007, Order: that the releases were part of an illegal scheme; that they were not signed knowingly or voluntarily; and that they were unconscionable.
*794If, after discovery and briefing on these issues, the District Court determines that the releases are valid, then the claims in Romero I, Count II of Romero II, and EEOC are barred. If, however, the District Court determines that the releases are not valid, the District Court needs to address all of the underlying claims and issues that it did not decide in its June 20, 2007, Order, some of which we referred to above, namely, the common law claims of breach of contract and breach of fiduciary duty and all the claims in Romero II. We are confident that on remand the parties can spell these out for the District Court, as they have done for us on appeal, including the plaintiffs’ claim that discovery as to these issues and the release should be permitted.12
For the reasons set forth above, we will VACATE the Order of the District Court and REMAND for further proceedings consistent with this Opinion.
. In Romero I (07-4460), the plaintiffs make claims for age discrimination and retaliation under the Age Discrimination in Employment Act, claims of interference under ERISA § 510, common law claims for breach of contract and fiduciary duty, claims related to the signing of the release, and claims related to the District Court’s handling of the litigation.
In Romero II (07-4461), the plaintiffs allege violations of ERISA § 204(g)(2), which prohibits plan amendments that reduce or eliminate already-accrued benefits, and seek equitable relief for Allstate's alleged breach of fiduciary duty under ERISA § 404.
In EEOC (08-1122), the agency claims that Allstate retaliated against the plaintiffs in violation of the ADEA. The District Court consolidated Romero I and EEOC in 2002.
. Because we write here only for the parties, we will not fully describe the factual background or procedural history of these three cases.
. One of the original plaintiffs, Douglas Gainer, did not sign the release. The parties advised us at oral argument that Mr. Gafner’s estate had settled its claims with Allstate. (Mar. 23, 2009, Oral Arg. Tr. 15.) Therefore, all of the remaining plaintiffs are signers of the release.
.In Isbell, two former Allstate employee agents alleged violations of the ADEA, Title VII, the ADA, and ERISA, as well as retaliation and unlawful termination claims. One of the plaintiffs, Schneider, had signed the release; the other, Isbell, had not. The United *789Slates Court of Appeals for the Seventh Circuit held that there had been no unlawful retaliation under the ADEA, ADA, Title VII, or ERISA, and that Allstate had not unlawfully discriminated against the terminated employee agents in violation of the ADEA. The court also held that Allstate had not violated ERISA when it eliminated the employee agents’ positions for a legitimate, nondiscriminatory reason, and that the release was "an effective affirmative defense” to claims raised under the statutes and doctrines named in it. 418 F.3d at 797.
. In Scott, the United States Court of Appeals for the Eleventh Circuit dealt with amendments to Allstate’s retirement plan made in November of 1991. The plaintiffs alleged that Allstate had failed to comply with ERISA § 204(h)'s notice provisions when it retroactively amended its plan to comply with the Tax Reform Act of 1986, and that therefore the amendments were ineffective. The court concluded that ERISA’s notice requirement was satisfied and that the plan amendments adopted on November 15, 1991, could be retroactive to January 1, 1989. 113 F.3d at 1201.
. The Swain plaintiffs also objected to Allstate's pension plan amendments. The United States District Court for the Southern District of Florida held that Scott barred the plaintiffs’ claims as to retroactivity, because the same claim could have been brought in Scott and the interests of the Scott and Swain plaintiffs were so closely aligned that the Scott plaintiffs were virtual representatives of the Swain plaintiffs. The court allowed claims that Allstate had made misrepresentations to the plaintiffs to go forward. (Joint App. 5525-27.)
.The parties dispute whether we have jurisdiction over these appeals, since the District Court never issued a separate final judgment. The plaintiffs argue that we do have jurisdiction, because the District Court’s order left no issue unresolved and was therefore final. Allstate argues that we do not have jurisdiction because the court did not comply with Fed. R.Civ.P. 58, which requires that judgment be entered in a separate document. While we find it puzzling that the District Court did not enter a separate judgment, it is apparent that the court left no issues unresolved: it granted or denied all of the outstanding motions before it, and the parties proceeded as if judgment had been entered, complying with all deadlines. The plaintiffs waited more than 150 days after the District Court’s order was entered in the docket before considering judgment to be entered and filing their notice of appeal, in compliance with Fed. R.App. P. 4(a)(1)(A) and 4(a)(7)(A)(ii). Thus, we have jurisdiction pursuant to 28 U.S.C. § 1291. *790See Alvord-Polk, Inc. v. F. Schumacher & Co., 37 F.3d 996, 1006 n. 8 (3d Cir.1994) (noting that the "district court’s failure to enter judgment in accordance with the dictates of Rule 58 appears to stem from oversight” and therefore "common-sense” application of the Rules of Civil Procedure, as encouraged by the Supreme Court in Bankers Trust Co. v. Mallis, 435 U.S. 381, 385-86, 98 S.Ct 1117, 55 L.Ed.2d 357 (1978), warranted exercise of appellate jurisdiction).
. We review a district court's grant of motions to dismiss and motions for summary judgment de novo. See, e.g., Ballentine v. United States, 486 F.3d 806, 808 (3d Cir.2007); Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir.2007).
. The EEOC focuses its argument on those Allstate employees who did not sign the release, a group the EEOC calls "the holdouts.” It claims that the holdouts’ refusal to sign the release is protected activity under the ADEA, either as protected participation activity (it argues that the refusal to sign could be interpreted as a threat to sue) or as protected opposition conduct. The EEOC contends that Allstate's refusal to allow the holdouts to become independent contractor agents is an adverse action, and that the option to convert to independent contractor status was a privilege of the employee agents’ employment. Allstate contests the EEOC’s claim that the holdouts' refusal to sign the release was protected activity, and argues that the offer of independent contractor status for the terminated employee agents was not an incident of employment, but rather part of the consideration for the signing of the release. Because there are no holdouts among the current plaintiffs, we need not address these issues.
The EEOC also raises, briefly, an argument that Allstate engaged in what the EEOC terms "preemptive" retaliation against the signers of the release. (EEOC Br. at 26-28.) It argues that the signers were injured by being required to sign the releases. We will not address the EEOC's preemptive retaliation argument in this opinion. Rather, we will return the cases to the District Court for further review of the validity of the releases.
. After the District Court issued its declaratory judgment, the plaintiffs filed a motion for reconsideration, arguing that the tender-back requirement was inappropriate. They raise this argument on appeal, but we need not address that issue here.
. Counts I and III of Romero II deal with the plaintiffs’ claims that Allstate's amendment of its retirement plan violates the anti-cutback provisions of ERISA § 204(g). The language of the release is very broad and covers ERISA claims, other than those claims to "any benefits to which I am entitled in accordance with any Allstate plan subject to ERISA by virtue of my employment with Allstate prior to my employment termination date.” (Joint App. 2352.) We do not decide whether Counts I and III of Romero II fit within this exception. Rather, if the release is valid, the District Court must consider on remand whether the claims in Counts I and III of Romero II are claims for benefits to which the plaintiffs were entitled in accordance with any Allstate ERISA plan.
. We take this opportunity to register some concern regarding the District Court's ruling granting Allstate's motion to dismiss Romero II on June 20, 2007, when it stated that "[f|or the reasons stated in the decision of the Eleventh Circuit Court of Appeals in Scott v. Administrative Comm. of the Allstate Agents Pension Plan, 113 F.3d 1193 (11th Cir.1997), and the later decision of the United States District Court for the Southern District of Florida in Swain v. Allstate Ins. Co. (No. 96-0998) (Jan. 22, 1999), the questioned amendments to the Allstate Pension Plan were validly adopted and became effective.” (Joint App. 13.) In the District Court’s previous order, on March 21, 2007, it said that the Scott and Swain decisions establish that the questioned amendments to the Allstate pension plan were validly adopted, regardless of whether the other cases "give rise to a res judicata defense, or whether the plaintiffs in those cases should be regarded as in privity with the plaintiffs in our cases so as to give rise to collateral estoppel_” (Joint App. 1224.)
We disagree with the District Court that Scott and Swain are dispositive of the validity of the amendments at issue in Romero II. Scott addressed different pension plan amendments than those at issue here. It dealt with the Social Security benefit offset, the benefit accrual rate, and the retirement age. In Romero II, the amendments at issue deal with the "beef-up” for early retirement (adopted in 1991), the definition of "credited service” (adopted in 1994), and the definition of "employee” (adopted in 1996). The issues are not the same. Indeed, the Scott plaintiffs' claims were based on an alleged lack of notice of the reduction in benefit accruals under the notice provisions of ERISA § 204(h), whereas the Romero II plaintiffs allege violations of ERISA § 204(g)(2), which prohibits plan amendments that reduce or eliminate already-accrued benefits. The plaintiffs in Swain challenged the 1991 Allstate plan amendments, alleging that Allstate misrepresented that the amendments were required by the Tax Reform Act of 1986, and arguing that the amendments could not be implemented retroactively. The Swain court found that Scott precluded all but the misrepresentation claims. Swain v. Allstate Ins. Co., No. 06-0998 (Jan. 22, 1999). (Joint App. 5507-28.) The claims at issue in Romero II go directly to the substance of the amendments at issue, not the logistical propriety of their enactment, as in Scott and Swain. Therefore, these cases . are not conclusive on this issue. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471491/ | OPINION
PER CURIAM.
Appellant Rasheen Johnson appeals from an order of the United States District *797Court for the Middle District of Pennsylvania denying his petition for writ of habe-as corpus filed pursuant to 28 U.S.C. § 2241.
Johnson is currently confined at the Canaan United States Penitentiary in Way-mart, Pennsylvania.1 On November 3, 2008, Johnson filed a § 2241 petition claiming that the Bureau of Prisons (“BOP”) failed to credit his sentence for the time period from January 13, 2003 (when he was transferred from State custody to federal custody to face trial on federal charges) through December 18, 2003 (the date he was sentenced on his federal conviction).
In September 2001, while Johnson was on parole on a state conviction, he was arrested in Missouri for unlawful use of a firearm, a violation of state law. Shortly thereafter, the State released Johnson on bond and later nolle prossed the charge. His release was short-lived, however, because he was arrested in October 2001, and taken into state custody on a parole violation warrant issued by the Missouri Department of Probation and Parole.
In January 2002, while he was in state custody on the parole violation, Johnson was indicted in the Eastern District of Missouri on the federal charge of being a felon in possession of a firearm. On January 13, 2003, he was transferred from State custody to Federal custody pursuant to a writ of habeas corpus ad prosequen-dum for trial. He was found guilty by a jury thereafter and he was sentenced on December 18, 2003, to ninety months of imprisonment. The federal sentencing court recommended that Johnson’s federal sentence commence immediately so that it would run concurrently with his state parole violation sentence. The Missouri Department of Corrections was designated as Johnson’s place of confinement for purposes of his federal sentence. Johnson served his state and federal sentences concurrently in the state prison until June 1, 2004. On June 1, the Missouri Department of Corrections gave Johnson credit for the time he spent in federal custody from January 13, 2003, through December 18, 2003, and released him on parole. He was thereafter transferred to the custody of federal authorities to serve the remainder of his federal sentence at the Federal Correctional Institution in Greenville, Illinois, and then USP Lewisburg.
In his § 2241 petition, Johnson asserted that he had requested at his federal sentencing that the judge order his sentence to begin immediately so that the Bureau of Prisons could give him credit for the year that he spent in federal custody awaiting trial. In support of his contention, Johnson attached a copy of the federal Judgment in which the sentencing court ordered the federal sentence to “begin immediately.” Johnson sought credit “for all the time he spent in the Federal Detention Center,” from January 13, 2003 through December 18, 2003. He' argued that credit should be given because the state conviction underlying his parole violation was vacated. The BOP responded and Johnson filed a traverse, asserting that the State of Missouri no longer had primary custody of him when he was transferred to the Federal Detention Center pursuant to a writ of habeas corpus ad prosequendum on January 13, 2003. He also contended that his state conviction had been dismissed by the state court pursuant to the grant of state habeas corpus relief in May 2004, and he attached a copy of a state court order in support of his contention.
*798The District Court denied § 2241 relief, holding that 18 U.S.C. § 3585(b) barred Johnson from receiving credit towards his federal sentence for time served from January 13, 2003, through December 17, 2003, because the Missouri Department of Corrections had credited his state parole violation sentence for the same time period. The court rejected Johnson’s argument that the State of Missouri lacked primary custody as of January 13, 2003, noting that the state remained the primary custodian when Johnson was in federal custody pursuant to a writ ad prosequendum, because the state did not relinquish its jurisdiction over the him. See Rios v. Wiley, 201 F.3d 257, 274 (3d Cir.2000) (overruled on other grounds). The District Court also rejected Johnson’s contention that the state had no lawful jurisdiction over him during the time period in question because the state conviction underlying his parole violation was dismissed in 2004. The court noted that the state court order Johnson submitted in support of his contention established only that his state sentence was corrected to run concurrently with another state sentence, and thus it had no bearing on the federal sentence. Johnson filed this timely appeal.
We will affirm. We have jurisdiction under 28 U.S.C. § 1291. As the issues here are legal in nature, we exercise plenary review. Barden v. Keohane, 921 F.2d 476, 479 (3d Cir.1990). The authority to calculate a federal prisoner’s period of incarceration for the sentence imposed and to provide credit for time served is delegated to the Attorney General, who acts through the BOP. United States v. Wilson, 503 U.S. 329, 334-35, 112 S.Ct. 1351, 117 L.Ed.2d 593 (1992). We may correct an error by the BOP through a writ of habeas corpus where that error is fundamental and carries a serious potential for a miscarriage of justice. Barden, 921 F.2d at 479. We have carefully reviewed the record and we fully agree with the District Court’s reasoning and conclusion that the BOP could not commence Johnson’s federal sentence before December 18, 2003. A federal sentence commences when the defendant is received by the Attorney General for service of his federal sentence. See 18 U.S.C. § 3585(a). See also United States v. Pungitore, 910 F.2d 1084, 1119 (3d Cir.1990). By designating the Missouri Department of Corrections as the place for Johnson’s federal sentence to be served initially, the BOP gave effect to the federal sentencing judge’s decision that Johnson’s federal. sentence begin immediately. Johnson wanted to be credited for time served in state custody before he was sentenced on his federal conviction. 18 U.S.C. § 3585(b) prohibits the BOP from awarding credit for túne spent in state custody prior to the imposition of a federal sentence. See Wilson, 503 U.S. at 337,112 S.Ct. 1351 (explaining that Congress made it clear in § 3585(b) that a defendant could not receive double credit for his detention time). Johnson was not entitled to any credit against his federal sentence for the time spent in the Federal Detention Center pursuant to a writ of habeas corpus ad prosequendum from January 13, 2003, to December 17, 2003, because the Missouri Department of Corrections had credited the same time period towards his state parole violation sentence.2
*799Johnson reiterates on appeal that his state conviction underlying his parole violation sentence was dismissed and therefore, the state lacked lawful authority to hold him in primary custody from January 13, 2003 through December 17, 2003. We agree with the District Court’s conclusion that Johnson’s argument is meritless. The court order Johnson submitted in the District Court shows only that his state sentence was corrected, not vacated or dismissed.
Accordingly, we will affirm the order of the District Court denying Johnson’s habe-as corpus petition.
. He was confined at the United States Penitentiary in Lewisburg, Pennsylvania ("USP Lewisburg”), at the time he filed the § 2241 petition.
. Johnson argues that crediting his federal sentence with time served for the time period in question does not result in double-crediting because the federal sentencing judge ordered that the federal sentence run concurrently with his state parole violation sentence and the BOP designated the Missouri Department of Corrections as the place of his confinement for purposes of his federal sentence. (See Informal Brf. at 9). He does not address the most important fact, which is that the Missouri Department of Corrections had already credited the time he served toward the parole violation sentence. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471492/ | OPINION
PER CURIAM.
Petitioner Bhajan Singh seeks review of both a final order of removal and denial of *800his motion for reconsideration. For the reasons that follow, we will deny the petition for review.
I
Singh is a native and citizen of India. He entered the United States in March 1998 and overstayed the roughly four weeks permitted by his non-immigrant visa. Singh was issued a notice to appear in May 2003, and he conceded removability. He sought withholding of removal and protection under the Convention Against Torture (“CAT”), alleging past and future persecution on account of his religion (Sikhism) and political views. He conceded ineligibility for asylum based on his failure to file for such relief within the one-year filing deadline.
At a hearing before an Immigration Judge (“IJ”) in New Jersey, Singh testified that he was jailed once in 1978 and again in 1980 because of his membership in Akalidal, a political party that advocates for Sikhs and for the creation of an independent Sikh state. (A.R.97-100, 102-103.) Singh testified that during his first incarceration, prison officials “kept beating me on the head ... They beat me very badly.” (A.R.101.) He testified that he experienced similar treatment during the second incarceration. (A.R.103.) Singh also testified that he fears returning to India because the police “are looking for [him].” (A.R.104.)
The IJ found that Singh lacked credibility. The IJ’s opinion pointed to several inconsistencies in Singh’s testimony and the dubious nature of certain exhibits, as well as material omissions from his 1-589 and 1-485 applications. The IJ also reviewed the documentary evidence related to country conditions in India, and specifically evidence concerning Sikhs and the Akalidal political party. The IJ stated in his decision that “[e]ven if [Singh] did experience harsh treatment after either [the 1978 and 1980] arrests he remained in India for more than 17 years thereafter without any problem, and the circumstances in India [as] indicated by the background material have substantially improved.” (A.R.42.) Thus, the IJ found that Singh was not entitled to withholding of removal or relief under the CAT.
In his notice of appeal to the Board of Immigration Appeals (“BIA”), Singh argued that he had “satisfied his evidentiary burden of proof and persuasion of showing it is more likely than not he would be persecuted on account of being a Sikh if he were to return to his native India,” and that he had demonstrated past and prospective torture at the hands of the “Hindu police.” (A.R.27.) He did not contest the IJ’s adverse credibility determination. By order dated July 28, 2008, the BIA adopted the decision of the IJ and dismissed Singh’s appeal, noting that he had not “addressed on appeal the omissions and discrepancies cited by the Immigration Judge in finding that [Singh] did not testify credibly, and we do not find the Immigration Judge’s adverse credibility determination to be ‘clearly erroneous.’” (A.R.21.)
Singh filed a motion for reconsideration, claiming that the BIA erred in adopting the IJ’s decision and challenging for the first time the IJ’s adverse credibility determination. By order dated December 19, 2008, the BIA denied the motion, finding that Singh had failed to demonstrate any error by the BIA in its previous decision “based on the record that was then before the Board.” (A.R.2.) Singh then filed this petition for review. In its brief, the Government asserts that we lack jurisdiction over Singh’s challenge to the BIA’s July 28, 2008 order, and that the BIA did not abuse its discretion in denying Singh’s motion for reconsideration.
*801II
As a threshold matter, we agree with the Government that we lack jurisdiction to review the BIA’s July 28, 2008 order because Singh did not file a timely petition for review of that order. See 8 U.S.C. § 1252(b)(1) (providing for 30-day deadline in which to file petition for review); Stone v. INS, 514 U.S. 386, 398-99, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995) (timely motion to reopen or reconsider does not toll running of filing period for review of BIA’s underlying removal order). The petition for review was filed on January 15, 2009, within thirty days of the BIA’s December 19, 2008 order, but not within thirty days of the BIA’s July 28, 2008 order. Therefore, the petition is timely only with respect to the December 19, 2008 order denying reconsideration.1
III
A motion for reconsideration is a “request that the Board re-examine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case which was overlooked.” In re Ramos, 23 I. & N. Dec. 336, 338 (BIA 2002) (en banc) (internal quotation and citations omitted). Such motions “shall state the reasons for the motion by specifying the errors of fact or law in the prior Board decision and shall be supported by pertinent authority.” 8 C.F.R. § 1003.2(b)(1). We review the BIA’s denial of Singh’s motion for reconsideration under a highly deferential abuse of discretion standard. See Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
We hold that the BIA did not abuse its discretion in denying Singh’s motion for reconsideration. Before the BIA, Singh’s arguments in support of reconsideration were conclusory at best, and were for the most part identical to those previously made in his notice of appeal. Here, Singh’s petition for review does not even address the BIA’s decision to deny reconsideration, let alone demonstrate that the BIA erred in dismissing his appeal for failure to contest the IJ’s adverse credibility determination. In short, Singh offers nothing that would cause us to question the BIA’s December 19, 2008 order denying reconsideration.
Accordingly, we will deny the petition for review.
. We thus do not need to reach the Government’s jurisdictional argument concerning issue exhaustion as it relates to Singh's challenge of the IJ's adverse credibility determination. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471500/ | OPINION
PER CURIAM.
Paul McNeil petitions for review of an order of the Board of Immigration Appeals (“BIA”) vacating the Immigration Judge’s (“IJ”) order granting his application for cancellation of removal. We will deny the petition for review.
McNeil is a native and citizen of Jamaica, who was admitted to the United States as a lawful permanent resident in 1970 at the age of eleven. In 2007, the Immigration and Naturalization Service (“INS”) issued a notice to appear charging that McNeil was subject to removal from the United States based on his convictions in New York state court in 1985 for a controlled substance offense and a firearms offense. The INS later filed two notices of “Additional Charges of Inadmissibility/De-portability” against McNeil based on his convictions in New York state court in 1981, 1990, and 2007 for controlled substance offenses. Through counsel, McNeil conceded that he is removable. McNeil applied for cancellation of removal.
McNeil testified that he is married but separated, and that he has three United States citizen children. Two of McNeil’s children are adults and the youngest child, Daytwana Derby, is now fourteen years old. McNeil is Daytwana’s court-ordered custodial parent and they have a close relationship. McNeil testified that Dayt-wana is hyperactive and that he has taken her to therapy from time to time. At the time of the hearing, Daytwana was in the care of her 70-year old grandmother and 95-year old great grandmother. McNeil stated that, since he was taken into custody, Daytwana has been doing worse in school and misbehaving. A mental health evaluation of Daytwana was performed in connection with the immigration proceedings, and the report reflects that Daytwa-na is suffering from a major depressive condition and symptoms of anxiety as a result of McNeil’s detention.
McNeil has 11 convictions for crimes committed from 1980 through 2007. These convictions were all misdemeanors with the exception of a 1990 drug offense. McNeil admitted that he had a marijuana problem, but stated that he participated in drug rehabilitation courses while incarcerated and that he has been drug free since 1989. He stated that he pleaded guilty to a drug offense in 2007 to avoid pretrial confinement, and that he did not have drugs when he was arrested.
McNeil has worked for the City of New York on a seasonal basis. 'When he was not working, he received public assistance. McNeil testified that he planned to find a full-time job, care for his daughter, and remain law abiding. McNeil stated that, if deported, he would like to take Daytwana with him to Jamaica, but McNeil’s mother, who also testified, felt that McNeil could not take her because he does not know anyone there.
The IJ found this case to be a close one. The IJ stated that McNeil had not been as attentive as one would expect him to be with a child with mental health problems, noting his arrests in 2006 for misdemeanor criminal mischief and disorderly conduct and a misdemeanor conviction for reckless endangerment. The IJ, however, also concluded that McNeil cares deeply for Dayt-wana and the rest of his family, and that he is not a bad person overall. The IJ noted that, until 2006, McNeil had gone 18 years without a conviction, and that, when McNeil was working, he was a good and reliable worker. The IJ stated that he would deny McNeil’s application for can*816cellation of removal based on his criminal record absent his daughter. However, in an effort to maintain family unity, and because Daytwana is a pre-teen with exceptional needs living with elderly grandparents, the IJ granted McNeil’s application in the exercise of discretion.
The BIA sustained the Government’s appeal, denied McNeil’s application for cancellation of removal in the exercise of discretion, and ordered McNeil’s removal. The BIA agreed with the Government that significant negative factors militated against a favorable exercise of discretion. The BIA noted McNeil’s 11 convictions, recognizing that most of the convictions involved simple possession of controlled substances, but stating that McNeil had also been convicted of selling marijuana, attempting to possess a weapon, and reckless endangerment. The BIA also noted that a 1990 conviction resulted in a two to four year prison sentence.
The BIA also recognized that McNeil had lived here for nearly 40 years and that he had come here as a child. But the BIA found these facts less compelling because of the amount of time McNeil had spent either incarcerated or on probation. The BIA recognized that Daytwana would experience substantial personal hardship if McNeil is removed, but stated that McNeil is not a person of significant value to his community and that he has not been meaningfully rehabilitated. Weighing the equities against the adverse factors, the BIA concluded that a favorable exercise of discretion was not warranted absent strong evidence that McNeil had no propensity to re-offend. One Board member dissented, noting that she found no error in the IJ’s decision. This petition for review followed.
We must first address the Government’s motion to dismiss the petition for review. The Government argues that we lack jurisdiction because the BIA denied McNeil’s application for cancellation of removal in the exercise of discretion. The Government contends that McNeil raises no colorable questions of law that might bypass the jurisdictional bar, and that 8 C.F.R. § 1003.1(d)(3)(ii) allows the BIA to review questions of discretion de novo. The Government states that McNeil asserts only that the BIA did not properly exercise its discretion in evaluating the evidence.
The Government is correct that “[tjhis Court generally lacks jurisdiction to review discretionary decisions made under [8 U.S.C.] § 1229b regarding cancellation of removal.” Mendez-Reyes v. Attorney General, 428 F.3d 187, 189 (3d Cir.2005). Under the Real ID Act, the Court retains jurisdiction to entertain constitutional claims and questions of law. Id. McNeil argues in his brief that the BIA erred as a matter of law by failing to defer to the IJ’s findings and by engaging in independent fact finding in violation of 8 C.F.R. § 1003.1(d)(3)(i),(iv). McNeil also asserts that these errors denied him due process of law. Because McNeil presents questions within our jurisdiction, the Government’s motion to dismiss the petition for review is denied.
Although we have jurisdiction over the petition for review, McNeil has not shown that the BIA erred as a matter of law. The BIA relied on 8 C.F.R. § 1003.1(d)(3)(ii), which allows the BIA to review questions of discretion de novo. The BIA did not disagree with the IJ’s factual findings or engage in its own fact finding in violation of the regulations. Rather, the BIA’s decision reflects that the BIA determined that a favorable exercise of discretion was not warranted when the equities in McNeil’s case were balanced against the negative factors. To the extent McNeil challenges that determination, we lack jurisdiction to consider the BIA’s discretionary decision. McNeil’s due pro*817cess argument stemming from the alleged legal error is also without merit.
Accordingly, we will deny the petition for review. | 01-04-2023 | 11-05-2022 |