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https://www.courtlistener.com/api/rest/v3/opinions/8471502/ | OPINION
PER CURIAM.
Orlando M. Trancho petitions for review of an order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) final order of removal. For the reasons that follow, we will deny his petition for review.
Trancho is a native and citizen of Portugal. He arrived in the United States in 1989 on a visitor’s visa, which he overstayed. Following his second conviction for receiving stolen property on October 27, 2006, Trancho was charged with re-movability for having overstayed his visa and for having committed two or more crimes of moral turpitude. Trancho is married to a United States citizen. His parents are lawful permanent residents of the United States and his mother suffers from severe depression. After being charged with removability, he sought a waiver of inadmissibility so as to allow him to apply for an adjustment of status based on an approved labor certification.1 Pursuant to INA § 212(h)(1)(B), “the Attorney General may, in his discretion,” grant an alien a waiver of inadmissibility, “if it is established to the satisfaction of the Attorney General that the alien’s denial of admission would result in extreme hardship to the United States citizen or lawful[] resident spouse, parent, son, or daughter....” 8 U.S.C. § 1182(h)(1)(B).
On April 24, 2007, the IJ denied Tran-cho’s request for a waiver “as a matter of discretion,” finding that despite his prima facie eligibility, the equities weighed against granting one. (J.A. 301.) As part of his conclusion, the IJ held that he was “not persuaded that Respondent’s removal would result in extreme hardship to Respondent’s U.S. citizen spouse.” (J.A. 801.) The BIA remanded because the IJ failed to consider the effect of Trancho’s removal on his lawful permanent resident parents. (J.A. 47-48.)
On September 13, 2007, while his case was on remand to the IJ, Trancho’s 1996 New Jersey State conviction for receiving stolen property was vacated. (J.A. 16, 75-89.) He apprised the IJ of this development in the context of a motion for a bond hearing. (Id.) One day later, on September 14, 2007, the IJ issued his decision denying Trancho’s application for a waiver. (J.A. 54-61.) There was no discussion of the vacatur of his 1996 conviction in the IJ’s opinion. (Id.) The IJ concluded that while Trancho’s removal proceedings had affected his mother and his removal might exacerbate her symptoms, she had been suffering from depression for nine years and it was not clear that her depression would be resolved if his request for a waiver was granted. (J.A. 60-61.) Additionally, the IJ held that Trancho’s potential eligibility for an adjustment of status based on his wife’s citizenship was not “an equity sufficient to outweigh the seriousness of his criminal past.” (J.A. 61.)
Trancho sought review by the BIA, arguing that the matter should be remanded to the IJ for consideration of the new evidence he submitted regarding the vaca-tur of his 1996 conviction, and for a re*819assessment of the hardship to his mother should he be removed. (J.A. 18-22.) On October 12, 2007, while his appeal to the BIA was pending, the IJ granted his motion to be released on bond, based on the “material change in circumstance” occasioned by the vacatur of his 1996 conviction.2 (J.A. 91-95.) On appeal, the BIA adopted and affirmed the IJ’s determination that his qualifying relatives would not experience extreme hardship should he be removed, and held that Trancho had failed to demonstrate that remand to the IJ to consider the vacatur of his 1996 conviction was warranted, as he had not shown how the vacatur materially affected the outcome of his proceedings. (J.A. 2-4.) Trancho timely filed a petition for review.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252. We lack jurisdiction over that aspect of the BIA’s order affirming the IJ’s discretionary denial of a waiver of inadmissibility. See 8 U.S.C. §§ 1252(a)(2)(B)(i) & 1182(h) (“No court shall have jurisdiction to review a decision of the Attorney General to grant or deny a waiver under this subsection.”); see also Mendez-Moranchel v. Ashcroft, 838 F.3d 176, 179 (3d Cir.2003) (holding that the “hardship determination” is discretionary and, accordingly, this Court lacks jurisdiction to review it). However we retain jurisdiction over constitutional claims and questions of law. See 8 U.S.C. § 1252(a)(2)(D).
In his petition for review, Trancho challenges the BIA’s review of the IJ’s determination that he failed to demonstrate that his mother would suffer “extreme hardship” as a result of his removal. As stated above, we lack jurisdiction to review this claim. As Trancho’s remaining two claims are legal ones, however, we consider them in turn. First, Trancho argues that, in denying his motion to remand for the consideration of additional evidence, the BIA engaged in inappropriate fact-finding in concluding that he had not demonstrated the materiality of the vacatur of his 1996 conviction to the IJ’s determination that he had not satisfied the standard for a waiver. Second, Trancho argues that his right to due process was violated by the BIA’s failure to remand the matter to the IJ as, in doing so, it pre*820vented him from fully developing the record below.
In connection with his appeal brief, Trancho filed a document with the BIA entitled “Motion to File Additional Evidence”, in which he asked the BIA to receive into evidence his renewed motion for a bond hearing indicating that his 1996 conviction had been vacated, and the IJ’s opinion granting his request to be released on bond. (J.A. 26-43.) In its decision, the BIA construed this as a motion to remand, which it denied. (J.A. 3-4.) In considering Trancho’s motion to remand, the BIA held that the vacatur was not determinative because, while he may no longer be removable for having committed two or more crimes of moral turpitude, he remains removable for having overstayed his visa. See 8 U.S.C. § 1227(a)(1)(B). (J.A. 3.) Additionally, he remains ineligible for an adjustment of status without a waiver based on his 2006 conviction for receiving stolen property. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). (J.A. 3.) Because it affirmed the IJ’s hardship determination, the BIA concluded that there was no need to remand to the IJ to consider the effect of the vacated conviction, if any. (J.A. 3.) Trancho challenges this conclusion, arguing that in reaching it, the BIA engaged in “inappropriate fact-finding.” We disagree. In its decision, the BIA correctly concluded that Trancho failed to make any argument to the IJ that the vacated conviction would have obligated him to delay the issuance of his September 14, 2007 decision, nor did he request a continuance or adjournment of the proceedings before the IJ upon receiving notice of the vacatur. The BIA then proceeded to consider whether Trancho had met the requirements for a motion to remand. While the BIA has noted that motions to remand are not explicitly provided for by the statutory scheme, when such a motion requests relief normally provided for by a motion to reopen or to reconsider, the BIA will treat is as such. See Matter of Coelho, 20 I. & N. Dec. 464, 471 (BIA 1992). Here, because Trancho requested remand to the IJ to consider evidence not previously before it, the BIA treated it as a motion to reopen and, accordingly, asked whether Trancho had demonstrated that the new evidence would likely change the result in his case. See 8 C.F.R. § 1003.2(c)(1) (requiring that the Board determine if the evidence forming the basis for a motion to reopen is material and was not previously available); INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988) (charging the BIA with determining whether the applicant has offered previously unavailable material evidence and demonstrated prima facie eligibility for relief sought). Because it concluded that Trancho had not demonstrated how the vacatur materially affected the outcome of the removal proceedings, it denied his motion to remand. This does not reflect inappropriate fact-finding but rather the proper exercise of the BIA’s duties when considering a motion to reopen. See Abudu, 485 U.S. at 104, 108 S.Ct. 904; Shardar v. Attorney General, 503 F.3d 308, 313 (3d Cir.2007). Accordingly, we conclude that this claim is without merit.
Finally, Trancho claims that by preventing him from “developing the record to determine the full significance of the vacatur of his 1996 conviction” the BIA denied him his right to due process. (Pet’r Br. 27-28.) He essentially claims that he was denied the right to a fair hearing. See Singh v. Gonzales, 432 F.3d 533, 541 (3d Cir.2006). To prevail on this claim, Trancho is required to show “substantial prejudice.” See id. Because he has not demonstrated on any level in these proceedings how the introduction of evidence regarding the vacatur of his 1996 conviction would have affected the IJ’s decision, he has not satisfied this standard.
*821Based on the foregoing, we will deny the petition for review.
. At the time he sought to adjust his status, his wife was not yet a U.S. citizen.
. In addressing the impact of Trancho's remaining 2006 conviction for receiving stolen property on his underlying immigration proceedings, the IJ speculated that the remaining conviction might have fallen under "the 'petty offense’ exception for crimes involving moral turpitude.” (J.A. 93.) The subsection referred to by the IJ provides that where an alien has committed only one crime of moral turpitude as defined in INA § 212(a)(2)(A)(i)(I), he is not inadmissible if "the maximum penalty possible for the crime of which the alien was convicted ... did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).” 8 U.S.C. § 1182(a)(2)(A)(ii)(II). Because the IJ did not have the record before him, he granted Trancho’s motion to be released on bond. (J.A. 93-94.) While Trancho argues that the BIA’s refusal to remand to the IJ prevented him from ”show[ing] whether his remaining conviction may be deemed to be a ‘petty offense’ ” (Pet’r Br. 28), the record clearly reflects that it cannot. Trancho was convicted of receiving stolen property in the third degree pursuant to N.J. Stat. Ann. § 2C:20-7, an offense which carries a maximum sentence of five years. See N.J. Stat. Ann. § 2C:43-6. (J.A. 3, 558-59.) He was actually sentenced to three years of probation. (Id.) In its opinion, the BIA correctly held that Trancho made no claim or showing that his conviction constituted a “petty offense" and, indeed, as it carried a maximum possible penalty of five years’ imprisonment, it cannot. See 8 U.S.C. § 1182(a)(2)(A)(ii)(II). (J.A. 3, n. 2.) Accordingly, Trancho would still require a waiver of inadmissibility despite the vacatur of his 1996 conviction. See 8 U.S.C. § 1182(a)(2)(A)(i)(I). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471504/ | *823OPINION OF THE COURT
McKee, Circuit Judge.
Michael Nguyen and Thuy Le both appeal the respective sentences that were imposed after they were convicted of conspiracy to distribute 100 kilograms or more of marijuana. For the reasons that follow, we will affirm.
I.
The first of Nguyen’s several arguments is that the district court should have granted his motion to dismiss his indictment based on violations of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and the Interstate Agreement on Detainers (“IAD”), 18 U.S.CApp. § 2. We review the district court’s legal conclusions de novo, and factual findings are reviewed for clear error. United States v. Dent, 149 F.3d 180, 183 (3d Cir.1998). First, we note that Nguyen’s claim based on the IAD must fail, since the rights provided for in the agreement are triggered only when a de-tainer has been filed by the requesting jurisdiction based on pending charges against the prisoner. United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). Here, the district court judge issued a writ of habeas corpus ad testificandum for him to testify before a grand jury, and thus at the time Nguyen claims there was a violation of his IAD rights there were no “untried indictments, informations, or complaints” against him as required by the IAD.
In addition, a defendant may waive his right to a speedy trial without explicitly stating a desire to do so. See, New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (holding that where defense counsel agreed to a trial date beyond the 180 day limit imposed by the IAD, defendant’s rights under the IAD were deemed to be waived). Here, the defendant agreed to a complex case designation, which necessarily tolls the Speedy Trial clock. In addition, the defendant requested and was granted a continuance of the trial in order to locate an essential witness. Therefore, Nguyen waived any rights he may otherwise have had under the Speedy Trial Act and the IAD does not apply.
II.
Nguyen’s next argument is that the district court committed error in its supplemental jury instructions by failing to properly respond to two questions posed by the jury during deliberations. Because Nguyen failed to object to the judge’s supplemental jury instructions, we review only for plain error. United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001), cert. denied, 537 U.S. 821, 123 S.Ct. 100, 154 L.Ed.2d 30 (2002). Nguyen argues that the first question—“Can you provide a summary of the amounts, pounds of marijuana 100 kilos?”—should have been interpreted as a request for a table to assist the jury in converting pounds into kilograms. However, the judge and counsel for both sides understood this question to be a request for a summary of the evidence. Counsel and the judge agreed not to provide an evidentiary summary. Rather, the jury was reminded of its obligation to deliberate based upon each juror’s recollection of the evidence.
We see no reason to conclude that the jury was actually requesting a conversion into pounds, and the jury did not attempt to clarify the court’s response in any manner that would suggest the kind of misunderstanding that Nguyen now hypothesizes. Moreover, during closing argument the prosecutor told the jury that 100 kilograms was equal to approximately 225 pounds. The jury instructions explained the need for each juror to be convinced of the defendant’s guilt beyond a reasonable doubt. Any uncertainty about whether *824quantity had been proved would therefore have enured to the defendant’s benefit.
The jury also asked: “Is the 100 kilogram amount legally significant? If so, can we know how or why?”. The court properly instructed the jury that the amount was a legal matter not for its consideration. Nguyen argues that the jury was entitled to know the significance of the 100 kilograms because it is an element of the offense. While the jury was required to determine whether Nguyen conspired to distribute 100 kilograms of marijuana, there was no requirement that it be informed of the sentencing consequences that would result from that finding. A contrary rule would improperly open the door to allowing jurors to base a verdict on sentencing consequences. See, Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (“[T]he jury ha[s] no sentencing function and should reach its verdict without regard to what sentence might be imposed.”).1 Therefore, we find no error in the judge’s supplemental jury instructions.
III.
Nguyen also challenges the sufficiency of the evidence. He first contends that there was insufficient evidence to convict him of being a conspirator as opposed to an independent contractor. Our review of the sufficiency of the evidence is “particularly deferential.” We will sustain the verdict “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996)) (internal quotations omitted).
A drug distribution conspiracy requires: “(1) a shared unity of purpose; (2) an intent to achieve a common goal; and (3) an agreement to work together toward the goal.” United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.2008) (quoting United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006).) In determining whether a conspiracy exists, courts have looked to “the length of affiliation between the defendant and the conspiracy; whether there is an established method of payment; the extent to which transactions are standardized; and whether there is a demonstrated level of mutual trust.” Iglesias, 535 F.3d at 156 (quoting United States v. Gibbs, 190 F.3d 188, 199 (3d Cir.1999)). Not all of the above factors must be present in order to find a conspiracy — indeed, the presence of even one factor may be sufficient. Id.
Here, the government presented testimony that Nguyen was introduced to the Ton Organization as someone who could sell large quantities of marijuana. There was evidence that he was affiliated with the conspiracy for several months, and that like other co-conspirators here he received marijuana on consignment, usually sold it within a week, and usually paid a member of the Ton Organization for that marijuana. The jury could have concluded that Nguyen received about $1,000,000 worth of marijuana over the course of 15 to 20 transactions, and that he paid for all but $20,000 of it. Although Nguyen argues that his failure to pay for some of the marijuana is evidence of an attempt to frustrate the conspiracy, there is nothing in the record that suggests that this was a deliberate attempt to disrupt the actions of the Ton Organization.2 The evidence here *825was clearly sufficient to establish Nguyen’s membership in the conspiracy beyond a reasonable doubt.
Nguyen also argues that there was insufficient evidence for the jury to find that he conspired to distribute 100 kilograms or more of marijuana. That argument is equally meritless. Phuc Vo, one of the leaders of the Ton Organization, testified that he provided Nguyen with at least 300 pounds of marijuana on consignment, with the largest single sale being 180 pounds. Nguyen points out that, in contrast to Phuc Vo’s testimony, Benjamin Ton testified that the most he personally sold it Nguyen was 100 pounds. Nguyen argues that because of this conflicting testimony, no rational juror could have found that he conspired to sell more than 100 kilograms. However, the fact that the jury credited the testimony of Phuc Vo over Benjamin Ton is not grounds for reversal.3 We can not weigh the evidence or determine the credibility of 'witnesses. See, United States v. Miller, 527 F.3d 54, 60 (3d Cir.2008).
IV.
Nguyen challenges the sentence that was imposed on several grounds. First, he contends that the district court erred in imposing a general sentence of 262 months. Because Nguyen did not raise this objection before the sentencing court, we review for plain error. United States v. Couch, 291 F.3d 251, 252-53 (3d Cir.2002), Nguyen cites United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir.2005), for the proposition that general sentences are illegal. However, we have repeatedly held that where a defendant is convicted on multiple counts, a general sentence is permissible as long as it does not exceed the maximum possible sentence for the count which carries the greatest sentence. See, United States v. Xavier, 2 F.3d 1281, 1292 (3d Cir.1993); United States v. Corson, 449 F.2d 544, 551 (3d Cir.1971) (en banc); Jones v. Hill, 71 F.2d 932, 932 (3d Cir.1934). Here, the general sentence of 262 months was less than the maximum permissible penalty for any of the counts of conviction.
Nguyen next argues that his sentence was not reasonable. A sentence will be upheld if “the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc), cert. denied, 552 U.S. 848, 128 S.Ct. 106, 169 L.Ed.2d 77 (2007). This requires the sentencing judge to “set forth enough to satisfy the appellate court that he[/she] has considered the parties’ arguments and has a reasoned basis. for exercising his own legal decision making authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Here, the record shows that the sentencing court properly calculated the advisory guideline range, considered all relevant § 3553(a) factors, as well as the sentencing arguments made by the parties, and reasonably applied each of these factors to the circumstances of this case. The judge explained in detail why, based on these factors, a sentence at the bottom of the guideline range was reasonable.
V.
Co-defendant Le argues that the district court erred in not applying,the safety valve provision of 18 U.S.C. § 3553(f) because it applied criminal history points to the guidelines calculation in a *826mandatory fashion. However, we need not reach the merits of Le’s argument because Le waived her right to appeal that issue by executing a valid plea agreement that contained an appellate waiver. Le does not argue that the waiver was not entered into knowingly and voluntarily, or that one of the limited exceptions contained in the waiver applies. Instead, she argues that because of the alleged error by the district court, enforcing the appellate waiver would result in a miscarriage of justice. See, United States v. Khattak, 273 F.3d 557, 563 (3d Cir.2001) (“Waivers of appeals, if entered into knowingly and voluntarily, are valid, unless they work a miscarriage of justice.”). However, “[a] waiver of the right to appeal includes a waiver of the right to appeal ... debatable legal issues-indeed, it includes a waiver of the right to appeal blatant error.” Id. at 562. Thus, even if Le’s argument had merit, enforcing this waiver would not result in a miscarriage of justice.
VI.
For all of the above reasons, we will affirm the judgments of conviction and sentence of the district court.
. In addition, Third Circuit Model Criminal Jury Instruction 3.16 states: “You should never consider the possible punishment in reaching your verdict.”
. In fact, this argument is undermined by the testimony of Phuc Vo, who stated on cross that Nguyen told him that the only reason Nguyen could not pay the $20,000 was because the marijuana given to him on consignment had been stolen from his car.
. In addition, we note that Ton acknowledged that while he only authorized five marijuana sales to Nguyen, more sales were made without his express authorization, and thus Ton’s testimony is not necessarily in conflict with that of Vo. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471433/ | 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/8471435/ | SUMMARY ORDER
Appellant Theresa B. Bradley, pro se, appeals the district court’s judgment denying her motion to vacate an arbitration award entered against her after arbitrating claims against Merrill Lynch & Company, Inc. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Arbitration awards are subject to “severely limited” review by the courts. Willemijn Houdstermaatschappij, BV v. Standard Microsystems Corp., 103 F.3d 9, 12 (2d Cir.1997) (internal quotation omitted). We “review a district court’s decision to confirm an arbitration award de novo to the extent it turns on legal questions, and ... review any findings of fact for clear error.” Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir.2003).
“A party petitioning a federal court to vacate an arbitral award bears the heavy burden of showing that the award falls within a very narrow set of circumstances delineated by statute and case law.” Id. The Federal Arbitration Act provides that, upon a motion by any party to an arbitration, a district court may vacate an arbitration award in the following circumstances:
(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded them powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.
9 U.S.C. § 10(a)(1) — (4). We have also held that an arbitration award may be vacated if it exhibits a “manifest disregard of the law.” Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir.2004) (internal quotations omitted). When a party asserts that the arbitrator engaged in misconduct, “except where fundamental fairness is violated, arbitration determinations will not be opened up to evidentiary review.” Tempo Shain Corp. v. Bertek, Inc., 120 F.3d 16, 20 (2d Cir.1997).
Here, the district court properly denied Bradley’s motion to vacate the arbitration award. Other than disagreeing with the outcome, Bradley has failed to provide any support for her claims that the arbitration panel in this case was corrupt and dis*691played a manifest disregard of the law. Moreover, Bradley does not point to where in the record she requested an adjournment of the proceedings due to Merrill Lynch’s failure to turn over documents, and an independent review of the arbitration transcript reveals that at no point did Bradley request to postpone the proceedings on that basis. Accordingly, Bradley has not raised any substantial issues on appeal that could warrant relief on this record, and she failed to meet her ultimate burden of showing the invalidity of the arbitration award. See Willemijn, 103 F.3d at 12.
We have carefully reviewed the Appellant’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471439/ | 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/8471441/ | 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/8471442/ | 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/8471444/ | 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/8471448/ | SUMMARY ORDER
Plaintiffs-appellants appeal from an order of the United States District Court for the Eastern District of New York (“Eastern District”) awarding $578,704.14 in attorneys’ fees and costs. The underlying suit concerns women who are police officers, alleging discrimination by the Suffolk County Police Department (“Suffolk County”) because of its failure to permit officers *708to obtain limited duty assignments during pregnancy. Plaintiffs were awarded damages at trial and subsequently secured a consent decree establishing a new policy for pregnant officers. At the conclusion of the case, plaintiffs requested upwards of $1 million in fees and costs, pursuant to 42 U.S.C. § 2000e-5(k); the district court’s reduction of that amount is the sole issue on appeal. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
“We review the district court’s award of attorney’s fees for abuse of discretion....” Farbotko v. Clinton County of N.Y., 433 F.3d 204, 208 (2d Cir.2005). “ ‘[A]buse of discretion’ — already one of the most deferential standards of review — takes on special significance when reviewing fee decisions based on our recognition that the district court, being intimately familiar with the case, is in a far better position to make such determinations than an appellate court.” In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 134 (2d Cir.2008) (other internal quotation marks omitted). Nonetheless, “[a] district court necessarily abuses its discretion if it bases its ruling on an erroneous view of the law or on a clearly erroneous assessment of the record.” Farbotko, 433 F.3d at 208 (alteration in original, quotation marks omitted).
[1] Plaintiffs argue that the district court erred in awarding fees at Eastern District rates and that the court should have applied Southern District of New York (“Southern District”) rates for plaintiffs’ Manhattan attorneys.
In Arbor Hill Concerned, Citizens Neighborhood Ass’n v. County of Albany, 493 F.3d 110 (2d Cir.2007), amended and superseded on other grounds by 522 F.3d 182 (2d Cir.2008), we reaffirmed the presumption that a district court should award fees at the going rate in the district in which it sits, id. at 119. We held that a court may do otherwise only where “a reasonable, paying client would pay” more to hire an attorney from outside the district. Id. at 121. In Simmons v. New York City Transit Authority, 575 F.3d 170, 175-76 (2d Cir.2009), we clarified our decision in Arbor Hill, and held that “[i]n order to overcome th[e] presumption [in favor of application of the forum rule], a litigant must persuasively establish that a reasonable client would have selected out-of-district counsel because doing so would likely (not just possibly) produce a substantially better net result.”
In this case, the district court declined to award Southern District rates, finding that plaintiffs’ choice of counsel “was not justified given the simplicity of the issues in the case, the wealth of competent civil rights attorneys in [the Eastern District], the length of time the attorneys were given to prepare for the case, and the far more limited resources being marshaled by the defendant, who was represented by the Suffolk County Attorneys’ Office.” Lochren v. County of Suffolk, No. CV 01-3925(ARL), 2008 WL 2039458, at *4 (E.D.N.Y. May 9, 2008). The court found that Southern District rates “would simply have been too high for a thrifty, hypothetical client — at least in comparison to the rates charged by local attorneys.” Id. (internal quotation marks omitted). Plaintiffs have not overcome the presumption in favor of in-district rates, and the district court did not abuse its discretion in awarding fees at Eastern District rates.
[2] Plaintiffs next argue that the district court erred in failing to consider explicitly each of the twelve factors set forth by the Fifth Circuit in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87, 92-93, 109 S.Ct. 939, 103 L.Ed.2d *70967 (1989).1 In Arbor Hill, we explained that “[i]n determining what rate a paying client would be willing to pay, the district court should consider, among others, the Johnson factors; it should also bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively.” 493 F.3d at 117-18. Arbor Hill did not hold that district courts must recite and make separate findings as to all twelve Johnson factors. In this case, the district court weighed numerous factors, including the difficulty of the case, the novelty of the issues, and the timing demands imposed by the litigation. That analysis was sufficient.
[3] The district court applied a 25% across-the-board reduction in fees because plaintiffs overstaffed the case, resulting in the needless duplication of work and retention of unnecessary personnel. Plaintiffs argue that they exercised significant discretion in their fee request, carefully avoided duplication of tasks, and rigorously documented their hours to establish the unique role each attorney played in the litigation.
The district court was in a better position to weigh the plaintiffs’ specific contentions and the benefits (if any) of having multiple attorneys involved in the case. See, e.g., N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d 1136, 1146 (2d Cir.1983) (“[A] trial judge may decline to compensate hours spent by collaborating lawyers or may limit the hours allowed for specific tasks, but for the most part such decisions are best made by the district court on the basis of its own assessment of what is appropriate for the scope and complexity of the particular litigation.”). The district court’s factual findings are supported by the record, and its decision to reduce fees by 25% was not an abuse of discretion.
[4] Plaintiffs contend that the district court erred in failing to award fees at current rates. The Supreme Court held in Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989), that “[a]n adjustment for delay in payment is ... an appropriate factor in the determination of what constitutes a reasonable attorney’s fee,” id. at 284, 109 S.Ct. 2463, because “compensation received several years after the services were rendered — as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed,” id. at 283, 109 S.Ct. 2463. We have held that to “adjust[ ] for delay,” id. at 284, 109 S.Ct. 2463, the “rates used by the court should be ‘current rather than historic hourly rates,”’ Reiter v. MTA N.Y. City Transit Auth., 457 F.3d 224, 232 (2d Cir.2006) (quoting Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir.1998) (other quotation marks omitted)); see also LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 764 (2d Cir.1998) (“[Cjurrent rates, rather than historical rates, should be applied in order to compensate for the delay in payment[.]”).
*710The district court calculated a fee based on rates in the Eastern District “[f]rom 2001, when this lawsuit began, to 2006, when the trial took place.” Lochren, 2008 WL 2039458, at *5. This time period did not account for current rates as of 2008, the year of the fee award. Moreover, the court identified a span of five years, but failed to explain whether it was awarding fees at the rate as of 2001, 2006, or some midpoint. This aspect of the court’s decision was not consistent with our precedents. Accordingly, remand is necessary for the district court to determine and apply current rates in the Eastern District for attorneys -with the experience level of those who worked on the case.
Plaintiffs also argue that the district court erred in reducing fees to the middle of the Eastern District range for all attorneys. The court imposed this reduction because “many of the attorneys seeking reimbursement as partners and senior associates were just beginning their legal career[s] when this lawsuit began.” Id. at *5. Clearly, the 2008 rate for a junior associate should have been applied to a lawyer who was a junior associate when the work was done. But it is a close question whether this reduction properly accounted for the experience levels described in the attorney affidavits. For example, Kathleen Peratis of Outen & Golden had 32 years of litigation experience when she worked on the case, and Leon Friedman had 47 years of litigation experience. On remand, the district court may wish to reconsider (or more thoroughly explain) its decision to award fees in the middle of the Eastern District range for certain attorneys.
Finally, the district court awarded plaintiffs $7,822.13 in paralegal and technical services fees. When reduced by 25%, this should have resulted in the addition of $5,866.60 to the total award of fees and costs. The district court made a mathematical error in neglecting to add this sum to plaintiffs’ award. Similarly, the district court neglected to award fees for attorney Leon Friedman’s preparation of reply papers for the attorneys’ fees application. The district court should correct these omissions on remand.
For the foregoing reasons, the judgment of the district court is VACATED and REMANDED for further proceedings consistent with this order.
. The Johnson factors are:
(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; the preclusion of employment by the attorney due to acceptance of the case; the attorney's customary hourly rate; whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Arbor Hill, 493 F.3d at 114 n. 3 (citing Johnson, 488 F.2d at 717-19). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471450/ | 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/8471454/ | 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/8471458/ | *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/8471460/ | 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/8471462/ | 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/8471464/ | 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/8471468/ | *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/8471470/ | 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/8471472/ | 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/8471474/ | 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/8471477/ | OPINION
TASHIMA, Circuit Judge:
Defendant-Appellant Converium Reinsurance (North America), Inc. (“Converi-um”) appeals the District Court’s grant of summary judgment in favor of Plaintiff-Appellee Princeton Insurance Co. (“Princeton”). The District Court ruled that Converium was liable for $1.5 million, plus $207,000 interest, under the terms of its workers’ compensation and employers’ liability (“EL”) reinsurance treaty with Princeton. We will vacate the judgment of the District Court and remand.
I.
Because we write for the parties, we recite only those facts necessary to our analysis of the issue presented on appeal.
Princeton and Converium signed a contract (the “Reinsurance Treaty” or the “Treaty”) in 1995, according to which Con-*760verium agreed to provide reinsurance to Princeton on Princeton’s workers’ compensation insurance policies. The contract was drafted by First Reinsurance Intermediaries Corp. (“First Re”), which acted as an agent of Princeton.
In the Treaty, Converium agreed that it would reimburse Princeton’s workers’ compensation and EL claims on an excess loss basis. If a claim exceeded $1 million, Converium would reimburse Princeton’s additional costs, up to a maximum liability of $1.5 million. For example, if an insured party made a claim to Princeton for $500,000, Converium would owe nothing because the liability would not exceed the $1 million threshold. If an insured party made a claim for $2.5 million or more, Converium would pay Princeton the maximum $1.5 million provided under the Treaty. Most important for the case at bench, payments under the treaty were “subject to,” among other provisions, “warranties of ARTICLE V.” Article V included four warranties, one of which read as follows: “[Princeton] warrants that the maximum Employers’ Liability limits are as follows, or so deemed: i. Bodily Injury by Accident-$100,000 each accident....” The $100,000 limit was subsequently increased to $500,000. Initially, the Treaty covered only policies written in New Jersey, but it was later expanded to include other states, including New York, which was added in March, 1998.
In August, 1998, Princeton issued an insurance policy to 1 st Choice Metal & Steel Co., Inc. (“1 st Choice Metal”). The policy included a $100,000 limit for EL claims, but unbeknownst to Princeton, this limit was unenforceable under New York law. In September, 1998, Xing Zhang, the president and an employee of 1st Choice Metal, suffered a catastrophic injury when he fell while working on the roof of a building in Brooklyn. He filed a claim for workers’ compensation under his policy with Princeton, and he also sued the owner of the house for damages in New York state court. The owner of the house filed a third-party complaint against 1 st Choice Metal for indemnification. In most circumstances, the workers’ compensation claim would preclude Zhang from filing an additional suit, but the state court ruled that because Zhang may have been “gravely injured” while working on a multifamily dwelling, he was permitted to sue under New York law. Because this suit was outside the workers’ compensation system, Princeton was liable under its EL policy, and because the policy was written in New York, the $100,000 limit on coverage was unenforceable. Princeton settled the case in 2002 for $4.4 million. The settlement provided that it would “fully and finally dispose of [Zhang’s] workers’ compensation claim, as well as the matter pending before the Court.” The settlement did not require that Zhang refrain from filing future workers’ compensation claims, but provided that any subsequent workers’ compensation claim would be “subject to a credit in an amount equal to the net recovery from this settlement.” Presumably, if Zhang were awarded workers’ compensation benefits in excess of the settlement amount, he would be able to recover additional money from Princeton in the excess amount. The lawyers who recommended this form of settlement regarded the possibility of future workers’ compensation payments to Zhang as remote: they told Princeton that, with this settlement, “further liability before the Workers’ Compensation Board is terminated.”
Princeton filed a claim with Converium, which Converium denied twice — in September, 2003, and again in August, 2004. Converium cited the warranty provision of the Treaty and argued that it was responsible for only $500,000 in EL coverage. Up to that point, Zhang had recovered less than $300,000 in workers’ compensation *761benefits. Because Converium was liable only for claims in excess of $1 million, it claimed that it did not owe Princeton anything under the treaty. Princeton disagreed and sued in New Jersey state court. Converium removed the case to federal court and filed a counterclaim, asking for a declaratory judgment that it was free of liability to Princeton. Both parties moved for summary judgment. The district court granted Princeton’s motion, and Converi-um appealed.
II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 1332, and we have jurisdiction pursuant to 28 U.S.C. § 1291. We review the District Court’s grant of summary judgment de novo, applying the same standard that the District Court used. Laurrence v. City of Philadelphia, 527 F.3d 299, 310 (3d Cir.2008). That is, we view the evidence in the light most favorable to the party opposing summary judgment and draw all justifiable, reasonable inferences in its favor. Id. We will affirm if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that [Princeton] is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). The same standard applies when there are cross-motions for summary judgment. Lawrence, 527 F.3d at 310.
III.
A.
The first question we must address is choice of law. The case was filed in New Jersey, but it involves conduct in both New York and New Jersey, and the Treaty does not include a choice-of-law provision. The District Court applied New Jersey law because it saw no difference affecting the outcome of the case whether New York or New Jersey law applied. See Lebegern v. Forman, 471 F.3d 424, 428 (3d Cir.2006) (noting that under New Jersey law, if the outcome of a case would be the same under New Jersey law and that of another state, New Jersey law applies).
We agree with the District Court on this point. Both New York and New Jersey apply the same principles of contract law relevant to this case. In both states, whether a contract is ambiguous is a question of law. Grow Co. v. Chokshi, 403 N.J.Super. 443, 959 A.2d 252, 272 (N.J.Super.Ct.App.Div.2008); Kass v. Kass, 91 N.Y.2d 554, 673 N.Y.S.2d 350, 696 N.E.2d 174, 180 (1998). Only if a court determines that a contract provision is ambiguous — that is, that it is subject to at least two reasonable interpretations — should the issue be left to a jury. Bedrock Founds., Inc. v. George H. Brewster & Son, Inc., 31 N.J. 124, 155 A.2d 536, 541 (1959); State v. Home Indem. Co., 66 N.Y.2d 669, 495 N.Y.S.2d 969, 486 N.E.2d 827, 829 (1985).
There is one difference between New Jersey and New York law relevant to this ease, but it ultimately has no effect on our decision. Under New York law, “[a]mbi-guity is determined by looking within the four corners of the document, not to outside sources.” Kass, 673 N.Y.S.2d 350, 696 N.E.2d at 180. A court should not consider the meaning of contract terms in isolation, but rather in the context of the document as a whole and the circumstances in which it was executed, attempting to understand the parties’ intentions as expressed in the document. Id. at 180-81. New Jersey law appears to take a somewhat broader view. Extrinsic facts may be considered, albeit “only for the purpose of interpreting the writing — not for the purpose of modifying or enlarging or curtailing its terms, but to aid in determining the meaning of what has been said.” Atl. N. Airlines v. Schwimmer, 12 N.J. 293, 96 *762A.2d 652, 656 (1953). Because we conclude that the contract is ambiguous on its face, and that extrinsic evidence does not unequivocally resolve the ambiguity, this distinction is not determinative.
B.
The central issue in this case is whether the warranty provision in the Treaty limits Converium’s liability for EL claims. The District Court held that the contract was unambiguous and contained no such limitation. The District Court pointed out that the central contract provision that created liability for Converium occurred in Article III, in which Converium agreed
to reimburse [Princeton], on an excess of loss basis, for the amount of ultimate net loss which [Princeton] may pay as a result of losses ... covering Workers’ Compensation and Employers’ Liability classes of business as identified in APPENDIX A, subject to the underwriting criteria of ARTICLE IV, the underwriting guidelines of APPENDIX B, warranties of ARTICLE V and exclusions of ARTICLE VI.
The Treaty defined “ultimate net loss” as “the sum actually paid by [Princeton] in settlement of losses for which it is held liable.” This was in turn limited so that Converium “shall not be liable for any loss until [Princeton’s] ultimate net loss in each occurrence exceeds $1,000,000 and then [Princeton] shall be liable for the amount of [Princeton’s] ultimate net loss in each occurrence in excess of $1,000,000 but [Princeton’s] liability shall not exceed $1,500,000 in each occurrence.”
Article V, the portion of the Treaty dealing with warranties, stated that, “[Princeton] warrants that the maximum Employers’ Liability limits are as follows, or so deemed: i. Bodily Injury by Accident— $100,000 each accident....” According to the District Court, the warranty section did not alter the basic analysis under which Converium was liable for up to $1.5 million for claims paid by Princeton in excess of $1 million. Although Converi-um’s liability was “subject to ... [the] warranties of ARTICLE V,” this meant only that Princeton pledged that it would issue EL insurance subject to the limits described in the warranties. In the District Court’s view, Princeton complied with the warranties, offering a policy to 1st Choice Metal with EL coverage limited (on its face) to $100,000. If the parties had intended to limit Converium’s EL liability to $500,000 per incident, they would have done so explicitly in the section that contained the other limitations on Converi-um’s liability, not in the warranty section. To construe the warranty section as imposing a limitation on coverage would require denying the common understanding of the word “warranty.” Therefore, the District Court held, the contract unambiguously does not limit EL coverage, and Converi-um was liable for the full $1.5 million in coverage, plus interest.
The problem with the District Court’s analysis is that it fails to account for the phrase “or so deemed” in the warranty section. The warranty provision in question states, “[Princeton] warrants that the maximum Employers Liability limits are as follows, or so deemed: i. Bodily Injury by Accident — $100,000 each accident .... ” (emphasis added).1 We follow the parties usage and use the somewhat inelegant term “Deemer Clause,” to refer to this phrase. Converium proposes that the Deemer Clause, which was included in the Treaty at Converium’s insistence, means that, if Princeton fails to include an enforceable limit on liability pursuant to the Treaty, the limit will nevertheless be deemed to have been included, and the *763policy will be covered under the Treaty as if the limits were in place.
Princeton advocates a slightly different interpretation. According to Princeton, the Deemer Clause comes into effect only if Princeton issues an insurance policy with no stated limits on EL coverage. In such a case, the policy is covered under the Treaty as if it included warranty limits, just as Converium suggests. Princeton does not believe the Deemer Clause is implicated in the current case, however, where the insurance policy at issue complies on its face with the warranty requirement. The 1st Choice Metal policy did include a limit on EL coverage — it just so happened that the limit was unenforceable.
On either understanding of the Deemer Clause, the warranty provision cannot be interpreted as the District Court saw it, solely as a promise or guarantee. In a typical warranty, the warrantor agrees to fulfill a promise, and any failure to comply with the promise would represent a breach of the contract. See Black’s Law Dictionary 1725 (9th ed.2009) (defining “warranty” as a type of promise or representation whose breach will not be lightly excused: “a warranty is conclusively presumed to be material ... and ... must be strictly complied with”). Under either proposed interpretation of the Deemer Clause, the warranty in the Treaty functions differently. The consequence of Princeton’s failure to comply with the warranty is that, at least in some circumstances, Princeton is deemed to have complied. Effectively, the Deemer Clause redefines the EL limits in Princeton’s policies in a way that limits Converium’s liability under the Treaty.
The District Court, by viewing the warranty provision solely as a traditional warranty, effectively rendered the Deemer Clause meaningless. The principle that, in interpreting a contract, “ ‘all parts of the writing and every word of it, will, if possible, be given effect,’ ” Krosnowski v. Kros-nowski, 22 N.J. 376, 126 A.2d 182, 188 (1956) (quoting 9 Williston on Contracts § 46 (rev. ed.1945)); accord, Cumberland County Improvement Auth. v. GSP Recycling Co., 358 N.J.Super. 484, 818 A.2d 431, 438 (N.J.Super.Ct.App.Div.2003), is especially relevant here, where Converium insisted that the Deemer Clause be inserted into the Treaty that Princeton’s agent had drafted. The District Court erred in concluding that the warranty clause, because of its label as a warranty, unambiguously did not limit Converium’s liability under the contract.
C.
If the warranty section placed some limitation on Converium’s liability to Princeton, the question remains whether the meaning of the limitation is unambiguously defined in the Treaty. If so, the case can be decided at the summary judgment stage; otherwise, we must remand it for trial. See Pennbarr Corp. v. Ins. Co. of N. Am., 976 F.2d 145, 149-50 (3d Cir.1992); Bedrock Founds., 155 A.2d at 541. Each party contends that its interpretation is the only reasonable one, and that summary judgment should be granted to it.
The strongest argument for Converium’s position is common sense. It would be strange for the parties to have meant to exclude New York policies from a limitation on EL coverage that applied to every other state in which Princeton wrote insurance policies. Both parties understood that the Treaty limited EL coverage to $500,000, and they presumably priced the coverage accordingly. If Princeton were able to escape the limitations of the Treaty by writing an insurance policy that conformed with the Treaty warranties in form but not in substance, the parties’ intentions at the time of signing the contract would be defeated.
*764To bolster its argument, Converium turns to evidence of internal communications in which Princeton employees seem to have acknowledged that a $500,000 limit would apply. Converium calls these conversations “contemporaneous” with the contract, but in fact, the earliest cited communication came from 2002, seven years after the Treaty was signed and four years after it was amended to include New York. Only slightly more helpful for Converium is deposition testimony from Paul Curtis, the drafter of the Treaty on behalf of Princeton’s agent, First Re. Curtis testified that he understood the warranty provision as establishing a limit on coverage. This testimony is far from conclusive, however, because it was not given until 12 years after the Treaty was drafted, and Curtis understandably does not appear to have remembered the details of drafting the Treaty. Converium further contends that the court should adopt its interpretation because the Treaty was drafted by Princeton’s agent, and contracts should be interpreted strictly against the drafter. See City of Orange Twp. v. Empire Mortgage Servs., Inc., 341 N.J.Super. 216, 775 A.2d 174, 181 (N.J.Super.Ct.App.Div.2001). But this argument is undercut by the fact that the Deemer Clause itself was inserted into the contract at Converium’s insistence.
Princeton’s position depends primarily on the structure of the contract. If the parties intended to place a blanket limit on Converium’s EL liability, one might have expected them to include an explicit limit in the portion of the Treaty dealing with liability limits, rather than to create an oblique limit in the warranty section. It is plausible that a contract would be structured to require Princeton to do its best to establish a limit on its EL liability, but to assign to Converium the risk that a good-faith attempt to establish a limit would be invalidated by operation of law. If the parties had intended to draw such a distinction, the structure of the Treaty would be a logical way to achieve this end.
To drive home the point that the Treaty does not directly state what Converium believes it does, Princeton produced several other Converium contracts that established limits on EL coverage more explicitly than the Treaty did. But the lack of parallelism between these other documents and the Treaty can be explained by the fact that Converium did not draft the Treaty. Furthermore, at least one of these Converium contracts defined the limitations on coverage in the warranty section, suggesting that the Treaty was not unusual in this regard.
The language of the Treaty thus admits of more than one interpretation, and extrinsic evidence does not provide much help. In short, the contract is ambiguous, and the District Court should not have granted summary judgment in favor of either party. See Pennbarr, 976 F.2d at 149-50.
IV.
For the reasons discussed above, the judgment of the District Court will be vacated, and the case will be remanded for further proceedings consistent with this opinion. Each party shall bear its own costs on appeal.
. As we previously noted, this limit was subsequently raised to $500,000. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471479/ | 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/8471480/ | 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/8471482/ | *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/8471484/ | 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/8471486/ | 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/8471488/ | 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/8471490/ | 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/8471495/ | OPINION
PER CURIAM.
Robert Gattis, a prisoner proceeding pro se, filed a complaint under 42 U.S.C. § 1983 in the District Court, alleging that certain Delaware Department of Corrections policies infringe on his constitutional rights. Gattis also filed a request for a preliminary injunction and a temporary restraining order, as well as a motion for appointment of counsel. The District Court dismissed the action under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b)(l), and denied Gattis’ requests for injunctive relief and counsel, reasoning that his claims were frivolous and failed to state a cognizable claim. Gattis now appeals that decision. We have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons that follow, we will affirm in part, vacate in part, and remand for further proceedings.
Gattis is on death row at the James T. Vaughn Correctional Center (“JTVCC”) in Delaware. In his § 1983 complaint, Gattis alleged that two policies of the JTVCC violate his constitutional rights.1 First, he contended that the JTVCC’s policy of prohibiting prisoners from possessing sexually explicit magazines, as applied to inmates on death row, violates the First and Fourteenth Amendments. Second, Gattis argued that his Eighth Amendment rights were violated when the JTVCC altered its exercise policies for death row inmates, reducing their exercise schedule from four to three days per week and forcing them to exercise indoors if outdoor space was unavailable. In addition to preliminary in-junctive relief, Gattis sought permanent injunctive relief, nominal damages, punitive damages, and costs. The District Court dismissed the complaint under § 1915 and § 1915A, reasoning that Gattis’ damages claims were barred by Eleventh Amendment immunity, and that his remaining claims were legally frivolous.
When reviewing a complaint dismissed under § 1915, this Court applies the same standard provided for in Federal Rule of Civil Procedure 12(b)(6). See Tourcher v. McCullough, 184 F.3d 236, 240 (3d Cir.1999). In determining whether a district court properly dismissed a complaint under Rule 12(b)(6), this Court must “accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008) (quoting Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir.2002)). This standard requires that a plaintiff allege in his complaint “ ‘enough fact[s] to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s]” of a cause of action. Phillips, 515 F.3d at 234 (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
Gattis presents three arguments on appeal. First, he argues that the District Court erred in dismissing all of his monetary damages claims. The Eleventh Amendment bars a suit for money damages against a state agency and state officials sued in their official capacities. See Melo v. Hafer, 912 F.2d 628, 635 (3d Cir. *8041990). However, the Eleventh Amendment does not bar such claims against state officials sued in their individual capacities. See id. Nor does the PLRA prohibit prisoners from seeking nominal or punitive damages in § 1983 actions. See Allah v. Alr-Hafeez, 226 F.3d 247, 251-52 (3d Cir.2000). Thus, though we agree with the District Court that Eleventh Amendment immunity bars any monetary claims against the JTVCC and its employees in their official capacities, we note that Gattis correctly argues that the Eleventh Amendment does not bar his damages claims against the defendants inasmuch as he sued them in their individual capacities.
Second, Gattis argues that the District Court erred in dismissing his First Amendment claim. In determining whether a prison regulation infringes on a prisoner’s constitutional rights, courts apply the four-part framework established in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). See Waterman v. Farmer, 183 F.3d 208, 212-213 (3d Cir.1999).2 In concluding that Gattis’ claim was frivolous, the District Court did not expressly conduct a new analysis under Turner. Rather, it relied on two District of Delaware cases, Jolly v. Snyder, No. 00-041, 2003 WL 1697539 (D.Del. Mar.22, 2003) (applying Turner to the JTVCC policy prohibiting sexually explicit material), and Stevenson v. Snyder, No. 00-732, 2004 WL 422693 (D.Del. March 4, 2004) (relying on Jolly’s application of Turner to the same ban). Gattis argues that Jolly and Stevenson are not controlling because they do not contemplate the ban as it relates to death penalty prisoners, who are subject to special conditions, including administrative segregation. We agree that an analysis of the Turner factors, as applied to Gattis’s specific circumstances, is warranted.
The explicit materials policy involved in Jolly, Stevenson, and the present case applies broadly to all prisoners. The Jolly and Stevenson decisions rested on the argument that “the policy is necessary to maintain prison security and to further rehabilitative goals. Specifically, Defendants urge that possession of pornographic materials by prisoners, especially sex offenders, can lead to sexual harassment of female officers and can undermine the safety of both prison guards and other inmates.” Jolly, 2003 WL 1697539, at *3. Neither case explains whether the plaintiffs involved were, like Gattis, death row inmates, or whether they were housed in the general prison population. While the reasoning of Jolly and Stevenson might reasonably be applied to the JTVCC inmate population at large, it may or may not hold up when applied to death row inmates in administrative segregation: the record does not reveal the extent to which death penalty inmates have close contact with guards, female officers, and other inmates, so the degree to which the prison security issues involved in Jolly and Stevenson are also in play here is unclear. Moreover, since Gattis is on death row, further analysis is required to demonstrate that rehabilitation is a legitimate penological interest. Given the possibility of clemency or other relief that could change Gattis’s sentence, we do not say that rehabilitation concerns are irrelevant. Indeed, rehabilitation may be appropriately considered even if it pertains only to a *805prisoner’s behavior while incarcerated, but some analysis in that regard should be undertaken by the District Court in the first instance, and such analysis may benefit from further development of the record. In short, the District Court lacked sufficient facts to conclude that Gattis is similarly situated to the plaintiffs in Jolly and Stevenson.
Moreover, the procedural posture of Jolly and Stevenson differed significantly from the instant case. Those cases were decided on a motion to dismiss and motion for summary judgment, respectively, meaning that the defendants had been afforded an opportunity to respond to the claims against them and articulate a reason for the challenged policy. Here, the District Court dismissed Gattis’ complaint during the § 1915 screening process, assuming that administratively segregated prisoners are subject to the same rationale as the plaintiffs in Jolly and Stevenson. On remand, the District Court should consider whether the defendants should be afforded an opportunity to develop the factual record and explain how, if at all, the regulation reasonably applies to inmates in Gattis’ situation.
Third, Gattis argues that the District Court improperly dismissed his Eighth Amendment claim. The denial of exercise or recreation may result in a constitutional violation. See Peterkin v. Jeffes, 855 F.2d 1021, 1081-38 (3d Cir.1988). However, a plaintiff must demonstrate that such a denial is sufficiently serious to deprive inmates of the minimal civilized measure of life’s necessities. See Tillman v. Lebanon County Com Facility, 221 F.3d 410, 418 (3d Cir.2000). Even minimal provision of time for exercise and recreation may satisfy constitutional requirements. See, e.g., Wishon v. Gammon, 978 F.2d 446, 449 (8th Cir.1992) (forty-five minutes of exercise per week not constitutionally infirm); Knight v. Armon-trout, 878 F.2d 1093, 1096 (8th Cir.1989) (holding that denial of outdoor recreation for thirteen days not cruel and unusual punishment). Moreover, “a temporary denial of outdoor exercise with no medical effects is not a substantial deprivation.” May v. Baldwin, 109 F.3d 557, 565 (9th Cir.1997). Thus, we agree with the District Court that Gattis’ alleged harm — that his exercise was limited to three days per week and that he was not guaranteed outdoor exercise at all times — was insufficiently serious to implicate the Eighth Amendment.
Finally, Gattis appeals from the District Court’s denial of his requests for preliminary injunctive relief and appointment of counsel. A court should grant injunctive relief only if, inter alia, “the plaintiff is likely to succeed on the merits ... [and] denial will result in irreparable harm to the plaintiff.” Maldonado v. Houstoun, 157 F.3d 179, 184 (3d Cir.1998). The District Court denied injunctive relief, reasoning that Gattis failed to demonstrate a likelihood of success on the merits. We agree with the District Court’s reasoning as it pertains to his Eighth Amendment claim. Further, we cannot say that Gattis’ inability to access sexually explicit material constitutes irreparable harm. As such, the District Court’s denial of injunctive relief concerning his First Amendment claim was also appropriate.
With respect to Gattis’ request for counsel, we review the District Court’s decision for abuse of discretion. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.1997). Although we perceive no abuse of discretion in the denial of Gattis’ motion, see Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir.1993) (setting forth the factors a court should consider in deciding a motion for appointment of counsel), we note that the District Court is free to reevaluate its *806decision on remand if circumstances warrant.
Accordingly, we will affirm the judgment of the District Court in part, vacate in part, and remand for further proceedings consistent with this opinion.
. Notably, Gattis did not name the JTVCC as a defendant in the § 1983 action. Rather, he sued several Department of Corrections employees in their individual and official capacities.
. The Turner test “requires courts to consider (1) whether a rational connection exists between the regulation and a neutral, legitimate government interest; (2) whether alternative means exist for inmates to exercise the constitutional right at issue; (3) what impact the accommodation of the right would have on inmates, prison personnel, and allocation of prison resources; and (4) whether obvious, easy alternatives exist.” Watennan, 183 F.3d at 213 n. 6 (citing Turner, 482 U.S. at 89-91, 107 S.Ct. 2254). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471499/ | OPINION
PER CURIAM.
Restitute Estacio appeals from the order of the United States District Court for the Eastern District of Pennsylvania granting summary judgment in favor of the defendant.1 For essentially the reasons set forth by the District Court, we will affirm.
Because the parties are familiar with the history and facts of this case, we will recount the events in summary fashion. Es-tacio was bom in the Philippines in 1934, and received his medical degree there in 1959. He came to the United States that same year and continued his medical training, completing several fellowships. After leaving private practice, Estacio was employed as a Medical Officer at the Philadelphia Naval Hospital from July 1979 until October 1984. Estacio thereafter took a position as Field Division Medical Officer at the Postal Service’s Bellmawr, New Jersey, facility. As a result of downsizing, Estacio transferred to the Postal Service’s medical unit at the Philadelphia Metropolitan District in the early 1990s. Estacio remained with the Postal Service until August 29, 1997, when he was removed from *812service after having been found “mentally unable to meet the functional requirements of [his] position” by two physicians. He requested reinstatement on November 12, 2001. That request, however, was denied by the Postal Service’s Human Resource Manager, Harvey White, in a letter dated November 15, 2001.
As set forth by the District Court, three sets of administrative complaints and appeals followed. The first involved Esta-cio’s Equal Employment Opportunity (EEO) complaints which were filed on April 29, 1997 and May 14, 1997, alleging discrimination on the bases of race, color, physical and mental disabilities, and retaliation. An Administrative Judge (“AJ”) issued a decision on June 7, 1999 finding no discrimination, and a Final Agency Decision was issued on June 29, 1999 concurring with the AJ’s decision. Estacio waited until February 16, 2005 to file an appeal from that adverse determination. The EEOC thereafter dismissed the appeal as untimely in a decision issued on June 24, 2005.
Estacio’s second challenge came in the form of an appeal to the Merit Systems Protection Board (MSPB) on December 4, 1997, challenging his removal. The MSPB dismissed the appeal as untimely, and the full Board denied review on November 13, 1998. A second appeal filed in March 2000 was determined to be barred by the doctrine of collateral estoppel. Once again, the full Board denied review. Estacio then filed an appeal in the United States Court of Appeals for the Federal Circuit, wherein he argued that the MSPB erred in concluding that he was “fully represented” in his previous appeal. In a decision issued on April 11, 2002, the Court of Appeals affirmed the Board’s decision after concluding that Estacio indeed had a full and fair opportunity to litigate the question of whether he had good cause for the untimely filing of his appeal and, thus, that the Board did not err in its collateral estoppel determination.
Estacio’s attempt in February 2000 to challenge his removal with an EEO complaint fared no better. The Service issued a final agency decision in November of that same year, dismissing the complaint because of Estacio’s failure to timely contact an EEO counselor after his removal. The EEOC Office of Federal Operations (EEOC/OFO) affirmed the dismissal of the complaint by decision dated July 24, 2001, and his request for reconsideration was denied in March 2002. In the meantime, the action Estacio had filed in federal court on November 30, 2000, was removed from civil suspense in July 2004 and ultimately dismissed without prejudice in November 2004.
Estacio’s final course of action was a challenge to the denial of his November 2001 request for reinstatement by the filing of another EEO complaint. A final agency decision finding no discrimination or retaliation was issued by the Postal Service, and Estacio’s timely appeal of that decision proved unsuccessful when the EEOC/OFO affirmed the agency’s decision on April 25, 2006.
Estacio thereafter commenced the underlying District Court action, wherein he alleges “continuous discrimination retaliation” under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, the Age Discrimination in Employment Act, 29 U.S.C. § 633a, and the Rehabilitation Act of 1973, 29 U.S.C. § 791, et seq. In a Memorandum Opinion and Order entered on February 7, 2008, 2008 WL 356478, the District Court granted defendant’s motion for summary judgment. Estacio appeals.
We have jurisdiction of this appeal under 28 U.S.C. § 1291, and exercise plenary review over the District Court’s decision to grant summary judgment. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005). *813Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits show 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). A court reviewing a summary judgment motion must evaluate the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir.1995). However, a party opposing summary judgment “must present more than just ‘bare assertions, conclusory allegations or suspicions’ to show the existence of a genuine issue.” Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir.2005) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)).
Upon review of the record and for substantially the reasons set forth in the District Court’s memorandum opinion, which we summarize below, we conclude that the District Court correctly granted the defendant’s motion for summary judgment. We note that Estacio assigns no particular allegations of error to the District Court’s decision (in fact, he offers no substantive argument whatsoever), and our own review has not revealed any.
As the District Court concluded, Estacio’s claims related to the April and May 1997 EEO complaints were time barred given his failure to timely appeal to the EEOC or to challenge the final agency decision in federal court. See D. Ct. Mem. Op. at 11, citing, inter alia, 42 U.S.C. § 2000e-16(c); 29 U.S.C. § 794a(a)(l). See also McCray v. Corry Mfg. Co., 61 F.3d 224, 227 (3d Cir.1995) (recognizing ADEA includes a ninety day statute of limitations for the filing of civil actions in federal court). Additionally, the District Court found that Estacio failed to present any evidence creating a triable issue as to the applicability of equitable tolling.
The District Court likewise correctly found that Estacio’s claims challenging his 1997 removal were barred because of his failure to timely exhaust the EEO process, to file his complaint in the District Court within 90 days of the EEOC’s March 2002 reconsideration decision, or to demonstrate that equitable tolling was warranted. See id. at 13-14, citing 29 C.F.R. §§ 1614.105(a)(1) and 1614.407(c). See also Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir.1999) (equitable tolling may be warranted if plaintiff has “been prevented from filing in a timely manner due to sufficiently inequitable circumstances”).
While Estacio properly exhausted the administrative process and timely filed suit with respect to his claims pertaining to the denial of his 2001 reinstatement request, we agree with the District Court’s conclusion that his claims are nonetheless lacking in merit. More specifically, Esta-cio failed to present any direct or indirect evidence that the Postal Service’s decision not to reinstate him was a result of discrimination. Accordingly, even under the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), Estacio’s Title VII and ADEA claims of race and/or sex discrimination fail.
Estacio’s disability discrimination claim likewise falters. See id. at 18, citing Wagner v. Fair Acres Geriatric Center, 49 F.3d 1002, 1009 (3d Cir.1995). As the District Court correctly noted, according to Estacio’s own testimony, he was terminated for cause and was not capable of performing the essential functions of his position. Thus, he could not be considered a “qualified” individual for purposes of establishing a prima facie case under the *814Rehabilitation Act for either disparate treatment or failure to reasonably accommodate a disability. Id. at 19, citing Sarullo v. U.S. Postal Service, 352 F.3d 789, 797-98 (3d Cir.2003), and Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir.1997). Moreover, as the District Court concluded, even if Estacio were able to demonstrate a prima facie case of discrimination based on race, age or disability, he could not demonstrate that the Postal Service’s stated nondiscriminatory reason for failing to reinstate him was a pretext. Estacio offered absolutely no evidence to support his claim that he was not reinstated in retaliation for his earlier EEOC activity rather than as a result of the Postal Service’s policy of not reinstating employees terminated for cause. Id. at 25, citing Sandio, 352 F.3d at 800-01. Thus, his claims could not survive summary judgment in any event.
Accordingly, given the foregoing, we affirm the District Court’s entry of summary judgment in favor of defendant.
. Under 28 U.S.C. § 636(c), the parties consented to have the underlying proceedings conducted and final judgment entered by a Magistrate Judge. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471505/ | *823OPINION OF THE COURT
McKee, Circuit Judge.
Michael Nguyen and Thuy Le both appeal the respective sentences that were imposed after they were convicted of conspiracy to distribute 100 kilograms or more of marijuana. For the reasons that follow, we will affirm.
I.
The first of Nguyen’s several arguments is that the district court should have granted his motion to dismiss his indictment based on violations of the Speedy Trial Act, 18 U.S.C. §§ 3161-3174, and the Interstate Agreement on Detainers (“IAD”), 18 U.S.CApp. § 2. We review the district court’s legal conclusions de novo, and factual findings are reviewed for clear error. United States v. Dent, 149 F.3d 180, 183 (3d Cir.1998). First, we note that Nguyen’s claim based on the IAD must fail, since the rights provided for in the agreement are triggered only when a de-tainer has been filed by the requesting jurisdiction based on pending charges against the prisoner. United States v. Mauro, 436 U.S. 340, 343, 98 S.Ct. 1834, 56 L.Ed.2d 329 (1978). Here, the district court judge issued a writ of habeas corpus ad testificandum for him to testify before a grand jury, and thus at the time Nguyen claims there was a violation of his IAD rights there were no “untried indictments, informations, or complaints” against him as required by the IAD.
In addition, a defendant may waive his right to a speedy trial without explicitly stating a desire to do so. See, New York v. Hill, 528 U.S. 110, 114, 120 S.Ct. 659, 145 L.Ed.2d 560 (2000) (holding that where defense counsel agreed to a trial date beyond the 180 day limit imposed by the IAD, defendant’s rights under the IAD were deemed to be waived). Here, the defendant agreed to a complex case designation, which necessarily tolls the Speedy Trial clock. In addition, the defendant requested and was granted a continuance of the trial in order to locate an essential witness. Therefore, Nguyen waived any rights he may otherwise have had under the Speedy Trial Act and the IAD does not apply.
II.
Nguyen’s next argument is that the district court committed error in its supplemental jury instructions by failing to properly respond to two questions posed by the jury during deliberations. Because Nguyen failed to object to the judge’s supplemental jury instructions, we review only for plain error. United States v. Antico, 275 F.3d 245, 265 (3d Cir.2001), cert. denied, 537 U.S. 821, 123 S.Ct. 100, 154 L.Ed.2d 30 (2002). Nguyen argues that the first question—“Can you provide a summary of the amounts, pounds of marijuana 100 kilos?”—should have been interpreted as a request for a table to assist the jury in converting pounds into kilograms. However, the judge and counsel for both sides understood this question to be a request for a summary of the evidence. Counsel and the judge agreed not to provide an evidentiary summary. Rather, the jury was reminded of its obligation to deliberate based upon each juror’s recollection of the evidence.
We see no reason to conclude that the jury was actually requesting a conversion into pounds, and the jury did not attempt to clarify the court’s response in any manner that would suggest the kind of misunderstanding that Nguyen now hypothesizes. Moreover, during closing argument the prosecutor told the jury that 100 kilograms was equal to approximately 225 pounds. The jury instructions explained the need for each juror to be convinced of the defendant’s guilt beyond a reasonable doubt. Any uncertainty about whether *824quantity had been proved would therefore have enured to the defendant’s benefit.
The jury also asked: “Is the 100 kilogram amount legally significant? If so, can we know how or why?”. The court properly instructed the jury that the amount was a legal matter not for its consideration. Nguyen argues that the jury was entitled to know the significance of the 100 kilograms because it is an element of the offense. While the jury was required to determine whether Nguyen conspired to distribute 100 kilograms of marijuana, there was no requirement that it be informed of the sentencing consequences that would result from that finding. A contrary rule would improperly open the door to allowing jurors to base a verdict on sentencing consequences. See, Rogers v. United States, 422 U.S. 35, 40, 95 S.Ct. 2091, 45 L.Ed.2d 1 (1975) (“[T]he jury ha[s] no sentencing function and should reach its verdict without regard to what sentence might be imposed.”).1 Therefore, we find no error in the judge’s supplemental jury instructions.
III.
Nguyen also challenges the sufficiency of the evidence. He first contends that there was insufficient evidence to convict him of being a conspirator as opposed to an independent contractor. Our review of the sufficiency of the evidence is “particularly deferential.” We will sustain the verdict “if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting United States v. Voigt, 89 F.3d 1050, 1080 (3d Cir.1996)) (internal quotations omitted).
A drug distribution conspiracy requires: “(1) a shared unity of purpose; (2) an intent to achieve a common goal; and (3) an agreement to work together toward the goal.” United States v. Iglesias, 535 F.3d 150, 156 (3d Cir.2008) (quoting United States v. Bobb, 471 F.3d 491, 494 (3d Cir.2006).) In determining whether a conspiracy exists, courts have looked to “the length of affiliation between the defendant and the conspiracy; whether there is an established method of payment; the extent to which transactions are standardized; and whether there is a demonstrated level of mutual trust.” Iglesias, 535 F.3d at 156 (quoting United States v. Gibbs, 190 F.3d 188, 199 (3d Cir.1999)). Not all of the above factors must be present in order to find a conspiracy — indeed, the presence of even one factor may be sufficient. Id.
Here, the government presented testimony that Nguyen was introduced to the Ton Organization as someone who could sell large quantities of marijuana. There was evidence that he was affiliated with the conspiracy for several months, and that like other co-conspirators here he received marijuana on consignment, usually sold it within a week, and usually paid a member of the Ton Organization for that marijuana. The jury could have concluded that Nguyen received about $1,000,000 worth of marijuana over the course of 15 to 20 transactions, and that he paid for all but $20,000 of it. Although Nguyen argues that his failure to pay for some of the marijuana is evidence of an attempt to frustrate the conspiracy, there is nothing in the record that suggests that this was a deliberate attempt to disrupt the actions of the Ton Organization.2 The evidence here *825was clearly sufficient to establish Nguyen’s membership in the conspiracy beyond a reasonable doubt.
Nguyen also argues that there was insufficient evidence for the jury to find that he conspired to distribute 100 kilograms or more of marijuana. That argument is equally meritless. Phuc Vo, one of the leaders of the Ton Organization, testified that he provided Nguyen with at least 300 pounds of marijuana on consignment, with the largest single sale being 180 pounds. Nguyen points out that, in contrast to Phuc Vo’s testimony, Benjamin Ton testified that the most he personally sold it Nguyen was 100 pounds. Nguyen argues that because of this conflicting testimony, no rational juror could have found that he conspired to sell more than 100 kilograms. However, the fact that the jury credited the testimony of Phuc Vo over Benjamin Ton is not grounds for reversal.3 We can not weigh the evidence or determine the credibility of 'witnesses. See, United States v. Miller, 527 F.3d 54, 60 (3d Cir.2008).
IV.
Nguyen challenges the sentence that was imposed on several grounds. First, he contends that the district court erred in imposing a general sentence of 262 months. Because Nguyen did not raise this objection before the sentencing court, we review for plain error. United States v. Couch, 291 F.3d 251, 252-53 (3d Cir.2002), Nguyen cites United States v. Moriarty, 429 F.3d 1012, 1025 (11th Cir.2005), for the proposition that general sentences are illegal. However, we have repeatedly held that where a defendant is convicted on multiple counts, a general sentence is permissible as long as it does not exceed the maximum possible sentence for the count which carries the greatest sentence. See, United States v. Xavier, 2 F.3d 1281, 1292 (3d Cir.1993); United States v. Corson, 449 F.2d 544, 551 (3d Cir.1971) (en banc); Jones v. Hill, 71 F.2d 932, 932 (3d Cir.1934). Here, the general sentence of 262 months was less than the maximum permissible penalty for any of the counts of conviction.
Nguyen next argues that his sentence was not reasonable. A sentence will be upheld if “the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc), cert. denied, 552 U.S. 848, 128 S.Ct. 106, 169 L.Ed.2d 77 (2007). This requires the sentencing judge to “set forth enough to satisfy the appellate court that he[/she] has considered the parties’ arguments and has a reasoned basis. for exercising his own legal decision making authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007).
Here, the record shows that the sentencing court properly calculated the advisory guideline range, considered all relevant § 3553(a) factors, as well as the sentencing arguments made by the parties, and reasonably applied each of these factors to the circumstances of this case. The judge explained in detail why, based on these factors, a sentence at the bottom of the guideline range was reasonable.
V.
Co-defendant Le argues that the district court erred in not applying,the safety valve provision of 18 U.S.C. § 3553(f) because it applied criminal history points to the guidelines calculation in a *826mandatory fashion. However, we need not reach the merits of Le’s argument because Le waived her right to appeal that issue by executing a valid plea agreement that contained an appellate waiver. Le does not argue that the waiver was not entered into knowingly and voluntarily, or that one of the limited exceptions contained in the waiver applies. Instead, she argues that because of the alleged error by the district court, enforcing the appellate waiver would result in a miscarriage of justice. See, United States v. Khattak, 273 F.3d 557, 563 (3d Cir.2001) (“Waivers of appeals, if entered into knowingly and voluntarily, are valid, unless they work a miscarriage of justice.”). However, “[a] waiver of the right to appeal includes a waiver of the right to appeal ... debatable legal issues-indeed, it includes a waiver of the right to appeal blatant error.” Id. at 562. Thus, even if Le’s argument had merit, enforcing this waiver would not result in a miscarriage of justice.
VI.
For all of the above reasons, we will affirm the judgments of conviction and sentence of the district court.
. In addition, Third Circuit Model Criminal Jury Instruction 3.16 states: “You should never consider the possible punishment in reaching your verdict.”
. In fact, this argument is undermined by the testimony of Phuc Vo, who stated on cross that Nguyen told him that the only reason Nguyen could not pay the $20,000 was because the marijuana given to him on consignment had been stolen from his car.
. In addition, we note that Ton acknowledged that while he only authorized five marijuana sales to Nguyen, more sales were made without his express authorization, and thus Ton’s testimony is not necessarily in conflict with that of Vo. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471507/ | OPINION
PER CURIAM.
Appellant Kurt Figaro appeals from an order of the District Court denying his motion for reduction of sentence pursuant to 18 U.S.C. § 3582(c)(2) and U.S.S.G. § 1B1.10. Figaro sought relief based on Amendment 706 to the United States Sentencing Guidelines, which lowered the base offense level for cocaine base, or crack, offenses. The Federal Public Defender was appointed to represent him, and counsel determined that Amendment 706 did not apply to Figaro. Counsel moved to withdraw, and Figaro filed a motion for new counsel. The District Court denied the section 3582(c)(2) motion and granted appointed counsel’s motion to withdraw. Figaro’s request for new counsel was denied. Figaro filed a motion for reconsideration, which the District Court denied. This timely appeal followed.
We will affirm. We review de novo a District Court’s interpretation of the Guidelines, but we review a court’s ultimate decision whether to grant or deny a defendant’s motion to reduce sentence under 18 U.S.C. § 3582(c)(2) for abuse of discretion. See United States v. Mateo, 560 F.3d 152, 154 (3d Cir.2009). A section 3582(c)(2) motion is the proper means for seeking a reduction in sentence based on the retroactive application of a lowered sentencing range.1 Section 1B1.10 provides that the court “may reduce the defendant’s term of imprisonment as provided by 18 U.S.C. § 3582(c)(2),” and it makes Amendment 706 retroactive. See U.S.S.G. § lB1.10(a), (c). However, Amendment 706 is not applicable here, and Figaro’s section 3582(c)(2) motion is without merit.
Figaro was convicted of conspiracy to distribute in excess of 50 grams of cocaine base and in excess of 100 grams of heroin, possession with intent to distribute in excess of 50 grams of cocaine base and aiding and abetting, and conspiracy to commit money laundering, in violation of 21 U.S.C. *828§§ 846 and 841(a)(1) and 18 U.S.C, § 1956(h), respectively. On September 29, 2003, he was sentenced to life imprisonment on Counts 1 and 2, and to a term of imprisonment of 20 years on Count 3, all sentences to be served concurrently. The District Court determined the base offense level to be 36 because the laundered funds were derived from the distribution of 447.35 grams of crack cocaine (with a corresponding offense level of 34 set forth in U.S.S.G. § 2D1.1) during which a firearm was possessed (warranting an additional 2 level enhancement). To the base offense level of 36, two levels were added pursuant to U.S.S.G. § 3B1.4 because Figaro used a minor to commit a crime. Two levels also were added, pursuant to U.S.S.G. § 2Sl.l(b)(2)(B), because Figaro was convicted under 18 U.S.C. § 1956. Four levels were added pursuant to U.S.S.G. § 3Bl.l(a) because of Figaro’s role in the offense, and two levels were added pursuant to U.S.S.G. § 3C1.1 for obstruction of justice, resulting in a total offense level of 46. As directed by the Guidelines, because Figaro’s offense level was more than 43, the maximum offense level in the Sentencing Table, Figaro’s offense level was treated as an offense level of 43. With a criminal history category of III, Figaro’s guideline imprisonment term was life.
Figaro appealed his conviction and sentence, and while that appeal was pending the United States Supreme Court decided United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), and held the Sentencing Guidelines to be advisory in nature. We affirmed the judgment of conviction, but, in light of Booker, we remanded to the District Court for re-sentencing. On June 27, 2005, the District Court re-affirmed its original Guidelines calculation, but varied from the mandatory life term of imprisonment prescribed by the Guidelines, and sentenced Figaro to a term of imprisonment of 25 years. Figaro appealed, but we affirmed in United States v. Figaro, 273 Fed.Appx. 161 (3d Cir.2008), concluding, among other things, that the sentence was reasonable.
In consideration of Figaro’s subsequent request for a reduction of sentence under section 3582(c)(2) and U.S.S.G. § 1B1.10, the District Court reasoned that Amendment 706 generally reduced the base offense level for crack cocaine by 2 levels. See United States v. Wise, 515 F.3d 207, 219 (3d Cir.2008). Thus, Figaro’s total offense level would be reduced by 2 levels to an offense level of 44. An offense level of 44 is treated under the Guidelines as an offense level of 43, and with a criminal history category of III, his advisory Guideline imprisonment term would remain life. Since Figaro’s actual Guidelines imprisonment range remained unchanged, the District Court concluded that he was not entitled to relief under section 3582(c)(2). The District Court commented additionally that, at the time of re-sentencing, the court had “granted Figaro a substantial variance from the advisory guideline imprisonment term,” and that no further reduction was authorized. Figaro moved for reconsideration of the District Court’s order, urging the court to reduce his sentence even more than two offense levels, and to reconsider an issue raised at sentencing concerning whether he had been properly placed into a criminal history category of III, see U.S.S.G. § 4A1.2(c).2 In an order entered on October 24, 2008, the District Court denied the motion for reconsideration as lacking in merit.
*829We conclude that the District Court committed no errors of law nor did it abuse its discretion in declining to award a two-level reduction to Figaro under Amendment 706. The District Court’s analysis plainly was correct. Nor was Figaro entitled to any other reduction in his sentence. The arguments Figaro raises in his informal brief on appeal are tantamount to a request to obtain another Booker re-sentencing. Even though Amendment 706 does not warrant a reduction in his sentence, Figaro contends that the District Court’s authority under Amendment 706 is not limited to just a two-level adjustment, and cites United States v. Hicks, 472 F.3d 1167 (9th Cir.2007), in his reply brief. Hicks held that Booker applies to section 3582(c)(2) proceedings, but we recently rejected the Ninth Circuit’s reasoning in United States v, Doe, 564 F.3d 305, 313-14 (3d Cir.2009).
“Original sentencing proceedings and sentence modification proceedings are legally distinct from one another.” United States v. Cunningham, 554 F.3d 703, 707 (7th Cir.), cert. denied,— U.S.—, 129 S.Ct. 2826, 174 L.Ed.2d 552 (2009). In Doe, 564 F.3d 305, we held that Booker, which made the Guidelines advisory in nature, does not apply to a section 3582(c)(2) proceeding. Booker concerned constitutional limitations on increasing a sentence beyond the statutory maximum without a jury finding, whereas section 3582(c)(2) concerns only sentence reductions. Doe, 564 F.3d at 313-14. Furthermore, a proceeding under section 3582(c)(2) is not a full re-sentencing of a defendant. Id. A sentence reduction pursuant to section 3582(c)(2) must be consistent with Sentencing Commission policy statements. Section 1B1.10(b)(2)(A) provides that “the court shall not reduce the defendant’s term of imprisonment under 18 U.S.C. § 3582(c)(2) and this policy statement to a term that is less than the minimum of the amended guideline range determined under subdivision (1) of this subsection.”3 If Amendment 706 authorizes no more than a two-level adjustment, that is the maximum downward adjustment a defendant like Figaro may receive. A District Court is not authorized to treat the amended Guideline range as advisory. Doe, 564 F.3d at 313-14; Cunningham, 554 F.3d at 707-08. Under our recent decision in Doe, 564 F.3d 305, section lB1.10(b)(2)(A) of the Guidelines is binding on the District Court, and it thus correctly concluded that it lacked the authority to engage in another Booker re-sentencing in Figaro’s case.
For the foregoing reasons, we will affirm the orders of the District Court denying Figaro’s section 3582(c)(2) motion to reduce sentence and motion for reconsideration.
. The statute provides:
(c) Modification of an imposed term of imprisonment. — The court may not modify a term of imprisonment once it has been imposed except that—
* * * * * *
(2) in the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. 994(o), upon motion of the defendant or the Director of the Bureau of Prisons, or on its own motion, the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.
18 U.S.C. § 3582(c)(2).
. Figaro's original section 3582(c)(2) motion acknowledged that the section 4A 1.2(c) criminal history issue would be moot if the recalculated (under Amendment 706) total offense level was still above 43. (Motion to Reduce Sentence, at 2.) Since it was and is, we need not address this argument.
. There is an exception, not applicable here, in § IB 1.10(b)(2)(B) for defendants who were originally sentenced to below-Guidelines terms of imprisonment. For such defendants, “a reduction comparably less than the amended guideline range ... may be appropriate.” U.S.S.G. § IB 1.10(b)(2)(B). In any event, this subparagraph goes on to state that “if the original term of imprisonment constituted a non-guideline sentence determined pursuant to 18 U.S.C. 3553(a) and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a further reduction generally would not be appropriate.” | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471508/ | OPINION
PER CURIAM.
Adolphe Mounkassa petitions for review of an order of the Board of Immigration Appeals (BIA). For the reasons below, we will deny the petition for review.
Mounkassa, a citizen of the Republic of Congo, first came to the United States in 1993 as a student and became a lawful permanent resident in 1999. In June 1999, he was sentenced to 151 months in prison after being convicted of importing heroin into the United States. After he was charged as removable as an aggravated felon, Mounkassa applied for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). The IJ concluded that Mounkassa was ineligible for asylum or withholding of removal and denied CAT relief. Finding that Mounkassa was not credible, the IJ concluded that Mounkassa had not shown that he had been tortured in the past and that any risk of future torture was speculative. Mounkassa appealed. The BIA upheld the IJ’s adverse credibility determination and dismissed the appeal. Mounkassa filed a timely petition for review.
Mounkassa challenges only the denial of relief under the CAT. To be eligible for deferral of removal under the CAT, Moun-kassa must demonstrate that it is more likely than not that he would be tortured if removed to the Republic of Congo. 8 C.F.R. § 208.17. Because Mounkassa is an aggravated felon, a determination he does not challenge, our review is limited to constitutional claims or questions of law. 8 U.S.C. § 1252(a)(2)(C) & (D). This includes “issues of application of law to fact, where the facts are undisputed and not the subject of challenge.” Kamara v. Attorney General, 420 F.3d 202, 211 (3d Cir.2005).
Mounkassa argues that the BIA violated his rights to due process. However, he does not argue that he was denied “notice, a reasonable opportunity to present evidence, disclosure of fact finding or an individualized determination” on his CAT claim. Jarbough v. Attorney General, 483 F.3d 184, 190 (3d Cir.2007). While Mounkassa argues that the BIA violated due process, several of his arguments are simply challenges to the IJ’s factual determinations. His labeling of factual challenges as due process claims is insufficient to give us jurisdiction over those issues under § 1252(a)(2)(D). Id.
First, Mounkassa contends that the BIA and IJ did not properly consider several pieces of evidence: 1) the arrest and torture of his political leader and employer, Aymar Mouity; (2) medical records; (3)reports of country conditions; and (4) evidence of torture of those whose names begin with the letter “M.” However, that the BIA did not address that evidence or make factual determinations Mounkassa *832believes are warranted is not an issue of law. See Jarbough, 483 F.3d at 189-90.1
Next, Mounkassa asserts that the BIA violated due process when it found that he did not explain inconsistencies in his testimony and the record with respect to two issues: his brother’s refugee status and the residence listed on Mounkassa’s membership card for his political party. He also argues that the IJ erred in considering his perjury at his criminal trial. We need not reach the issue of the adverse credibility determination2 because the BIA determined in the alternative that even if Mounkassa gave credible testimony, it was speculative that he would be tortured given his limited involvement with his political party and his presence in the United States since 1998. Thus, we turn to Mounkassa’s challenges to that conclusion.
We have jurisdiction over Mounkassa’s argument that the BIA applied the wrong standard of review in evaluating his CAT claim. However, the BIA concluded “respondent has not shown that he more likely than not would face ‘torture,’ as defined by regulation, upon removal.” As noted above, that is the correct standard for Mounkassa’s CAT claim. Mounkassa also challenges the BIA’s determination that there was no evidence that Mounkassa had been tortured in the past or would be tortured in the future. We may reverse the BIA’s decision only if the record permits but one reasonable conclusion that is not the one reached by the Board. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). As noted above, the BIA relied on Moun-kassa’s limited involvement with his political party, as well as his lengthy absence from the Congo. While he cites to general statements describing human rights violations in several reports, Mounkassa does not point to any specific evidence that he, or any member of his political party, would be singled out for torture.3 Certainly, Mounkassa has not shown that the record compels a finding that it is more likely than not that he will be tortured if removed to the Congo.
For the above reasons, we will deny the petition for review.
. Mounkassa acknowledges the factual nature of his challenge to the BIA’s determination that there is no pattern of torture of ethnic groups whose names begin with "M.” Brief at 20.
. The Board relied on a new provision of the INA that allows adverse credibility determinations to be based on inconsistencies in the alien's testimony that do not “go[] to the heart of [the alien's] claim.” 8 U.S.C. § 1158(b)(l)(B)(iii). We have not considered whether this provision is consistent with due process. See Wang v. Holder, 569 F.3d 531, 538 (5th Cir.2009)(canvassing Circuit law on the provision). Here, the Board candidly admitted that the inconsistencies in Mounkas-sa’s testimony "might be considered minor under prior law” and the discrepancy between his testimony at his criminal trial and his testimony before the IJ "does not strike at the heart of the [CATJ claim.”
.We may not consider "Attachment J" of Mounkassa's brief because it is not part of the administrative record. 8 U.S.C. § 1252(b)(4)(A)("[T]he court of appeals shall decide the petition only on the administrative record on which the order of removal is based.”). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471562/ | MEMORANDUM *
This is a business torts case arising from Proterion Corporation’s bankruptcy. We *238reverse the grant of summary judgment on two of Wyatt’s trademark claims and its conversion claim and remand for further proceedings. We affirm summary judgment on Wyatt’s remaining claims. We also affirm the grant of summary judgment on Appellees’ (collectively ‘Smithson’) counterclaims, but remand the damages calculation. Finally, because we remand for further proceedings, we vacate the award of attorneys’ fees as premature.
A. Wyatt’s Trademark Claims
The analysis of federal and California trademark claims is “substantially congruent.” Cleary v. News Corp., 30 F.3d 1255, 1262-63 (9th Cir.1994). Wyatt’s trademark claims concerning domain names could have been brought under either the Lanham Act or the Anticybers-quatting Protection Act. See Bosley Med. Inst., Inc. v. Kremer, 403 F.3d 672, 674 (9th Cir.2005). Wyatt brought suit only under the former, so it must show a use of the mark in connection with the sale of goods. 15 U.S.C. § 1125(a)(1). Linking to commercial business qualifies. See Bosley Med. Inst., 403 F.3d at 677-78. The district court’s contrary ruling constitutes legal error. The district court also erred in finding there was no material factual dispute as to the ownership of the domain names in light of Proterion’s reimbursement to Smithson for their purchase. On remand, the district court should determine the ownership of the domain names and, applying the correct legal standard, should consider whether Viscotek’s former use of them created a likelihood of confusion. E.g., GoTo.com, Inc. v. Walt Disney Co., 202 F.3d 1199, 1205 (9th Cir.2000). The likelihood of confusion test requires examination of eight factors. AMF Inc. v. Sleekcraft Boats, 599 F.2d 341, 348-49 (9th Cir.1979).
The district court also erred in finding that Smithson’s use of Wyatt’s purported trademarks in Viscotek’s sales literature and brochures constitute nominative fair use without determining whether Smithson engaged in any conduct which “would, in conjunction with” its use of “the mark, suggest sponsorship or endorsement by the trademark holder.” See Brother Records, Inc. v. Jardine, 318 F.3d 900, 908 (9th Cir.2003). On remand, the district court should apply the full required analysis. Id.
Finally, the district court did not err in dismissing Wyatt’s Lanham Act § 43(a) claim. Wyatt failed to point to any evidence in its opposition to summary judgment indicating the website statement at issue’s falsity or tendency to deceive. See Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1139 (9th Cir.1997).
B. Wyatt’s Conversion Claim
Wyatt did not waive its conversion claim. The claim that the Defendants converted Wyatt’s computers to them own use was consistently made by Wyatt. In fact, in their Statement of Uncontroverted Fact Number 97, Defendants admitted “providing” two computers and other equipment to Wyatt. Defendants acknowledged that Wyatt’s claim of conversion encompassed the computers and other equipment. Implicit in the admission of “producing” the computers to Wyatt is the notion that the computers were removed from Wyatt’s possession. A district court is not free to ignore a material question of fact that is apparent in the record. See, e.g., Martinez v. Stanford, 323 F.3d 1178, 1184 (9th Cir.2003) (reversing entry of summary judgment where evidence cited in movants’ *239papers demonstrated genuine issue of material fact).
C. Wyatt’s Remaining claims
Wyatt waived its trade secrets claim by citing to two sets of exhibits, one totaling 57 pages in length and the other 141 pages in length, to provide factual support for its claims, without providing explanation or specific line or page references. A party opposing summary judgment must cite to evidence with specific page and line references. “The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.” Carmen v. San Fran. Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir.2001).
Wyatt’s opposition to the motion for summary judgment on its third and ninth claims was eonclusory. As the district court correctly noted, “Wyatt presents no evidence of an economic relationship between Wyatt and a third party ... [and] has not alleged a relationship between itself and each separate Defendant that would justify an accounting.”
D. Smithson’s Counterclaims
We affirm summary judgment on the computer fraud claims. The three statutes prohibit obtaining information via the intentional and unauthorized access of a computer or electronic communications facility. 18 U.S.C. § 1030(a); 18 U.S.C. § 2701(a); Cal.Penal Code § 502. When Wyatt increased the frequency with which it accessed Smithson’s email server, it exceeded the scope of whatever authority it may have had. Theofel v. Farey-Jones, 359 F.3d 1066, 1073 (9th Cir.2004).
We vacate the damage award. The district court did not award Smithson any compensatory damages, but awarded $100,000 in punitive damages. Under State Farm and Gore, punitive damages are generally limited to an amount that is a function of the amount of compensatory damages. See Bains LLC v. Arco Prods., Co., 405 F.3d 764, 776-77 (9th Cir.2005). The Electronic Communications Privacy Act requires compensatory damages, stating that “in no case shall a person entitled to recover receive less than the sum of $1,000.” 18 U.S.C. 2707(c). But none were awarded. We vacate the damage award and remand for a determination of compensatory damages and such punitive damages as may be appropriate. Substantial evidence supports the district court’s conclusion that Wyatt acted willfully. Wyatt’s repeated and intentional violations of criminal statutes are “reprehensible.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419-20, 429, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).
Wyatt asserts that the entry of summary judgment on the sixth counterclaim was legally erroneous. It supports its argument with two theories not presented to the district court. “We apply a ‘general rule’ against entertaining arguments on appeal that were not presented or developed before the district court.” Peterson v. Highland Music, Inc., 140 F.3d 1313, 1321 (9th Cir.1998).
E. Attorneys’ Fees
Because we have vacated the grant of summary judgment on the trademark claims and the punitive damages, the award of attorneys’ fees is premature. We vacate the award. U.S. ex rel. Walton Tech., Inc. v. Weststar Eng’g, Inc., 290 F.3d 1199, 1202 (9th Cir.2002).
AFFIRMED in part, REVERSED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided *238by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471568/ | MEMORANDUM *
Milton H. Greene Archives, Inc. (“Archives”) appeals from final judgment following a jury trial in its action for copyright infringement against Julien’s Auction House, LLC and related parties (“Ju-lien’s”) and Barclay Butera, Inc. and related parties (“Barclay”). Archives argues that the district court improperly denied its motion for new trial, asserting various procedural and evidentiary errors and contending that the jury’s verdict on damages was inadequate and/or against the weight of the evidence. Archives also separately appeals the district court’s denial of a permanent injunction and the award of attorneys’ fees. Julien’s cross-appeals the district court’s award of attorneys’ fees to Archives. We affirm the district court in all respects.
1. The jury’s verdict and award of actual damages against Julien’s is supported by the evidence. Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365, 1372 (9th Cir.1987). Given the record, the district court did not err in concluding that the evidence provides a “ ‘reasonable basis’ *247for the jury’s verdict.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729-30 (9th Cir.2007) (citations omitted); Alford v. Haner, 446 F.3d 935, 936 (9th Cir.2006) (“[W]e can reverse such a denial only if the district court makes a legal error in applying the standard for a new trial or the record contains no evidence that can support the verdict.”). Archives has not adequately briefed the issue of whether there is sufficient evidence supporting the verdict apportioning 100% of Julien’s gross revenue to factors other than the use of Archives’ images. Therefore, Archives has waived this issue on appeal. See James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir.2008) (refusing to consider an issue that was “inadequately presented” in the opening appeal brief and concluding the issue to be waived) (citation omitted).
2. Reviewing the record, we conclude that there is not an “absolute absence of evidence to support the jury’s verdict” of no damages against Barclay. Molski, 481 F.3d at 729-30 (citations omitted); Landes Constr. Co., 833 F.2d at 1372.
3. Contrary to Archives’ assertion, the district court did not err in construing its own partial summary judgment order, which found Barclay liable for infringement of only one of Archives’ copyrights. The order did not reach the issue of Barclay’s vicarious infringement, which was expressly reserved for the jury.
4. Archives failed to make a specific, contemporaneous objection to the admission of statements regarding Julien’s financial vulnerability, and has therefore waived this issue. Fed.R.Evid. 103(a) & (d); Jerden v. Amstutz, 430 F.3d 1231, 1237 (9th Cir.2005) (failure to raise timely objection waives the issue). We find no circumstances necessitating our review of this issue on appeal. Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir.2006).
5. Testimony about phone calls between Joshua Greene and Julien’s (concerning the Archives’ request that Julien’s pay a license fee and Julien’s willingness to negotiate such a fee) did not amount to evidence of prior settlement negotiations, but in any event was properly admitted to show an absence of bad faith (refuting Archives’ claim that Julien’s had willfully infringed the copyrights). Fed.R.Evid. 408 Advisory Committee’s Note (2006) (evidence of settlement negotiations may be admissible for other purposes, including to demonstrate notice, knowledge, or bad faith). Archives has not demonstrated prejudice concerning the subsequent testimony that Archives demanded a licensing fee of $500 per image where the court sustained Archives’ immediate objection, granted its motion to strike, and gave a significant curative instruction. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270-71 (9th Cir.2000) (“There is a strong presumption that the curative instructions given by the district court were followed by the jury.”).
6. It was not error to permit Laura Wooley’s lay opinion testimony regarding her valuation of auction items, which was part of her regular job duties. Such testimony was based on her personal knowledge and would be helpful to the jury. See Fed.R.Evid. 701; Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1192 (9th Cir.2005). It was also not error to allow Wooley to testify regarding the chart she prepared, which summarized business records already in evidence. See Fed.R.Evid. 1006; Frank Music Coup. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 515 n. 9 (9th Cir.1985) (not an abuse of discretion to admit a summary chart based on admitted evidence).
7. Archives’ cursory argument regarding the admission of certain exhibits is *248waived, because Archives failed to adequately brief the issue. See James River Ins. Co., 523 F.3d at 920.
8. Archives did not object (on hearsay grounds) to the testimony regarding the availability of Marilyn Monroe images on various Internet sites. Accordingly, we deem this issue waived and decline to address it. Morgan v. Woessner, 997 F.2d 1244, 1260 n. 18 (9th Cir.1993) (“[A] party fails to preserve an evidentiary issue for appeal not only by failing to make a specific objection, but also by making the wrong specific objection.”) (citation omitted).
9. Archives’ argument regarding Jury Instruction 3A is conclusory and not adequately briefed. Thus, this issue is waived. James River Ins. Co., 523 F.3d at 920.
10. Instruction 3E and Special Verdict Questions 2C and 5C are proper statements of the law regarding gross revenues and deductible expenses, Frank Music Corp., 772 F.2d at 516, and, read as a whole, “fairly and adequately cover the issues presented, correctly state the law, and are not misleading.” Duran v. City of Maywood, 221 F.3d 1127, 1130 (9th Cir.2000).
11. The district court did not err in refusing Instruction 3F, because, in the context of copyright infringement, “ ‘willful’ refers to conduct that occurs ‘with knowledge that the defendant’s conduct constitutes copyright infringement.” Danjaq LLC v. Sony Corp., 263 F.3d 942, 957 (9th Cir.2001) (citation omitted). See also 9th Cir. Model Civ. Jury Instr. 17.27.
12. We review Instruction 3G for plain error, because Archives failed to properly object at trial. Fed. R. Civ. Proc. 51(d). Under any standard of review, however, we conclude that the instruction clearly and correctly stated the law. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 931 n. 9, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) (“[V]i-carious liability theory ... allows imposition of liability when the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer.”). The district court also properly instructed the jury that “direct profit” required direct financial (monetary) benefit. See Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146, 1173-75 (9th Cir.2007) (“[T]o succeed in imposing vicarious liability, a plaintiff must establish that the defendant ... derives a direct financial benefit from the direct infringement.”).
13. The district court acted within its discretion to reconsider its prior in limine discovery ruling without a hearing and additional briefing. See Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 832 n. 6 (9th Cir.2003) (district court has discretion to dispense with oral argument in ruling on a motion) (citations omitted). We need not reach Archives’ due process argument, because it failed to raise the issue before the district court, and Archives has not alleged a change in the law or shown any exceptional circumstances that would justify our review. See Allen, 435 F.3d at 960.
14. The district court did not abuse its discretion in reducing the amount of attorneys’ fees levied against Julien’s and awarded to Archives. The district court considered the proper factors, Wall Data Inc. v. Los Angeles County Sheriff’s Dept., 447 F.3d 769, 787 (9th Cir.2006); made detailed findings; and sufficiently explained its reasoning in awarding fees, Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir.2008). The court’s findings of fact do not show bias against Archives and are not clearly erroneous. See Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983) (factual findings reviewed for clear error).
*24915. The court’s finding that Barclay is a “prevailing party” is not clearly erroneous. Park, ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1034 (9th Cir.2006) (citations omitted). The court applied the correct legal principles and considered the relevant factors in concluding that an award of fees to Barclay was reasonable. Wall Data Inc., 447 F.3d at 787. Nothing in the district court’s analysis shows a “clear error of judgment.” Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir.1996) (citation omitted).
16. Archives did not specifically appeal the district court’s order denying the permanent injunction in its January 3, 2008 notice of appeal. Even if we construe Archives’ notice of appeal to include the denial of the injunction, Le v. Astrue, 558 F.3d 1019, 1022-23 (9th Cir.2009), the notice was filed almost 180 days after the order denying the injunction, making any appeal of that order untimely. Fed.R.App. P. 4(a)(1)(A).
17. Given the district court’s detailed analysis and the fact that it considered the relevant factors in assessing the reasonableness of the attorneys’ fee awards, we cannot conclude that the district court abused its discretion. Although Archives technically prevailed against Julien’s, we acknowledge that Archives’ limited success (essentially nominal damages) would have supported an award of no fees (or significantly lower fees). See Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“In some circumstances, even a plaintiff who formally ‘prevails’ ... should receive no attorney’s fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party.”). “[Ajttorney’s fees may be properly denied where the plaintiffs success on a legal claim can be characterized as purely technical or de minimis.” Park, 464 F.3d at 1036 (alteration, citations and internal quotation marks omitted). Such is the case here. However, when awarding attorneys’ fees under the Copyright Act, “district courts are given wide latitude to exercise ‘equitable discretion.’ ” Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1229 (9th Cir.1997) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)). Although an award of attorneys’ fees that is ten times the amount recovered in damages seems unreasonable under the circumstances of this case, the district court knows the history of the litigation, has observed the conduct of the parties throughout, and is in a better position to weigh the equitable factors. Here, the district court correctly identified the relevant factors, Wall Data Inc., 447 F.3d at 787, and considered “the most critical factor[:] the degree of success obtained.” See Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (vacating and remanding a fee award where the district court failed to “properly consider the relationship between the extent of success and the amount of the fee award”). Given the district court’s analysis, we cannot say that we have a “definite and firm conviction that the [district court] committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Smith, 84 F.3d at 1221 (citation omitted).
18. We decline to award attorney’s fees on appeal pursuant to 17 U.S.C. § 505.
19. Other costs on appeal shall be awarded to Appellees Julien’s and Barclay.
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/8471572/ | MEMORANDUM **
Gerson Sigfredo Sermeno-Rodriguez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006), and we deny in part and dismiss in part the petition for review.
Sermeno-Rodriguez’s contention that his conviction for possession of drug paraphernalia in violation of California Health & Safety Code section 11364 is not a violation of a law “relating to a controlled substance” for immigration purposes is foreclosed by Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir.2009).
Sermeno-Rodriguez failed to exhaust his contention regarding the excep*252tion to 8 U.S.C. § 1227(a)(2)(B)(i) for a “single offense involving possession for one’s own use of thirty grams or less of marijuana.” See Serrano v. Gonzales, 469 F.3d 1317, 1319 (9th Cir.2006) (no jurisdiction over issues raised for the first time on appeal to this court).
We lack jurisdiction to review the Id’s discretionary denial of Sermeno-Rodriguez’s cancellation of removal application. See 8 U.S.C. § 1252(a)(2)(B)(i). Contrary to Sermeno-Rodriguez’s contention, the BIA addressed whether the IJ properly weighed the evidence in reaching his decision. Sermeno-Rodriguez’s contention that the IJ improperly weighed the evidence does not amount to a colorable due process claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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/8471574/ | MEMORANDUM **
Christopher J. Hightower (“Hightower”) appeals the district court’s denial of his petition for a writ of habeas corpus, which challenges his conviction for rape in violation of California Penal Code § 261(a)(2) and forcible oral copulation in violation of California Penal Code § 288a.1 Because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this case, we may grant relief only if the last reasoned decision of the state court dismissing Hightower’s petition was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d); Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). We review the district court’s order de novo, Harris v. Carter, 515 F.3d 1051, 1054 (9th Cir.2008), and we affirm.
Hightower contends that alleged prose-cutorial misconduct violated his due process right to a fair trial, arguing specifically that the prosecutor (1) improperly prepared witnesses in a joint session, (2) failed to inform him of this joint preparation and thereby withheld impeaching evidence necessary to his defense, and (3) misled the jury in closing argument by stating that the two witnesses did not know each other.2
*254The California Court of Appeal’s determination that Hightower’s due process rights were not violated by the prosecutor’s conduct was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). First, Hightower has not cited, nor could we find, any Supreme Court case establishing that it is improper, let alone a violation of a defendant’s constitutional rights, to jointly prepare government witnesses. Moreover, even assuming that the joint preparation of the witnesses was improper, we cannot say that it had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Both witnesses testified prior to the trial and then-meeting with the prosecutor, and Hightower cites no inconsistencies between then-earlier statements and their trial testimony.
Second, Hightower has not shown that clearly established federal law required the prosecutor to disclose her joint preparation, or that such disclosure constituted “impeaching evidence” subject to the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In any event, the record shows that even without knowledge of the joint preparation, Hightower’s trial counsel was able to cross-examine Martin effectively and put forth the theory that she had consciously tailored her testimony to emulate Duszik’s. Thus, even assuming some obligation on the part of the prosecutor to disclose the fact of the joint preparation, the record demonstrates no prejudice. See Brecht, 507 U.S. at 631, 113 S.Ct. 1710; see also United States v. Bagley, 473 U.S. 667, 677-78, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Finally, we conclude that the prosecutor’s statements in closing did not “ ‘so infectf] the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The prosecutor simply stated that the two witnesses did not “know each other,” commenting on the unlikelihood that two witnesses who did not know each other at the time of their respective assaults would relay such similar stories. Although the witnesses had met during the preparation, they had not met or known each other at the time each accused Hightower of rape. Accordingly, read in context, the statements are accurate and cannot be viewed as a violation of Hightower’s due process rights.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Because the parties are familiar with the facts of this case, we repeat them here only as necessary to the disposition of this case.
. We assume without deciding that Hightower exhausted his claim concerning the prosecutor's statements in closing argument, and therefore do not reach respondents’ contentions regarding waiver. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471565/ | MEMORANDUM **
A Jury convicted Appellant Jama Mohamed Absiya of possession with intent to distribute a controlled substance, cathi: none (“khat”) in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). The district court sentenced Absiya to two years of probation and imposed a $100 special assessment. On appeal, Absiya challenges the district court’s decision to admit certain evidence relating to his pre-arrest conduct. The parties are familiar with the facts; we proceed to the law.
The admissibility of “other acts” evidence is governed by Fed.R.Evid. 404(b). *241Rule 404(b) restricts the admission of evidence of other crimes, wrongs, or acts to prove the character or criminal propensity of a defendant. Fed.R.Evid. 404(b). Absi-ya argues that Rule 404(b) should have barred the admission of evidence relating to an altercation which ultimately led to Absiya’s arrest. The contested evidence primarily consists of the testimony of police officers describing the arrest and the testimony of the employees of a Shell station who were present during the altercation.
Although Absiya’s Rule 404 arguments are persuasive, it is unlikely that the alleged erroneous admission of testimony materially affected the verdict. See United States v. Gonzalez-Flores, 418 F.3d 1093, 1099 (9th Cir.2005). The record does not support Absiya’s claim that evidence of the altercation or of the arrest caused the jury to find that Absiya had possession with intent to sell khat. The evidence supports the government’s claim that the jury decided the case based on the fact that a substantial amount of khat was found in Absiya’s car, coupled with Absi-ya’s post-Miranda statements and his testimony during cross-examination. The district court did not commit reversible error in admitting the evidence.
The judgment of the district court 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/8471567/ | MEMORANDUM **
Defendant Charles M. Frye appeals several aspects of the district court’s judgment against him following a jury trial on Plaintiff Excelsior College’s (“Excelsior”) claims of copyright infringement and trade secret misappropriation. We have jurisdiction under 28 U.S.C. § 1291. We conclude that the district court properly granted partial summary judgment in favor of Excelsior and did not abuse its discretion in ruling on the post-trial and pre-trial motions now challenged by Frye. We affirm.
The facts of the case are known to the parties, and we do not repeat them below.
Frye argues that the district court erred in granting partial summary judgment on Excelsior’s three claims of copyright infringement of its content guides. We review the district court’s grant of summary judgment de novo. See Enlow v. Salem-Keizer Yellow Cab Co., 389 F.3d 802, 811 (9th Cir.2004). We agree with the district court’s thorough analysis of Frye’s defenses in its May 8, 2006, order. The district court properly granted summary judgment after rejecting Frye’s defenses of merger, fair use, implied license and unclean hands.
Frye argues that the district court abused its discretion in excluding some of Frye’s evidence and not excluding some of Excelsior’s evidence. A district court’s evidentiary rulings are “reviewed for abuse of discretion, and the appellant is additionally required to establish that the error was prejudicial.” Tritchler v. County of Lake, 358 F.3d 1150, 1155 (9th Cir.2004). We conclude that the district court did not abuse its discretion in excluding Frye’s 400 library books because they were not timely disclosed prior to Frye’s April 2005 deposition. As such, the district court did not abuse its discretion in excluding Trial Exhibit 01, which had substantial material from the excluded library books. We also conclude that the district court did not abuse its discretion in refusing to sanction Excelsior after a discovery dispute regarding its “Item Writers.”
Frye relies on punitive damages jurisprudence to argue that the district court abused its discretion in denying his motion to reduce the jury’s award of maximum statutory damages. We conclude that the district court did not abuse its discretion in declining to reduce the jury’s award of statutory damages. See Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir.2001) (“[T]he court has wide discretion in determining the amount of statutory damages to be awarded, constrained only by the specified maxima and minima.” (quotation omitted)).
*244Frye argues that the district court abused its discretion in denying his motion to reduce the jury’s award of Frye’s profits. The district court did not abuse its discretion in declining to reduce the jury’s award because Frye failed to meet his burden of establishing his deductible expenses. See 17 U.S.C. § 504(b); Eales v. Envtl. Lifestyles, Inc., 958 F.2d 876, 881 (9th Cir.1992) (“Any doubt as to the correctness of the profit calculation should ... be resolved in favor of the plaintiff.”), abrogated on other grounds by Hunt v. Pasternack, 192 F.3d 877 (9th Cir.1999). We reject Frye’s argument that the jury’s award of profits was already “taken into account in computing the actual damages.” See 17 U.S.C. § 504(b). The actual damages constituted Excelsior’s cost of rewriting its examinations and were independent of Frye’s profits.
Frye argues that the district court’s permanent injunction is too broad because it enjoins lawful activity. “The scope of injunctive relief is reviewed for abuse of discretion.” Idaho Watersheds Project v. Hahn, 307 F.3d 815, 823 (9th Cir.2002). The district court did not abuse its discretion in crafting a broad injunction after Frye was found liable for willful copyright infringement and trade secret misappropriation. See Creative Computing v. Getloaded.com LLC, 386 F.3d 930, 937 (9th Cir.2004) (upholding an “extraordinarily broad prohibition” when justified by “past egregious conduct”).
Frye argues that the district court abused its discretion in denying his motion for a new trial based on evidence Frye discovered after trial. Frye fails to meet his burden of showing that he “could not have discovered the evidence sooner through the exercise of reasonable diligence, and that the new evidence is of such magnitude that it would likely have changed the outcome of the case.” See Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 998 (9th Cir.2001). We also reject Frye’s argument that a new trial is warranted based on the conduct of Excelsior’s counsel. See Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1192 (9th Cir.2002) (“[W]e will not overrule a district court’s ruling about the impact of counsel’s alleged misconduct unless we have a definite and firm conviction that the court committed a clear error of judgment.” (internal quotation marks omitted)).
To the extent Frye argues that the jury’s verdict is not supported by substantial evidence, we disagree. See Watec Co. v. Liu, 403 F.3d 645, 651 n. 5 (9th Cir.2005) (“A jury’s verdict must be upheld if supported by substantial evidence.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471570/ | MEMORANDUM *
Milton H. Greene Archives, Inc. (“Archives”) appeals from final judgment following a jury trial in its action for copyright infringement against Julien’s Auction House, LLC and related parties (“Ju-lien’s”) and Barclay Butera, Inc. and related parties (“Barclay”). Archives argues that the district court improperly denied its motion for new trial, asserting various procedural and evidentiary errors and contending that the jury’s verdict on damages was inadequate and/or against the weight of the evidence. Archives also separately appeals the district court’s denial of a permanent injunction and the award of attorneys’ fees. Julien’s cross-appeals the district court’s award of attorneys’ fees to Archives. We affirm the district court in all respects.
1. The jury’s verdict and award of actual damages against Julien’s is supported by the evidence. Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365, 1372 (9th Cir.1987). Given the record, the district court did not err in concluding that the evidence provides a “ ‘reasonable basis’ *247for the jury’s verdict.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729-30 (9th Cir.2007) (citations omitted); Alford v. Haner, 446 F.3d 935, 936 (9th Cir.2006) (“[W]e can reverse such a denial only if the district court makes a legal error in applying the standard for a new trial or the record contains no evidence that can support the verdict.”). Archives has not adequately briefed the issue of whether there is sufficient evidence supporting the verdict apportioning 100% of Julien’s gross revenue to factors other than the use of Archives’ images. Therefore, Archives has waived this issue on appeal. See James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir.2008) (refusing to consider an issue that was “inadequately presented” in the opening appeal brief and concluding the issue to be waived) (citation omitted).
2. Reviewing the record, we conclude that there is not an “absolute absence of evidence to support the jury’s verdict” of no damages against Barclay. Molski, 481 F.3d at 729-30 (citations omitted); Landes Constr. Co., 833 F.2d at 1372.
3. Contrary to Archives’ assertion, the district court did not err in construing its own partial summary judgment order, which found Barclay liable for infringement of only one of Archives’ copyrights. The order did not reach the issue of Barclay’s vicarious infringement, which was expressly reserved for the jury.
4. Archives failed to make a specific, contemporaneous objection to the admission of statements regarding Julien’s financial vulnerability, and has therefore waived this issue. Fed.R.Evid. 103(a) & (d); Jerden v. Amstutz, 430 F.3d 1231, 1237 (9th Cir.2005) (failure to raise timely objection waives the issue). We find no circumstances necessitating our review of this issue on appeal. Allen v. Ornoski, 435 F.3d 946, 960 (9th Cir.2006).
5. Testimony about phone calls between Joshua Greene and Julien’s (concerning the Archives’ request that Julien’s pay a license fee and Julien’s willingness to negotiate such a fee) did not amount to evidence of prior settlement negotiations, but in any event was properly admitted to show an absence of bad faith (refuting Archives’ claim that Julien’s had willfully infringed the copyrights). Fed.R.Evid. 408 Advisory Committee’s Note (2006) (evidence of settlement negotiations may be admissible for other purposes, including to demonstrate notice, knowledge, or bad faith). Archives has not demonstrated prejudice concerning the subsequent testimony that Archives demanded a licensing fee of $500 per image where the court sustained Archives’ immediate objection, granted its motion to strike, and gave a significant curative instruction. See Doe ex rel. Rudy-Glanzer v. Glanzer, 232 F.3d 1258, 1270-71 (9th Cir.2000) (“There is a strong presumption that the curative instructions given by the district court were followed by the jury.”).
6. It was not error to permit Laura Wooley’s lay opinion testimony regarding her valuation of auction items, which was part of her regular job duties. Such testimony was based on her personal knowledge and would be helpful to the jury. See Fed.R.Evid. 701; Dorn v. Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1192 (9th Cir.2005). It was also not error to allow Wooley to testify regarding the chart she prepared, which summarized business records already in evidence. See Fed.R.Evid. 1006; Frank Music Coup. v. Metro-Goldwyn-Mayer, Inc., 772 F.2d 505, 515 n. 9 (9th Cir.1985) (not an abuse of discretion to admit a summary chart based on admitted evidence).
7. Archives’ cursory argument regarding the admission of certain exhibits is *248waived, because Archives failed to adequately brief the issue. See James River Ins. Co., 523 F.3d at 920.
8. Archives did not object (on hearsay grounds) to the testimony regarding the availability of Marilyn Monroe images on various Internet sites. Accordingly, we deem this issue waived and decline to address it. Morgan v. Woessner, 997 F.2d 1244, 1260 n. 18 (9th Cir.1993) (“[A] party fails to preserve an evidentiary issue for appeal not only by failing to make a specific objection, but also by making the wrong specific objection.”) (citation omitted).
9. Archives’ argument regarding Jury Instruction 3A is conclusory and not adequately briefed. Thus, this issue is waived. James River Ins. Co., 523 F.3d at 920.
10. Instruction 3E and Special Verdict Questions 2C and 5C are proper statements of the law regarding gross revenues and deductible expenses, Frank Music Corp., 772 F.2d at 516, and, read as a whole, “fairly and adequately cover the issues presented, correctly state the law, and are not misleading.” Duran v. City of Maywood, 221 F.3d 1127, 1130 (9th Cir.2000).
11. The district court did not err in refusing Instruction 3F, because, in the context of copyright infringement, “ ‘willful’ refers to conduct that occurs ‘with knowledge that the defendant’s conduct constitutes copyright infringement.” Danjaq LLC v. Sony Corp., 263 F.3d 942, 957 (9th Cir.2001) (citation omitted). See also 9th Cir. Model Civ. Jury Instr. 17.27.
12. We review Instruction 3G for plain error, because Archives failed to properly object at trial. Fed. R. Civ. Proc. 51(d). Under any standard of review, however, we conclude that the instruction clearly and correctly stated the law. See Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 545 U.S. 913, 931 n. 9, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) (“[V]i-carious liability theory ... allows imposition of liability when the defendant profits directly from the infringement and has a right and ability to supervise the direct infringer.”). The district court also properly instructed the jury that “direct profit” required direct financial (monetary) benefit. See Perfect 10, Inc. v. Amazon.com, 508 F.3d 1146, 1173-75 (9th Cir.2007) (“[T]o succeed in imposing vicarious liability, a plaintiff must establish that the defendant ... derives a direct financial benefit from the direct infringement.”).
13. The district court acted within its discretion to reconsider its prior in limine discovery ruling without a hearing and additional briefing. See Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 832 n. 6 (9th Cir.2003) (district court has discretion to dispense with oral argument in ruling on a motion) (citations omitted). We need not reach Archives’ due process argument, because it failed to raise the issue before the district court, and Archives has not alleged a change in the law or shown any exceptional circumstances that would justify our review. See Allen, 435 F.3d at 960.
14. The district court did not abuse its discretion in reducing the amount of attorneys’ fees levied against Julien’s and awarded to Archives. The district court considered the proper factors, Wall Data Inc. v. Los Angeles County Sheriff’s Dept., 447 F.3d 769, 787 (9th Cir.2006); made detailed findings; and sufficiently explained its reasoning in awarding fees, Moreno v. City of Sacramento, 534 F.3d 1106, 1111 (9th Cir.2008). The court’s findings of fact do not show bias against Archives and are not clearly erroneous. See Lummi Indian Tribe v. Oltman, 720 F.2d 1124, 1125 (9th Cir.1983) (factual findings reviewed for clear error).
*24915. The court’s finding that Barclay is a “prevailing party” is not clearly erroneous. Park, ex rel. Park v. Anaheim Union High Sch. Dist., 464 F.3d 1025, 1034 (9th Cir.2006) (citations omitted). The court applied the correct legal principles and considered the relevant factors in concluding that an award of fees to Barclay was reasonable. Wall Data Inc., 447 F.3d at 787. Nothing in the district court’s analysis shows a “clear error of judgment.” Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir.1996) (citation omitted).
16. Archives did not specifically appeal the district court’s order denying the permanent injunction in its January 3, 2008 notice of appeal. Even if we construe Archives’ notice of appeal to include the denial of the injunction, Le v. Astrue, 558 F.3d 1019, 1022-23 (9th Cir.2009), the notice was filed almost 180 days after the order denying the injunction, making any appeal of that order untimely. Fed.R.App. P. 4(a)(1)(A).
17. Given the district court’s detailed analysis and the fact that it considered the relevant factors in assessing the reasonableness of the attorneys’ fee awards, we cannot conclude that the district court abused its discretion. Although Archives technically prevailed against Julien’s, we acknowledge that Archives’ limited success (essentially nominal damages) would have supported an award of no fees (or significantly lower fees). See Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“In some circumstances, even a plaintiff who formally ‘prevails’ ... should receive no attorney’s fees at all. A plaintiff who seeks compensatory damages but receives no more than nominal damages is often such a prevailing party.”). “[Ajttorney’s fees may be properly denied where the plaintiffs success on a legal claim can be characterized as purely technical or de minimis.” Park, 464 F.3d at 1036 (alteration, citations and internal quotation marks omitted). Such is the case here. However, when awarding attorneys’ fees under the Copyright Act, “district courts are given wide latitude to exercise ‘equitable discretion.’ ” Entm’t Research Group, Inc. v. Genesis Creative Group, Inc., 122 F.3d 1211, 1229 (9th Cir.1997) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 534, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994)). Although an award of attorneys’ fees that is ten times the amount recovered in damages seems unreasonable under the circumstances of this case, the district court knows the history of the litigation, has observed the conduct of the parties throughout, and is in a better position to weigh the equitable factors. Here, the district court correctly identified the relevant factors, Wall Data Inc., 447 F.3d at 787, and considered “the most critical factor[:] the degree of success obtained.” See Hensley v. Eckerhart, 461 U.S. 424, 436, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983) (vacating and remanding a fee award where the district court failed to “properly consider the relationship between the extent of success and the amount of the fee award”). Given the district court’s analysis, we cannot say that we have a “definite and firm conviction that the [district court] committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.” Smith, 84 F.3d at 1221 (citation omitted).
18. We decline to award attorney’s fees on appeal pursuant to 17 U.S.C. § 505.
19. Other costs on appeal shall be awarded to Appellees Julien’s and Barclay.
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/8471571/ | WARDLAW, Circuit Judge,
dissenting:
I respectfully dissent from paragraph 17 of the majority’s memorandum disposition. While the district court was aware of the *250factors to be weighed in exercising its discretion to award attorneys’ fees under the Copyright Act, I have a “definite and firm conviction that the district court committed a clear error of judgment” in its application of those factors. Smith v. Jackson, 84 F.3d 1213, 1221 (9th Cir.1996). Milton H. Green Archives (“Archives”) “won” a judgment amounting to approximately 1% of its damages request. The district court described this nominal victory as being “virtually negligible” and a “bust.” It said that “Plaintiff is entitled to be deemed the prevailing party, but cannot claim to be victorious.” The district court was highly critical of the Archives’ attorneys’ “transparently bogus” and “misguided” work. It found the attorneys’ fee submissions to be, literally, incredible. Given these and the other findings of the district court (e.g., “flagrant greed,” “systematically engaging] in conduct that caused the case to be blown out of proportion,” “embarrassing sloppiness,” “miscit[ing] the law,” and incorrectly characterizing the district court’s own order), the award of approximately $340,000 in attorneys’ fees is inexplicable. Under these circumstances, the attorneys should have received nothing at all, and certainly not an amount in fees that was worth ten times their client’s recovery. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471573/ | MEMORANDUM **
Gerson Sigfredo Sermeno-Rodriguez, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law, Fernandez-Ruiz v. Gonzales, 468 F.3d 1159, 1163 (9th Cir.2006), and we deny in part and dismiss in part the petition for review.
Sermeno-Rodriguez’s contention that his conviction for possession of drug paraphernalia in violation of California Health & Safety Code section 11364 is not a violation of a law “relating to a controlled substance” for immigration purposes is foreclosed by Estrada v. Holder, 560 F.3d 1039, 1042 (9th Cir.2009).
Sermeno-Rodriguez failed to exhaust his contention regarding the excep*252tion to 8 U.S.C. § 1227(a)(2)(B)(i) for a “single offense involving possession for one’s own use of thirty grams or less of marijuana.” See Serrano v. Gonzales, 469 F.3d 1317, 1319 (9th Cir.2006) (no jurisdiction over issues raised for the first time on appeal to this court).
We lack jurisdiction to review the Id’s discretionary denial of Sermeno-Rodriguez’s cancellation of removal application. See 8 U.S.C. § 1252(a)(2)(B)(i). Contrary to Sermeno-Rodriguez’s contention, the BIA addressed whether the IJ properly weighed the evidence in reaching his decision. Sermeno-Rodriguez’s contention that the IJ improperly weighed the evidence does not amount to a colorable due process claim. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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/8471575/ | MEMORANDUM **
Christopher J. Hightower (“Hightower”) appeals the district court’s denial of his petition for a writ of habeas corpus, which challenges his conviction for rape in violation of California Penal Code § 261(a)(2) and forcible oral copulation in violation of California Penal Code § 288a.1 Because the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs this case, we may grant relief only if the last reasoned decision of the state court dismissing Hightower’s petition was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or “was based on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d); Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). We review the district court’s order de novo, Harris v. Carter, 515 F.3d 1051, 1054 (9th Cir.2008), and we affirm.
Hightower contends that alleged prose-cutorial misconduct violated his due process right to a fair trial, arguing specifically that the prosecutor (1) improperly prepared witnesses in a joint session, (2) failed to inform him of this joint preparation and thereby withheld impeaching evidence necessary to his defense, and (3) misled the jury in closing argument by stating that the two witnesses did not know each other.2
*254The California Court of Appeal’s determination that Hightower’s due process rights were not violated by the prosecutor’s conduct was not contrary to, or an unreasonable application of, clearly established federal law, nor was it based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). First, Hightower has not cited, nor could we find, any Supreme Court case establishing that it is improper, let alone a violation of a defendant’s constitutional rights, to jointly prepare government witnesses. Moreover, even assuming that the joint preparation of the witnesses was improper, we cannot say that it had a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). Both witnesses testified prior to the trial and then-meeting with the prosecutor, and Hightower cites no inconsistencies between then-earlier statements and their trial testimony.
Second, Hightower has not shown that clearly established federal law required the prosecutor to disclose her joint preparation, or that such disclosure constituted “impeaching evidence” subject to the requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In any event, the record shows that even without knowledge of the joint preparation, Hightower’s trial counsel was able to cross-examine Martin effectively and put forth the theory that she had consciously tailored her testimony to emulate Duszik’s. Thus, even assuming some obligation on the part of the prosecutor to disclose the fact of the joint preparation, the record demonstrates no prejudice. See Brecht, 507 U.S. at 631, 113 S.Ct. 1710; see also United States v. Bagley, 473 U.S. 667, 677-78, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).
Finally, we conclude that the prosecutor’s statements in closing did not “ ‘so infectf] the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). The prosecutor simply stated that the two witnesses did not “know each other,” commenting on the unlikelihood that two witnesses who did not know each other at the time of their respective assaults would relay such similar stories. Although the witnesses had met during the preparation, they had not met or known each other at the time each accused Hightower of rape. Accordingly, read in context, the statements are accurate and cannot be viewed as a violation of Hightower’s due process rights.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
. Because the parties are familiar with the facts of this case, we repeat them here only as necessary to the disposition of this case.
. We assume without deciding that Hightower exhausted his claim concerning the prosecutor's statements in closing argument, and therefore do not reach respondents’ contentions regarding waiver. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8472093/ | MEMORANDUM **
Luis Saiz appeals from his guilty-plea conviction and 40-month sentence imposed for transportation of illegal aliens for profit, in violation of 8 U.S.C. § 1324(a)(1)(A) and 1324(a)(l)(B)(i).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Saiz’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 with 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/8471576/ | MEMORANDUM ***
Kevin Glass, an engineer, appeals the district court’s grant of summary judgment in his action against Intel Corporation and Kursad Kiziloglu under the Age Discrimination in Employment Act, the Americans with Disabilities Act, California’s Fair Employment and Housing Act, and other California law. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
The district court concluded correctly that there were no triable issues of material fact as to age or disability discrimination. Glass presented insufficient direct evidence of age and disability discrimination to raise a triable issue of fact. The district court also correctly applied the McDonnell Douglas test to his claims based on circumstantial evidence. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir.2008). Intel proffered a legitimate reason *256for its actions, based on Glass’s numerous negative performance evaluations, and Glass failed to raise a genuine issue of fact as to whether Intel’s proffered reason for its actions was pretextual. See Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 660-61 (9th Cir.2002).
Glass’s claim that he suffered disability-based harassment also fails. Assuming a claim of harassment is cognizable under the ADA, Glass’s accounts of the comments made by his manager, Kiziloglu, and his treatment by his coworkers, do not reach the threshold required for a showing of workplace harassment. See Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) (holding that simple teasing, offhand comments, and isolated incidents, unless extremely serious, do not amount to discriminatory changes in the terms and conditions of employment). Similarly, Glass fails to offer evidence that, when taken in the light most favorable to himself, would suggest that Kiziloglu’s conduct during their confrontation on September 3, 2002 rose to the level of an assault. See Cal.Penal Code § 240 (“An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.”).
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/8471580/ | MEMORANDUM **
Kenneth Taylor appeals from the district court’s decision affirming the Commissioner’s denial of his applications for Social Security disability and Supplemental Security Income disability benefits. Reviewing de novo, we reverse in part, affirm in part, and remand.
Taylor argues that the ALJ failed to properly develop the record because the ALJ did not consider Dr. Tosomeen’s medical records, which Taylor’s lawyer faxed to the ALJ after the hearing. The Commissioner responds that any error was harmless because the Appeals Council considered the records and held that the records did not warrant a change to the ALJ’s decision. Because the Appeals Council did not explain why Dr. Toso-meen’s records did not affect the result in Taylor’s case, we have no basis upon which to determine whether the ALJ’s error was harmless. For example, it is entirely unclear on the administrative record before us what effect, if any, the diagnosis of “failed neck syndrome” might have had on Taylor’s residual functional capacity. Consequently, we reverse and remand in order for the ALJ to consider Dr. Tosomeen’s records and to explain whether they change the analysis or result.
We do not embrace any of Taylor’s other challenges to the ALJ’s decision for the reasons given in the magistrate judge’s report and recommendation, or because there is no merit to Taylor’s arguments.
REVERSED IN PART, AFFIRMED IN PART, AND REMANDED. Each party shall bear its own costs on appeal.
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/8471582/ | MEMORANDUM **
E. Duane Brooks appeals (1) the Rule 12(b)(6) dismissal of his claims against Citibank under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., (2) the grant of summary judgment to Citibank on his claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et. seq., and (3) the imposition of monetary sanctions against him for failing to comply with prior rulings limiting discovery. We affirm.
The FDCPA prohibits “debt collector[s]” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. A “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). A “creditor” is defined as “any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). The text of the FDCPA as well as its legislative history make clear that Congress did not intend the Act to encompass creditors. See S.Rep. No. 95-382, at *2, U.S.Code Cong. & Admin.News 1977, pp. 1695, 1696-97 (“Unlike creditors, who generally are restrained by the desire to protect their good will when collecting past due accounts, independent collectors are likely to have no future contact with the consumer and often are unconcerned with the consumer’s opinion of them.”); id. at *3 (“The term debt collector is not intended to include ... ‘in house’ collectors for creditors so long as they use the creditor’s true business name when collecting.”). Brooks’s own complaint states that “Citibank alleged that [Brooks] was obligated to Citibank for consumer debt on a credit card account maintained by Citibank (‘the debt’),” making it clear that Citibank is a creditor, not a debt collector, under § 1692a(4). Brooks’s assertion that “after reasonable opportunity for investigation and discovery, the evidence will show that Citibank is a debt collector,” represents nothing more than a “[t]hreadbare recital ] of the elements of a cause of action, supported by [a] mere conclusory statement ]” and was therefore properly rejected by the district court. Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981) (“We do not ... necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.”). The district court thus correctly dismissed Brooks’s FDCPA claims.
There was no error in granting Citibank summary judgment on Brooks’s FCRA claims. Under the FCRA, when an entity that furnishes information to consumer reporting agencies is notified of a “dispute with regard to the completeness of [the] information” it provides, the entity must, among other things, “(A) conduct an investigation with respect to the disputed *263information,” “(B) review all relevant information provided by the consumer reporting agency,” and “(C) report the results of the investigation to the consumer reporting agency.” 15 U.S.C. § 1681s-2(b)(l)(A)-(C). The letters received by Citibank regarding Brooks’s disputed account did not indicate that Brooks’s domestic partner was responsible for it, nor did it claim that Brooks was the victim of fraud; rather, Brooks simply made generic claims of inaccurate account information. It is undisputed that, in response to each dispute form it received, Citibank compared the personal information provided by Brooks to the information in its records (including his home address, social security number, date of birth, and home telephone number), checked the account information, noted that statements for the account had been mailed to Brooks at his listed address, and confirmed the accuracy of the debt. Although Brooks asserts that “Citibank has no policies, procedures or standards for when records outside the general information need to be reviewed or in the alternative was unwilling to disclose the same,” he offers no real analysis of what additional information Citibank should have consulted, particularly in light of the limited information he provided. The district court thus correctly determined that Citibank’s investigation upon receiving notice that Brooks disputed the debt was reasonable as a matter of law.
Nor was there any abuse of discretion in imposing sanctions against Brooks under Federal Rule of Civil Procedure 37 in connection with his discovery requests. In support of its imposition of sanctions, the court noted that Brooks had “steadfastly refused to accept [the court’s] dismissal of the two prior FDCPA claims,” and that he had “also failed to fulfill his obligation to modify and narrow his remaining discovery requests to the single FCRA claim that remains.” The district court further held that Brooks’s additional demands included requests for documents and testimony already produced by Citibank, “[Requests that are either nonsensical or overbroad” and “[Requests that do not need to be resolved prior to summary judgment.” Both the district court’s characterization of Brooks’s discovery requests and its decision to impose sanctions were amply justified and not an abuse of discretion.
Finally, Citibank argues that Brooks filed this lawsuit well aware of the substantial authority making clear that Citibank was not a debt collector within the meaning of the FDCPA, and therefore requests that we award it attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3). Section 1692k(a)(3) provides that “[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” Whether a claim was brought in bad faith for the purpose of harassment is a factual finding that we review for clear error, while a district court’s ultimate decision to grant or deny attorney’s fees is reviewed for abuse of discretion. See Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 933 (9th Cir.2007). Here, the district court made no factual finding with respect to Brooks’s alleged bad faith. Thus, we remand this matter to the district court to determine in the first instance whether Citibank is entitled to attorney’s fees under § 1692k(a)(3).
AFFIRMED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471584/ | MEMORANDUM **
Pavao appeals from the district court’s summary judgment for Allstate. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Jake Pavao’s injuries arose out of his occupancy of a vehicle, and thus appear to fall squarely within the terms of Exclusions 5 and 7 of the policy. Pavao nevertheless argues that his negligent supervision claim is not excluded because Russell’s negligent supervision was a separate, non-vehicle-related concurrent cause of Jake’s death, and relies on the *265“concurrent causation doctrine.” Nevada’s Supreme Court has examined the concurrent causation doctrine but has not yet decided whether to adopt it. See Fire Ins. Exch. v. Cornell, 120 Nev. 303, 90 P.3d 978 (2004); Hernandez v. First Fin. Ins. Co., 106 Nev. 900, 802 P.2d 1278 (1990); Senteney v. Fire Ins. Exch., 101 Nev. 654, 707 P.2d 1149 (1985).
We need not decide whether the Nevada Supreme Court would adopt the concurrent causation doctrine, because the doctrine would not apply here. To escape an exclusion, a concurrent cause must be truly “separate and distinct” from the excluded cause. Senteney, 707 P.2d at 1151. If there is a “sufficient nexus” between an excluded cause and the acts of the insured that give rise to the claim, the acts are not truly a “separate and distinct” cause, but rather fall within the exclusion. Id.; see also Mailhiot v. Nationwide Mut. Fire Ins. Co., 169 Vt. 498, 740 A.2d 360, 362-63 (1999) (holding that a negligent supervision claim fell within an automobile exclusion similar to Exclusion 5, because there was “no way to separate” the parents’ negligent supervision from vehicle-related conduct where “the only alleged negligent' act [by the parents] ... was allowing the two boys to depart on the vehicle ”); Taylor v. Am. Fire & Cas. Co., 925 P.2d 1279, 1283 (Utah Ct.App.1996) (holding that a negligent supervision claim was excluded because it was “firmly grounded in [the parents’] failure to supervise [the child’s] use or operation of the automobile, and the use of the vehicle is essential to the theory supporting their alleged liability”) (internal citations omitted).
Here, Pavao’s negligent supervision claim is wholly based on Russell’s act of giving Jake permission to ride in a specific car with a specific driver. This act falls squarely within Exclusion 7, which excludes “injury ... arising out of ... the negligent supervision by an insured person of any person ... arising from the ... use [or] occupancy ... of any ... motor vehicle.” The car is not, as Pavao argues, “incidental” to the claim. The car is at the heart of the claim. Pavao’s complaint in his underlying state court action shows that Pavao’s entire theory of negligent supervision is based on Russell’s express grant of permission to ride with Yadon. Pavao reframes the claim in general terms, saying that “Russell’s negligent supervision arose from her decision to allow Jake Pavao to leave her residence under circumstances that made it unsafe for him to do so,” and that such negligent supervision “could easily have resulted in Jake Pavao being injured in any number of ways” that do not involve a car. Pavao urges that, because negligent supervision can occur without the use of a vehicle (for example, by allowing a child to play with guns or swim in an unsafe place), the car was “not instrumental to [Russell’s negligent] act, nor does the precise instrumentality of Jake’s injury operate to preclude coverage.” However, “[a]n insured cannot be liable ... for negligence in the abstract. Rather, an insured is liable for negligence with respect to a particular object or instrumentality.” Mailhiot, 740 A.2d at 362-63. Here, Pavao alleges negligent supervision with regard to Jake’s occupancy of Yadon’s car, regardless of the precise theory of liability asserted.
This is not a case such as State Farm Mutual Automobile Insurance Co. v. Partridge, 10 Cal.3d 94, 109 Cal.Rptr. 811, 514 P.2d 123 (1973) or Salem Group v. Oliver, 128 N.J. 1, 607 A.2d 138 (1992), where the insureds’ alleged negligence arose out of a distinct act and instrumentality not inextricably entwined with a car (in Partridge, modifying a gun; in Oliver, serving alcohol to a minor). This case is also distinguishable from cases such as Columbia Mutual Insurance Co. v. Neal, 992 S.W.2d 204 (Mo.Ct.App.1999) and Nationwide Mutual *266Insurance Co. v. Davis, 118 N.C.App. 494, 455 S.E.2d 892 (1995), where the negligent supervision claims at issue were not based on the child’s occupancy of a motor vehicle, and where the policies at issue did not contain language like Exclusion 7, which expressly excludes coverage for injuries arising from vehicle-related negligent supervision.
The policy’s exclusions apply even though Jake was not operating the vehicle. Neither exclusion is limited to negligent supervision arising out of another’s operation of a vehicle; the terms “use” and “occupancy” encompass not just driving a car but riding as a passenger. Similarly, it is irrelevant that Russell never owned, used or occupied the vehicle that caused Jake’s injuries. Exclusions 5 and 7 speak only of “the ... use [or] occupancy” of a vehicle generally, and Exclusion 7 excludes negligent supervision arising from occupancy of “any” vehicle. Nothing in their language suggests that they apply only if the insured owned, used or occupied the vehicle.
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/8471586/ | MEMORANDUM *
Moheb Zaki Khella, a native and citizen of Egypt, petitions for review of an order of the Board of Immigration Appeals dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) and denying his motion to continue or administratively close proceedings. We review for substantial evidence the agency’s factual findings. See Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.2006). We grant in part and deny in part the petition for review, and remand for further proceedings consistent with this disposition.
Substantial evidence does not support the agency’s denial of asylum and withholding of removal. The record compels the conclusion that the cumulative effect of multiple beatings, detentions, and threats rose to the level of persecution and that Khella was persecuted by state officials and Islamic extremists on account of his religion. See Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir.1998). Accordingly, we grant the petition as to Khella’s asylum and withholding of removal claims. We remand those claims for the agency to apply the presumptions of a well-founded fear of persecution and of eligibility for withholding of removal, and to provide the government with an opportunity to rebut them. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
We conclude, however, that the IJ’s denial of CAT protection is supported by substantial evidence because the record does not establish that Khella more likely than not would be tortured if returned to Egypt. See Almaghzar, 457 F.3d at 922-23. We therefore deny the petition with regard to Khella’s CAT claim.
Because we remand on other grounds, we do not reach Khella’s contentions regarding the IJ’s denial of a continuance and denial of administrative closure.
PETITION FOR REVIEW GRANTED in part; DENIED 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/8471588/ | MEMORANDUM ***
Josette Marie Szetela (“Appellant”) pled guilty to embezzling approximately *269$193,000 from the United States Department of Defense. She now appeals her resulting eighteen-month sentence of incarceration and the restitution order imposed by the district court. This court has jurisdiction pursuant to 28 U.S.C. § 1291 and now affirms.
Appellant contends that the district court failed to properly weigh all relevant sentencing factors as required by 18 U.S.C. § 3553(a) and instead arbitrarily adhered to the advisory guidelines without conducting a proper analysis. The advisory guidelines, though a “starting point and ... initial benchmark,” are but one factor to be considered when fashioning an appropriate sentence. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596, 169 L.Ed.2d 445 (2007).
In arriving at a sentence, a district court need not expressly state how each of the § 3553(a) factors influenced its decision: “[t]he district court need not tick off each of the § 3553(a) factors to show that it has considered them.” Instead, appellate courts “assume that district judges know the law and understand their obligation to consider all of the § 3553(a) factors, not just the Guidelines.”
United States v. Autery, 555 F.3d 864, 873 (9th Cir.2009) (quoting United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008 (en banc))).
The record shows that the district court relied on the advisory guidelines only as a starting point. The district court then conducted a well-reasoned and thorough evaluation of the § 3553(a) factors. The district court considered the amount of funds stolen from the United States, the period of time over which the crime was perpetrated, the need to deter both Appellant and others, Appellant’s difficult upbringing and motivation for having committed the instant crime, and sentences imposed upon those convicted of similar crimes. Accordingly, the district court properly exercised its discretion when it sentenced Appellant to an eighteen-month period of incarceration.
Appellant also challenges the district court’s restitution order in which Appellant was ordered to pay $199,125 to the United States. “[Restitution in a criminal case may only compensate a victim for actual losses caused by the defendant’s criminal conduct.” United States v. Gamma Tech Indus., Inc., 265 F.3d 917, 926 (9th Cir.2001). Appellant contends that the restitution order encompasses amounts not caused by the conduct for which she was convicted and, more specifically, amounts not agreed upon in the factual basis supporting Appellant’s plea, the charged offense of conviction or the conviction itself.
The district court was not bound to adhere to the terms agreed upon in the stipulated factual basis at the plea hearing, the charged offense of conviction or the conviction. See U.S.S.G. § 6B1.4(d) (“The court is not bound by the stipulation, but may with the aid of the presentence report, determine the facts relevant to sentencing.”); United States v. Mason, 961 F.2d 1460, 1462 (9th Cir.1992) (“[T]he district court was free to reject the stipulation in light of the true facts set forth in the presentence report.”). The record is clear that the district court was presented with sufficient evidence indicating that each of the challenged acts of theft were directed at the same victim and conducted in the same manner as those acts for which Appellant admitted restitution was proper. Accordingly, each act was part of the embezzlement offense for which Appel*270lant was convicted. As such, the district court did not abuse its discretion by including the challenged amounts in the restitution order.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provid*269ed by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471590/ | MEMORANDUM *
Spalding Laboratories, Inc. (“Spalding”) appeals from the district court’s grant of judgment as a matter of law in favor of Arizona Biological Control, Inc., et. al. (“Arbico”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.
The jury could have reasonably concluded that Arbico’s advertisements were literally false or that the advertisements confused or misled a significant portion of their target audience. See, e.g., Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1144-45 (9th Cir.1997); see also 15 U.S.C. § 1125(a) (setting forth elements of a Lanham Act violation for false or misleading advertising). For instance, Dr. Peterson testified that the number of emerged parasites would “definitely” be lower than the number of larvae contained in a pupa, a fact that would support a finding of literal falsity if Arbico’s claims were found to refer to emerged insects. The jury also could have reasonably concluded that Spalding’s shipments of Fly Predators contained as many as 10,000 to 15,000 larvae. Had the jury drawn that conclusion, it could have found Arbico’s advertisements to be literally false even if larvae, not emerged insects, were the relevant unit of analysis. Finally, the jury was told that Spalding experienced a spike in consumer inquiries in response to Arbico’s advertisements and that many Spald-ing customers defected to Arbico. If the jury found this testimony to be credible, it could have concluded that a significant segment of Arbico’s audience was misled by the advertisements at issue. On this record, issuance of judgment as a matter of law was legally erroneous.
Spalding requests that we instruct the Clerk for the District Court for the Central District of California to assign this case to a different judge upon remand. Without determining whether the district court judge currently assigned would be able to proceed impartially, we conclude that reassignment is appropriate to preserve the appearance of justice. Because a new trial will be required in any event, “the minimal potential for waste or duplication of judicial resources is outweighed by the need to proceed in a manner that preserves the appearance of justice.” In re Ellis, 356 F.3d 1198, 1211 (9th Cir.2004).
In light of the foregoing, we do not reach Spalding’s challenges to the district court’s evidentiary rulings nor Spalding’s appeal of the fee award. The Clerk is instructed to reassign this case.
REVERSED and REMANDED with instructions.
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/8471583/ | MEMORANDUM **
E. Duane Brooks appeals (1) the Rule 12(b)(6) dismissal of his claims against Citibank under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., (2) the grant of summary judgment to Citibank on his claims under the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et. seq., and (3) the imposition of monetary sanctions against him for failing to comply with prior rulings limiting discovery. We affirm.
The FDCPA prohibits “debt collector[s]” from using “any false, deceptive, or misleading representation or means in connection with the collection of any debt.” 15 U.S.C. § 1692e. A “debt collector” is defined as “any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another.” 15 U.S.C. § 1692a(6). A “creditor” is defined as “any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.” 15 U.S.C. § 1692a(4). The text of the FDCPA as well as its legislative history make clear that Congress did not intend the Act to encompass creditors. See S.Rep. No. 95-382, at *2, U.S.Code Cong. & Admin.News 1977, pp. 1695, 1696-97 (“Unlike creditors, who generally are restrained by the desire to protect their good will when collecting past due accounts, independent collectors are likely to have no future contact with the consumer and often are unconcerned with the consumer’s opinion of them.”); id. at *3 (“The term debt collector is not intended to include ... ‘in house’ collectors for creditors so long as they use the creditor’s true business name when collecting.”). Brooks’s own complaint states that “Citibank alleged that [Brooks] was obligated to Citibank for consumer debt on a credit card account maintained by Citibank (‘the debt’),” making it clear that Citibank is a creditor, not a debt collector, under § 1692a(4). Brooks’s assertion that “after reasonable opportunity for investigation and discovery, the evidence will show that Citibank is a debt collector,” represents nothing more than a “[t]hreadbare recital ] of the elements of a cause of action, supported by [a] mere conclusory statement ]” and was therefore properly rejected by the district court. Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981) (“We do not ... necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations.”). The district court thus correctly dismissed Brooks’s FDCPA claims.
There was no error in granting Citibank summary judgment on Brooks’s FCRA claims. Under the FCRA, when an entity that furnishes information to consumer reporting agencies is notified of a “dispute with regard to the completeness of [the] information” it provides, the entity must, among other things, “(A) conduct an investigation with respect to the disputed *263information,” “(B) review all relevant information provided by the consumer reporting agency,” and “(C) report the results of the investigation to the consumer reporting agency.” 15 U.S.C. § 1681s-2(b)(l)(A)-(C). The letters received by Citibank regarding Brooks’s disputed account did not indicate that Brooks’s domestic partner was responsible for it, nor did it claim that Brooks was the victim of fraud; rather, Brooks simply made generic claims of inaccurate account information. It is undisputed that, in response to each dispute form it received, Citibank compared the personal information provided by Brooks to the information in its records (including his home address, social security number, date of birth, and home telephone number), checked the account information, noted that statements for the account had been mailed to Brooks at his listed address, and confirmed the accuracy of the debt. Although Brooks asserts that “Citibank has no policies, procedures or standards for when records outside the general information need to be reviewed or in the alternative was unwilling to disclose the same,” he offers no real analysis of what additional information Citibank should have consulted, particularly in light of the limited information he provided. The district court thus correctly determined that Citibank’s investigation upon receiving notice that Brooks disputed the debt was reasonable as a matter of law.
Nor was there any abuse of discretion in imposing sanctions against Brooks under Federal Rule of Civil Procedure 37 in connection with his discovery requests. In support of its imposition of sanctions, the court noted that Brooks had “steadfastly refused to accept [the court’s] dismissal of the two prior FDCPA claims,” and that he had “also failed to fulfill his obligation to modify and narrow his remaining discovery requests to the single FCRA claim that remains.” The district court further held that Brooks’s additional demands included requests for documents and testimony already produced by Citibank, “[Requests that are either nonsensical or overbroad” and “[Requests that do not need to be resolved prior to summary judgment.” Both the district court’s characterization of Brooks’s discovery requests and its decision to impose sanctions were amply justified and not an abuse of discretion.
Finally, Citibank argues that Brooks filed this lawsuit well aware of the substantial authority making clear that Citibank was not a debt collector within the meaning of the FDCPA, and therefore requests that we award it attorney’s fees pursuant to 15 U.S.C. § 1692k(a)(3). Section 1692k(a)(3) provides that “[o]n a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney’s fees reasonable in relation to the work expended and costs.” Whether a claim was brought in bad faith for the purpose of harassment is a factual finding that we review for clear error, while a district court’s ultimate decision to grant or deny attorney’s fees is reviewed for abuse of discretion. See Guerrero v. RJM Acquisitions LLC, 499 F.3d 926, 933 (9th Cir.2007). Here, the district court made no factual finding with respect to Brooks’s alleged bad faith. Thus, we remand this matter to the district court to determine in the first instance whether Citibank is entitled to attorney’s fees under § 1692k(a)(3).
AFFIRMED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471591/ | MEMORANDUM *
Spalding Laboratories, Inc. (“Spalding”) appeals from the district court’s grant of judgment as a matter of law in favor of Arizona Biological Control, Inc., et. al. (“Arbico”). We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse.
The jury could have reasonably concluded that Arbico’s advertisements were literally false or that the advertisements confused or misled a significant portion of their target audience. See, e.g., Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1144-45 (9th Cir.1997); see also 15 U.S.C. § 1125(a) (setting forth elements of a Lanham Act violation for false or misleading advertising). For instance, Dr. Peterson testified that the number of emerged parasites would “definitely” be lower than the number of larvae contained in a pupa, a fact that would support a finding of literal falsity if Arbico’s claims were found to refer to emerged insects. The jury also could have reasonably concluded that Spalding’s shipments of Fly Predators contained as many as 10,000 to 15,000 larvae. Had the jury drawn that conclusion, it could have found Arbico’s advertisements to be literally false even if larvae, not emerged insects, were the relevant unit of analysis. Finally, the jury was told that Spalding experienced a spike in consumer inquiries in response to Arbico’s advertisements and that many Spald-ing customers defected to Arbico. If the jury found this testimony to be credible, it could have concluded that a significant segment of Arbico’s audience was misled by the advertisements at issue. On this record, issuance of judgment as a matter of law was legally erroneous.
Spalding requests that we instruct the Clerk for the District Court for the Central District of California to assign this case to a different judge upon remand. Without determining whether the district court judge currently assigned would be able to proceed impartially, we conclude that reassignment is appropriate to preserve the appearance of justice. Because a new trial will be required in any event, “the minimal potential for waste or duplication of judicial resources is outweighed by the need to proceed in a manner that preserves the appearance of justice.” In re Ellis, 356 F.3d 1198, 1211 (9th Cir.2004).
In light of the foregoing, we do not reach Spalding’s challenges to the district court’s evidentiary rulings nor Spalding’s appeal of the fee award. The Clerk is instructed to reassign this case.
REVERSED and REMANDED with instructions.
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/8471593/ | MEMORANDUM ***
Edgar Macias appeals from a 37-month sentence imposed by the district court following his guilty plea to one count of wire fraud in violation of 18 U.S.C. § 1343. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
The district court did not abuse its discretion in sentencing based on a two-level enhancement. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). Macias fits within the plain terms of the two-level enhancement applied by the district court. See U.S. Sentencing Guidelines Manual § 2Bl.l(b)(10)(C)(i). Under the Guidelines, a unique mortgage number may be used to identify a specific individual and constitutes a “means of identification” under the statute. See id. cmt. n. 9 (defining “means of identification” by reference to 18 U.S.C. § 1028(d)(7)); see also 18 U.S.C. § 1028(d)(7) (defining “means of identification” as “any name or number that may be used ... to identify a specific individual”). It is irrelevant that Macias obtained his victim’s personal information legally. See U.S. Sentencing Guidelines Manual § 2Bl.l(b)(10)(C)(i).
The district court also did not abuse its discretion in sentencing Macias to 37 months even though a co-participant was sentenced to probation by another district judge. Although it would have been within the district court’s discretion to decrease Macias’s sentence in order to reduce the disparity, see United States v. Tzoc-Sierra, 387 F.3d 978, 980-81 (9th Cir.2004), the district court was not obligated to do so and at sentencing noted the differences between the two participants, including that Macias “teamed up and partnered with someone with such a young age.” [SER 46] See United States v. Marcial-Santiago, 447 F.3d 715, 719 (9th Cir.2006) (“Even if this disparity were assumed to be unwarranted, however, that factor alone would not render Appellants’ sentences unreasonable; the need to avoid unwarranted sentencing disparities is only one factor a district court is to consider in imposing a sentence.”).
Finally, the district court did not abuse its discretion by rejecting Macias’ claim that his criminal history was overrepresented. Cf. United States v. Durham, 941 F.2d 858, 863 (9th Cir.1991) (“We agree that a court should depart upward based on inadequate allowance for past criminal conduct in the defendant’s criminal history category only in those limited cases when a defendant’s record is significantly more serious than that of other defendants in the same criminal history category.”). The district court stated at the outset of sentencing that it had received Macias’ sentencing memorandum, which requested a downward departure of his criminal history category to category I. [ER 47-48, SER 3] The district court heard and considered Macias’ argument as to over-representation and nonetheless found the criminal history category to be “correct.” [SER 39] See United States v. *274Carter, 560 F.3d 1107, 1118 (9th Cir.2009) (“In context, these statements make clear that the district court heard and considered Carter’s arguments, considered the § 3553(a) factors, and reached the conclusion that the Guidelines range was suitable to Carter’s case. Under Rita [v. United States, 551 U.S. 338, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007),] and Carty, this is sufficient.”).
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/8471596/ | MEMORANDUM*
Plaintiffs advertising is protected expressive activity. E.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 508-12, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (plurality opinion). Selling cigarettes isn’t, because it doesn’t involve conduct with a “significant expressive element.” Arcara v. Cloud Books, Inc., 478 U.S. 697, 701-02, 706, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986); cf. Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 550, 121 S.Ct. 2404, 150 L.Ed.2d 532 (2001). It doesn’t even have “an expressive component.” Talk of the Town v. Dep’t of Fin. & Bus. Servs., 343 F.3d 1063, 1069 (9th Cir.2003).
San Francisco Ordinance 194-08 limits where cigarettes may be sold; it doesn’t prevent plaintiff from advertising. Even assuming it incidentally restricts plaintiffs advertising in a way that wouldn’t be permissible as a direct regulation of advertising, that’s not enough. “[E]very civil and criminal [regulation] imposes some conceivable burden on First Amendment protected activities.” Arcara, 478 U.S. at 706, 106 S.Ct. 3172.
Neither does the ordinance have “the inevitable effect of singling out those engaged in expressive activity.” Id. at 704, 707, 106 S.Ct. 3172. Of the three groups “singled out” by the ordinance — pharmacies, smokers and cigarette companies— only the cigarette companies are even arguably engaged in expressive activity.
And even if the ordinance did have the inevitable effect of singling out expressive activity, “a differential burden ... is insufficient by itself to raise First Amendment concerns.” Leathers v. Medlock, 499 U.S. 439, 452, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991). The burden must be “directed at, or present[ ] the danger of suppressing, particular ideas.” Id. at 453, 111 S.Ct. 1438. No such danger is present here. The censorial motive plaintiff attributes to defendants is always present when the government restricts sales of a product. That can’t be sufficient. Cf. 44 Liquormart, 517 U.S. at 508-12, 116 S.Ct. 1495; Lorillard, 533 U.S. at 550, 121 S.Ct. 2404.
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/8471600/ | MEMORANDUM *
Wu Chen, a native and citizen of China, petitions pro se for review of a decision of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Chen asserted past persecution and a fear of future persecution on account of his girlfriend’s underage pregnancy, which was in violation of China’s family planning policies. Without reaching the merits of Chen’s claim, the IJ denied relief on the ground that Chen’s testimony was not credible, and the BIA affirmed. We have jurisdiction under 8 U.S.C. § 1252.
When, as here, “the BIA adopts the decision of the IJ, we review the IJ’s decision as if it were that of the BIA.” Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir.2004). We review for substantial evidence the BIA’s adverse credibility finding, and will uphold the agency’s decision unless the evidence compels a contrary conclusion. Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir.2004). “While the substantial evidence standard demands deference to the IJ, we do not accept blindly an IJ’s conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the IJ is fatally flawed.” Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002) (internal quotation marks and alterations omitted). We grant the petition for review.
Substantial evidence does not support the IJ’s adverse credibility determination. To the extent that the IJ based her adverse credibility determination on Chen’s demeanor, she failed to refer specifically and cogently to the non-credible aspects of his demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003). The IJ’s findings that Chen was vague as to which authorities fined him for violating the one-child policy, that his statement that he was not given immigration paperwork on the airplane prior to its landing in Paris was implausible, and that he testified inconsistently regarding his use of forged passports, are not supported because Chen testified consistently with regard to those issues and nothing in the record refutes his testimony. See Paramasamy v. Ashcroft, 295 F.3d 1047, 1052-54 (9th Cir.2002).
Inconsistencies in Chen’s descriptions of his marital status are explained by the illegality of his underage marriage in China. Variances in his stated age were explained by the Chinese method of calculating age, and were immaterial in any event because all of the stated ages were below the age at which Chen’s marriage would have been legal. The IJ improperly relied on speculation and conjecture when she found that Chen’s inability to remember certain details of his journey to the United States was inconsistent with his level of sophistication. See Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.2004). Finally, in the remaining findings *280the IJ impermissibly relied upon minor inconsistencies that did not go to the heart of Chen’s claim, see Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir.1998), or inconsistencies that Chen was not given a reasonable opportunity to explain, see Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004).1
Accordingly, we grant the petition for review and remand to the BIA for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Section 101(a)(3) of the REAL ID Act of 2005 eliminates the requirement that a basis for an adverse credibility finding must go to the heart of an immigrant's claim of persecution. 8 U.S.C. § 1158(b)(l)(B)(iii). Because Chen filed his application for relief before May 11, 2005, this provision does not apply. 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/8471605/ | MEMORANDUM **
Marcos Polo Salazar-Reyes petitions for review of the Board of Immigration Appeal’s (“BIA”) affirmance of an immigration judge’s (“IJ”) decision sustaining his removability due to a 2004 theft conviction and pretermitting his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252, and we grant in part and deny in part the petition for review and remand for further consistent proceedings.
Under 8 C.F.R. § 204.2(h)(2), an approved visa petition that is subsequently approved again “shall be regarded as a reaffirmation or reinstatement of the validity of the original petition, except ... when an immigrant visa has been issued to the beneficiary as a result of the petition approval.” The BIA reasonably interpreted this provision as preventing Salazar-Reyes from reusing his approved visa petition to apply for adjustment of status, and we defer to the BIA’s precedential, reasonable interpretations of the immigration statutes and regulations. See Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011—13 (9th Cir.2006); see also Lal v. INS, 255 F.3d 998, 1004 (9th Cir.2001). Accordingly, the BIA properly affirmed the IJ’s conclusion that Salazar-Reyes was ineligible for adjustment of status.
However, because the BIA dismissed Salazar-Reyes’s appeal before we issued our decision in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), Salazar-Reyes was precluded from arguing that Cuevas-Gaspar compels the imputation of 8 U.S.C. § 1229b(a)(l)’s requirement of at least five years of lawful permanent residence. “We do not require an alien to exhaust administrative remedies on legal issues based on events that occur after briefing to the BIA has been completed.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir.2004). We therefore remand to the BIA to allow it to consider in the first instance Salazar-Reyes’s eligibility for cancellation of removal in light of Cuevas-Gaspar and our recent decision in Mercado-Zazueta v. Holder, No. 07-71428 (9th Cir.2009). See INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
PETITION GRANTED in part; DENIED in part; and REMANDED for further proceedings consistent with this memorandum disposition.
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/8471609/ | MEMORANDUM *
In 08-35427, a federal grand jury witness appeals from the district court’s denial of his motion for return of property under Federal Rule of Criminal Procedure 41(g) and for an evidentiary hearing. The district court did not abuse its discretion in declining to exercise its equitable jurisdiction under the four-factor analysis established in Ramsden v. United States, 2 F.3d *289322 (9th Cir.1993). The district court also did not abuse its discretion in denying the motion for an evidentiary hearing. The witness did not proffer expected testimony that would have been relevant to the Ramsden factors. The case cited by the witness, United States v. Martinson, 809 F.2d 1364 (9th Cir.1987), is inapposite because it concerns the merits of a motion for return of property, which the district court would only reach after deciding under Ramsden to exercise equitable jurisdiction. The witness also points to Mr. Lucky Messenger Service, Inc. v. United States, 587 F.2d 15 (7th Cir.1978), which bears on Ramsden factor one. That case, however, is factually distinguishable from this case as it now stands. Neither the property at issue nor the lapse in time are sufficient to support a claim that the government has displayed callous disregard for the witness’s constitutional rights. We affirm without prejudice to the witness renewing his motion on a proper showing of the Ramsden factors.
In 08-35537, the witness appeals from the district court’s denial of his motion for a copy of his own grand jury testimony. Because the witness seeks a copy of his testimony transcript, we need not determine the standard that applies when a witness seeks mere access to his testimony transcript. Compare In re Grand Jury, 566 F.3d 12 (1st Cir.2009), with In re Grand Jury, 490 F.3d 978 (D.C.Cir.2007) (per curiam). The district court did not abuse its discretion in determining that the witness’s “particularized need” was outweighed by the government’s need for grand jury secrecy. We observe that the district court denied the motion without prejudice.
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/8471614/ | MEMORANDUM *
Enders Adem Abdu petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“U”) denial of his request for asylum and vacating the I J’s grant of withholding of removal. We hold that the BIA’s decision was supported by substantial evidence and deny the petition for review.
We review the BIA’s decision determining whether an alien has established eligibility for asylum or withholding of removal for substantial evidence. Malkandi v. Mukasey, 544 F.3d 1029, 1035 (9th Cir.2008). We have jurisdiction to review the BIA’s denial of withholding of removal under 8 U.S.C. § 1252(a)(1). We reject the government’s contention that we lack jurisdiction to review the BIA’s denial of Abdu’s asylum request. We have jurisdiction to review the BIA’s denial of asylum under the REAL ID Act, § 1252(a)(2)(D), as this is a mixed question of law and fact. See Khan v. Holder, 584 F.3d 773 (9th Cir.2009).
The BIA held that the Oromo Liberation Front (“OLF”) is a terrorist organization as defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III). This finding is supported by substantial evidence. Under § 1182(a)(3)(B)(vi)(III), a terrorist organization is “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).” These “activities” include “commit[ting] ... under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity.” See § 1182(a)(3)(B)(iv)(I). “[Tjerrorist activity” “means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves,” among other things, “[t]he use of any ... explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” § 1182(a)(3)(B)(iii)(V). The BIA relied on evidence in the record showing that the OLF had used land mines to derail cargo and passenger trains, killing between five to fifteen people. This constitutes terrorist activity under the statute.
Abdu argues that these actions by the OLF cannot constitute “terrorist activity” because they were acts of self-defense against the Ethiopian government and because the OLF did not target civilians. This reading of the statute is incorrect. In Khan v. Holder, 584 F.3d 773 (9th Cir.2009), we held that there is no exception in § 1182(a)(3)(B)(iii) for acts of armed resistance against governmental military targets even if such resistance is permitted under international law. Because the OLF acted unlawfully under Ethiopian *297law, its actions constituted terrorist activity-
The BIA’s holding that Abdu engaged in terrorist activity by soliciting funds and members for the OLF, as defined in § 1182(a)(3)(B)(iv)(IV)(cc) and § 1182(a)(3)(B)(iv)(V)(cc), is also supported by substantial evidence. Abdu testified that he knew the OLF was an armed organization fighting against the government. He also admitted to raising money and recruiting members for the OLF.
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/8471616/ | MEMORANDUM *
Eng Chhun petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his request for asylum and withholding of removal. We hold that the BIA’s decision was supported by substantial evidence and deny the petition for review.
We review the BIA’s decision determining whether an alien has established eligibility for asylum or withholding of removal for substantial evidence. Malkandi v. Mukasey, 544 F.3d 1029, 1035 (9th Cir.2008). We have jurisdiction to review the BIA’s denial of withholding of removal under 8 U.S.C. § 1252(a)(1). We reject the government’s contention that we lack jurisdiction to review the BIA’s denial of Chhun’s asylum request. We have jurisdiction to review the BIA’s denial of asylum under the REAL ID Act, § 1252(a)(2)(D), as this is a mixed question of law and fact. See Khan v. Holder, 584 F.3d 773 (9th Cir.2009).
The BIA held that the Cambodian Freedom Fighters (“CFF”) is a terrorist organization as defined in § 1182(a)(3)(B)(vi)(III). This holding is supported by substantial evidence. Under § 1182(a)(3)(B)(vi)(III), a terrorist organization is “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).” These “activities” include “commit[ting] ... under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity.” See § 1182(a)(3)(B)(iv)(I). “[TJerrorist activity ... means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves,” among other things, “[t]he use of any ... explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain) ... with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” *299§ 1182(a)(3)(B)(iii)(V). The BIA relied on evidence in the record showing that the CFF had attempted to overthrow the Cambodian government through violent means, including attempting a coup in November 2000, during which the CFF attacked three military bases and caused the death of eight or nine people. This constitutes terrorist activity under the statute.
Chhun argues that these actions by the CFF cannot constitute “terrorist activity” because the CFF’s goal is to spread democracy and the CFF is registered as a political organization in California. These factors are irrelevant to whether the CFF is a terrorist organization under the Immigration and Nationality Act (“INA”). In Khan v. Holder, 584 F.3d 773 (9th Cir.2009), we have held that there is no exception in § 1182(a)(3)(B)(iii), for acts of armed resistance against governmental military targets even if such resistance is permitted under international law. Because the CFF acted unlawfully under Cambodian law, its actions constituted terrorist activity regardless of its democratic goals. There is also no exception in the statute for organizations registered as political entities in the United States.
The BIA’s holding that Chhun failed to establish through clear and convincing evidence that he did not know, and should not reasonably have known, that the CFF was a terrorist organization is also supported by substantial evidence. Chhun admitted that he raised money to feed CFF fighters and acknowledged the CFF’s violent attempted coup to overthrow the Cambodian government. These activities constitute terrorist activity under § 1182(a)(3) (B) (iii).
Chhun argues that the BIA erred by holding that he poses a danger to the security of the United States. This argument is foreclosed by the INA. Under 8 U.S.C. § 1231(b)(3)(B)(iv), any alien who engaged in terrorist activities is one for whom there are “reasonable grounds to believe that the alien is a danger to the security of the United States.” Such aliens are statutorily ineligible for withholding of removal.
Petition for review DENIED.
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/8471618/ | MEMORANDUM **
Sherie Campbell (“Campbell”) appeals an adverse grant of summary judgment on her state law claims against the City of Boise, Idaho (“Boise”), for unlawful search and unlawful arrest under the Idaho Constitution and the denial of her motion to remand these claims to state court.
After properly dismissing Campbell’s 42 U.S.C. § 1983 claims in light of Virginia v. Moore, - U.S. -, 128 S.Ct. 1598, 170 L.Ed.2d 559 (2008), the district court granted summary judgment on Campbell’s remaining state law claims rather than remanding them to Idaho state court because no Idaho authority suggests the existence of statutory or direct causes of action for violations of the Idaho Constitution.
As the district court noted, although no Idaho state appellate court has resolved the question, all relevant state district court decisions hold no such causes of action exist. See Bjorkman v. Moscow Sch. Dist. No. 281, Case No. CV-97-00898, at *8 (D. Idaho, filed Nov. 29, 1999) (citing Spurrell v. Bloch, 40 Wash.App. 854, 701 P.2d 529, 535 (Wash.Ct.App.1985)); Leibe v. Idaho Falls Sch. Dist. No. 91, Case No. CV-97-1101, at *21 (D. Idaho, filed Sept. 16, 1998) (a state constitutional guarantee does not establish a cause of action “without the aid of augmenting legislation”) (citing Spurrell, 701 P.2d at 535); Willie v. Oneida Sch. Dist. No. 351, Case No. CV-04-537-E-50 (D. Idaho, filed Jan. 17, 2001) (no state constitutional cause of action exists where separate legislation outlines due process rights of an annual contract teacher).
Given the absence of any state authority in support of Campbell’s theory of recovery, the district court did not abuse its discretion by granting summary judgment. Federal courts may exercise jurisdiction over remaining state law claims when, as here, judicial economy, convenience, fairness, and comity support that result. See Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). We will affirm a district court’s application of these factors unless “the ju*301dicial action is arbitrary, fanciful or unreasonable” or no reasonable person would take the view adopted by the trial court. Peek v. United States, 321 F.2d 934, 942 (9th Cir.1963) (citations omitted).
To prevail on remand, Campbell would have had to convince the Idaho courts to recognize, for the first time, either a direct cause of action for constitutional violations or an unprecedented reading of the Idaho Tort Claims Act, Idaho Code § 6-903(a). Even if she were to succeed in doing so, Campbell’s claim would still fail unless an Idaho court also found that her arrest and the search incident to it were unlawful under Article 1, § 17 of the Idaho Constitution, an unlikely event in light of Virginia v. Moore, 128 S.Ct. 1598.
Under these circumstances, the district court’s actions were not “arbitrary, fanciful or unreasonable.” Peek, 321 F.2d at 941 (citation omitted).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471620/ | MEMORANDUM **
David Cannon (“Cannon”) appeals his misdemeanor conviction under the Lacey Act, 16 U.S.C. § 3372(a)(1), for transportation of wildlife taken in violation of a regulation of the United States. The parties are familiar with the facts of this case, which we repeat here only to the extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and reverse.
Cannon killed a coyote on Edwards Air Force Base in violation of Air Force Flight Test Center Instruction 32-8, then dragged the coyote carcass off-base.1 Instruction 32-8 is not published in the Code of Federal Regulations or the Federal Register.
Cannon argues for the first time on appeal that the unpublished hunting regulations set out in Instruction 32-8 are not regulations for the purposes of the Lacey Act because they were not published. We review for plain error. United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir.2006). Cannon’s argument is not persuasive. There is no case or statute to indicate that publication is a defining and necessary characteristic of a federal regulation.
Cannon next argues that, despite clear text prohibiting transport “by any means,” the Lacey Act excludes non-commercial activity. We review questions of statutory interpretation de novo. United States v. Adams, 343 F.3d 1024, 1027 (9th Cir.2003). We see no need, however, to look beyond the plain language of the statute, which is consistent with Congress’s intention to conserve wildlife.
Cannon also argues for the first time on appeal that the evidence is insufficient to convict him because he did not have actual notice of the base hunting regulations. We review for plain error. Hartz, 458 F.3d at 1019. We will reverse Cannon’s conviction if plain error affected his substantial rights and the error would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The Administrative Procedure Act provides that “[ejxcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.” 5 U.S.C. § 552(a)(1); see also United States v. Mowat, 582 F.2d 1194, 1201 (9th Cir.1978) (upholding trespassing conviction where defendant had actual notice of an unpublished Navy instruction); United States v. Hall, 742 F.2d 1153, 1155 (upholding trespassing convic*303tion where defendant had actual notice of unpublished Air Force base regulation). Agencies must publish “substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency” in the Federal Register. 5 U.S.C. § 552(a)(1)(D); see also 44 U.S.C. § 1505(a) (requiring documents having general applicability and legal effect to be published in the Federal Register). Here, Instruction 32-8 has general applicability and legal effect. The base hunting regulations should have been published in the Federal Register.
Cannon cannot be convicted under the Lacey Act unless he violated a federal regulation. Because the base hunting regulations were not published, however, the actual notice provision of 5 U.S.C. § 552(a)(1)(D) applies. The evidence in the record is insufficient to show that Cannon had actual notice of the base hunting regulations. Cannon therefore may not “be adversely affected” by those regulations.2 Id. Because Cannon’s conviction under the Lacey Act depends upon adverse application of the base hunting regulations, of which Cannon had no actual notice, the Lacey Act does not apply and the conviction must be set aside.
Accordingly, we REVERSE Cannon’s conviction and direct the district court to enter a judgment of acquittal.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Section 2.1 states that fishing and hunting permits are required to fish or hunt on the base. Cannon did not possess such a permit. Section 5.3.7 of Instruction 32-8 prohibits the hunting of predators, including coyotes.
. Whether Cannon should have known about the hunting regulations is relevant to the knowledge element of the crime, but is not pertinent to the question whether Cannon had actual notice of the regulations, and thus whether the regulations could be adversely applied against him in the first instance. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471622/ | MEMORANDUM **
Having pled guilty, Defendant-Appellant Jason Matson (“Matson”) appeals the district court’s denial of his motion to suppress evidence. We address each of his arguments in turn.
Matson first argues that border patrol agents did not have reasonable suspicion to stop his vehicle. To conduct an investigatory stop, an officer must have “a reasonable suspicion that the particular person being stopped has committed or is about to commit a crime.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir.2000) (en banc) (emphasis removed). In the border patrol context, reasonable suspicion can be based on the “(1) characteristics of the area [in which the vehicle is encountered]; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the drive[r] including obvious attempts to evade officers; (6) appearance or behavior of the passengers; (7) model and appearance of the vehicle; and (8) officer experience.” United States v. Tiong, 224 F.3d 1136, 1139 (9th Cir.2000).
The border patrol agents had reasonable suspicion to pull Matson over. They were situated in Danville, Washington, a small, isolated town close to the Canadian border, which, probably due to those three characteristics, had become a hot spot for illicit smuggling activity. Adding to the agents’ already-heightened awareness was their discovery of Ecstasy and Ritalin behind the Danville market the day before. Matson, driving a rental car, pulled in to the same market at 9:50 p.m., almost two hours after it had closed. *305When Matson, “kind of covering his face,” proceeded to use a pay phone while holding a cell phone in his hand, the agents had enough evidence of criminal wrongdoing to justify stopping Matson’s vehicle shortly after it left the market.
Matson next argues that even if the stop was justified, he was detained longer than was reasonable under the circumstances. This claim too is without merit. As an initial matter, the district court’s finding that the stop lasted 35 minutes was not clearly erroneous. As to the reasonableness of the 35-minute stop, the agents needed a certified canine to complete their investigation into whether Matson was involved in illegal drug activity. Finding the only such canine in the area took some time, but there is nothing to suggest that the agents did anything less than “diligently pursue[ ] a means of investigation that was likely to confirm or dispel their suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
Finally, Matson argues that the canine used to detect and find the drugs was not reliable. The dog’s below-average score on one of twenty-eight testing categories (while scoring average or above average on the remaining twenty-seven) did not render it unreliable.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471650/ | PER CURIAM.
ORDER
John D. Miller petitions for a writ of mandamus to direct the United States Court of Appeals for Veterans Claims to transmit his notice of appeal of the Court of Appeals for Veterans Claims’ judgment in Miller v. DVA, No. 06-0933, to this court.
The Court of Appeals for Veterans Claims entered judgment on July 30, 2008. Miller filed a notice of appeal on September 29, 2008. The Court of Appeals for Veterans Claims issued its mandate on October 7, 2008. Miller then filed the *548instant mandamus petition seeking to require the Court of Appeals for Veterans Claims to transmit his notice of appeal to this court.
After Miller filed his mandamus petition, this court received Miller’s appeal of the judgment of the Court of Appeals for Veterans Claims in Miller v. DVA, No. 06-0933. Miller’s appeal was docketed as appeal no.2009-7027. Because Miller has received the relief sought in his mandamus petition, the petition is moot.
Accordingly,
IT IS ORDERED THAT:
The petition is denied as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471598/ | MEMORANDUM *
Wu Chen, a native and citizen of China, petitions pro se for review of a decision of the Board of Immigration Appeals (“BIA”) summarily affirming an immigration judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). Chen asserted past persecution and a fear of future persecution on account of his girlfriend’s underage pregnancy, which was in violation of China’s family planning policies. Without reaching the merits of Chen’s claim, the IJ denied relief on the ground that Chen’s testimony was not credible, and the BIA affirmed. We have jurisdiction under 8 U.S.C. § 1252.
When, as here, “the BIA adopts the decision of the IJ, we review the IJ’s decision as if it were that of the BIA.” Hoque v. Ashcroft, 367 F.3d 1190, 1194 (9th Cir.2004). We review for substantial evidence the BIA’s adverse credibility finding, and will uphold the agency’s decision unless the evidence compels a contrary conclusion. Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir.2004). “While the substantial evidence standard demands deference to the IJ, we do not accept blindly an IJ’s conclusion that a petitioner is not credible. Rather, we examine the record to see whether substantial evidence supports that conclusion and determine whether the reasoning employed by the IJ is fatally flawed.” Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002) (internal quotation marks and alterations omitted). We grant the petition for review.
Substantial evidence does not support the IJ’s adverse credibility determination. To the extent that the IJ based her adverse credibility determination on Chen’s demeanor, she failed to refer specifically and cogently to the non-credible aspects of his demeanor. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003). The IJ’s findings that Chen was vague as to which authorities fined him for violating the one-child policy, that his statement that he was not given immigration paperwork on the airplane prior to its landing in Paris was implausible, and that he testified inconsistently regarding his use of forged passports, are not supported because Chen testified consistently with regard to those issues and nothing in the record refutes his testimony. See Paramasamy v. Ashcroft, 295 F.3d 1047, 1052-54 (9th Cir.2002).
Inconsistencies in Chen’s descriptions of his marital status are explained by the illegality of his underage marriage in China. Variances in his stated age were explained by the Chinese method of calculating age, and were immaterial in any event because all of the stated ages were below the age at which Chen’s marriage would have been legal. The IJ improperly relied on speculation and conjecture when she found that Chen’s inability to remember certain details of his journey to the United States was inconsistent with his level of sophistication. See Kaur v. Ashcroft, 379 F.3d 876, 887 (9th Cir.2004). Finally, in the remaining findings *280the IJ impermissibly relied upon minor inconsistencies that did not go to the heart of Chen’s claim, see Garrovillas v. INS, 156 F.3d 1010, 1014 (9th Cir.1998), or inconsistencies that Chen was not given a reasonable opportunity to explain, see Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir.2004).1
Accordingly, we grant the petition for review and remand to the BIA for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Section 101(a)(3) of the REAL ID Act of 2005 eliminates the requirement that a basis for an adverse credibility finding must go to the heart of an immigrant's claim of persecution. 8 U.S.C. § 1158(b)(l)(B)(iii). Because Chen filed his application for relief before May 11, 2005, this provision does not apply. 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/8471599/ | CALLAHAN, Circuit Judge,
dissenting:
I respectfully dissent from the decision to grant Chen’s petition because, in my view, the IJ’s adverse credibility determination was supported by substantial evidence and the record does not compel a contrary conclusion.
As the majority explains, we are reviewing the IJ’s decision as though it were the opinion of the BIA. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). In doing so, we must accept the IJ’s findings of fact unless the evidence compels a contrary conclusion. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). This is an extremely deferential standard of review, and it is not enough that the evidence supports a contrary conclusion, or that we would have weighed the evidence differently. See id. To reverse the IJ’s findings, the evidence must be so overwhelming that “any reasonable adjudicator” would be compelled to reach a eon-trary conclusion. 8 U.S.C. § 1252(b)(4)(B). Even though the majority identifies problems with some of the IJ’s findings, the evidence, when viewed in its entirety, does not compel reversal.
Although the majority dismisses discrepancies in the evidence regarding Chen’s age and marital status as “immaterial” or otherwise explainable, these discrepancies go to “the heart” of Chen’s claim because they relate to the basis for his alleged persecution. See De Leon-Barrios v. INS, 116 F.3d 391, 394 (9th Cir.1997). According to Chen, he was persecuted because he and his girlfriend conceived a child out of wedlock and attempted to wed when they were underage. Specifically, he claimed that his girlfriend became pregnant while they were both in high school, that this led to their expulsion from school, and that government officials repeatedly insisted that they terminate the pregnancy. He testified that they obtained a false marriage license, which government officials then confiscated, and that about a month before his girlfriend/wife was about to give birth, officials set an ultimatum for an abortion which led Chen’s mother to arrange his escape from China.
In contrast to this harrowing testimony, Chen told an INS agent at the Miami Airport that he was not married, and that he had come to the United States to work as a waiter, only adding as an apparent afterthought that his girlfriend was pregnant when he left China and that this “was not allowed.” These last two statements do not directly conflict with Chen’s testimony, and he was able to give a plausible explanation for the uncertainty surround*281ing his marital status, but these inconsistencies, when coupled with other evidence, seriously call into doubt whether Chen was persecuted in the way he claims.
Most troubling is his daughter’s purported birth certificate, which — in contrast to Chen’s statements that he was 18 when she was born — indicates that both he and his wife were 21 years old. Even though at 21 Chen would still be too young to many under Chinese law, that does not render “immaterial” the significant doubt cast on Chen’s story by this document. Indeed, Chen’s listed age on the birth certificate calls into question the authenticity of the document itself, and thus whether Chen in fact had a child in violation of China’s family planning policies. Even if the document is authentic, it calls into question Chen’s story that he and his girlfriend were 17 or 18 when they were expelled from school and, as a result, his entire stoiy of subsequent persecution. The conflicting evidence as to their ages cannot be accounted for simply by differences in how the Chinese calculate age because there is no evidence that such calculations result in a discrepancy as great as three years.
Further, the other purported proof that Chen did, in fact, have a child fails to comport with the chronology of his testimony regarding his persecution and flight from China. According to Chen, he fled China following a visit by government officials to his home in late June 2001, and his daughter was born soon thereafter in early August. However, a purported photograph of the child at age two-months proffered by Chen depicts a child whom all parties concede appears to be much older. Chen was given an opportunity to explain this discrepancy to the IJ but could not. Because the baby’s apparent age does not coincide with his claim of escaping China just prior to ber birth, Chen’s own evidence again fails to support his story.
Moreover, in contrast to Chen’s detailed testimony about how his mother arranged for his escape, the record shows that Chen told the government agent at the Miami Airport that it was his father who made all the travel arrangements. Though this may be a “minor” inconsistency, when viewed alongside the more salient discrepancies discussed above, it further undermines Chen’s testimony regarding his alleged persecution and escape.1 These discrepancies and the resulting overall weakness of Chen’s story support the IJ’s adverse credibility determination. See Kaur v. Gonzales, 418 F.3d 1061, 1065-67 (9th Cir.2005). Because I cannot conclude that the record compels a contrary conclusion, I would deny the petition for review.
. The record also shows that Chen made inconsistent statements about whether he obtained his false United States passport in France or Cambodia. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471602/ | MEMORANDUM *
The San Carlos Apache Tribe (Tribe) filed this notice of appeal within 60 days of the filing of the January 8, 2008 order altering the role of the Water Commissioner. Although the notice of appeal was not filed within 60 days of the entry of the district court’s two orders issued August 24, 2007 (referred to collectively as the “Order”) approving the Upper Valley Forbearance Agreement (UVFA) and dismissing the Pumping Complaint as to certain parties, the Order is “inextricably bound up with the order from which appeal is taken.” Idaho Watersheds Project v. Hahn, 307 F.3d 815, 824 (9th Cir.2002). Therefore, the Order merged with the January 8, 2008 order, and the notice of appeal regarding all three orders was timely. See Hook v. Ariz. Dep’t of Corr., 107 F.3d 1397, 1401-02 (9th Cir.1997).
“We ... have jurisdiction to determine our own jurisdiction.” Special Invs., Inc. v. Aero Air, Inc., 360 F.3d 989, 992 (9th Cir.2004). Because the Tribe appeals from an interlocutory decision, we have jurisdiction under 28 U.S.C. § 1292(a)(1) only if the Order: (1) has the “practical effect of the grant or denial of an injunction”; (2) has “serious, perhaps irreparable consequences” for the Tribe; and (3) “can be effectively challenged only by immediate appeal.” Thompson v. Enomoto, 815 F.2d 1323, 1326-27 (9th Cir.1987) (citing Carson v. Am. Brands, Inc., 450 U.S. 79, 84, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981)). Here, the Tribe has not shown that it would experience serious and irreparable harm from the Order. See id. at 1327; see also Shee Atika v. Sealaska Corp., 39 F.3d 247, 249 (9th Cir.1994). The district court held that the Order “does not condone or authorize pumping of sub-flow” and does not effect any “change from the situation that presently exists” except to the extent settling landowners are able to obtain rights under the Globe Equity Decree (Decree). Dist. Ct. Order, Aug. 24, 2007 at 6. The Tribe retains all its rights to enforce the Decree, and has made no showing that the Order changes the status quo.
Furthermore, the Tribe lacks standing to bring this appeal. See Waller v. Fin. Corp. of Am., 828 F.2d 579, 582-83 (9th Cir.1987) (“[A] non-settling defendant, in general, lacks standing to object to a partial settlement ... [except] where it can demonstrate that it will sustain some formal legal prejudice as a result of the settlement.”). For the same reasons that it has not shown any serious and irreparable harm, the Tribe has failed to show it will suffer an injury or legal prejudice stemming from the Order. Id. Nor has the Tribe shown how it would benefit if the Order were vacated, and therefore has not demonstrated that its alleged harm “will [likely] be redressed by a favorable decision.” Renee v. Duncan, 573 F.3d 903, 908-09 (9th Cir.2009) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations omitted)).
The Tribe alleges that it may have greater difficulty and expense enforcing its rights under the Decree because of the Order. Such practical difficulties are not a cognizable legal injury for standing purposes. Waller, 828 F.2d at 584. The Tribe also alleges that, as a practical matter, the Order authorizes and encourages the settling landowners to take Gila River *284water in violation of the Decree. Indeed, the Order acknowledges that many landowners without rights under the Gila Decree operate wells that are “likely pumping sub-flow.” Dist. Ct. Order, Aug. 24, 2007 at 5. Because the district court is sitting in equity and retains jurisdiction over the decree for the sole purpose of protecting the “rights of the parties under the Decree,” Dist. Ct. Order, Aug. 24, 2007 at 4, we must assume that the district court will resolve the Pumping Complaint in an equitable and judicially expedient manner so as to protect the rights of all the parties to the Decree, including the Tribe’s. See Dist. Ct. Order, August 24, 2007 at 6 (holding that the UVFA does not “in any man'ner inhibit [the district court] from enjoining well pumping, if wells are determined to be pumping water in violation of the Decree”).
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/8471604/ | MEMORANDUM **
Marcos Polo Salazar-Reyes petitions for review of the Board of Immigration Appeal’s (“BIA”) affirmance of an immigration judge’s (“IJ”) decision sustaining his removability due to a 2004 theft conviction and pretermitting his application for adjustment of status. We have jurisdiction under 8 U.S.C. § 1252, and we grant in part and deny in part the petition for review and remand for further consistent proceedings.
Under 8 C.F.R. § 204.2(h)(2), an approved visa petition that is subsequently approved again “shall be regarded as a reaffirmation or reinstatement of the validity of the original petition, except ... when an immigrant visa has been issued to the beneficiary as a result of the petition approval.” The BIA reasonably interpreted this provision as preventing Salazar-Reyes from reusing his approved visa petition to apply for adjustment of status, and we defer to the BIA’s precedential, reasonable interpretations of the immigration statutes and regulations. See Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011—13 (9th Cir.2006); see also Lal v. INS, 255 F.3d 998, 1004 (9th Cir.2001). Accordingly, the BIA properly affirmed the IJ’s conclusion that Salazar-Reyes was ineligible for adjustment of status.
However, because the BIA dismissed Salazar-Reyes’s appeal before we issued our decision in Cuevas-Gaspar v. Gonzales, 430 F.3d 1013 (9th Cir.2005), Salazar-Reyes was precluded from arguing that Cuevas-Gaspar compels the imputation of 8 U.S.C. § 1229b(a)(l)’s requirement of at least five years of lawful permanent residence. “We do not require an alien to exhaust administrative remedies on legal issues based on events that occur after briefing to the BIA has been completed.” Alcaraz v. INS, 384 F.3d 1150, 1158 (9th Cir.2004). We therefore remand to the BIA to allow it to consider in the first instance Salazar-Reyes’s eligibility for cancellation of removal in light of Cuevas-Gaspar and our recent decision in Mercado-Zazueta v. Holder, No. 07-71428 (9th Cir.2009). See INS v. Ventura, 537 U.S. 12, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
PETITION GRANTED in part; DENIED in part; and REMANDED for further proceedings consistent with this memorandum disposition.
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/8471606/ | MEMORANDUM **
William J. Bennett (“Bennett”) appeals the grant of qualified immunity and summary judgment in favor of Officer Sean Gow (“Officer Gow”), Jane Doe Gow, and Grays Harbor County (the “County”). We affirm.
A. Probable Cause for Arrest
An officer has probable cause for arrest if “ ‘the facts and circumstances *287within the arresting officer’s knowledge are sufficient to warrant a prudent person to believe that a suspect has committed, is committing, or is about to commit a crime.’” Mackinney v. Nielsen, 69 F.3d 1002, 1005 (9th Cir.1995) (quoting United States v. Hoyos, 892 F.2d 1387, 1392 (9th Cir.1989)). Here, Bennett had possession of Deann Beglinger’s driver’s license and refused to return it to her; Officer Gow thus had probable cause to believe Bennett had committed third degree theft. See Wash. Rev.Code § 9A.56.020(1)(a)(2009). The arrest of Bennett was constitutionally reasonable, and the district court properly granted Officer Gow qualified immunity for the arrest. Because “[t]he existence of probable cause is a complete defense to an action for false arrest, false imprisonment, or malicious prosecution,” McBride v. Walla Walla County, 95 WashApp. 33, 975 P.2d 1029, 1032 (Wash.Ct.App.1999), summary judgment was also appropriate on Bennett’s state law claim for false imprisonment.
B. Excessive Force and Battery
Police authority “to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it.” Graham v. Connor, 490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989). “Determining whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth Amendment [as a matter of law] requires a careful balancing of ‘the nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against the countervailing governmental interests at stake.” Id. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)).
Here, although the crime was relatively minor, Bennett turned the encounter from bad to worse by refusing Officer’s Gow’s instructions to hand him the license and by walking away despite the officer’s instructions to stop. Bennett also twisted away when Officer Gow began to handcuff him. Officer Gow then pushed Bennett to the ground using relatively minor force and finished handcuffing him. Although certainly uncomfortable and unpleasant, the take-down was not an objectively unreasonable use of force, and the district court properly granted qualified immunity to Officer Gow on this claim.
Summary judgment on the battery claim was also appropriate. Although a claim for battery can “[arise] out of the use of excessive force to effectuate an arrest,” Staats v. Brown, 139 Wash.2d 757, 991 P.2d 615, 627-28 (2000), if an “officer’s] use of force was reasonable,” then any “battery claims against the [officer] fail because the touching was lawful.” McKinney v. City of Tukwila, 103 Wash.App. 391, 13 P.3d 631, 641 (Wash.Ct.App.2000).
C. Outrage
“The tort of outrage requires the proof of three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) actual result to plaintiff of severe emotional distress.” Kloepfel v. Bokor, 149 Wash.2d 192, 66 P.3d 630, 632 (2003). The first element requires proof of “behavior so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (internal quotations and citations omitted). Even viewing all facts in the light most favorable to Bennett, Officer Gow’s conduct was not so “extreme” or “atrocious” as “to go beyond all possible bounds of deeency.” Summary judgment was proper on this claim as well.
*288Appellee’s motion to file a physical exhibit, a DVD, is denied as moot.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471610/ | MEMORANDUM **
Boutros Albert Kattra (“Kattra”), a native and citizen of Lebanon, asks us to review the Board of Immigration Appeals’s (“BIA”) decision denying his motion to reopen his removal proceedings.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We review denials of motions to reopen under an abuse of discretion standard. Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (citing Sharma v. INS, 89 F.3d 545, 547 (9th Cir.1996)). Reversal is only appropriate where the BIA’s denial of the motion to reopen is “arbitrary, irrational, or contrary to law.” Id. (citing Ahwazi v. INS, 751 F.2d 1120, 1122 (9th Cir.1985)).
In his motion to reopen before the Immigration Judge (“IJ”), Kattra was represented by James L. Rosenberg.1 Rosen*291berg argued that Kattra’s prior counsel failed to advise the immigration court that Kattra was the beneficiary of an approved labor petition. The motion did not name Kattra’s prior counsel, but explained that prior counsel had resigned from the state bar. Accordingly, the motion explained that it did not conform to the requirements of Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988) because the state bar lacked jurisdiction over Kattra’s prior counsel. The IJ denied Kattra’s motion to reopen on February 18, 2004.
On March 5, 2004, Kattra filed his Notice of Appeal with the BIA. Still represented by Rosenberg, Kattra clarified that he had originally attempted to retain James Valinoti2 for legal representation, but that another attorney appeared instead on the date of Kattra’s merits hearing.3 The Notice of Appeal to the BIA argues that the attorney who appeared at Kattra’s merits hearing had no knowledge of Kattra’s case, and that the immigration court was not advised that Kattra had an approved labor certification. The BIA adopted and affirmed the IJ’s denial of the motion to reopen on December 23, 2004.
Before this court and with the aid of Seth M. Hufstedler and Bryant Yuan Fu Yang of Morrison & Foerster LLP, as pro bono counsel, Kattra provided additional facts and claims in support of his appeal from the BIA’s denial of his motion to reopen. Through pro bono counsel, Kattra alleged that when he went to Valinoti’s office for the first time, he was told that Valinoti was not there and he was instead directed to a man named “Pedro.” Kattra alleges that he believed “Pedro” was an attorney working for Valinoti. According to Kattra, he specifically asked “Pedro” to represent him before the IJ, and “Pedro” never notified Kattra that he was not, in fact, an attorney.
Kattra alleges that “Pedro” arranged for other attorneys who were not knowledgeable about Kattra’s case to represent Kat-tra at his hearings before the IJ. Before his third and final hearing, Kattra claims that “Pedro” briefed an attorney on Kat-tra’s case in the few minutes it took to walk from Valinoti’s office to the immigration court. Kattra alleges that that attorney was not knowledgeable about Kattra’s case and did not advise the immigration court of Kattra’s pending labor certification. Believing he had no other choice when he appeared before the IJ, Kattra agreed to accept voluntary departure. He later sought the advice of Rosenberg, who represented him in his motion to reopen before the IJ, his appeal to the BIA of the IJ’s denial of the motion to reopen, and, initially, in his appeal to this court.
Unfortunately, we cannot review Kat-tra’s additional facts, which were not pre*292sented to the BIA, nor his unexhausted claims of ineffective assistance of counsel. We must therefore deny for failure to exhaust administrative remedies his petition for review, which has passed “[t]hro’ many dangers, toils, and snares.” See Rashtabadi v. INS, 23 F.3d 1562, 1567 (9th Cir.1994); Olivar v. INS, 967 F.2d 1381, 1382-83 (9th Cir.1992). We exercise our authority, however, to stay the mandate for 120 days, subject to extension for good cause shown, to permit Kattra to file a motion to reopen with the BIA. Now that Kattra has competent counsel, such a motion to reopen would permit Kattra to properly develop the record with additional facts, deal with the issue of unexhausted claims, and brief any relief for which he may now be eligible. The stay of the mandate shall be continued until the BIA disposes of the motion to reopen. See, e.g., Aguilar-Escobar v. INS, 136 F.3d 1240, 1241 (9th Cir.1998).
PETITION FOR REVIEW DENIED. MANDATE STAYED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Rosenberg represented Kattra in his January 20, 2004 motion to reopen before the IJ. The IJ denied the motion on February 18, 2004. Rosenberg then represented Kattra in his March 5, 2004 appeal to the BIA. The BIA adopted and affinned the IJ's denial on December 23, 2004. Rosenberg initially represented Kattra before this court in January 2005. In April 2008, however, this court appointed Seth M. Hufstedler and Bryant Yuan Fu Yang of Morrison & Foerster LLP as pro bono amicus counsel. Rosenberg was suspended from practice before the Ninth Circuit in September 2008 for a period of one year. See Matter of James L. Rosenberg, 24 I. & N. Dec. 744 (BIA 2009). He was terminated as Kattra’s counsel of record on September 25, 208. Hufstedler and Yang appeared before the court at oral argument on December 11, 2008. As recounted by the BIA, the Ninth Circuit Appellate Commissioner "found that [Rosenberg] was the attorney of record in 19 petitions for review concerning immigration cases that were dismissed for failure to prosecute, and that his ‘violation of the court's rules and lack of diligence interfered with the judicial process.’ " Id. at 745. The Appellate Commissioner further found that Rosenberg’s "practices concerning immigration briefs demonstrated ‘a lack of competence that has potentially harmed his clients.’ ” Id.
After our court’s suspension, the Office of General Counsel for the Executive Office for *291Immigration Review petitioned for Rosenberg’s immediate suspension from practice before the immigration courts and the Board of Immigration Appeals. Id. at 744-45. The Department of Homeland Security also asked that Rosenberg be barred from practice before it. Id. at 745. On October 9, 2008, the BIA suspended Rosenberg from practice before the BIA, the immigration courts, and the Department of Homeland Security. Id.
. James Valinoti resigned from the state bar with charges pending against him in 2003. See Morales Apolinar v. Mukasey, 514 F.3d 893, 894 n. 1 (9th Cir.2008) (listing cases describing poor representation by Valinoti or his firm), Id. at 896 n. 4 (pointing out that "Valinoti handled more than 2,720 immigration cases in a two-year period in a manner that was 'reckless and involved gross carelessness,’ ” and that he "routinely ‘placed his interests above those of his clients' by permitting non-lawyers to perform legal work’ ”).
. The Notices of Entry of Appearance contained in the record show that attorneys from the Law Offices of John P. Bruno represented Kattra. Mr. Bruno was ordered disbarred on November 15, 2006. In re John Pasquale Bruno, No. 06-N-11711 (Cal. Bar Ct. Nov. 15, 2006). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471615/ | MEMORANDUM *
Enders Adem Abdu petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“U”) denial of his request for asylum and vacating the I J’s grant of withholding of removal. We hold that the BIA’s decision was supported by substantial evidence and deny the petition for review.
We review the BIA’s decision determining whether an alien has established eligibility for asylum or withholding of removal for substantial evidence. Malkandi v. Mukasey, 544 F.3d 1029, 1035 (9th Cir.2008). We have jurisdiction to review the BIA’s denial of withholding of removal under 8 U.S.C. § 1252(a)(1). We reject the government’s contention that we lack jurisdiction to review the BIA’s denial of Abdu’s asylum request. We have jurisdiction to review the BIA’s denial of asylum under the REAL ID Act, § 1252(a)(2)(D), as this is a mixed question of law and fact. See Khan v. Holder, 584 F.3d 773 (9th Cir.2009).
The BIA held that the Oromo Liberation Front (“OLF”) is a terrorist organization as defined in 8 U.S.C. § 1182(a)(3)(B)(vi)(III). This finding is supported by substantial evidence. Under § 1182(a)(3)(B)(vi)(III), a terrorist organization is “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).” These “activities” include “commit[ting] ... under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity.” See § 1182(a)(3)(B)(iv)(I). “[Tjerrorist activity” “means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves,” among other things, “[t]he use of any ... explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” § 1182(a)(3)(B)(iii)(V). The BIA relied on evidence in the record showing that the OLF had used land mines to derail cargo and passenger trains, killing between five to fifteen people. This constitutes terrorist activity under the statute.
Abdu argues that these actions by the OLF cannot constitute “terrorist activity” because they were acts of self-defense against the Ethiopian government and because the OLF did not target civilians. This reading of the statute is incorrect. In Khan v. Holder, 584 F.3d 773 (9th Cir.2009), we held that there is no exception in § 1182(a)(3)(B)(iii) for acts of armed resistance against governmental military targets even if such resistance is permitted under international law. Because the OLF acted unlawfully under Ethiopian *297law, its actions constituted terrorist activity-
The BIA’s holding that Abdu engaged in terrorist activity by soliciting funds and members for the OLF, as defined in § 1182(a)(3)(B)(iv)(IV)(cc) and § 1182(a)(3)(B)(iv)(V)(cc), is also supported by substantial evidence. Abdu testified that he knew the OLF was an armed organization fighting against the government. He also admitted to raising money and recruiting members for the OLF.
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/8471617/ | MEMORANDUM *
Eng Chhun petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his request for asylum and withholding of removal. We hold that the BIA’s decision was supported by substantial evidence and deny the petition for review.
We review the BIA’s decision determining whether an alien has established eligibility for asylum or withholding of removal for substantial evidence. Malkandi v. Mukasey, 544 F.3d 1029, 1035 (9th Cir.2008). We have jurisdiction to review the BIA’s denial of withholding of removal under 8 U.S.C. § 1252(a)(1). We reject the government’s contention that we lack jurisdiction to review the BIA’s denial of Chhun’s asylum request. We have jurisdiction to review the BIA’s denial of asylum under the REAL ID Act, § 1252(a)(2)(D), as this is a mixed question of law and fact. See Khan v. Holder, 584 F.3d 773 (9th Cir.2009).
The BIA held that the Cambodian Freedom Fighters (“CFF”) is a terrorist organization as defined in § 1182(a)(3)(B)(vi)(III). This holding is supported by substantial evidence. Under § 1182(a)(3)(B)(vi)(III), a terrorist organization is “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses (I) through (VI) of clause (iv).” These “activities” include “commit[ting] ... under circumstances indicating an intention to cause death or serious bodily injury, a terrorist activity.” See § 1182(a)(3)(B)(iv)(I). “[TJerrorist activity ... means any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves,” among other things, “[t]he use of any ... explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain) ... with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” *299§ 1182(a)(3)(B)(iii)(V). The BIA relied on evidence in the record showing that the CFF had attempted to overthrow the Cambodian government through violent means, including attempting a coup in November 2000, during which the CFF attacked three military bases and caused the death of eight or nine people. This constitutes terrorist activity under the statute.
Chhun argues that these actions by the CFF cannot constitute “terrorist activity” because the CFF’s goal is to spread democracy and the CFF is registered as a political organization in California. These factors are irrelevant to whether the CFF is a terrorist organization under the Immigration and Nationality Act (“INA”). In Khan v. Holder, 584 F.3d 773 (9th Cir.2009), we have held that there is no exception in § 1182(a)(3)(B)(iii), for acts of armed resistance against governmental military targets even if such resistance is permitted under international law. Because the CFF acted unlawfully under Cambodian law, its actions constituted terrorist activity regardless of its democratic goals. There is also no exception in the statute for organizations registered as political entities in the United States.
The BIA’s holding that Chhun failed to establish through clear and convincing evidence that he did not know, and should not reasonably have known, that the CFF was a terrorist organization is also supported by substantial evidence. Chhun admitted that he raised money to feed CFF fighters and acknowledged the CFF’s violent attempted coup to overthrow the Cambodian government. These activities constitute terrorist activity under § 1182(a)(3) (B) (iii).
Chhun argues that the BIA erred by holding that he poses a danger to the security of the United States. This argument is foreclosed by the INA. Under 8 U.S.C. § 1231(b)(3)(B)(iv), any alien who engaged in terrorist activities is one for whom there are “reasonable grounds to believe that the alien is a danger to the security of the United States.” Such aliens are statutorily ineligible for withholding of removal.
Petition for review DENIED.
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/8471621/ | MEMORANDUM **
David Cannon (“Cannon”) appeals his misdemeanor conviction under the Lacey Act, 16 U.S.C. § 3372(a)(1), for transportation of wildlife taken in violation of a regulation of the United States. The parties are familiar with the facts of this case, which we repeat here only to the extent necessary to explain our decision. We have jurisdiction under 28 U.S.C. § 1291, and reverse.
Cannon killed a coyote on Edwards Air Force Base in violation of Air Force Flight Test Center Instruction 32-8, then dragged the coyote carcass off-base.1 Instruction 32-8 is not published in the Code of Federal Regulations or the Federal Register.
Cannon argues for the first time on appeal that the unpublished hunting regulations set out in Instruction 32-8 are not regulations for the purposes of the Lacey Act because they were not published. We review for plain error. United States v. Hartz, 458 F.3d 1011, 1019 (9th Cir.2006). Cannon’s argument is not persuasive. There is no case or statute to indicate that publication is a defining and necessary characteristic of a federal regulation.
Cannon next argues that, despite clear text prohibiting transport “by any means,” the Lacey Act excludes non-commercial activity. We review questions of statutory interpretation de novo. United States v. Adams, 343 F.3d 1024, 1027 (9th Cir.2003). We see no need, however, to look beyond the plain language of the statute, which is consistent with Congress’s intention to conserve wildlife.
Cannon also argues for the first time on appeal that the evidence is insufficient to convict him because he did not have actual notice of the base hunting regulations. We review for plain error. Hartz, 458 F.3d at 1019. We will reverse Cannon’s conviction if plain error affected his substantial rights and the error would “seriously affect the fairness, integrity or public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).
The Administrative Procedure Act provides that “[ejxcept to the extent that a person has actual and timely notice of the terms thereof, a person may not in any manner be required to resort to, or be adversely affected by, a matter required to be published in the Federal Register and not so published.” 5 U.S.C. § 552(a)(1); see also United States v. Mowat, 582 F.2d 1194, 1201 (9th Cir.1978) (upholding trespassing conviction where defendant had actual notice of an unpublished Navy instruction); United States v. Hall, 742 F.2d 1153, 1155 (upholding trespassing convic*303tion where defendant had actual notice of unpublished Air Force base regulation). Agencies must publish “substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency” in the Federal Register. 5 U.S.C. § 552(a)(1)(D); see also 44 U.S.C. § 1505(a) (requiring documents having general applicability and legal effect to be published in the Federal Register). Here, Instruction 32-8 has general applicability and legal effect. The base hunting regulations should have been published in the Federal Register.
Cannon cannot be convicted under the Lacey Act unless he violated a federal regulation. Because the base hunting regulations were not published, however, the actual notice provision of 5 U.S.C. § 552(a)(1)(D) applies. The evidence in the record is insufficient to show that Cannon had actual notice of the base hunting regulations. Cannon therefore may not “be adversely affected” by those regulations.2 Id. Because Cannon’s conviction under the Lacey Act depends upon adverse application of the base hunting regulations, of which Cannon had no actual notice, the Lacey Act does not apply and the conviction must be set aside.
Accordingly, we REVERSE Cannon’s conviction and direct the district court to enter a judgment of acquittal.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Section 2.1 states that fishing and hunting permits are required to fish or hunt on the base. Cannon did not possess such a permit. Section 5.3.7 of Instruction 32-8 prohibits the hunting of predators, including coyotes.
. Whether Cannon should have known about the hunting regulations is relevant to the knowledge element of the crime, but is not pertinent to the question whether Cannon had actual notice of the regulations, and thus whether the regulations could be adversely applied against him in the first instance. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471623/ | MEMORANDUM **
Having pled guilty, Defendant-Appellant Jason Matson (“Matson”) appeals the district court’s denial of his motion to suppress evidence. We address each of his arguments in turn.
Matson first argues that border patrol agents did not have reasonable suspicion to stop his vehicle. To conduct an investigatory stop, an officer must have “a reasonable suspicion that the particular person being stopped has committed or is about to commit a crime.” United States v. Montero-Camargo, 208 F.3d 1122, 1129 (9th Cir.2000) (en banc) (emphasis removed). In the border patrol context, reasonable suspicion can be based on the “(1) characteristics of the area [in which the vehicle is encountered]; (2) proximity to the border; (3) usual patterns of traffic and time of day; (4) previous alien or drug smuggling in the area; (5) behavior of the drive[r] including obvious attempts to evade officers; (6) appearance or behavior of the passengers; (7) model and appearance of the vehicle; and (8) officer experience.” United States v. Tiong, 224 F.3d 1136, 1139 (9th Cir.2000).
The border patrol agents had reasonable suspicion to pull Matson over. They were situated in Danville, Washington, a small, isolated town close to the Canadian border, which, probably due to those three characteristics, had become a hot spot for illicit smuggling activity. Adding to the agents’ already-heightened awareness was their discovery of Ecstasy and Ritalin behind the Danville market the day before. Matson, driving a rental car, pulled in to the same market at 9:50 p.m., almost two hours after it had closed. *305When Matson, “kind of covering his face,” proceeded to use a pay phone while holding a cell phone in his hand, the agents had enough evidence of criminal wrongdoing to justify stopping Matson’s vehicle shortly after it left the market.
Matson next argues that even if the stop was justified, he was detained longer than was reasonable under the circumstances. This claim too is without merit. As an initial matter, the district court’s finding that the stop lasted 35 minutes was not clearly erroneous. As to the reasonableness of the 35-minute stop, the agents needed a certified canine to complete their investigation into whether Matson was involved in illegal drug activity. Finding the only such canine in the area took some time, but there is nothing to suggest that the agents did anything less than “diligently pursue[ ] a means of investigation that was likely to confirm or dispel their suspicions quickly.” United States v. Sharpe, 470 U.S. 675, 686, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985).
Finally, Matson argues that the canine used to detect and find the drugs was not reliable. The dog’s below-average score on one of twenty-eight testing categories (while scoring average or above average on the remaining twenty-seven) did not render it unreliable.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471625/ | MEMORANDUM *
Terminal Freezers Inc. (“Terminal”) appeals the district court’s grant of U.S. Fire Insurance’s (“U.S. Fire’s”) motion for summary judgment. We affirm.
“Because federal jurisdiction in this case is based on diversity of citizenship, we apply the substantive law of the state of Washington.” Conrad v. Ace Prop. & Cas. Ins. Co., 532 F.3d 1000, 1004 (9th Cir.2008). Under Washington law, a court considers two questions in determining whether an insurance contract should cover a loss. First, the court asks “which single act or event is the efficient proximate cause of the loss.” McDonald v. State Farm Fire and Cas. Co., 119 Wash.2d 724, 837 P.2d 1000, 1004 (1992) (en banc). Second, it determines whether “the efficient proximate cause of the loss is a covered peril.” Id. The efficient proximate cause, in turn, is the “predominant cause which [sic] sets into motion the chain of events producing the loss.” Findlay v. United Pac. Ins. Co., 129 Wash.2d 368, 917 P.2d 116, 118 (1996).
Here, the district court correctly concluded that Terminal’s faulty workmanship was the efficient proximate cause of the cold storage facility’s excessive ice formation, and that faulty workmanship is not a “covered peril” under Terminal’s policy with U.S. Fire (the “policy”). This conclusion was based on an expert’s undisputed finding that “the excessive ice formation ... [was] the result of a poorly installed vapor retarder,” and the policy, which precluded coverage for “loss or damage caused by or resulting from ... [f]aulty, inadequate or defective ... workmanship.”
The policy did ensure coverage, however, if faulty workmanship led to a “covered cause of loss.” In other words, even though the efficient proximate cause of Terminal’s loss was a poorly installed vapor retarder, it could still recover if the policy covered whatever resulted from the faulty retarder-in this case, ice. But there is no relief for Terminal down this road either because the policy specifically ex-*307eludes ice as a covered cause of loss. In response, Terminal argues, relying on the canon of noscitur a sociis, that the policy only precludes ice in its “natural” form because the words surrounding “ice” are “natural” elements (rain, snow, sleet, sand, and dust).
Washington courts do not resort to canons of construction when the language of a contract is clear. Cf. State v. Roggenkamp, 153 Wash.2d 614, 106 P.3d 196, 199 (2005) (“If the language is unambiguous, a reviewing court is to rely solely on the statutory language.”). If a term is undefined, they rely on the term’s ordinary meaning, which can often be found in the dictionary. See, e.g., Kitsap County v. Allstate Ins. Co., 136 Wash.2d 567, 964 P.2d 1173, 1177 (1998) (“To determine the ordinary meaning of undefined terms, courts may look to standard English dictionaries.”). Ice is undefined in the contract, but as commonly used (and according to the dictionary), is “water reduced to the solid state by cooling....” Webster’s Third New International Dictionary 1119 (2002). Terminal seeks recovery for damages caused by ice, and the policy specifically excludes ice as a covered cause of loss. That is the end of the inquiry. We are not at liberty to “modify the insurance contract or create ambiguity” where none exists. Kitsap County, 964 P.2d at 1178.
Because we affirm the district court’s grant of summary judgment to U.S. Fire on the contract claim, we need not address the question of whether California or Washington law applies.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Benjamin H. Settle, District Judge, Presiding | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471651/ | PER CURIAM.
ORDER
John D. Miller petitions for a writ of mandamus to direct the United States Court of Appeals for Veterans Claims to transmit his notice of appeal of the Court of Appeals for Veterans Claims’ judgment in Miller v. DVA, No. 06-0933, to this court.
The Court of Appeals for Veterans Claims entered judgment on July 30, 2008. Miller filed a notice of appeal on September 29, 2008. The Court of Appeals for Veterans Claims issued its mandate on October 7, 2008. Miller then filed the *548instant mandamus petition seeking to require the Court of Appeals for Veterans Claims to transmit his notice of appeal to this court.
After Miller filed his mandamus petition, this court received Miller’s appeal of the judgment of the Court of Appeals for Veterans Claims in Miller v. DVA, No. 06-0933. Miller’s appeal was docketed as appeal no.2009-7027. Because Miller has received the relief sought in his mandamus petition, the petition is moot.
Accordingly,
IT IS ORDERED THAT:
The petition is denied as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471632/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of the Air Force moves to dismiss L-3 Communications Corporation, Link Simulation & Training Division’s (L-3) appeal as untimely. L-3 opposes. The Secretary replies.*
The Secretary argues that L-3 did not file its notice of appeal in this ease until 121 days after its receipt of the Armed Services Board of Contract Appeals’ (ASBCA) May 5, 2008, 2008 WL 2154902, decision and that the appeal is thus untimely. The United States Postal Service certified return receipt card indicates that L-3 received the ASBCA’s decision on May 12, 2008. L-3 filed its notice of appeal on September 10, 2008. In order to be timely, the Secretary asserts that L-3 had to file its notice of appeal on September 9, 2008.
An ASBCA decision is final unless a contractor appeals to this court within 120 days after receipt of the ASBCA’s decision. 41 U.S.C. § 607(g)(1)(A). This filing period is mandatory and jurisdictional. Placeway Const. Corp. v. United States, 713 F.2d 726, 728 (Fed.Cir.1983).
Counsel for L-3 concedes that the certified return receipt identified by the Secretary indicates receipt by someone on May 12. However, counsel asserts (1) that he does not recognize the signature on the certified return receipt indicating receipt on May 12, (2) that he actually received the decision in a separate mailing received by him on May 14, 2008, or (3) that regardless of when his office received the decision, he did not personally receive the decision until May 14, 2008.
Concerning counsel’s first assertion, although counsel may not recognize the signature, that does not necessarily mean that the document was not received on May 12, 2008. Counsel does not assert that he never received the decision, and the only envelope that is asserted to have contained the decision at issue in this case had a certified return receipt that indicates receipt on May 12.
Concerning counsel’s second assertion, counsel states in a declaration:
I specifically recall receiving the Freeman Decision no earlier than on the afternoon of Wednesday, May 14, 2008 (or, perhaps, on May 15). When I first saw it, it was either inside or paper-clipped to an envelope (the “Envelope”) (Exhibit A hereto) post-marked 5/12/08, and bearing a stamp saying “DELIVERY ATTEMPTED ON MAY 14, 2008.” I kept the envelope to document the fact that — for purposes of calculating the commencement of the 120-day time period for filing a notice of appeal — I had received the decision on May 14.
The court is not convinced by the inexactness of the declaration and L-3 has not established that the certified return receipt indicating receipt on May 12 is incorrect. It is not clear how one can “specifically recall” receipt but then not recall whether it was on May 14 or May 15. In any event, the “Envelope” included with counsel’s declaration is an envelope that *537indicates it contained a different Board document, as counsel for L-3 later concedes in his declaration.
Counsel’s third assertion, that regardless of when his office received the decision at issue, he personally did not receive the decision until May 14, 2008, is irrelevant. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 93, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (where action was required to be filed within 30 days of receipt of notice, time to file begins on date of receipt by the attorney’s office and not the date that the attorney received notice). Thus, this court must dismiss L-3’s appeal as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted.
(2) Each side shall bear its own costs.
We grant the Secretary's motion for an extension of lime to file its reply. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471635/ | ON MOTION
PER CURIAM.
ORDER
Bob J. McAdams responds to the court’s order directing him to show cause why his appeal should not be dismissed as untimely.
The docket sheet of the United States Court of Federal Claims reflects that judgment was entered on February 1, 2008, 2008 WL 654271. McAdams filed a motion for reconsideration on February 13, 2008. The Court of Federal Claims denied the motion for reconsideration on March 27, 2008. The docket sheet reflects that Mc-Adams filed a notice of appeal on June 30, 2008, 95 days after the order denying reconsideration. Because the appeal appeared to be untimely, the court directed McAdams to show cause why it should not be dismissed.
McAdams argues that he filed his notice of appeal in the United States District Court for the Eastern District of Arkansas on June 25, 2008. However, even if the appeal was filed on June 25, 90 days after entry of the order denying reconsideration, it would still be untimely. McAdams further states that “Pursuant to Rule 13 Mc-Adams was to file his Notice of Appeal to the Tax Court Clerk with in 90 days after entry of the Tax Court’s decision. This was done.” It is unclear which court’s “Rule 13” McAdams cites. To the extent that McAdams argues that the rules of the United States Tax Court govern the time for appealing decisions of the Court of Federal Claims, he is incorrect. Pursuant to 28 U.S.C. § 2522, review of a decision of the Court of Federal Claims is “obtained by filing a notice of appeal with the clerk of the Court of Federal Claims within the time and in the manner prescribed for appeals to United States courts of appeals from the United States district courts.” Thus, pursuant to Fed. R.App. P. 4(a)(1)(B), an appeal from a final judgment or order of the Court of Federal Claims must be filed with that court within 60 days of the date of entry of the judgment or order. See 28 U.S.C. § 2522; Fed. R.App. P. 4(a)(1)(B).
In this case, McAdams’ notice of appeal was filed 95 days after entry of the Court of Federal Claims’ decision denying reconsideration of its judgment. Because McAdams’ appeal is untimely, this court lacks jurisdiction and must dismiss the appeal. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2364-66, 168 L.Ed.2d 96 (2007) (timely filing of notice of appeal is a jurisdictional requirement); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)); Sofarelli Associates, Inc. v. United States, 716 *539F.2d 1395 (Fed.Cir.1983) (appeal must be dismissed for lack of jurisdiction where notice of appeal is untimely).
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471637/ | ON MOTION
PER CURIAM.
ORDER
Keith Russell Judd responds to the court’s order directing him to show cause why the judgment of the United States Court of Federal Claims should not be summarily affirmed and submits various motions and submissions requesting, inter alia, to reinstate his appeal, for the court to order production of contact lenses, for accommodation of disabilities, for oral argument, for leave to proceed in forma pau-peris, to recall the mandate, for appointment of counsel, for an extension of time, and for a deposition.
Judd filed suit in the trial court seeking $34,262,158,366.21 in damages for an alleged breach of a pretrial diversion agreement made with the United States Attorney’s Office (AUSA). The trial court determined that an alleged breach of contract arising from actions undertaken within the criminal justice system gives rise to an action under the Tucker Act for damages only if the plaintiff shows that the person who made the contract on behalf of the government had the authority to bind the government to pay monetary damages and the contract’s language provides for the payment of monetary damages in the case of a breach by the government. See Sanders v. United States, 252 F.3d 1329, 1334-35 (Fed.Cir.2001). The trial court determined that Judd had failed to offer any evidence to show that the AUSA had the authority to bind the government to pay damages. The trial court further determined that the pretrial diversion agreement said nothing about damages in the case of a breach. Thus, the trial court dismissed Judd’s complaint and entered judgment on August 6, 2008, and Judd appealed.
Judd’s appeal was dismissed on August 29, 2008 for failure to pay the filing fee. *540Judd paid the fee and moved to reinstate the appeal. Upon review of the decision of the trial court, the court directed Judd to show cause why the judgment should not be summarily affirmed.
Summary affirmance of a case is appropriate “when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994). In this case, the trial court correctly applied Sanders and dismissed Judd’s complaint Thus, the court reinstates the appeal solely for the purpose of summarily affirming the judgment of the Court of Federal Claims.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is reinstated and the August 6, 2008 judgment of the Court of Federal Claims is summarily affirmed.
(2) All pending motions are moot.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471639/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Ivy L. Horton’s appeal from the United States Court of Appeals for Veterans Claims judgment in Horton v. Peake, 06-0931, for lack of jurisdiction.
Horton sought review by the Court of Appeals for Veterans Claims of a Board of Veterans’ Appeals decision that denied Horton’s claims for entitlement to benefits other than health care. The Veterans Court vacated and remanded the appeal for readjudication. Horton now seeks review of the remand order.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court typically lacks jurisdiction over Veterans Court remands because they are not final judgments. This court can only review remands, inter alia, where “the remand disposes of an important legal issue that would be effectively unreviewable at a later stage of litigation.” Winn v. Brown, 110 F.3d 56, 57 (Fed.Cir.1997). Because the Veterans Court’s decision to remand in this case does not include any legal issue that would be effectively unreviewable at a later stage of litigation, this court does not have jurisdiction to review the Veterans *541Court’s nonfinal remand order.*
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motions are granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
If the Veterans Court issues an adverse final decision at a later date, Horton may thereafter seek review of that decision, if appealable and within this court's jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471629/ | MEMORANDUM *
Heng Chhun petitions for review of the Board of Immigration Appeals’ (“BIA”) decision adopting, supplementing, and affirming the Immigration Judge’s (“IJ”) denial of Chhun’s request for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (“CAT”). The IJ found that Chhun was ineligible for asylum and withholding of removal because she had engaged in terrorist activity through her membership in and work on behalf of the Cambodian Freedom Fighters (“CFF”), and, alternatively, that she was ineligible for either form of relief because she could not show a well-founded fear of persecution or a likelihood of being persecuted on account of a protected ground. The IJ also found that Chhun was ineligible for relief under the CAT because she had not shown that it was more likely than not that she would be tortured upon her return to Cambodia. *311The BIA affirmed the IJ, supplementing the IJ’s discussion of Chhun’s terrorist activity. Chhun petitions for review of the BIA’s determinations on each issue. We deny her petition.
We have jurisdiction to review the BIA’s determination that Chhun is ineligible for asylum because she engaged in terrorist activity to the extent this determination presents questions of law or mixed questions of law and fact. Khan v. Holder, 584 F.3d 773 (9th Cir.2009). Because the facts of Chhun’s case are undisputed, these questions include whether the CFF is a terrorist organization and whether Chhun reasonably should have known this fact. Id. The government concedes that we have jurisdiction to review the BIA’s determination that Chhun is ineligible for withholding of removal.
Substantial evidence supports the BIA’s determination that Chhun is ineligible for asylum and withholding of removal under 8 U.S.C. § 1158(b)(2)(A)(v) and 8 U.S.C. § 1231(b)(3)(B)(iv). An alien who is a member of a terrorist organization is ineligible for both forms of relief. 8 U.S.C. § 1182(a)(3)(B)(i)(VT). Alternatively, an alien who solicited funds for a terrorist organization, id. § 1182(a)(3)(B)(iv)(IV)(cc), or solicited members for a terrorist organization, id. § 1182(a)(3)(B)(iv)(V)(cc), has engaged in terrorist activity, id. § 1182(a)(3)(B)(i)(I), and is ineligible for both forms of relief. If an alien who falls under these provisions can show by clear and convincing evidence that she did not know nor reasonably should have known that the organization was a terrorist organization, she remains eligible.
Chhun admitted that she was a member of, solicited funds for, and solicited members for the CFF. She argues that the BIA erred in determining that the CFF is a terrorist organization and also argues that she demonstrated by clear and convincing evidence that she did not know nor should she have known that the CFF was a terrorist organization.
Substantial evidence supports the BIA’s determination that the CFF engaged in terrorist activity and was therefore a terrorist organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III). The CFF attempted an unlawful armed coup against the government of Cambodia, killed at least eight individuals, and involved “the use of’ an “explosive, firearm, or other weapon or dangerous device ... with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” Id. § 1182(a)(3)(B)(iii). Chhun’s argument that this provision does not apply to organizations engaged in armed resistance of certain regimes fails. Khan, 584 F.3d 773 (9th Cir.2009).
Substantial evidence supports the BIA’s determination that Chhun did not show by clear and convincing evidence that she did not know nor reasonably should have known that the CFF was a terrorist organization. Chhun admitted at her IJ hearing that she knew when she solicited money for the CFF that it was an illegal organization that wanted to overthrow the government. Therefore, she knew or reasonably should have known that the CFF was planning a terrorist activity against the Cambodian government. This renders Chhun ineligible for asylum and for withholding of removal.
Finally, substantial evidence supports the BIA’s determination that Chhun was not entitled to relief under the CAT. There is no evidence in the record that members of the CFF who have been arrested and prosecuted for their membership in the CFF, and for its role in the *312attempted coup, have been tortured. Specifically, there is no evidence that Chhun’s brother, who was more involved in the CFF than Chhun herself was, has been subject to torture since being arrested for his membership in the CFF.
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/8471633/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of the Air Force moves to dismiss L-3 Communications Corporation, Link Simulation & Training Division’s (L-3) appeal as untimely. L-3 opposes. The Secretary replies.*
The Secretary argues that L-3 did not file its notice of appeal in this ease until 121 days after its receipt of the Armed Services Board of Contract Appeals’ (ASBCA) May 5, 2008, 2008 WL 2154902, decision and that the appeal is thus untimely. The United States Postal Service certified return receipt card indicates that L-3 received the ASBCA’s decision on May 12, 2008. L-3 filed its notice of appeal on September 10, 2008. In order to be timely, the Secretary asserts that L-3 had to file its notice of appeal on September 9, 2008.
An ASBCA decision is final unless a contractor appeals to this court within 120 days after receipt of the ASBCA’s decision. 41 U.S.C. § 607(g)(1)(A). This filing period is mandatory and jurisdictional. Placeway Const. Corp. v. United States, 713 F.2d 726, 728 (Fed.Cir.1983).
Counsel for L-3 concedes that the certified return receipt identified by the Secretary indicates receipt by someone on May 12. However, counsel asserts (1) that he does not recognize the signature on the certified return receipt indicating receipt on May 12, (2) that he actually received the decision in a separate mailing received by him on May 14, 2008, or (3) that regardless of when his office received the decision, he did not personally receive the decision until May 14, 2008.
Concerning counsel’s first assertion, although counsel may not recognize the signature, that does not necessarily mean that the document was not received on May 12, 2008. Counsel does not assert that he never received the decision, and the only envelope that is asserted to have contained the decision at issue in this case had a certified return receipt that indicates receipt on May 12.
Concerning counsel’s second assertion, counsel states in a declaration:
I specifically recall receiving the Freeman Decision no earlier than on the afternoon of Wednesday, May 14, 2008 (or, perhaps, on May 15). When I first saw it, it was either inside or paper-clipped to an envelope (the “Envelope”) (Exhibit A hereto) post-marked 5/12/08, and bearing a stamp saying “DELIVERY ATTEMPTED ON MAY 14, 2008.” I kept the envelope to document the fact that — for purposes of calculating the commencement of the 120-day time period for filing a notice of appeal — I had received the decision on May 14.
The court is not convinced by the inexactness of the declaration and L-3 has not established that the certified return receipt indicating receipt on May 12 is incorrect. It is not clear how one can “specifically recall” receipt but then not recall whether it was on May 14 or May 15. In any event, the “Envelope” included with counsel’s declaration is an envelope that *537indicates it contained a different Board document, as counsel for L-3 later concedes in his declaration.
Counsel’s third assertion, that regardless of when his office received the decision at issue, he personally did not receive the decision until May 14, 2008, is irrelevant. See Irwin v. Department of Veterans Affairs, 498 U.S. 89, 93, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990) (where action was required to be filed within 30 days of receipt of notice, time to file begins on date of receipt by the attorney’s office and not the date that the attorney received notice). Thus, this court must dismiss L-3’s appeal as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted.
(2) Each side shall bear its own costs.
We grant the Secretary's motion for an extension of lime to file its reply. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471634/ | ON MOTION
PER CURIAM.
ORDER
Bob J. McAdams responds to the court’s order directing him to show cause why his appeal should not be dismissed as untimely.
The docket sheet of the United States Court of Federal Claims reflects that judgment was entered on February 1, 2008, 2008 WL 654271. McAdams filed a motion for reconsideration on February 13, 2008. The Court of Federal Claims denied the motion for reconsideration on March 27, 2008. The docket sheet reflects that Mc-Adams filed a notice of appeal on June 30, 2008, 95 days after the order denying reconsideration. Because the appeal appeared to be untimely, the court directed McAdams to show cause why it should not be dismissed.
McAdams argues that he filed his notice of appeal in the United States District Court for the Eastern District of Arkansas on June 25, 2008. However, even if the appeal was filed on June 25, 90 days after entry of the order denying reconsideration, it would still be untimely. McAdams further states that “Pursuant to Rule 13 Mc-Adams was to file his Notice of Appeal to the Tax Court Clerk with in 90 days after entry of the Tax Court’s decision. This was done.” It is unclear which court’s “Rule 13” McAdams cites. To the extent that McAdams argues that the rules of the United States Tax Court govern the time for appealing decisions of the Court of Federal Claims, he is incorrect. Pursuant to 28 U.S.C. § 2522, review of a decision of the Court of Federal Claims is “obtained by filing a notice of appeal with the clerk of the Court of Federal Claims within the time and in the manner prescribed for appeals to United States courts of appeals from the United States district courts.” Thus, pursuant to Fed. R.App. P. 4(a)(1)(B), an appeal from a final judgment or order of the Court of Federal Claims must be filed with that court within 60 days of the date of entry of the judgment or order. See 28 U.S.C. § 2522; Fed. R.App. P. 4(a)(1)(B).
In this case, McAdams’ notice of appeal was filed 95 days after entry of the Court of Federal Claims’ decision denying reconsideration of its judgment. Because McAdams’ appeal is untimely, this court lacks jurisdiction and must dismiss the appeal. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2364-66, 168 L.Ed.2d 96 (2007) (timely filing of notice of appeal is a jurisdictional requirement); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)); Sofarelli Associates, Inc. v. United States, 716 *539F.2d 1395 (Fed.Cir.1983) (appeal must be dismissed for lack of jurisdiction where notice of appeal is untimely).
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471636/ | ON MOTION
PER CURIAM.
ORDER
Keith Russell Judd responds to the court’s order directing him to show cause why the judgment of the United States Court of Federal Claims should not be summarily affirmed and submits various motions and submissions requesting, inter alia, to reinstate his appeal, for the court to order production of contact lenses, for accommodation of disabilities, for oral argument, for leave to proceed in forma pau-peris, to recall the mandate, for appointment of counsel, for an extension of time, and for a deposition.
Judd filed suit in the trial court seeking $34,262,158,366.21 in damages for an alleged breach of a pretrial diversion agreement made with the United States Attorney’s Office (AUSA). The trial court determined that an alleged breach of contract arising from actions undertaken within the criminal justice system gives rise to an action under the Tucker Act for damages only if the plaintiff shows that the person who made the contract on behalf of the government had the authority to bind the government to pay monetary damages and the contract’s language provides for the payment of monetary damages in the case of a breach by the government. See Sanders v. United States, 252 F.3d 1329, 1334-35 (Fed.Cir.2001). The trial court determined that Judd had failed to offer any evidence to show that the AUSA had the authority to bind the government to pay damages. The trial court further determined that the pretrial diversion agreement said nothing about damages in the case of a breach. Thus, the trial court dismissed Judd’s complaint and entered judgment on August 6, 2008, and Judd appealed.
Judd’s appeal was dismissed on August 29, 2008 for failure to pay the filing fee. *540Judd paid the fee and moved to reinstate the appeal. Upon review of the decision of the trial court, the court directed Judd to show cause why the judgment should not be summarily affirmed.
Summary affirmance of a case is appropriate “when the position of one party is so clearly correct as a matter of law that no substantial question regarding the outcome of the appeal exists.” Joshua v. United States, 17 F.3d 378, 380 (Fed.Cir.1994). In this case, the trial court correctly applied Sanders and dismissed Judd’s complaint Thus, the court reinstates the appeal solely for the purpose of summarily affirming the judgment of the Court of Federal Claims.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is reinstated and the August 6, 2008 judgment of the Court of Federal Claims is summarily affirmed.
(2) All pending motions are moot.
(3) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8478098/ | ORDER
The petitioner having failed to file the brief required by Federal Circuit Rule 31(a) within the time permitted by the rules, it is
ORDERED that the petition for review be, and the same hereby is, DISMISSED, for failure to prosecute in accordance with the rules. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471645/ | PER CURIAM.
ORDER
Carol A. Murphy petitions for a writ of mandamus to compel the United States Court of Federal Claims to hear her case and moves for leave to proceed in forma pauperis.
On May 9, 2008, Murphy filed a complaint in the United States Court of Federal Claims alleging that six federal judges violated her due process and constitutional rights in their rulings in her cases. On May 29, 2008, the court removed her case from the court and referred it to the court’s chief judge for consideration as a complaint of judicial misconduct. This petition for writ of mandamus followed.
The remedy of mandamus is available only in extraordinary situations to correct a clear abuse of discretion or usurpation of judicial power. In re Calmar, Inc., 854 F.2d 461, 464 (Fed.Cir.1988). A party seeking a writ bears the burden of proving that it has no other means of attaining the relief desired, Mallard v. U.S. Dist. Court for the Southern Dist. of Iowa, 490 U.S. 296, 309, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989), and that the right to issuance of the writ is “clear and indisputable.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35, 101 S.Ct. 188, 66 L.Ed.2d 193 (1980).
Murphy fails to meet her burden of establishing the two requirements for mandamus. First, we are not persuaded that the Court of Federal Claims erred in determining that Murphy’s civil complaint was actually a complaint of judicial misconduct. Therefore, Murphy has not shown that her right to a particular result is clear and indisputable. Allied Chemical, 449 U.S. at 35, 101 S.Ct. 188. Second, because Murphy could have pursued her dispute through an ordinary appeal, she is unable to demonstrate that she had no alternative means of obtaining the relief requested.
Accordingly,
IT IS ORDERED THAT:
(1) Murphy’s petition is denied.
(2) Murphy’s motion to proceed in for-ma pauperis is denied as moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471646/ | *546ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to dismiss Constance L. Kiggins’ appeal as untimely. Constance L. Kiggins opposes.
The Secretary argues that Kiggins did not timely file her notice of appeal of the United States Court of Appeals for Veterans Claims’ September 12, 2008 judgment and thus is untimely. The docket sheet of the Court of Appeals for Veterans Claims indicates that the court received Kiggins’ notice of appeal on November 21, 2008, or 70 days after entry of judgment.
Any appeal of the judgment had to be received by the Court of Appeals for Veterans Claims within 60 days of the date of entry of judgment in order to be timely. 38 U.S.C. § 7292(a); 28 U.S.C. § 2107(b); Fed. R.App. P. 4(a)(1). The time limit for filing a notice of appeal is jurisdictional. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (timely filing of notice of appeal in civil case is jurisdictional requirement); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)). Thus, Kiggins’ failure to file timely a notice of appeal may not be waived. See Oja v. Army, 405 F.3d 1349, 1358 (Fed.Cir.2005) (time provisions of Fed. R.App. P. 4(a) are not subject to equitable tolling). Because Kiggins’ notice of appeal was received by the Court of Appeals for Veterans Claims 70 days after the entry of judgment, the appeal must be dismissed as untimely filed.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed as untimely filed.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471649/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to dismiss for lack of jurisdiction Thomas L. Jones’ appeal from a decision of the United States Court of Appeals for Veterans Claims (CAVC). Jones opposes.
Jones sought review by CAVC of a Board of Veterans’ Appeals decision deny*547ing his claim for an earlier effective date for the award of service connection for hearing loss and tinnitus. The Board ruled that because Jones did not file a claim within a year of the date of his discharge, the effective date of the grant of service connection could not be earlier than the date of the receipt of his claim. CAVC affirmed the Board’s decision, concluding that based on the record the Board did not err in determining Jones’ effective date. Jones appeals to this court
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of CAVC. See Forshey v. Pnncipi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court “may not review (A) a challenge to a factual determination, or (B) a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). or laws or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2).
In his informal brief, Jones contests that CAVC erred in its determination of his effective date by relying on falsified documents in the record provided by the Secretary. Although Jones asserts that his arguments involve matters of law, this court must look beyond the appellant’s characterization of the issues to determine whether they fall within the jurisdiction of this court. Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed.Cir.2007); Heifer v. West, 174 F.3d 1332, 1335 (Fed.Cir.1999). Here, Jones’ arguments, in essence, only contest CAVC’s factual determinations in affirming the Board’s decision. Because we agree with the Secretary that this court lacks jurisdiction, we must dismiss Jones’ appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471641/ | ON MOTION
PER CURIAM.
ORDER
The court considers whether to consolidate James E. Slate’s appeals and to transfer the appeals to the United States Court of Appeals for the Fourth Circuit.
State filed an appeal with the Merit Systems Protection Board, challenging his removal from his position at the United States Postal Service (USPS). On March 19, 2003, the Administrative Judge sustained Slate’s removal. Slate’s petition for full board review was denied on May 10, 2004.
State further challenged his removal in complaints filed with the United States District Court for the Middle District of North Carolina. On September 30, 2008, the district court granted summary judgment in favor of the USPS and dismissed Slate’s complaints with prejudice. Slate filed his notices of appeal on October 28, 2008, seeking review by this court.
This court does not have jurisdiction over these appeals. This court’s jurisdiction to review decisions of the district courts involves primarily disputes concerning patent infringement or certain lawsuits against the United States. See 28 U.S.C. § 1295. Thus, we deem it appropriate to transfer these appeals to the United States Court of Appeals for the Fourth Circuit, which would have jurisdiction over appeals coming from the United States District Court for the Middle District of North Carolina. See 28 U.S.C. § 1361.
Accordingly,
IT IS ORDERED THAT:
(1) These appeals are consolidated.
*542(2) These appeals are transferred to the United States Court of Appeals for the Fourth Circuit pursuant to 28 U.S.C. § 1631. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471652/ | ON MOTION
PER CURIAM.
ORDER
Irolene F. Whitehead moves for reconsideration of the court’s previous rejection of her petition for review as untimely.
On October 5, 2008, the Merit Systems Protection Board issued a final decision in Whitehead v. Department of Defense, No. DC-0752-08-0376-1-1, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. The Board’s records reflect that Whitehead received the Board’s decision on October 17, 2008. The court received Whitehead’s petition for review 63 days later, on December 19, 2008.
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dep’t. of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Oja v. Dep’t of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“[c]ompliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”).
Because Whitehead’s petition for review was received by this court three days late, this court must dismiss Whitehead’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is denied. The petition for review is dismissed as untimely.
(2) Each side shall bear its own costs.
(3) All pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471659/ | ON PETITION FOR PERMISSION TO APPEAL
MAYER, Circuit Judge.
ORDER
Mitchell Scruggs et al. (Scruggs) petition for permission to appeal an order certified by the United States District Court for the Northern District of Mississippi as one involving controlling issues of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. Monsanto Company opposes.
Monsanto owns a patent directed toward inserting a modified gene into crop seeds to cause plants grown from the seed to become resistant to certain herbicides. Monsanto also owns a patent directed toward inserting a modified gene into seeds that cause a plant to produce an enzyme that is toxic to certain insects that feed off of it. The patented technology is self-replicating such that the progeny of the plants grown with the modified genes will also contain the genetic makeup that allows them to be resistant to either the herbicide or insects.
Monsanto licenses the seeds with the patented technology with certain restrictions, including, inter alia, (1) that the seeds containing the patented technology cannot be sold to growers unless the grower signs one of Monsanto’s license agreements and (2) that the grower can only use the patented transgenic seed for planting a single commercial crop per season, thus prohibiting growers from saving seeds and replanting them or supplying seeds to others for replanting. Monsanto states that each bag of seeds contains a notice that a license is required before use.
Scruggs purchased the seeds from seed companies, but never signed a license agreement with Monsanto. Scruggs planted the seeds and after harvesting the plants, retained the new generation of seeds. Scruggs’s subsequent crops were planted with those retained seeds, as well as seeds obtained from subsequent generations of crops. Monsanto filed suit, alleging infringement of its patents. The district court issued a preliminary injunction, prohibiting Scruggs from further sale and use of seeds containing Monsanto’s patented technology. On cross-motions for summary judgment, the district court found, inter alia, that Scruggs had infringed the patents and that the doctrine of patent exhaustion was inapplicable to this case. *553The court then issued a permanent injunction and a final judgment and stayed proceedings on damages pending appeal.
On appeal, we affirmed the trial court’s infringement and patent exhaustion determinations, holding that the patent exhaustion doctrine was inapplicable because (1) the initial sale from Monsanto was not an “unrestricted sale” and (2) the second generation of seeds were never “sold.” Monsanto Co. v. Scruggs, 459 F.3d 1328, 1336 (Fed.Cir.2006). We vacated the trial court’s permanent injunction determination for reconsideration in light of eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Scruggs filed a petition for certio-rari, which was denied by the Supreme Court.
On remand to the district court, Scruggs moved for reconsideration in light of the Supreme Court’s decision in Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. —, 128 S.Ct. 2109, 170 L.Ed.2d 996 (2008). The district court denied the motion, explaining that the Court’s decision in Quanta merely reaffirmed the proposition that the authorized sale of an article that substantially embodies a patent exhausts the patent holder’s rights and did not undermine this court’s decision in Monsanto. Noting, however, the “wealth of persuasive authority which posits the opposite conclusion, e.g., that Quanta’s holding on the doctrine of patent exhaustion is a substantial limitation on the rights of patent holders,” the trial court certified the order for interlocutory appeal.
Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal interlocutory orders certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990); 28 U.S.C. § 1292(d)(2) (“the Federal Circuit may, in its discretion, permit an appeal to be taken from such order”). We determine that granting the petition in these circumstances is not warranted. Scruggs may raise these issues on appeal from the final judgment or injunction.
Accordingly,
IT IS ORDERED THAT:
The petition for permission to appeal is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471653/ | ON MOTION
PER CURIAM.
ORDER
Irolene F. Whitehead moves for reconsideration of the court’s previous rejection of her petition for review as untimely.
On October 5, 2008, the Merit Systems Protection Board issued a final decision in Whitehead v. Department of Defense, No. DC-0752-08-0376-1-1, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of receipt of the Board’s decision. The Board’s records reflect that Whitehead received the Board’s decision on October 17, 2008. The court received Whitehead’s petition for review 63 days later, on December 19, 2008.
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dep’t. of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Oja v. Dep’t of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“[c]ompliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”).
Because Whitehead’s petition for review was received by this court three days late, this court must dismiss Whitehead’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The motion is denied. The petition for review is dismissed as untimely.
(2) Each side shall bear its own costs.
(3) All pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471657/ | ON MOTION
LINN, Circuit Judge.
ORDER
Four Rivers Investment, Inc. moves for reconsideration of the court’s order dismissing its appeal for failure to file a joint appendix. Four Rivers also moves to dispense with the appendix and to proceed on the original trial court record.
Pursuant to Fed. Cir. R. 11(a), the trial court record is not transmitted to the court. Pursuant to Fed. Cir. R. 30, an appellant is required to confer with the appellee and designate materials from the trial court record that might be referred to by the parties. The appellant is required to assign page numbers to those materials, and the parties are required to refer to those assigned page numbers when mentioning the documents or exhibits in their briefs. After the briefs are filed, the appellant is required to file a joint appendix containing the items cited by the parties in their briefs in addition to any mandatory items required by Fed. Cir. R. 30(a).
Four Rivers filed an opening brief that referred to the trial court record rather than to joint appendix citations. Four Rivers attaches one document to its brief, in addition to the trial court decision, but it is unclear if that document was before the trial court. Similarly, the United States referred in its brief to the trial court record “transmitted to this Court.” After the briefs were filed, the clerk’s office dismissed the appeal because Four Rivers failed to file the required joint appendix.
Four Rivers has not shown that the matter should proceed on the trial court record. Instead, the parties must comply with this court’s rules. We direct Four Rivers to prepare a joint appendix with page numbers that contains the items cited by the parties and any other items required by Fed. Cir. R. 30. After Four Rivers has prepared that appendix and assigned page numbers, then the parties must file corrected briefs that refer to the correct joint appendix page numbers. No other substantive changes should be made to the briefs.
Accordingly,
IT IS ORDERED THAT:
(1) The motion for reconsideration of the dismissal order is granted. The mandate is recalled and the dismissal order is vacated.
(2) The motion for leave to dispense with the joint appendix and proceed on the trial court record is denied. Four Rivers is directed to file a joint appendix within 14 days of the date of filing of this order. *551Four Rivers and the United States are directed to file corrected opening briefs within 30 days of the date of filing of this order. The previously filed briefs are withdrawn. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471658/ | ON PETITION FOR PERMISSION TO APPEAL
MAYER, Circuit Judge.
ORDER
Mitchell Scruggs et al. (Scruggs) petition for permission to appeal an order certified by the United States District Court for the Northern District of Mississippi as one involving controlling issues of law as to which there is substantial ground for difference of opinion and for which an immediate appeal may materially advance the ultimate termination of the litigation. Monsanto Company opposes.
Monsanto owns a patent directed toward inserting a modified gene into crop seeds to cause plants grown from the seed to become resistant to certain herbicides. Monsanto also owns a patent directed toward inserting a modified gene into seeds that cause a plant to produce an enzyme that is toxic to certain insects that feed off of it. The patented technology is self-replicating such that the progeny of the plants grown with the modified genes will also contain the genetic makeup that allows them to be resistant to either the herbicide or insects.
Monsanto licenses the seeds with the patented technology with certain restrictions, including, inter alia, (1) that the seeds containing the patented technology cannot be sold to growers unless the grower signs one of Monsanto’s license agreements and (2) that the grower can only use the patented transgenic seed for planting a single commercial crop per season, thus prohibiting growers from saving seeds and replanting them or supplying seeds to others for replanting. Monsanto states that each bag of seeds contains a notice that a license is required before use.
Scruggs purchased the seeds from seed companies, but never signed a license agreement with Monsanto. Scruggs planted the seeds and after harvesting the plants, retained the new generation of seeds. Scruggs’s subsequent crops were planted with those retained seeds, as well as seeds obtained from subsequent generations of crops. Monsanto filed suit, alleging infringement of its patents. The district court issued a preliminary injunction, prohibiting Scruggs from further sale and use of seeds containing Monsanto’s patented technology. On cross-motions for summary judgment, the district court found, inter alia, that Scruggs had infringed the patents and that the doctrine of patent exhaustion was inapplicable to this case. *553The court then issued a permanent injunction and a final judgment and stayed proceedings on damages pending appeal.
On appeal, we affirmed the trial court’s infringement and patent exhaustion determinations, holding that the patent exhaustion doctrine was inapplicable because (1) the initial sale from Monsanto was not an “unrestricted sale” and (2) the second generation of seeds were never “sold.” Monsanto Co. v. Scruggs, 459 F.3d 1328, 1336 (Fed.Cir.2006). We vacated the trial court’s permanent injunction determination for reconsideration in light of eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 126 S.Ct. 1837, 164 L.Ed.2d 641 (2006). Scruggs filed a petition for certio-rari, which was denied by the Supreme Court.
On remand to the district court, Scruggs moved for reconsideration in light of the Supreme Court’s decision in Quanta Computer, Inc. v. LG Electronics, Inc., 553 U.S. —, 128 S.Ct. 2109, 170 L.Ed.2d 996 (2008). The district court denied the motion, explaining that the Court’s decision in Quanta merely reaffirmed the proposition that the authorized sale of an article that substantially embodies a patent exhausts the patent holder’s rights and did not undermine this court’s decision in Monsanto. Noting, however, the “wealth of persuasive authority which posits the opposite conclusion, e.g., that Quanta’s holding on the doctrine of patent exhaustion is a substantial limitation on the rights of patent holders,” the trial court certified the order for interlocutory appeal.
Ultimately, this court must exercise its own discretion in deciding whether it will grant permission to appeal interlocutory orders certified by a trial court. See In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed.Cir.1990); 28 U.S.C. § 1292(d)(2) (“the Federal Circuit may, in its discretion, permit an appeal to be taken from such order”). We determine that granting the petition in these circumstances is not warranted. Scruggs may raise these issues on appeal from the final judgment or injunction.
Accordingly,
IT IS ORDERED THAT:
The petition for permission to appeal is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471697/ | ON MOTION
PER CURIAM.
ORDER
The United States moves to dismiss Michael C. Smart’s appeal as untimely. Smart opposes. The United States moves for leave to file its reply. Smart moves for leave to file a sur-reply.
The United States Court of Federal Claims’ docket sheet reflects that judgment was entered on January 30, 2009. The docket sheet further reflects that Hayes’ notice of appeal was filed on April 6, 2009, or 66 days later.
An appeal from a judgment of the Court of Federal Claims must be filed within 60 days of entry of judgment. See Fed. R.App. P. 4(a)(1)(B). In order to be timely, Smart’s notice of appeal was required to be filed no later than March 31, 2009. Because Smart’s notice of appeal was filed on April 6, 2009, 66 days after entry of judgment, this court lacks jurisdiction. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 2364-66, 168 L.Ed.2d 96 (2007) (timely filing of notice of appeal is a jurisdictional requirement); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)); Marandola v. United States, 518 F.3d 913, 915 (Fed.Cir.2008) (“A notice of appeal must be received by the deadline, for the Rules require filing with the clerk of court by the due date.”); Sofarelli Associates, Inc. v. *575United States, 716 F.2d 1395 (Fed.Cir.1983) (appeal must be dismissed for lack of jurisdiction if notice of appeal is untimely).
Accordingly,
IT IS ORDERED THAT:
(1) The motion to dismiss is granted.
(2) The United States’ motion for leave to file the reply is granted.
(3) Smart’s motion for leave to file a sur-reply is granted.
(4) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471662/ | *555
ORDER
PER CURIAM.
Jennifer West requests reconsideration of this court’s rejection of her petition for review as untimely.
On September 19, 2008, 110 M.S.P.R. 152, the Board denied West’s petition for review and informed West that its decision was final and that any petition for review must be received by this court within 60 calendar days of her receipt of the Board’s decision. West concedes that she filed her petition for review more than 60 days after receiving the Board’s decision. She indicates that she received the Board’s final decision on September 26, 2008. This court received West’s petition for review on March 9, 2009.
A petition for review must be received by the court within 60 days of receipt of the Board’s final order. 5 U.S.C. § 7703(b)(1). To be timely filed, the petition must be received by this court on or before the date that the petition is due. Pinat v. Office of Personnel Management, 931 F.2d 1544, 1546 (Fed.Cir.1991) (petition is filed when received by this court; court dismissed petition received nine days late). Because West’s petition was not timely received by this court, it must be dismissed.
Accordingly,
IT IS ORDERED THAT:
(1) West’s motion for reconsideration is denied. Her petition for review is dismissed as untimely filed.
(2) Each side shall bear its own costs.
(3) Any other pending motions are moot. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471664/ | ON MOTION
PER CURIAM.
ORDER
Pamela D. Dinkier moves for leave to proceed in forma pauperis and submits correspondence requesting that the court accept her untimely petition for review. The court considers whether the petition should be dismissed.
On April 30, 2008, the Merit Systems Protection Board issued a final decision in Dinkler v. Office of Pers. Mgmt., No. CH-0831-07-0409-1-1, 109 M.S.P.R. 28, specifying that its decision was final and that any petition for review must be received by this court within 60 calendar days of *556receipt of the Board’s decision. The Board’s records reflect that Dinkier received the Board’s decision on May 9, 2008. The court received Dinkler’s petition for review 62 days later, on July 10, 2008.*
A petition for review of a Board decision must be filed within 60 days of receipt of the decision. See 5 U.S.C. § 7703(b)(1). The 60-day filing period is “statutory, mandatory, [and] jurisdictional.” Monzo v. Dept. of Transp., 735 F.2d 1335, 1336 (Fed.Cir.1984); see also Oja v. Department of the Army, 405 F.3d 1349, 1360 (Fed.Cir.2005) (“Compliance with the filing deadline of 5 U.S.C. § 7703(b)(1) is a prerequisite to our exercise of jurisdiction”).
Because Dinkler’s petition for review was received by this court two days late, this court must dismiss Dinkler’s petition as untimely.
Accordingly,
IT IS ORDERED THAT:
(1) The petition for review is dismissed.
(2) All pending motions are moot.
The petition for review listed the docket number for an earlier petition of Dinkler’s and was originally filed under that number. However, upon review of the file, the court determined that Dinkier's July 10, 2008 submission was a new petition for review and docketed it as 2009-3147. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471667/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and dismiss for lack of jurisdiction Oscar S. Goins’s appeal from a decision of the United States Court of Appeals for Veterans Claims affirming the Board of Veterans’ Appeals (Board) decision that denied Goins entitlement to disability corn-*557pensation based on Agent Orange exposure for liver disease, kidney disease, and skin disease. Goins opposes.
At the Court of Appeals for Veterans Claims, Goins argued that the Board erred in (1) determining he was not eligible for disability compensation based on exposure to Agent Orange, (2) failing to apply the benefit of the doubt principle pursuant to 38 U.S.C. § 5107(b), (3) failing to provide a Statement of the Case (SOC), and (4) not addressing whether Goins was entitled to disability compensation for post-traumatic stress disorder (PTSD). The Court of Appeals for Veterans Claims affirmed the Board’s decision. In doing so, the coui’t found that none of Goins’s claimed diseases were entitled to a presumption of Agent Orange exposure and that there was no medical evidence that Goins suffered from any current skin, liver, or kidney condition. The court also found that the record reflected that Goins received an SOC and that his PTSD claim was pending before the agency and was not on appeal before the court.
The court’s jurisdiction to review decisions of the Court of Appeals for Veterans Claims is limited. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). Under 38 U.S.C. § 7292(a), this court has jurisdiction over rules of law or the validity of any statute or regulation, or an interpretation thereof relied on by the court in its decision. This court may also entertain challenges to the validity of a statute or regulation, and to interpret constitutional and statutory provisions as needed for resolution of the matter. 38 U.S.C. § 7292(c). In contrast, except where an appeal presents a constitutional question, this court lacks jurisdiction over challenges to factual determinations or laws or regulations as applied to the particular case. 38 U.S.C. § 7292(d)(2).
Goins asserts in his brief and response that the Court of Appeals for Veterans Claims failed to consider the evidence that demonstrates his entitlement to compensation benefits. Goins’s arguments regarding how the court weighed the evidence and facts of his case are outside of this court’s limited jurisdiction. Goins also generally asserts that the court failed to follow the statutes and regulations and also violated his “constitutional rights from A-Z,” including various assertions of due process violations alleged against the agency, the court, and the government. Although Goins asserts that his arguments involve issues of statutory interpretation and matters of law, this court must look beyond the appellant’s characterization of the issues to determine whether they fall within the jurisdiction of this court. Flores v. Nicholson, 476 F.3d 1379, 1382 (Fed.Cir.2007); Helfer v. West, 174 F.3d 1332, 1335 (Fed.Cir.1999). Here, Goins’s arguments are aimed at factual issues or issues outside the confines of this appeal. Because we agree with the Secretary that this court lacks jurisdiction, we must dismiss Goins’s appeal.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motions are granted.
(2) Each side shall bear its own costs. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471668/ | ON MOTION
PER CURIAM.
ORDER
The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Jenese E. Smith’s appeal from the United States Court of Appeals for Veterans Claims judgment in Smith v. Peake, 06-2970, for lack of jurisdiction. Smith opposes,
Smith sought review by the Court of Appeals for Veterans Claims of a Board of Veterans’ Appeals decision that denied particular disability ratings. Determining that the Board’s statement of reasons or bases was inadequate, the Court of Appeals for Veterans Claims vacated and remanded the appeal for readjudication. Smith now seeks review of the remand order.
Under 38 U.S.C. § 7292, this court has limited jurisdiction over appeals from decisions of the Court of Appeals for Veterans Claims. See Forshey v. Principi, 284 F.3d 1335, 1338 (Fed.Cir.2002) (en banc). This court typically lacks jurisdiction over remand orders because they are not final judgments. This court can only review remands, inter alia, where “the remand disposes of an important legal issue that would be effectively unreviewable at a later stage of litigation.” Winn v. Brown, 110 F.3d 56, 57 (Fed.Cir.1997). See also Williams v. Principi, 275 F.3d 1361, 1364 (Fed.Cir.2002). Because the Court of Appeals for Veterans Claims decision to remand in this case does not decide any legal issue that would be effectively unreviewable at a later stage of litigation, this court does not have jurisdiction to review the Court of Appeals for Veterans Claims remand order.*
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motions are granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
If the Court of Appeals for Veterans Claims issues an adverse final decision at a later date, Smith may thereafter seek review of that decision, if appealable and within this court's jurisdiction. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471674/ | ON MOTION
PER CURIAM.
ORDER
The Postmaster General moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Frank Baiamonte’s appeal from the United States Postal Service Board of Contract Appeals decisions in case nos. 5297, 5324, and 5334 for lack of jurisdiction. Baiamonte opposes.
Baiamonte filed cases with the Board seeking review of the United States Postal Service’s decision to terminate his mail delivery contract for default and to deny him access to the mail. On April 11, 2008, 2008 WL 2811801, addressing consolidated case nos. 5297 and 5324, the Board denied Baiamonte’s appeal regarding the termination of a contract for default and found that the Postal Service was entitled to recover costs associated with replacing Baiamonte after the termination. On July 29, the Board denied Baiamonte’s motion for reconsideration. In case no. 5332, the Postal Service moved to dismiss Baiam-onte’s five claims for payment based on the Postal Service’s decision denying him access to the mail. The Board granted the motion with respect to four of the claims, but retained jurisdiction to continue to decide the remaining claim. Baiamonte filed a notice of appeal of the Board’s three decisions on December 8, 2008.
With respect to the Board’s decisions in case nos. 5297 and 5324, the Postal Service argues that the court lacks jurisdiction because Baiamonte did not timely file his notice of appeal with the court. The Board issued its decision on July 29, 2008 and Baiamonte did not file his notice of appeal until December 8, 2009, or 132 days later. Although there is nothing in the record indicating the exact date Baiamonte received the decision, Baiamonte stated in his notice of appeal that he received the decision within 7 days of its issuance.
Any appeal from a Board decision must be received by the court within 120 days after the date of receipt of the Board decision. 41 U.S.C. § 6107(g)(1)(A); Fed.R.App. P. 15(a). The time limit for filing a notice of appeal is jurisdictional. See Bowles v. Russell, 551 U.S. 205, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) (timely filing of notice of appeal in civil case is jurisdictional requirement); Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)). Because Baiamonte’s notice of appeal was at best filed 125 days after he received the Board decision, the appeal regarding case nos. 5297 and 5324 must be dismissed as untimely filed.
The Postal Service also argues that the court lacks jurisdiction over Baiamonte’s appeal of the Board’s decision in case no. 5332 because there is a pending claim before the Board, and thus any appeal is premature. Because there is a pending claim, there is no final judgment in case no. 5332 and the appeal as to that case is premature. See Pause Technology, LLC v. TiVo Inc., 401 F.3d 1290, 1294 (Fed.Cir.2005) (stating that “a pending counterclaim precludes jurisdiction”); Nystrom v. TREX Co., 339 F.3d 1347, 1350 (Fed.Cir.*5632003) (“If a case is not fully adjudicated as to all claims for all parties and there is no express determination that there is no just reason for delay or express direction for entry of judgment as to fewer than all of the parties or claims, there is no final decision under 28 U.S.C. § 1295(a)(1) and therefore no jurisdiction”). Thus, we grant the motion to dismiss.*
Accordingly,
IT IS ORDERED THAT:
(1) The Postmaster General’s motions are granted. The appeal is dismissed.
(2) Each side shall bear its own costs.
If the Board issues an adverse final decision in case no. 5332 at a later date, Baiamonte may thereafter seek review of that decision, if appropriate and timely filed. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8471676/ | ON MOTION
LINN, Circuit Judge.
ORDER
Fairchild Semiconductor Corporation moves for stay, pending appeal,* of the permanent injunction entered by the United States District Court for the District of Delaware on December 12, 2008. Power Integrations, Inc. opposes and requests that the court dismiss Fairchild’s appeal. Fairchild replies.
Power Integrations filed suit against Fairchild asserting infringement of three patents. The district court held separate jury trials concerning infringement and invalidity and ruled that Fairchild infringed and that the patents were not invalid. On December 12, 2008, the district court entered a permanent injunction against Fair-child. Fairchild requested that the district *564court stay the injunction, and on December 22, 2008, the, district court granted a temporary stay but denied a stay, pending appeal. Fairchild filed a notice of appeal seeking review of the December 22 order ruling on Fairchild’s request for a stay, pending appeal. Fairchild’s notice of appeal states that it appeals “from the memorandum order of the United States District Court for the District of Delaware entered on December 22, 2008 in the above case ... denying a partial stay of permanent injunction pending appeal. Fairchild is not, at this time, appealing the permanent injunction.”
This court’s jurisdiction in cases arising under the patent laws is limited to review of final decisions, 28 U.S.C. § 1295(a)(1), and orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, 28 U.S.C. § 1292(c)(1). In Shiley, Inc. v. Bentley Labs., Inc., 782 F.2d 992 (Fed.Cir.1986), this court determined that a denial of a stay of an injunction is not a final decision within the meaning of 28 U.S.C. § 1295(a)(1) or within this court’s jurisdiction under 28 U.S.C. § 1292(c)(1). Thus, we determined that we lack jurisdiction to review appeals of orders denying a stays of injunctions.
Fairchild argues that in Shiley the party seeking to appeal had already appealed the injunction itself. Fairchild argues that this case is different because here, Fair-child is “appealing the issue for the first time.” Fairchild misapprehends the court’s holding in Shiley. Shiley held that the court lacked jurisdiction over an appeal of an order denying a stay of an injunction; that holding did not rest on the fact that the appellant in that ease had previously appealed the injunction. Fair-child could have appealed the injunction itself; however, it did not. Shiley clearly ruled that jurisdiction is lacking in appeals of orders denying stays of injunctions, such as the order Fairchild seeks to appeal. The court may not extend its jurisdiction where none exists. See Christianson v. Colt Operating Indus. Corp., 486 U.S. 800, 818, 108 S.Ct. 2166, 100 L.Ed.2d 811 (1988) (“a court may not in any case, even in the interest of justice, extend its jurisdiction where none exists”).
Fairchild also argues that the district court’s December 22 order is appealable as an order modifying the injunction. However, we determined in Shiley that an order denying a stay, pending appeal, is not appealable under 28 U.S.C. § 1292(c)(1), which permits appeals of orders modifying injunctions. Thus, pursuant to Shiley, the district court’s December 22 order is not an order modifying an injunction.
Because the December 22 order is not a final decision or appealable pursuant to 28 U.S.C. § 1292(c)(1), the court lacks jurisdiction and must dismiss.
Accordingly,
IT IS ORDERED THAT:
(1) The appeal is dismissed for lack of jurisdiction.
(2) Each side shall bear its own costs.
(3) The motion for a stay of the injunction is moot.
Fairchild states that it requests a stay pending appeal, a stay pending district court proceedings, and a stay pending completion of reexamination by the United States Patent and Trademark Office. The court determines that because we lack jurisdiction over this appeal, we need not decide whether Fairchild’s request to stay the injunction pending further district court proceedings or reexamination is proper within the context of this appeal. | 01-04-2023 | 11-05-2022 |