An eligible deportable alien may be granted temporary protected status in the United States if the alien's country of nationality has been designated by the Attorney General as a place where extraordinary and temporary conditions, such as armed conflict and natural disasters, exist. An alien convicted of any felony in the United States would be ineligible for this relief.
The new regulations go into effect on September 25, 2002. These regulations reduce the size of the Board to 11 members, mandating review by single Board members instead of panels of three; impose very tight briefing schedules (detained persons must submit their appeal briefs within 21 days, simultaneously with the government’s brief and without the chance to see the government’s arguments), and severely circumscribe the discretion of BIA Members to review the facts of the case before them.
From 1939 Appendix I -- Relief From Deportation, Department of Justice > USAM > Title 9 > Criminal Resource Manual, October 1997, Criminal Resource Manual 1939, with edits to reflect changes in the law.
a. Any alien convicted of, or who admits having committed, or who admits the essential elements of a crime involving moral turpitude (other than a purely political offense or an attempt or conspiracy to commit such a crime) is inadmissible. INA § 212(a)(2)(A)(i).
a. Any alien who (I) is convicted of a crime involving moral turpitude committed within five years (or 10 years in the case of an alien provided lawful permanent resident status under section 245(j) of this title) after the date of admission, and (II) is convicted of a crime for which a sentence of one year or longer may be imposed. (This can include a Class A misdemeanor drug/narcotics conviction). INA §237(a)(2)(A)(i).
Exception: The crime was committed when the alien was under 18, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than five years before the date of application for admission. INA § 212(a)(2)(A)(ii)(I).
Note: The exceptions under this ground are different for arriving aliens and deportable aliens.
Exception: The maximum penalty possible for the crime 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. INA § 212(a)(2)(A)(i)(II).
b. Multiple CIMTs. Any alien who at any time after admission is convicted of 2 or more crimes involving moral turpitude, not arising out of a single scheme of criminal misconduct, regardless of whether confined therefore and regardless of whether the convictions were in a single trial, is deportable. INA § 237(a)(2)(A)(ii).
b. Multiple Criminal Convictions. Any alien convicted of 2 or more offenses, regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement actually imposed were 5 years or more is inadmissible. INA § 212(a)(2)(B).
Note: For arriving aliens, the crimes do not need to be CIMTs and there is no exception for a single scheme.
Criminal And Related Grounds.-- (A) Conviction Of Certain Crimes.-- (i) In General.-- Except as provided in a clause (ii), any alien convicted of, or who admits having committed, or who admits acts which constitute the essential elements of-- (I) a crime involving moral turpitude (other than a purely political offense), or (II) a violation of (or a conspiracy to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible. (ii) Exception.-- clause (i)(I) shall not apply to an alien who committed only one crime if-- (I) the crime was committed when the alien was under 18 years of age and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for visas or other documentation and the date of application for admission to the United States, or (II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, 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). (B) Multiple Criminal Convictions.-- Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement actually imposed were 5 years or more is inadmissible.
(C) 2a/ Controlled Substance Traffickers- Any alien who the consular officer or the Attorney General knows or has reason to believe-- (i) is or has been an illicit trafficker in any controlled substance or in any listed chemical (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), or is or has been a knowing aider, abettor, assister, conspirator, or colluder with others in the illicit trafficking in any such controlled or listed substance or chemical, or endeavored to do so; or (ii) is the spouse, son, or daughter of an alien inadmissible under clause (i), has, within the previous 5 years, obtained any financial or other benefit from the illicit activity of that alien, and knew or reasonably should have known that the financial or other benefit was the product of such illicit activity, is inadmissible.
Alien is not deemed to have been "convicted" of crime for purposes of former 8 USCS § 1182(a)(9) until his conviction has attained substantial degree of finality, and such finality does not occur unless and until direct appellate review of conviction has been exhausted or waived. Marino v Immigration & Naturalization Service, United States Dep't of Justice (1976, CA2) 537 F2d 686.
Although a nonfinal conviction for which procedures for a direct appeal have not been exhausted or waived does not constitute a "conviction" within meaning of [INA § 212(a)(9) former 8 USCS § 1182(a)(9)] and may not be used to support a deportation order, it was harmless error for Immigration Judge to have considered alien's conviction for purposes of denying discretionary relief of voluntary departure while an appeal was pending of alien's convictions. Kabongo v Immigration & Naturalization Service (1988, CA6) 837 F2d 753, cert den (1988) 488 US 982, 102 L Ed 2d 564, 109 S Ct 533.
Waiver Of Ineligibility Aliens who are ineligible for a visa may be eligible for a waiver of ineligibility under one of the following provisions of the Act. Section 212(g) of the Immigration and Nationality Act, provider that: The Attorney General may waive the application of-- (1) subsection (a)(1)(A)(i) (health/vaccination requirements) in the case of any alien who-- (A) is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, or a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa, or (B) has a son or daughter who is a United States citizen, or of an alien lawfully admitted for permanent residence, or an alien who has been issued an immigrant visa, or (2) subsection (a)(1)(A)(ii) in the case of any alien, in accordance with such terms, conditions, and controls, if any, including the giving of bond, as the Attorney General, in his discretion after consultation with the Secretary of Health and Human Services, may by regulation prescribe. Section 212(h) (crime waiver) provides that: The Attorney General may, in his discretion, waive the application of subparagraphs(A)(i)(I), (B), (D), and (E) of subsection (a)(2) and subparagraphs (A)(i)(II) of such subsection insofar as it relates to a single offense of simple possession of 30 grams or less of marijuana if-- (1)(A) in the case of any immigrant it is established to the satisfaction of the Attorney General that-- (i) the alien is excludable only under subparagraph (D)(i) or (D)(ii) of such section or the activities for which the alien is excludable occurred more than 15 years before the date of the alien's application for a visa, entry, or adjustment of status, (ii) the admission to the United States of such alien would not be contrary to the national welfare, safety, or security of the United States, and (iii) the alien has been rehabilitated; or (B) in the case of an immigrant who is the spouse, parent, son, or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence if it is established to the satisfaction of the Attorney General that the alien's exclusion would result in extreme hardship to the United States citizen or lawful resident spouse, parent, son, or daughter of such alien; and (2) the Attorney General, in his discretion, and pursuant to such terms, conditions and procedures as he may by regulations prescribe, has consented to the alien's applying or reapplying for a visa, for admission to the United States, or adjustment of status. No waiver shall be provided under this subsection in the case of an alien who has been convicted of (or who has admitted committing acts that constitute) murder or criminal acts involving torture.
"No waiver shall be granted under this subsection in the case of an alien who has previously been admitted to the United States as an alien lawfully admitted for permanent residence if either since the date of such admission the alien has been convicted of an aggravated felony or the alien has not lawfully resided continuously in the United States for a period of not less than 7 years immediately preceding the date of initiation of proceedings to remove the alien from the United States."
Note that parents are no longer eligible for this waiver. No court shall have jurisdiction to review a decision or action of the Attorney General regarding a waiver.
Extreme hardship is not a definable term of fixed and inflexible meaning, and the elements to establish extreme hardship are dependent upon the facts and circumstances of each case.
The factors to be used in determining whether an alien has established extreme hardship pursuant to section 212(i) of the Act include, but are not limited to, the following: the presence of lawful permanent resident or United States citizen family ties to this country; the qualifying relative's family ties outside the United States; the conditions in the country or countries to which the qualifying relative would relocate and the extent of the qualifying relative's ties to such countries; the financial impact of departure from this country; and, finally, significant conditions of health, particularly when tied to the unavailability of suitable medical care in the country to which the qualifying relative would relocate. Section 212(d)(11) of the Immigration and Nationality Act, provides that: The Attorney General may, in his discretion for humanitarian purposes, to assure family unity, or when it is otherwise in the public interest, waive application of clause (i) of subsection(a)(6)(E) in the case of any alien lawfully admitted for permanent residence who temporarily proceeded abroad voluntary and not under an order or deportation, and who is otherwise admissible to the United States as a returning resident under section 211(b) and in the case of an alien seeking admission or adjustment of status as an immediate relative or immigrant under section 203(a) (other than paragraph (4) thereof) if the alien has encouraged, induced, assisted, abetted or aided only the alien's spouse, parent, son, or daughter (and no other individual) to enter the United States in violation of law. Section 212(d)(3) of the Immigration an Nationality Act, provides that: Except as provided in this subsection, an alien (A) who is applying for a nonimmigrant visa and is know or believed by the consular officer to be ineligible for such visa under one or more of the paragraphs enumerated in subsection (q) (other than paragraphs (3)(A)(i)(I), (3)(A)(ii), (3)(A)(iii), (3)(C), or(3)(E) of such subsection), after approval by the Attorney General of a recommendation by the Secretary of State or by the consular officer that the alien be admitted temporarily despite the Secretary of State or by the consular officer that the alien be admitted into the United States temporarily as a nonimmigrant in the discretion of the Attorney General... The Attorney General shall prescribe conditions including exaction of such bonds as may be necessary to control and regulate the admission and return of excludable aliens applying for temporary admission under this paragraph.


§1820.2 Requirements for making FOIA requests.
§1820.4 Timing of responses to requests.
§1820.9 Other rights and services.
§1820.14 Factors the OSC will consider.
§1820.15 Filing requirements for litigants seeking documents or testimony.
§1820.16 Service of requests or demands.
§1820.17 Processing requests or demands.
§1820.19 Restrictions that apply to testimony.
§1820.20 Restrictions that apply to released records.
§1820.21 Procedure when a decision is not made prior to the time a response is required.
§1820.22 Procedure in the event of an adverse ruling.
§1820.25 Conformity with other laws.
Authority: 5 U.S.C. 552 and 1212(e).
Source: 72 FR 40711, July 25, 2007, unless otherwise noted.
This part contains rules and procedures followed by the U.S. Office of Special Counsel (OSC) in processing requests for records under the Freedom of Information Act (FOIA), as amended, at 5 U.S.C. 552. These rules and procedures should be read together with the FOIA, which provides additional information about access to agency records. Further information about the FOIA and access to OSC records is available on the FOIA page of OSC's Web site (https://www.osc.gov). Information routinely provided to the public as part of a regular OSC activity—for example, forms, press releases issued by the public affairs officer, records published on the agency's Web site, or public lists maintained at OSC headquarter offices pursuant to 5 U.S.C. 1219—may be requested and provided to the public without following this part. This part also addresses responses to demands by a court or other authority to an employee for production of official records or testimony in legal proceedings.
(iii) By email to [email protected] or other electronic means as described on the FOIA page of OSC's Web site, https://osc.gov/Pages/FOIA-Resources.aspx.
(2) For the quickest handling, both the request letter and envelope or any fax cover sheet or email subject line should be clearly marked “FOIA Request.” Whether sent by mail, fax, email, or other prescribed electronic method, a FOIA request will not be considered to have been received by OSC until it reaches the FOIA office.
(b) Description of records sought. Requesters must describe the records sought in enough detail for them to be located with a reasonable amount of effort. When requesting records about an OSC case file, the case file number, name, and type (for example, prohibited personnel practice, Hatch Act, USERRA or other complaint; Hatch Act advisory opinion; or whistleblower disclosure) should be provided, if known. Whenever possible, requests should describe any particular record sought, such as the date, title or name, author, recipient, and subject matter.
(c) Agreement to pay fees. Making a FOIA request shall be considered an agreement by the requester to pay all applicable fees chargeable under §1820.7, up to and including the amount of $25.00, unless the requester asks for a waiver of fees or specifies a willingness to pay a greater or lesser amount.
(b) Refer the responsibility for responding to the request to another Federal agency deemed better able to determine whether to disclose it. Consultations and referrals will be handled according to the date that the FOIA request was initially received by the first agency or Federal government office.
(a) In general. OSC ordinarily will respond to FOIA requests according to their order of receipt. In determining which records are responsive to a request, OSC ordinarily will include only records in its possession as of the date on which it begins its search for them. If any other date is used, OSC will inform the requester of that date.
(b) Multitrack processing. (1) OSC may use two or more processing tracks by distinguishing between simple and more complex requests based on the amount of work and/or time needed to process the request.
(2) When using multitrack processing, OSC may provide requesters in its slower track(s) with an opportunity to limit the scope of their requests in order to qualify for faster processing within the specified limits of the faster track(s).
(iii) The requested records relate to an appeal for which the requester faces an imminent deadline for filing with the Merit Systems Protection Board or other administrative tribunal or a court of law, seeking personal relief pursuant to a complaint filed by the requester with OSC, or referred to OSC pursuant to title 38 of the U.S. Code. Expedited status granted under this provision will apply only to the following requested records: Letters sent to the complainant by OSC; and the official complaint form submitted to OSC by the complainant or the original referred complaint if referred to OSC pursuant to title 38 of the U.S. Code. All other requested records will be processed according to the order in which OSC received the request.
(2) A request for expedited processing must be made in writing and sent to OSC's FOIA Officer. Such a request will not be considered to have been received until it reaches the FOIA Officer.
(3) A requester who seeks expedited processing must submit a statement, certified to be true and correct to the best of that person's knowledge and belief, explaining in detail the basis for requesting expedited processing. For example, a requester within the category described in paragraph (c)(1)(ii) of this section, if not a full-time member of the news media, must establish that he or she is a person whose main professional activity or occupation is information dissemination, though it need not be his or her sole occupation. The formality of certification may be waived as a matter of OSC's administrative discretion.
(4) OSC shall decide whether to grant a request for expedited processing and notify the requester of its decision within 10 calendar days of the FOIA Officer's receipt of the request. If the request for expedited processing is granted, the request for records shall be processed as soon as practicable. If a request for expedited processing is denied, any administrative appeal of that decision shall be acted on expeditiously.
(d) Aggregated requests. OSC may aggregate multiple requests by the same requester, or by a group of requesters acting in concert, if it reasonably believes that such requests constitute a single request involving unusual circumstances, as defined by the FOIA, supporting an extension of time to respond, and the requests involve clearly related matters.
(a) General. Ordinarily, OSC shall have 20 business days from when a request is received to determine whether to grant or deny the request. Once OSC makes a determination to grant a FOIA request for records, or makes an adverse determination denying a request in any respect, it will notify the requester in writing. Adverse determinations, or denials of requests, consist of: A determination to withhold any requested record in whole or in part; a determination that a requested record does not exist or cannot be located; a determination that a record is not readily reproducible in the form or format sought by the requester; a determination that what has been requested is not a record subject to the FOIA; a determination on any disputed fee matter, including a denial of a request for a fee waiver; and a denial of a request for expedited treatment.
(2) A statement that the denial may be appealed under section 1820.6(a), with a description of the requirements of that subsection.
(c) Dispute resolution program. OSC shall inform FOIA requesters at all stages of the FOIA process of the availability of dispute resolution services. In particular, OSC's FOIA acknowledgement letters shall notify requesters that the FOIA Liaison is available to assist them with requests. The acknowledgment letter and any agency response will include a notice that the FOIA Public Liaison may provide dispute resolution services, and will also notify the requester of the dispute resolution services provided by the National Archives and Records Administration's (NARA) Office of Government Information Services (OGIS).
(d) Maintenance of files. OSC must preserve federal record correspondence and copies of requested records until disposition is authorized pursuant to Title 44 of the United States Code and the relevant approved records retention schedule.
(3) By email to [email protected], or other electronic means as described on the FOIA page of OSC's Web site, https://osc.gov/Pages/FOIAResources.aspx.
(b) Submission and content. The Office of General Counsel must receive the appeal within 90 days of the date of the letter denying the request. For the quickest possible handling, the appeal letter and envelope or any fax cover sheet or email subject line should be clearly marked “FOIA Appeal.” The appeal letter must clearly identify the OSC determination (including the assigned FOIA request number, if known) being appealed. OSC will not ordinarily act on a FOIA appeal if the request becomes a matter of FOIA litigation.
(c) Responses to appeals. Ordinarily, OSC shall have 20 business days from receipt of the appeal to issue an appeal decision. 5 U.S.C. 552(a)(6)(A)(ii). OSC's decision on an appeal will be in writing. A decision affirming a denial in whole or in part shall inform the requester of the provisions for judicial review of that decision. If the denial is reversed or modified on appeal, in whole or in part, OSC will notify the requester in a written decision and OSC will reprocess the request in accordance with that appeal decision. OSC will notify the requester of the availability of dispute resolution services provided by the FOIA Public Liaison and the dispute resolution services provided by the National Archives and Records Administration's (NARA) Office of Government Information Services (OGIS).
(a) In general. OSC shall charge for processing requests under the FOIA in accordance with paragraph (c) of this section, except where fees are limited under paragraph (d) of this section or where a waiver or reduction of fees is granted under paragraph (k) of this section. OSC may collect all applicable fees before sending copies of requested records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States.
(1) “‘Commercial use’ request” means a request from or on behalf of a person who seeks information for a use or purpose that furthers his or her commercial, trade, or profit interests, which can include furthering those interests through litigation. OSC shall determine, whenever reasonably possible, the use to which a requester will put the requested records. When it appears that the requester will put the records to a commercial use, either because of the nature of the request itself or because OSC has reasonable cause to doubt a requester's stated use, OSC shall provide the requester with a reasonable opportunity to submit further clarification.
(2) “Direct costs” means those expenses that OSC incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records to respond to a FOIA request. Direct costs include, for example, the salary of the employee performing the work (the basic rate of pay for the employee plus 16 percent of that rate to cover benefits) and the cost of operating duplicating equipment. Direct costs do not include overhead expenses such as the costs of space, and heating or lighting the facility in which the records are kept.
(3) “Duplication” means the process of making of a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, microform, audiovisual materials, or electronic records (for example, on digital data storage discs), among others.
(4) “Educational institution” means a preschool, a public or private elementary or secondary school, an institution of undergraduate higher education, an institution of graduate higher education, an institution of professional education, or an institution of vocational education, that operates a program of scholarly research. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scholarly research.
(5) “Non-commercial scientific institution” means an institution that is not operated on a “commercial” basis, as that term is referenced in paragraph (b)(1) of this section, and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. To be in this category, a requester must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are not sought for a commercial use but are sought to further scientific research.
(6) “Representative of the news media” or “news media requester” means any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. A non-exhaustive list of news media entities could include, in addition to television or radio stations broadcasting to the public at large and publishers of periodicals (but only in those instances where they can qualify as disseminators of “news”), electronic outlets for print newspapers, magazines, and television and radio stations, and web-only outlets or other alternative media as methods of news delivery evolve. For “freelance” journalists to be regarded as working for a news organization, they must demonstrate a solid basis for expecting publication through that organization, whether print or electronic. A publication contract would be the clearest proof, but OSC may also look to the past publication record of a requester in making this determination. To be in this category, a requester must not be seeking the requested records for a commercial use. A request for records supporting the news-dissemination function of the requester shall not be considered to be for a commercial use.
(7) “Review” means the process of examining a record located in response to a request in order to determine whether any portion of the record is exempt from disclosure. It includes processing any record for disclosure—for example, doing all that is necessary to redact it and otherwise prepare it for disclosure. Review time also includes time spent obtaining and considering any formal objection to disclosure made by a business submitter under §1820.8(f). It does not include time spent resolving general legal or policy issues about the application of exemptions. Review costs are properly charged in connection with commercial use requests even if a record ultimately is not disclosed.
(8) “Search” means the process of looking for and retrieving records or information responsive to a request. It includes page-by-page or line-by-line identification of information within records when undertaken, and reasonable efforts to locate and retrieve information from records maintained in electronic form or format, to the extent that such efforts would not significantly interfere with the operation of an automatic information system.
(1) Search. (i) Search fees will be charged for all requests—other than requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media—subject to the limitations of paragraph (d) of this section. OSC may charge for time spent searching even if it fails to locate responsive records, or records located after a search are determined to be exempt from disclosure.
(ii) For each quarter hour spent by clerical personnel in searching for and retrieving a requested record, the fee will be $5.50. Where a search and retrieval cannot be performed entirely by clerical personnel - for example, where the identification of records within the scope of a request requires the use of professional personnel - the fee will be $9.00 for each quarter hour of search time spent by professional personnel. Where the time of managerial personnel is required, the fee will be $17.50 for each quarter hour of time spent by those personnel.
(iii) For electronic searches of records, requesters will be charged the direct costs of conducting the search, including the costs of operator/programmer staff time apportionable to the search.
(iv) For requests requiring the retrieval of records from any Federal Records Center, additional costs may be charged in accordance with the applicable billing schedule established by the National Archives and Records Administration.
(2) Duplication. Duplication fees will be charged to all requesters, subject to the limitations of paragraph (d) of this section. For a standard paper photocopy of a record (no more than one copy of which need be supplied), the fee will be 25 cents per page. For copies produced by computer, such as discs or printouts, OSC will charge the direct costs, including staff time, of producing the copy. For other forms of duplication, OSC will charge the direct costs of that duplication.
(3) Review. Review fees will be charged to requesters who make a commercial use request. Review fees will be charged for only initial record review - in other words, the review done when OSC analyzes whether an exemption applies to a particular record or record portion at the initial request level. No charge will be made for review at the administrative appeal level for an exemption already applied. However, records or record portions withheld under an exemption that is subsequently determined not to apply may be reviewed again to determine whether any other exemption not previously considered applies; the costs of that review are chargeable where it is made necessary by such a change of circumstances. Review fees will be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.
(d) Limitations on charging fees. (1) No search fee will be charged for requests by educational institutions, noncommercial scientific institutions, or representatives of the news media.
(2) No search fee or review fee will be charged for a quarter-hour period unless more than half of that period is required for search or review.
(ii) The first two hours of search (or the cost equivalent).
(4) Whenever a total fee calculated under paragraph (c) of this section is $20.00 or less for any request, no fee will be charged.
(5) The provisions of paragraphs (d)(3) and (d)(4) of this section work together. This means that for requesters other than those seeking records for a commercial use, no fee will be charged unless the cost of search in excess of two hours plus the cost of duplication in excess of 100 pages totals more than $20.00.
(e) Notice of anticipated fees in excess of $25.00. When OSC determines or estimates that the fees to be charged under this section will amount to more than $25.00, OSC shall notify the requester of the actual or estimated amount of the fees, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, OSC will advise the requester that the estimated fee may be only a portion of the total fee. In cases in which a requester has been notified that actual or estimated fees amount to more than $25.00, the request shall not be considered received and further work will not be done on it until the requester agrees to pay the anticipated total fee. A notice under this paragraph will offer the requester an opportunity to discuss the matter with OSC in order to reformulate the request to meet the requester's needs at a lower cost.
(f) Charges for other services. Apart from the other provisions of this section, when OSC chooses as a matter of administrative discretion to provide a special service-such as sending records by other than ordinary mail-the direct costs of providing the service ordinarily will be charged.
(g) Charging interest. OSC may charge interest on any unpaid fee starting on the 31st day after the date of on which the billing was sent to the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the date of billing until payment is received by OSC. OSC will follow the provisions of the Debt Collection Act of 1982 (Public Law 97-365, 96 Stat. 1749), as amended by the Debt Collection Act of 1996 (Public Law 104-134, 110 Stat. 1321-358), and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.
(h) Aggregating requests. Where OSC reasonably believes that a requester or a group of requesters acting together is attempting to divide a request into a series of requests that otherwise could have been submitted as a single request, for the purpose of avoiding fees, OSC may aggregate those requests and charge accordingly. OSC may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. Where requests are separated by a longer period, OSC will aggregate them only where a reasonable basis exists for determining that aggregation is warranted under all of the circumstances involved. Multiple requests involving unrelated matters will not be aggregated.
(i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) and (i)(3) of this section, OSC will not require the requester to make an advance payment before work is begun or continued on a request. Payment owed for work already completed (that is, pre-payment after processing a request but before copies are sent to the requester) is not an advance payment.
(2) Where OSC determines or estimates that a total fee to be charged under this section will be more than $250.00, it may require the requester to make an advance payment of an amount up to the amount of the entire anticipated fee before beginning to process the request, except where it receives a satisfactory assurance of full payment from a requester who has a history of prompt payment.
(3) Where a requester has previously failed to pay a properly charged FOIA fee to any agency within 30 days of the date of billing, OSC may require the requester to pay the full amount due, plus any applicable interest, and to make an advance payment of the full amount of any anticipated fee, before OSC begins to process a new request or continues to process a pending request from that requester.
(4) In cases in which OSC requires advance payment or payment due under paragraph (i)(2) or (3) of this section, the request shall not be considered received and further work will not be done on the request until the required payment is received.
(j) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires an agency to set and collect fees for particular types of records. Where records responsive to requests are maintained for distribution by agencies operating such statutorily based fee schedule programs, OSC will provide contact information for use by requesters in obtaining records from those sources.
(ii) Disclosure of the information is not primarily in the commercial interest of the requester.
(i) The subject of the request: Whether the subject of the requested records concerns “the operations or activities of the government.” The subject of the requested records must concern identifiable operations or activities of the federal government, with a connection that is direct and clear, not remote or attenuated.
(ii) The informative value of the information to be disclosed: Whether the disclosure is “likely to contribute”' to an understanding of government operations or activities. The disclosable portions of the requested records must be meaningfully informative about government operations or activities in order to be “likely to contribute”to an increased public understanding of those operations or activities. The disclosure of information that already is in the public domain, in either a duplicative or a substantially identical form, would not be as likely to contribute to such understanding where nothing new would be added to the public's understanding.
(iii) The contribution to an understanding of the subject by the public likely to result from disclosure: Whether disclosure of the requested information will contribute to “public understanding.” The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area and ability and intention to effectively convey information to the public shall be considered. It shall be presumed that a representative of the news media satisfies this consideration.
(iv) The significance of the contribution to public understanding: Whether the disclosure is likely to contribute “significantly” to public understanding of government operations or activities. The public's understanding of the subject in question, as compared to the level of public understanding existing prior to the disclosure, must be enhanced by the disclosure to a significant extent. OSC shall not make value judgments about whether information that would contribute significantly to public understanding of the operations or activities of the government is “important” enough to be made public.
(i) The existence and magnitude of a commercial interest: Whether the requester has a commercial interest that would be furthered by the requested disclosure. OSC shall consider any commercial interest of the requester (with reference to the definition of “commercial use” in paragraph (b)(1) of this section), or of any person on whose behalf the requester may be acting, that would be furthered by the requested disclosure. Requesters shall be given an opportunity to provide explanatory information about this consideration.
(ii) The primary interest in disclosure: Whether any identified commercial interest of the requester is sufficiently large, in comparison with the public interest in disclosure, that disclosure is “primarily in the commercial interest of the requester.” A fee waiver or reduction is justified where the public interest standard is satisfied and that public interest is greater in magnitude than that of any identified commercial interest in disclosure. OSC ordinarily shall presume that where a news media requester has satisfied the public interest standard, the public interest will be the interest primarily served by disclosure to that requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return shall not be presumed to primarily serve the public interest.
(4) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver shall be granted for those records.
(5) Requests for the waiver or reduction of fees should address the factors listed in paragraphs (k)(2) and (3) of this section, insofar as they apply to each request. OSC will exercise its discretion to consider the cost-effectiveness of its investment of administrative resources in this decision making process, however, in deciding to grant waivers or reductions of fees.
(a) In general. Business information obtained by OSC from a submitter will be disclosed under the FOIA only under this section.
(1) “Business information” means commercial or financial information obtained by OSC from a submitter that may be protected from disclosure under exemption 4 of the FOIA.
(2) “Submitter” means any person or entity from whom the OSC obtains business information, directly or indirectly. The term includes corporations, and state, local, tribal and foreign governments.
(c) Designation of business information. A submitter of business information will use good-faith efforts to designate, by appropriate markings, either at the time of submission or at a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under exemption 4. These designations will expire 10 years after the date of the submission unless the submitter requests, and provides justification for, a longer designation period.
(d) Notice to submitters. OSC shall provide a submitter with prompt written notice of a FOIA request or administrative appeal that seeks its business information wherever required under paragraph (e) of this section, except as provided in paragraph (h) of this section, in order to give the submitter an opportunity to object to disclosure of any specified portion of that information under paragraph (f) of this section. The notice shall either describe the business information requested or include copies of the requested records or record portions containing the information. When notification of a voluminous number of submitters is required, notification may be made by posting or publishing the notice in a place reasonably likely to accomplish it.
(2) OSC has reason to believe that the information may be protected from disclosure under exemption 4.
(f) Opportunity to object to disclosure. OSC will allow a submitter a reasonable time to respond to the notice described in paragraph (d) of this section and will specify that time period within the notice. If a submitter has any objection to disclosure, it is required to submit a detailed written statement. The statement must specify all grounds for withholding any portion of the information under any exemption of the FOIA and, in the case of exemption 4, it must show why the information is a trade secret or commercial or financial information that is privileged or confidential. If a submitter fails to respond to the notice within the time specified in it, the submitter will be considered to have no objection to disclosure of the information. Information provided by the submitter that is not received by OSC until after its disclosure decision has been made shall not be considered by OSC. Information provided by a submitter under this paragraph may itself be subject to disclosure under the FOIA.
(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.
(4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous - except that, in such a case, OSC shall, within a reasonable time prior to a specified disclosure date, give the submitter written notice of any final decision to disclose the information.
(i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of business information, OSC shall promptly notify the submitter.
(j) Corresponding notice to requesters. Whenever OSC provides a submitter with notice and an opportunity to object to disclosure under paragraph (d) of this section, OSC shall also notify the requester(s). Whenever OSC notifies a submitter of its intent to disclose requested information under paragraph (g) of this section, OSC shall also notify the requester(s). Whenever a submitter files a lawsuit seeking to prevent the disclosure of business information, OSC shall notify the requester(s).
Nothing in this part shall be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.
(2) The testimony of current and former OSC employees, advisors, and consultants relating to official information, official duties, or the OSC's records, in connection with federal or state litigation or administrative proceedings in which the OSC is not a party.
(4) Protect sensitive, confidential information and the deliberative processes of the OSC.
(c) In providing for these requirements, the OSC does not waive the sovereign immunity of the United States.
(d) This part provides guidance for the internal operations of OSC. It does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States.
(c) Congressional demands and requests for testimony, records or information.
The following definitions apply to this part.
Demand means an order, subpoena, or other command of a court or other competent authority for the production, disclosure, or release of records or for the appearance and testimony of an OSC employee in a legal proceeding.
General Counsel means the General Counsel of the OSC or a person to whom the General Counsel has delegated authority under this part.
Legal proceeding means any matter before a court of law, administrative board or tribunal, commission, administrative law judge, hearing officer or other body that conducts a legal or administrative proceeding. Legal proceeding includes all phases of litigation.
OSC means the U.S. Office of Special Counsel.
(ii) Any other individual hired through contractual agreement by or on behalf of the OSC or who has performed or is performing services under such an agreement for the OSC.
(2) This definition does not include persons who are no longer employed by the OSC and who agree to testify about matters available to the public.
Records or official records and information means all information in the custody and control of the OSC, relating to information in the custody and control of the OSC, or acquired by an OSC employee in the performance of his or her official duties or because of his or her official status, while the individual was employee by or on behalf of the OSC.
Request means any informal request, by whatever method, for the production of records and information or for testimony which has not been ordered by a court of other competent authority.
Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, interviews, and statements made by an individual in connection with a legal proceeding.
Source: 81 FR 73018, Oct. 24, 2016, unless otherwise noted.
No employee of OSC may produce official records and information or provide any testimony relating to official information in response to a demand or request without the prior written approval of the General Counsel.
(m) The demand or request is sufficiently specific to be answered.
A litigant must comply with the following requirements when filing a request for official records and information or testimony under this part. A request should be filed before a demand is issued.
(9) An estimate of the amount of time that the requester and other parties will require of each OSC employee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding.
(c) The OSC reserves the right to require additional information to complete the request where appropriate.
(f) The request should state that the requester will provide a copy of the OSC employee's statement free of charge and that the requester will permit the OSC to have a representative present during the employee's testimony.
Requests or demands for official records or information or testimony under this subpart must be served by mail or hand delivery to the Office of General Counsel, U.S. Office of Special Counsel, 1730 M St. NW., Suite 213, Washington, DC 20036; or sent by fax to 202-254-3711.
(b) Absent exigent circumstances, the OSC will issue a determination within 30 days from the date the request is received.
(c) The General Counsel may grant a waiver of any procedure described by this subpart where a waiver is considered necessary to promote a significant interest of the OSC or the United States, or for other good cause.
(d) Certification (authentication) of copies of records. The OSC may certify that records are true copies in order to facilitate their use as evidence. If a requester seeks certification, the requester must request certified copies from the OSC at least 30 days before the date they will be needed.
The General Counsel makes the final determination regarding requests to employees for production of official records and information or testimony in litigation in which the OSC is not a party. All final determinations are within the sole discretion of the General Counsel. The General Counsel will notify the requester and, when appropriate, the court or other competent authority of the final determination, the reasons for the grant or denial of the request, and any conditions that the General Counsel may impose on the release of records or information, or on the testimony of an OSC employee. The General Counsel's decision exhausts administrative remedies for purposes of disclosure of the information.
(b) The OSC may offer the employee's written declaration in lieu of testimony.
(2) For a current OSC employee, testify as an expert or opinion witness with regard to any matter arising out of the employee's official duties or the functions of the OSC unless testimony is being given on behalf of the United States (see also 5 CFR 2635.805).
(d) The scheduling of an employee's testimony, including the amount of time that the employee will be made available for testimony, will be subject to the OSC's approval.
(a) The General Counsel may impose conditions or restrictions on the release of official records and information, including the requirement that parties to the proceeding obtain a protective order or execute a confidentiality agreement to limit access and any further disclosure. The terms of the protective order or of a confidentiality agreement must be acceptable to the General Counsel. In cases where protective orders or confidentiality agreements have already been executed, the OSC may condition the release of official records and information on an amendment to the existing protective order (subject to court approval) or confidentiality agreement.
(b) If the General Counsel so determines, original OSC records may be presented for examination in response to a request, but they may not be presented as evidence or otherwise used in a manner by which they could lose their identity as official OSC records, nor may they be marked or altered. In lieu of the original records, certified copies may be presented for evidentiary purposes.
If a response to a demand or request is required before the General Counsel can make the determination referred to in §1820.28, the General Counsel, when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the request is being reviewed, provide an estimate as to when a decision will be made, and seek a stay of the demand or request pending a final determination.
(a) Generally. The General Counsel may condition the production of records or appearance for testimony upon advance payment of a reasonable estimate of the costs to the OSC.
(b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records, costs of attorney time spent in reviewing the request, and expenses generated by materials and equipment used to search for, produce, and copy the responsive information. Costs for employee time will be calculated on the basis of the hourly pay of the employee (including all pay, allowances, and benefits). Fees for duplication will be the same as those charged by the OSC in its Freedom of Information Act regulations at §1820.7.
(c) Witness fees. Fees for attendance by a witness will include fees, expenses, and allowances prescribed by the court's rules. If no such fees are prescribed, witness fees will be determined based upon the rule of the federal district closest to the location where the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will include cost of time spent by the witness to prepare for testimony, in travel and for attendance in the legal proceeding, plus travel costs.
(d) Payment of fees. A requester must pay witness fees for current OSC employees and any record certification fees by submitting to the General Counsel a check or money order for the appropriate amount made payable to the United States Department of Treasury. In the case of testimony of former OSC employees, the requester must pay applicable fees directly to the former OSC employee in accordance with 28 U.S.C. 1821 or other applicable statutes.
(a) An employee who discloses official records or information or gives testimony relating to official information, except as expressly authorized by the OSC, or as ordered by a federal court after the OSC has had the opportunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former OSC employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.
(b) A current OSC employee who testifies or produces official records and information in violation of this part shall be subject to disciplinary action.
This regulation is not intended to conflict with 5 U.S.C. 2302(b)(13).


text:
We are pleased to present to you the list of top 50 settlements obtained in Florida in the year 2017. The list is comprised of various case types that were filed either in state or federal courts.
Case: SEC v. Quiros, et al.
Case: USA v. Princess Cruise Lines Ltd.
Case: Federal Trade Commission v. Ramsey, et al.
Case: USA v. Marder, et al.
Attorneys: Jeffrey L. Gordon, Fritz Gray, John T. Golding of Maney | Gordon | Zeller, P.A.
Case: Office of Attorney General, et al. v. Boehringer Ingelheim Pharmaceuticals Inc.
Case: USA, et al. v. Covenant Hospice Inc.
Case: ADT LLC v. Vivint Inc.
Attorneys: Sean B. Cronin, Michelle L. Davis of Cronin & Maxwell, P.L.
Case: Office of Attorney General, et al. v. General Motors Co.
Case: Riascos-Mazos v. Carnival Corp.
Attorneys: Sean B. Cronin, Michelle L. Davis, Gregory H. Maxwell of Cronin & Maxwell, P.L.; Michael V. Nakamura of Shulman Rogers Gandal Pordy & Ecker, P.A.
Case: Michael I. Goldberg, et al. v. Holland & Knight LLP, et al.
Attorneys: DeWitte Thompson of Thompson & Slagle L.L.C.
Attorneys: Marc A. Wites of Wites & Kapetan P.A.
Case: Jane Doe v. Sinrod, et al.
Case: USA v. Johnson Controls, Inc., et al.
Case: McLemore v. Creative Choice Homes II, Ltd., et al.
Attorneys: Justin B. Shapiro, Thomas B. Scolaro of Leesfield Scolaro, P.A.
Case: Estate of Kim v. Fury Management, et al.
Attorneys: David Sampedro, Brett A. Panter of Panter, Panter & Sampedro, P.A.
Attorneys: Steven R. Jaffe, Mark S. Fistos, Seth M. Lehrman of Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L.; Scott D. Owens of Scott D. Owens, P.A.; Bret L. Lusskin Jr. of Bret Lusskin, P.A.
Case: Estate of Adams v. Custer, et al.
Case: Federal Trade Commission, et al. v. Consumer Assistance LLC, et al.
Case: Copeland, et al. v. Jones, et al.
Case: Estate of Barner Pierre-Jean v. Center Court Apartments, et al.
Case: Thomas v. City of Jacksonville, et al.
Case: Estate of Walker v. Rosen Hotels and Resorts, inc., et al.
Attorneys: David Sampedro of Panter, Panter & Sampedro, P.A.
Case: Ramirez v. Defendant Hospital, et al.
Attorneys: Eric J. Ginnis of Ginnis & Krathen, P.A.
Case: Cortes v. New Hampton At Century Village Condo #1 Assn Inc, et al.
Attorneys: Robert M. Roselli, Daniel P. Melrose of Roselli & Associates, P.A.
Case: Estate of Sweeting v. The Oaks at Miami Gardens Condo. Assoc. Inc., et al.
Case: Fonseca v. J&E Transportation Inc., et al.
Attorneys: James A. Hannon of Hannon Legal Group, P.A.
Case: Conde v. Bryant Security Corp.
Case: Jerry Rankin, M.D., et al. v. Celebrity Cruises, Inc.
Attorneys: Glen B. Levine, Elie Anidjar of Anidjar & Levine, P.A.
Case: US Ex Rel. Duay v. Tartell, et al.
Attorneys: Theodore W. Zelman of Zelman & Hanlon, P.A.
Case: Burnham v. International Ind. Showman’s Assoc.
Case: Federal Trade Commission v. Tachht Inc., et al.
Case: EEOC v. Idex Corp.

matches: v. v. v. v. v. v. v. v. v. V. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.


January 30, 2009, clarifying the two January 23 orders.
We conditionally grant the petition in part and deny it in part.
production, the McCoys filed a motion to compel discovery.
provided to a lender within the past two (2) years that identifies the assets and liabilities of each Defendant."
(ii) Produce an affidavit under oath in the format of what would have been provided to a lender as to net worth.
January 23, Judge Wood signed another order granting the McCoys' motion to compel the deposition of Dr.
Jacobs, and directed that the deposition may not exceed three hours on the record.
any, the McCoys would be allowed to cover during the depositions of Dr. Jacobs and Dr. Gunn.
ruled that the McCoys would be permitted to depose Dr. Gunn and Dr. Jacobs about their net worth.
Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).
costs and benefits of interlocutory review. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig.
S.W.3d 124, 136 (Tex. 2004) (orig. proceeding); see also In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.
when the appellate court would not be able to cure the trial court's discovery error. In re Dana Corp., 138 S.W.
3d 298, 301 (Tex. 2004) (per curiam) (orig. proceeding); In re Kuntz, 124 S.W.3d 179, 181 (Tex. 2003) (orig.
916 (Tex. App.-Corpus Christi 2007, orig. proceeding).
conscious indifference to the rights, safety, or welfare of others.
and evaluate her clotting factors to determine how well, or how poorly, she was responding to treatment.
consumptive coagulopathy before the delivery of her baby.
specialized physician to treat and manage Shannon's DIC.
S.W.3d 609, 612 (Tex. 2007); Horizon/CMS Healthcare Corp. of Am. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000).
“'A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim.
defense.'" Horizon/CMS Healthcare, 34 S.W.3d at 897 (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex.
Tex. App.-Houston [1st Dist.] 1990, orig. proceeding) (quoting Al Parker Buick Co., 788 S.W.2d at 131).
also provides an opportunity for “needless abuse and harrassment." Wal-Mart Stores, Inc. v. Alexander, 868 S.
overly broad requests, harassment, or disclosure of privileged information).
discretion of the trial court.
entitling them to punitive damages.
act in accordance with this opinion.
Panel consists of Justices Brown, Boyce, and Sullivan (Sullivan, J., concurring).
Houston Woman's Hospital Partner, L.L.C., and James A. Collins, M.D.
discovery on a defendant's financial status. See, e.g., Iowa Code Ann. § 668A.1 (1998); Larriva v. Montiel, 691 P.2d 735, 738 (Ariz.
pretrial discovery of the defendant's financial information. See, e.g., United States v. Matusoff Rental Co., 204 F.R.D. 396, 399 (S.
Ctr. v. Krug, 2006 WL 4122148, at *4 (C.D. Cal. Sept. 5, 2006) (same).
worth. See, e.g., Bryan v. Thos. Best & Sons, Inc., 453 A.2d 107, 108 (Del. Super. Ct. 1982); Globe Newspaper Co. v. King, 658 So.
2d 518, 519 (Fla. 1995) (citing Fla. Stat. § 768.72); Smith v. Morris, Manning & Martin, L.L.P., 666 S.E.2d 683, 697 (Ga. Ct. App.
2008) (quoting Holman v. Burgess, 404 S.E.2d 144, 147 (Ga. 1991)); Breault v. Friedli, 610 S.W.2d 134, 139B40 (Tenn. Ct. App.
conducting discovery on a defendant's financial status. See, e.g., Ex parte Hsu, 707 So.2d 223, 225-26 (Ala. 1997) (citing Ala.
Code § 6-11-23(b)); Prior v. Brown Transp. Corp., 478 N.Y.S.2d 435, 436 (N.Y. App. Div. 1984) (quoting Rupert v. Sellers, 368 N.Y.
S.2d 904, 912 (N.Y. App. Div. 1975)).
Ann. § 41.009 (Vernon 2008) (providing for bifurcated trial on claim for punitive damages).
necessary to replace blood that has been lost through bleeding and to replace clotting factors used up by the body." Id.
20factors (last visited July 8, 2009).
plaintiff's pleadings to claim punitive damages, with the trial court's permission, after satisfying a requisite evidentiary showing.
See, e.g., Idaho Code Ann. § 6-160.4(2) (2008); Minn. Stat. Ann. § 549.191 (2000); Or. Rev. Stat. Ann. §31.725(2) (2007).
TCW Global Project Fund, II, Ltd., 274 S.W.3d 166, 171 (Tex. App.-Houston [14th Dist.] 2008, orig. proceeding).
discovery response and the time of trial. See Tex. R. Civ. P. 193.5(a).
irrelevant to punitive damages determination.").
(defining net worth as “the amount by which assets exceed liabilities").
799 (Tex. App.-Houston [14th Dist.] 1993, no writ); see also In re Colonial Pipeline Co., 968 S.W.2d at 942 (quoting McKinney v.
lists or reduce information to tangible form.'").
documents had been submitted to a lender in the preceding two years.


D.C. Law Library - § 47–3602. Regulations.
↪ Chapter 36. Employee Deferred Compensation Program.
§ 47–3601. Authorized; treatment of benefits; employee eligibility; exclusion from certain review and collective bargaining provisions.
§ 47–3603. Contracts for services.
(4) Rules to implement the Deferred Compensation Program Enrollment Amendment Act of 2018, [(Law 22-102)] within 180 days of [June 5, 2018].
Section 7031 of D.C. Law 22-168 repealed section 3 of D.C. Law 22-102 amending the applicability restriction impacting this section. Therefore the amendments of this section by D.C. Law 22-102 have been implemented.
Applicability of D.C. Law 22-102: § 3 of D.C. Law 22-102 provided that the change made to this section by § 2(b) of D.C. Law 22-102 is subject to the inclusion of the law’s fiscal effect in an approved budget and financial plan. Therefore that amendment has not been implemented.
Section 457 of the Internal Revenue Code of 1954, referred to in the first sentence of the introductory language of the section, is classified to 26 U.S.C. § 457.
District of Columbia Deferred Compensation Committee Established: See Mayor’s Order 85-135, August 2, 1985.


1. Under par. (2), § 202 of the Revenue Act of 1921, where one who purchased shares of stock after February 28, 1913, gave them to another after December 31, 1920, when their market value had increased over the investment, and the donee afterwards sold them at a price still higher, the gain taxable to the donee is the difference between the price realized by him and the price paid by the donor. P. 278 U. S. 481.
2. In such case, Congress has power under the Sixteenth Amendment to treat the entire increase in value, when separated from the investment by the sale, as income of the donee. P. 278 U. S. 482.
Certiorari, 275 U.S. 520, to judgments of the circuit court of appeals reversing judgments in favor of the present petitioners, 15 F.2d 890, in actions against the Collector to recover money paid as income taxes.
42 Stat. 227, 229), which prescribes the basis for estimating taxable gain when one disposes of property which came to him by gift. The records do not differ essentially, and a statement of the material circumstances disclosed by No. 16 will suffice.
During the calendar years 1921 and 1922, the father of petitioner, Elizabeth C. Taft, gave her certain shares of Nash Motors Company stock, then more valuable than when acquired by him. She sold them during 1923 for more than their market value when the gift was made.
The United States demanded an income tax reckoned upon the difference between cost to the donor and price received by the donee. She paid accordingly, and sued to recover the portion imposed because of the advance in value while the donor owned the stock. The right to tax the increase in value after the gift is not denied.
In 1916, A purchased 100 shares of stock for $1,000, which he held until 1923, when their fair market value had become $2,000. He then gave them to B, who sold them during the year 1923 for $5,000. The United States claim that, under the Revenue Act of 1921, B must pay income tax upon $4,000, as realized profits. B maintains that only $3,000 -- the appreciation during her ownership -- can be regarded as income; that the increase during the donor's ownership is not income assessable against her within intendment of the Sixteenth Amendment.
The district court ruled against the United States; the circuit court of appeals held with them.
"Sec. 202. (a) That the basis for ascertaining the gain derived or loss sustained from a sale or other disposition of property, real, personal, or mixed, acquired after February 28, 1913, shall be the cost of such property; except that --"
"(1) . . . "
"(2) In the case of such property, acquired by gift after December 31, 1920, the basis shall be the same as that which it would have in the hands of the donor or the last preceding owner by whom it was not acquired by gift. If the facts necessary to determine such basis are unknown to the donee, the Commissioner shall, if possible, obtain such facts from such donor or last preceding owner, or any other person cognizant thereof. If the Commissioner finds it impossible to obtain such facts, the basis shall be the value of such property as found by the Commissioner as of the date or approximate date at which, according to the best information the Commissioner is able to obtain, such property was acquired by such donor or last preceding owner. In the case of such property acquired by gift on or before December 31, 1920, the basis for ascertaining gain or loss from a sale or other disposition thereof shall be the fair market price or value of such property at the time of such acquisition."
"Sec. 213. That for the purposes of this title (except as otherwise provided in § 233) the term 'gross income' --"
"(a) Includes gains, profits, and income derived from salaries, wages, or compensation for personal service . . . or gains or profits and income derived from any source whatever. The amount of all such items (except as provided in subdivision (e) of § 201) shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under subdivision (b) of § 212, any such amounts are to be properly accounted for as of a different period; but"
"(b) Does not include the following items, which shall be exempt from taxation under this title;"
"(3) The value of property acquired by gift, bequest, devise, or descent (but the income from such property shall be included in gross income). . . . "
We think the manifest purpose of Congress expressed in paragraph (2), § 202, supra, was to require the petitioner to pay the enacted tax.
The only question subject to serious controversy is whether Congress had power to authorize the exaction.
It is said that the gift became a capital asset of the donee to the extent of its value when received, and therefore when disposed of by her no part of that value could be treated as taxable income in her hands.
Income is the thing which may be taxed -- income from any source. The amendment does not attempt to define income or to designate how taxes may be laid thereon, or how they may be enforced.
Under former decisions here, the settled doctrine is that the Sixteenth Amendment confers no power upon Congress to define and tax as income without apportionment something which theretofore could not have been properly regarded as income.
"Income may be defined as the gain derived from capital, from labor, or from both combined, provided it be understood to include profit gained through a sale or conversion of capital assets."
"not a gain accruing to capital, nor a growth or increment of value in the investment, but a gain, a profit, something of exchangeable value proceeding from the property, severed from the capital however invested, and coming in -- that is, received or drawn by the claimant for his separate use, benefit and disposal."
United States v. Phellis, 257 U. S. 156, 257 U. S. 169.
If, instead of giving the stock to petitioner, the donor had sold it at market value, the excess over the capital he invested (cost) would have been income therefrom and subject to taxation under the Sixteenth Amendment. He would have been obliged to share the realized gain with the United States. He held the stock -- the investment -- subject to the right of the sovereign to take part of any increase in its value when separated through sale or conversion and reduced to his possession. Could he, contrary to the express will of Congress, by mere gift enable another to hold this stock free from such right, deprive the sovereign of the possibility of taxing the appreciation when actually severed, and convert the entire property into a capital asset of the donee, who invested nothing, as though the latter had purchased at the market price? And, after a still further enhancement of the property, could the donee make a second gift with like effect, etc.? We think not.
In truth, the stock represented only a single investment of capital -- that made by the donor. And when, through sale or conversion, the increase was separated therefrom, it became income from that investment in the hands of the recipient subject to taxation according to the very words of the Sixteenth Amendment. By requiring the recipient of the entire increase to pay a part into the public treasury, Congress deprived her of no right and subjected her to no hardship. She accepted the gift with knowledge of the statute and, as to the property received, voluntarily assumed the position of her donor. When she sold the stock, she actually got the original sum invested, plus the entire appreciation and out of the latter only was she called on to pay the tax demanded.
purpose of Congress to take part of all gain derived from capital investments. To prevent that result and insure enforcement of its proper policy, Congress had power to require that, for purposes of taxation, the donee should accept the position of the donor in respect of the thing received. And, in so doing, it acted neither unreasonably nor arbitrarily.
"Where, as in this case, the dividend constitutes a distribution of profits accumulated during an extended period and bears a large proportion to the par value of the stock, if an investor happened to buy stock shortly before the dividend, paying a price enhanced by an estimate of the capital plus the surplus of the company, and after distribution of the surplus, with corresponding reduction in the intrinsic and market value of the shares, he were called upon to pay a tax upon the dividend received, it might look in his case like a tax upon his capital. But it is only apparently so. In buying at a price that reflected the accumulated profits, he, of course, acquired as a part of the valuable rights purchased the prospect of a dividend from the accumulations -- bought 'dividend on,' as the phrase goes -- and necessarily took subject to the burden of the income tax proper to be assessed against him by reason of the dividend if and when made. He simply stepped into the shoes, in this, as in other respects, of the stockholder whose shares he acquired, and presumably the prospect of a dividend influenced the price paid, and was discounted by the prospect of an income tax to be paid thereon. In short, the question whether a dividend made out of company profits constitutes income of the stockholder is not affected by antecedent transfers of the stock from hand to hand. "
There is nothing in the Constitution which lends support to the theory that gain actually resulting from the increased value of capital can be treated as taxable income in the hands of the recipient only so far as the increase occurred while he owned the property. And Irwin v. Gavit, 268 U. S. 161, 268 U. S. 167, is to the contrary.


MICHAEL M. TONEY, Plaintiff, v. GORDON HARROD, et al., Defendants.
Plaintiff Michael Toney, an inmate incarcerated at the El Dorado Correctional Facility ("EDCF") in El Dorado, Kansas, filed suit under 42 U.S.C. § 1983 against several EDCF officials, alleging a variety of constitutional violations. Two of the defendants—Warden James Heimgartner and Lieutenant Jess Quidichay, Jr.—filed a Motion to Dismiss. For the reasons explained below, Defendants Heimgartner and Quidichay, Jr's Motion to Dismiss Plaintiff's Third Amended Complaint (Doc. 85) is granted in part and denied in part.
The facts are taken from Toney's Third Amended Complaint and are accepted as true for the purposes of this ruling.
In August 2015, Toney filed suit against several EDCF employees, as well as medical personnel employed by Corizon Health Services, Inc. ("Corizon")—a private company providing healthcare to EDCF inmates. Toney's original Complaint alleged extensive constitutional and statutory violations related to his incarceration. Toney's Third Amended Complaint distills his claims into three counts. In Count 1, Toney alleges an Eighth Amendment violation for failing to provide adequate medical treatment. In Count 2, Toney alleges a First Amendment violation for failing to provide Toney meals in a way that would accommodate his religious beliefs. In Count 3, Toney alleges an Eighth Amendment violation for excessive use of force. Toney's First Amendment claim is the only Count applicable to Heimgartner and Quidichay.
Whether Toney even intends to bring an Eighth Amendment violation is somewhat unclear. Count 1's heading states: "Violation of Mr. Toney's Eighth Amendment Rights and Medical Negligence." But the only mention of the Eighth Amendment in Count 1 is in the heading, and Toney's factual allegations appear to be related entirely to his medical malpractice claim. On September 21, 2018, the parties stipulated to Toney dismissing the medical malpractice claim without prejudice. The stipulation did not dismiss the Eighth Amendment claim. The Court is highly skeptical that Toney sufficiently alleged an Eighth Amendment violation related to his medical treatment. Nevertheless, because Count 1 is inapplicable to Heimgartner and Quidichay, the Court makes no ruling on this matter now.
Toney is a practicing Muslim. Accordingly, every year during the month of Ramadan he fasts from dawn to sunset. During the month of Ramadan, EDCF serves Muslim inmates two large meals per day, an early breakfast and a late dinner; for years it was EDCF's practice to serve breakfast to Muslim inmates before non-Muslim inmates. However, that practice changed on the first day of Ramadan in 2015 for all the inmates in administrative segregation, which is where Toney was held at all times relevant to this case. On June 18, 2015, Toney did not receive his morning meal until after he had started his religious fast. When Toney complained to the EDCF officer serving breakfast, the officer informed Toney that he was instructed by his superiors to serve Muslims breakfast before "sunrise."
On June 20, 2015, Toney sent an informal complaint to Defendant Quidichay, via a "Form-9." In his complaint, Toney explained that his religious beliefs obligate him to begin fasting at dawn, approximately one and a half hours before sunrise. Toney requested that he and all Muslim inmates in administrative segregation be served breakfast before the other inmates, as had been the practice for years and was still the practice for Muslim inmates in general population. Quidichay responded in writing on June 29, 2015, stating: "Procedure dictates that you receive your meal prior to sunrise or before daylight." Toney never received a copy of this procedure. On June 30, 2015, Toney submitted an informal complaint to Aramark, EDCF's food contractor, stating that Muslims in segregation were not being adequately accommodated. Aramark's head supervisor responded that "we go down when count clears and DOC lets us go." Toney alleges that the counting process is ultimately within the purview of the Captain's office.
Toney attached the Form-9 as an exhibit to his Third Amended Complaint. The Form-9 is addressed to "10 to 6 Captain Q." The person responding to Toney's request signed the document, but the signature is illegible. The Court will assume for the purpose of this motion that the Form-9 was intended for Quidichay and that Quidichay provided the written response.
Toney states it was apparent he would receive no relief informally, so he filed an official grievance to Unit Team Martin on July 11, 2015. Unit Team Martin responded in writing almost two weeks later, in which he made the following statement: "It has been determined and agreed upon by Administration, that it is not necessary to serve Ramadan meals first . . . . Ramadan meals can be and are served in conjunction with all other meals, which are delivered to the unit and processed for serving and consumption well before sunrise. . . . It has been determined by the Chaplain and Administration that the current manner of serving Ramadan meals is appropriate and is well within your religious guidelines." In all, Toney alleges that during the month of Ramadan his morning meals were served after dawn on all but three to five days. Furthermore, Toney alleges that he abstained from eating his morning meal every day it was delivered after dawn.
After Ramadan had concluded in 2015, Toney appealed Unit Team Martin's disposition to Heimgartner, who responded that based on his review no further action was necessary. Months later, Toney raised this issue again with Heimgartner, this time informally and in-person. Toney alleges that Heimgartner was dismissive of his informal complaint. Although Toney makes the general comment that "[t]here was no change in Ramadan procedures," nowhere does Toney allege in his Third Amended Complaint, or in any of his preceding Complaints, that he was denied a timely meal during Ramadan any year after 2015.
Proceeding pro se, Toney initiated this lawsuit by filing his original complaint in August 2015. In February 2016, Toney asked the Court for leave to file a supplemental complaint. The Court, treating Toney's request as a motion to amend the original complaint, granted the motion. In December 2016, Toney again asked the Court for leave to file a supplemental complaint. The Court ordered Toney to condense his original complaint (Doc. 1), his amended complaint (Doc. 12), and his proposed supplemental complaint (Doc. 37) "into a single document that sets forth all of the defendants and claims." Toney then filed his Second Amended Complaint (Doc. 42).
Toney's Second Amended Complaint raised a wide array of claims against several defendants, including a First Amendment claim against Defendants Heimgartner and Quidichay. Toney's Second Amended Complaint requested monetary damages and several forms of injunctive relief. Heimgartner, Quidichay, and three other defendants filed a Motion to Dismiss Toney's Second Amended Complaint. On October 20, 2017, the Court granted in part and denied in part the motion. Specific to Heimgartner, the Court dismissed all claims for monetary damages. Heimgartner's motion did not request dismissal of Toney's claims for injunctive relief, and the Court made no ruling on those claims. Specific to Quidichay, the Court held that Toney "sufficiently stated a First Amendment violation against Quidichay for interfering with Toney's Ramadan meals and that claim survives the motion to dismiss." All other claims for monetary damages against Quidichay were dismissed. Quidichay also never requested dismissal of Toney's claims for injunctive relief, and the Court accordingly did not rule on those claims.
See Toney v. Harrod, 2017 WL 4758962 (D. Kan. 2017).
On November 16, 2017, Toney, appearing before the Magistrate Judge, made an oral motion to appoint counsel. The Magistrate Judge granted the motion and appointed Toney counsel on December 21, 2017. On March 2, 2018, Toney, through his newly appointed counsel, filed a Motion to Amend his Second Amended Complaint. Toney sought permission to condense his claims, to add a state law medical malpractice claim against Defendants Gordon Harrod and Travis Nickelson, and to bring Corizon, which had previously been dismissed from the case, back into the lawsuit. The Magistrate Judge granted Toney's request to add a medical malpractice claim, denied Toney's request to bring Corizon back into the lawsuit, and ordered Toney to file his Third Amended Complaint.
Toney filed his Third Amended Complaint, in which he condensed his allegations into the three claims now before the Court. In contrast to his Second Amended Complaint, Toney did not specifically request any injunctive relief in his Third Amended Complaint. Instead, Toney only requested "a judgment in excess of $75,000, plus his costs, attorney fees, and any further relief this Court would deem just or equitable."
Defendants Heimgartner and Quidichay then filed this Motion to Dismiss. Heimgartner relies exclusively on the arguments he put forth in his Motion to Dismiss Toney's Second Amended Complaint, as well as the Court's Memorandum and Order granting in part and denying in part that Motion. Quidichay argues, for the first time, that he is entitled to qualified immunity on Toney's First Amendment claim, and he seeks dismissal on that basis.
Under Fed. R. Civ. P. 12(b)(6), a party may move for dismissal of "a claim for relief in any pleading" that fails "to state a claim upon which relief can be granted." Upon such motion, the Court must decide "whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.' " "[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient;" rather, the pleading "must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims." The Court does not "weigh potential evidence that the parties might present at trial," but assesses whether the complaint "alone is legally sufficient to state a claim for which relief may be granted." In determining whether a claim is facially plausible, the Court must draw on its judicial experience and common sense. All well-pleaded facts are assumed to be true and are construed in the light most favorable to the non-moving party. "Although plaintiff need not allege every element of [its] action in specific detail, [it] cannot rely on conclusory allegations."
Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
Ridge at Red Hawk, 493 F.3d at 1177 (emphases in original).
Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation omitted).
Iqbal, 556 U.S. at 679.
Albers v. Bd. of Cty. Comm'rs of Jefferson Cty., 771 F.3d 697, 700 (10th Cir. 2014).
See Hall v. Bellmon, 935 F.2d 1106, 1113 (10th Cir. 1991) (internal citations omitted).
Heimgartner requests dismissal of all Toney's claims for monetary damages. Heimgartner relies exclusively on the arguments he raised in his Motion to Dismiss Toney's Second Amended Complaint, and on the Court's order granting dismissal of all such claims. Toney, in response, makes the unusual argument that Heimgartner's Motion "should be denied because it has already been granted." Toney argues that because the Court dismissed all his claims for monetary damages against Heimgartner, the issue has been fully settled, and the law of the case doctrine forbids reconsideration of this issue. Toney's reliance on this doctrine, however, is odd for at least two reasons. First, Heimgartner is not seeking reconsideration of issues already resolved. To the contrary, Heimgartner is asking for consistency with regards to the Court's prior ruling. And second, Toney evidently agrees with Heimgartner's principal point, which is that Toney has no remaining claims against Heimgartner for monetary damages. The Court fails to see how arguing that Heimgartner's Motion "should be denied because it has already been granted" serves any purpose. Rather, it strikes the Court as being needlessly argumentative.
The "[l]aw of the case doctrine permits a court to decline the invitation to reconsider issues already resolved earlier in the life of a litigation." Entek GRB, LLC v. Stull Ranches, LLC, 840 F.3d 1239, 1240 (10th Cir. 2016). Without this doctrine, "an adverse judicial decision would become little more than an invitation to take a mulligan, encouraging lawyers and litigants alike to believe that if at first you don't succeed, just try again. A system like that would reduce the incentive for parties to put their best effort into their initial submissions on an issue, waste judicial resources, and introduce even more delay into the resolution of lawsuits . . . ." Id.
Furthermore, although Toney takes exception to Heimgartner rehashing issues the parties and the Court have already covered, the Court considers Heimgartner's decision to reassert his prior defenses to be entirely reasonable. Toney's Third Amended Complaint, which supersedes all his prior complaints, brings largely the same allegations against Heimgartner that were contained in his Second Amended Complaint. The only request for relief Toney makes in his Third Amended Complaint is "for a judgment in excess of $75,000, plus his costs, attorney fees, and any further relief this Court would deem just or equitable." Upon review of the Third Amended Complaint, it certainly appears that Toney is still seeking monetary damages. That said, the shortcomings in Toney's Second Amended Complaint apply equally to his most recent Complaint. So, to the extent that Toney's Third Amended Complaint can be construed as bringing claims for monetary damages against Heimgartner, the Court grants Heimgartner's Motion to Dismiss for the same reasons the Court dismissed all such claims in Toney's Second Amended Complaint.
Predator Int'l, Inc. v. Gamo Outdoor USA, Inc., 793 F.3d 1177, 1180 (10th Cir. 2015) (citations omitted).
In contrast, Toney's first three complaints, in addition to seeking monetary damages, requested a variety of injunctive relief related to the prison's policies and training protocols.
See Toney, 2017 WL 4758962, at *7 (holding that Toney inadequately alleged Heimgartner possessed the requisite culpable state of mind for a First Amendment claim).
Quidichay argues for the first time in this lawsuit that he is entitled to qualified immunity on Toney's claims. It is well-settled that "[i]ndividual defendants named in a § 1983 action may raise a defense of qualified immunity." "The doctrine of qualified immunity shields public officials . . . from damages actions unless their conduct was unreasonable in light of clearly established law." Although the "typical vehicle" for asserting a qualified immunity defense is a summary judgment motion, the Court will also review it on a motion to dismiss. When the defense of qualified immunity is asserted, the burden shifts to the plaintiff to show: "(1) that the defendant's actions violated a federal constitutional or statutory right, and, if so, (2) that the right was clearly established at the time of the defendant's unlawful conduct." The Court has already ruled in this case that Toney adequately alleged a First Amendment violation against Quidichay for failing to accommodate his religious beliefs during Ramadan. Quidichay's Motion focuses on the second-prong of the qualified immunity test, arguing that Toney's right to this religious accommodation was not clearly established at the time of the alleged deprivation.
Cillo v. City of Greenwood Vill., 739 F.3d 451, 460 (10th Cir. 2013).
Peterson v. Jensen, 371 F.3d 1199, 1201 (10th Cir. 2004) (citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).
Cillo, 739 F.3d at 460.
Toney, 2017 WL 4758962, at *4-5, *7-8.
Whether a right is clearly established often depends on how broadly or narrowly that right is defined. The Supreme Court has admonished courts "not to define clearly established law at a high level of generality." Instead, the right's "contours must be so well defined that it is 'clear to a reasonable officer that his conduct was unlawful in the situation he confronted.' " Although there does not have to be "a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." In deciding if a right is clearly established, the Court looks to Supreme Court and Tenth Circuit precedent, as well as the "weight of authority from other courts." "While the facts of the cases compared need not be identical, they must be sufficiently analogous to satisfy the particularized context necessary to support liability."
Ashcroft, 563 U.S. at 742.
White v. Pauly, 137 S. Ct. 548, 551 (2017) (citations, alterations, and quotations omitted).
Estate of Booker v. Gomez, 745 F.3d 405, 411 (10th Cir. 2014) (citation omitted).
Mecham v. Frazier, 500 F.3d 1200, 1206 (10th Cir. 2007) (internal quotation omitted).
Toney argues, relying on Makin v. Colorado Department of Corrections, that under "binding Tenth Circuit precedent . . . the constitutional right to a religious meal accommodation was clearly established in 1999." Quidichay argues in response that Toney is framing the question too broadly. Quidichay contends that the appropriate question is "whether there was a clearly established constitutional right to a pre-dawn meal, rather than a pre-sunrise meal, during Ramadan." Quidichay cites an unpublished Ninth Circuit opinion and a ruling from the United States District of Nevada for the proposition that the law is not clearly established that a Muslim inmate is entitled to a pre-dawn mean during Ramadan. The Court concludes that under Tenth Circuit law Toney's position is the correct one.
183 F.3d 1205 (10th Cir. 1999).
See Maloney v. Ryan, 711 F. App'x 372, 373 (9th Cir. 2017); Johnson v. Lopez, No. 2018 WL 1567351, at *4 (D. Nev. 2018).
Even before the Tenth Circuit's opinion in Makin, the Tenth Circuit made clear that under the First Amendment an inmate is entitled to adhere to a diet that is based on sincerely held religious beliefs. The key consideration is the inmate's sincerity. It is not uncommon for members of a particular religion to have some variation in their beliefs and practices, and "the guarantees of the First Amendment are not limited to beliefs shared by all members of a religious sect." Indeed, " '[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants' interpretations of those creeds.' "
LaFevers v. Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991) (stating that an inmate's "genuine and sincere belief in religious dietary practices warrants constitutional protection"); see also Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) ("This circuit recognizes that prisoners have a constitutional right to a diet conforming to their religious beliefs."); Ind v. Wright, 52 F. App'x 434, 439 (10th Cir. 2002) (recognizing that in the Tenth Circuit "a prisoner's belief in religious dietary practices is constitutionally protected if the belief is 'genuine and sincere,' even if such dietary practices are not doctrinally 'required' by the prisoner's religion").
LaFevers, 936 F.2d at 1119.
Makin, 183 F.3d at 1213 (quoting Hernandez v. Commissioner, 490 U.S. 680, 699 (1989)).
In Makin, the Tenth Circuit held that a Muslim inmate's First Amendment rights were violated when the prison implemented a policy in which all inmates in punitive segregation were exempted from meal accommodations. Specifically, the policy stated that "[d]uring the month of Ramadan inmates in segregation will be unable to participate in special feeding activities. . . ." Meals were instead provided "through the usual meal delivery system," which meant all meals were delivered "after dawn and prior to sunset." The Tenth Circuit held that the policy infringed on the inmate's religious beliefs, and that the prison failed to justify the infringement with any legitimate penological interests.
Quidichay argues that Toney's reliance on Makin is misplaced, noting that in Stewart v. Beach the Tenth Circuit "affirmed a District Court decision rejecting a broad definition of the constitutional right at issue under Makin and applying a narrower definition." Although Quidichay's description of Stewart is accurate, the opinion is not particularly helpful to his position. The issue in Stewart was whether a prison violated a Rastafarian inmate's First Amendment rights by requiring him to cut his hair for security reasons. In Stewart, the inmate cited Makin as clearly establishing an incredibly broad "right to reasonably exercise one's religion in prison." The Tenth Circuit held that this standard was not sufficiently particularized and affirmed the district court's determination that the proper question was "whether it was clearly established that [the defendants] violated [the plaintiff's] First Amendment free exercise right by requiring him to cut his hair for security reasons." Makin, which concerned a Muslim inmate's access to meal accommodations during Ramadan, had nothing to do with prison grooming regulations, so it was not helpful to the plaintiff in Stewart. But here, Toney is not relying on Makin as establishing a broad "right to reasonably exercise one's religion in prison." Rather, Toney's reliance on Makin is particularized to the right he seeks to vindicate, namely the right to adhere to his religious fasting during Ramadan.
701 F.3d 1322 (10th Cir. 2012).
Stewart, 701 F.3d at 1330.
The Court is not persuaded by Quidichay's position that Toney needs authority specifically stating that an inmate has a First Amendment right to receive Ramadan meals before dawn instead of before sunrise. For a law to be clearly established, the facts in the precedential cases need not be identical; they need only be sufficiently analogous that a reasonable official would understand that his conduct was unlawful in that situation. Based on Makin, as well as other authority from the Tenth Circuit establishing that an inmate has a First Amendment right to have sincerely held religious dietary beliefs accommodated, the Court concludes that a reasonable official would have known that denying Toney's request to have his Ramadan meals delivered early enough to accommodate his religious fasting would run afoul of the First Amendment.
Estate of Reat v. Rodriguez, 824 F.3d 960, 965 (10th Cir. 2016).
Beerheide, 286 F.3d at 1185; Ind, 52 F. App'x at 439; LaFevers, 936 F.2d at 1119.
Neither is the Court persuaded by Quidichay's argument that he is entitled to qualified immunity because EDCF's policy was intended to accommodate Muslim inmates' right to fast during Ramadan, not infringe on that right. Ramadan began June 18, 2015, and lasted for 30 days. On June 20, 2015, Toney informed Quidichay in writing that the policy was not adequately accommodating his religious beliefs. Toney explained that his religious beliefs require that he start his fast at dawn, which is approximately an hour and a half before sunrise. On June 29, 2015, Quidichay responded to Toney in writing, stating "procedure dictates that you receive your meal prior to sunrise or before daylight." Thus, Quidichay was put on notice that Toney's religious beliefs were being infringed upon and had, at a minimum, 18 days to take remedial measures before Ramadan 2015 ended, yet he failed to take any corrective action. Because Quidichay was made aware of the policy's shortcomings, he cannot hide behind the policy's good intentions.
As a final matter, the Court recognizes that operating a prison is not an easy task. It is not uncommon for a prison regulation to come into conflict with an inmate's constitutional rights, and in those situations " 'prison-official defendants may identify the legitimate penological interests that justified the impinging conduct,' and the court must apply a balancing test to determine the reasonableness of the regulation." At no point in this litigation has Quidichay provided any reason that accommodating Toney's religious beliefs would be unreasonably burdensome to EDCF. Toney claims that accommodating his religious beliefs could have been as simple as serving him breakfast before EDCF's non-Muslim inmates. Indeed, Toney alleges that EDCF provided breakfast in this manner for years, and Quidichay is silent on why EDCF decided to deviate from this practice in 2015. Because Quidichay has not identified any legitimate penological reason for changing this procedure, the Court concludes that EDCF's interests do not outweigh Toney's right to religious accommodation. It was clearly established that Toney was entitled to adhere to his religious diet. The Court therefore holds that Quidichay is not entitled to qualified immunity.
IT IS THEREFORE ORDERED that Defendants Heimgartner and Quidichay, Jr's Motion to Dismiss Plaintiff's Third Amended Complaint (Doc. 85) is GRANTED IN PART AND DENIED IN PART.
Dated this 11th day of February, 2019.


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