Professor Susan Carle of American University Law School thinks the “regarded as” prong of the ADA may be severely underutilized by plaintiffs seeking to challenge their termination. According to Carle, who delivered a lunch keynote address at the 2016 Colorado Bar CLE annual employment law conference, the ADAAA of 2009 amended the ADA in a way that greatly increased the potential effectiveness of the “regarded as” prong. The ADAAA, first, freed the “regarded as” prong of the requirement that the disability the employer regards an employee as having must significantly impair a major life activity. Employers now only have to “regard” an employee as having some impairment for the employee to be protected by the ADA. To balance this out, Carle emphasizes, the ADAAA did limit the “regarded as” prong a bit. So, the prong does not protect transitory or minor disabilities and the “regarded as” prong does not support requests for accommodation.
Professor Carle explains that it’s fairly clear now what is protected, but there’s a bit of ambiguity around how far the new protection goes. With respect to what is clear, if an employee has an injured back, but has a medical release to go back to work (can perform the essential functions of the job) and the employer says no, the employee is likely protected. Also, if an employee has an anxiety disorder and the employer finds the employee annoying (even though the employee can perform essential functions) and fires the employee, the employee is likely protected. Professor Carle, though, is interested in knowing whether the ADA might extend far enough to protect certain traits. For example, what if an employee has no diagnosed disability or has a disability that has not been disclosed to the employer? If the employer then looks at an employee “trait” that the employee possesses and “regards it as” a disability or impairment, is the employee protected by the ADA? For example, an employee suffers from depression and as a result fails to participate in workplace social gatherings or attends, but just sits in the corner. Is the employee protected from termination by the ADA “regarded as” prong?
Professor Carle believes that the ADA “regarded as” prong “can be of special help to persons with ambiguous or hidden impairments because it may very often be the very perception of ‘something weird/different/not right’ about the person that causes a negative reaction or discrimination rather than any limitation in relevant job-related abilities.” The big question is whether an employer who regards an employee as having a “social disorder” based on a trait is prohibited from acting on that trait in disciplining or terminating the employee? Does the trait have to be an effect of an actual disability or impairment? Professor Carle will attempt to make her case in an upcoming issue of the University of California Davis Law Review. Professor Carle’s argument does have some hope for unleashing the progressive potential of the ADA. After all, a foundational policy of the ADA is to have employers focus on the essential functions of the job in making employment decisions rather than indulging personal biases.
This CLE presentation took place Wednesday, April 20, 2016, and Thursday, April 21, 2016. Order the homestudy here: CD • MP3 audio.
Roberto Corrada, Mulligan Burleson Chair in Modern Learning and Professor at the University of Denver Sturm College of Law, has devoted his scholarly attention to three primary areas: the rights of ethnic and sexual minorities; the public/private distinction in labor and employment law; and the scholarship of teaching and learning. A distinguished teacher, Corrada has been recognized for his innovative work in the classroom. He has received several awards, and was named a national Carnegie Scholar in 2000. He is also extensively involved in service work with local and national institutions, including chairing the board of the ACLU of Colorado in 1998 and helping form the Denver Urban Debate League, serving now on the Board of Directors.
On Monday, April 25, 2016, the Colorado Supreme Court issued four published opinions.
Travelers Property Casualty Co. of America v. Stresscon Corp.
The Colorado Supreme Court issued its opinion in Colorado Ethics Watch v. Independent Ethics Commission on Monday, April 25, 2016.
Constitutional Interpretation—Amendment 41—CRS § 24-18.5-101(9)—Judicial Review.
In this original proceeding, the Supreme Court considered whether the Independent Ethics Commission’s (IEC) decision to dismiss a complaint against a public officer as frivolous is subject to judicial review. Plaintiff contended that the General Assembly authorized such review when it enacted CRS § 24-18.5-101(9), which provides that “[a]ny final action of the commission concerning a 18 complaint shall be subject to judicial review.” The Supreme Court concluded that, while the General Assembly may authorize judicial review of IEC’s enforcement decisions, it may not encroach on the IEC’s decisions not to enforce. Therefore, the Court held that the General Assembly’s “judicial review” provision does not apply to frivolity dismissals. Accordingly, the Court made its rule to show cause absolute and remanded the case to the trial court with instructions to dismiss plaintiff’s complaint.
The Colorado Supreme Court issued its opinion in Travelers Property Casualty Co. of America v. Stresscon Corp. on Monday, April 25, 2016.
Insurance—Enforceability of “No Voluntary Payments” Provisions—Scope of the Notice-Prejudice Rule.
Travelers Property Casualty Company of America (Travelers) petitioned for review of the Court of Appeals’ judgment affirming the district court’s denial of its motion for directed verdict in a lawsuit brought by its insured, Stresscon Corporation (Stresscon). The Court of Appeals rejected Travelers’ contention that the “no voluntary payments” clause of their insurance contract relieved it of any obligation to indemnify Stresscon for payments Stresscon had made without its consent. The Court of Appeals found that the Supreme Court’s opinion in Friedland v. Travelers Indemnity Co., 105 P.3d 639 (Colo. 2005), permitting the insured in that case an opportunity to demonstrate a lack of prejudice from its failure to comply with a notice requirement of its insurance contract, had effectively overruled the Court’s prior “no voluntary payments” jurisprudence to the contrary and given Stresscon a similar opportunity.
The Supreme Court reversed the Court of Appeals’ judgment, holding that its adoption of a notice-prejudice rule in Friedland did not overrule any existing “no voluntary payments” jurisprudence in this jurisdiction, and declining to extend its notice-prejudice reasoning in Friedland to Stresscon’s voluntary payments, made in the face of the “no voluntary payments” clause of its insurance contract with Travelers. Because application of the notice-prejudice rule was the sole basis for the district court’s denial of Travelers’ motion for directed verdict, and because it was undisputed that Stresscon voluntarily settled and paid the third-party claim for which it sought reimbursement, the Court remanded the case with directions that the jury verdict be vacated and that a verdict instead be directed in favor of Travelers.
The Tenth Circuit Court of Appeals issued its opinion in Saenz Mencia v. Allred on Monday, December 14, 2015.
German Wilmer Saenz Mencia, a citizen of Peru, came to Utah to work on the Allreds’ sheep ranch under an H-2A sheepherder visa, and was paid $750 per month plus room and board, the minimum for sheepherders. He brought claims in district court, arguing that the work he performed did not qualify as sheepherding and instead he was entitled to the hourly wage for ranch hands. Mr. Saenz asserted claims in contract and quantum meruit for the lost wages and FLSA minimum wage claims against the Allreds. The district court rejected Mr. Saenz’s claims, denied his summary judgment motion, and granted summary judgment to the Allreds. Mr. Saenz appealed.
The Tenth Circuit first analyzed the H-2A definition of sheepherding and the FLSA definition of range production of livestock. The Tenth Circuit determined that to fit the definitions, Mr. Saenz must have spent over half of his time on the range tending to the sheep and must have extremely variable hours, described as “the constant surveillance of livestock that graze and reproduce on range lands.” The Tenth Circuit found that there was no plausible reading of the definitions that would render Mr. Saenz a sheepherder. Mr. Saenz worked in the vicinity of ranch headquarters where the Allreds could see what he was doing and ask him to help with odd jobs. Mr. Saenz did work with sheep, but they did not graze; they were fed hay. The Tenth Circuit concluded that Mr. Saenz did not work on the range as contemplated by the definitions. The Tenth Circuit found further evidence in the fact that the Allreds and Mr. Saenz were easily able to approximate his hours, and that most of his jobs were incidental to sheepherding. The Tenth Circuit found that Mr. Saenz was a ranch hand, not a sheepherder.
The Tenth Circuit next examined the district court’s finding that Mr. Saenz’s claims were estopped. The district court found that because Mr. Saenz never complained of being underpayed while employed by the Allreds, he was estopped from bringing claims in court. The Tenth Circuit disagreed. The Allreds were employers of more than a dozen H-2A sheepherders, and had obtained the H-2A visas for their employers by vouching for the type of work they would do. The Tenth Circuit concluded the Allreds had both actual and constructive knowledge of the nature and location of Mr. Saenz’s work and rejected their equitable estoppel claim. The Tenth Circuit held that the Allreds had easy access to lawyers and were in the business of importing laborers, and they were therefore not entitled to equitable estoppel under Utah law.
The Tenth Circuit addressed each of the Allreds’ six alternative grounds on which they asked the court to affirm and found none convincing. The Tenth Circuit reversed the district court’s grant of summary judgment to the Allreds and directed it to grant summary judgment to Mr. Saenz. The Tenth Circuit remanded for a calculation of damages and any other proceedings necessary.
On Monday, April 25, 2016, the Tenth Circuit Court of Appeals issued one published opinion and no unpublished opinion.
On Thursday, April 21, and Friday, April 22, 2016, Governor Hickenlooper signed more bills into law. He signed 19 bills on Thursday and five bills on Friday. To date, the governor has signed 141 bills this legislative session. Some of the bills signed Thursday and Friday include a bill to limit the imposition of conditions by federal entities on Colorado water rights, changing the statutory purpose of parole in order to facilitate integration into society for parolees, limiting laws governing security interests in business entities, and more. The bills signed Thursday and Friday are summarized here.
HB 16-1035 – Concerning the Scope of Statutes Making the Issuance of Securities by a Public Utility Conditional on Approval by the Colorado Public Utilities Commission, and, in Connection Therewith, Clarifying that the Approval Requirement Applies Only to Electric and Gas Utilities, by Rep. Timothy Leonard and Sen. Ray Scott. The bill clarifies that only public electric and gas utilities are required to apply to the Public Utilities Commission for approval to issue or assume securities.
HB 16-1060 – Concerning Roadside Memorials for Fallen State Patrol Officers, by Rep. Max Tyler and Sen. Randy Baumgardner. The bill requires CDOT to erect and maintain a permanent roadside memorial for every Colorado State Patrol officer who has perished on the highway in the line of duty.
HB 16-1093 – Concerning the Use of the National Change of Address Database to Maintain Voter Registration Records, and, in Connection Therewith, Clarifying Terminology and Consolidating Procedures for County Clerks and Recorders to Follow when it Appears that an Elector has Moved Within the State, by Reps. Kim Ransom & Su Ryden and Sen. Jack Tate. The bill changes the process that must be followed by county clerks to confirm a voter address if the monthly search determines that a voter may have moved.
HB 16-1104 – Concerning the Issuance of a Summons in Lieu of a Warrant for Certain Non-Violent Offenders, by Rep. Kit Roupe and Sen. John Cooke. The bill allows law enforcement officers to issue a summons in lieu of a warrant if the officer believes there is a reasonable likelihood the defendant will appear, the local district attorney approves and has developed criteria for the procedure, the defendant has had no felony arrests in the past five years, there is no allegation that the defendant used a deadly weapon, and there are no outstanding warrants for the defendant’s arrest.
HB 16-1109 – Concerning that the Basic Tenets of Colorado Water Law Place on the Ability of Certain Federal Agencies to Impose Conditions on a Water Right Owner in Exchange for Permission to use Federal Land, by Reps. KC Becker & Jon Becker and Sens. Jerry Sonnenberg & Kerry Donovan. The bill states that Colorado water is a transferable property right and that the federal government must comply with state law, through the water court process, to acquire water rights.
HB 16-1141 – Concerning the Protection of Colorado Residents from the Hazards Associated with Naturally Occurring Radioactive Materials in Buildings, and in Connection Therewith, Making an Appropriation, by Reps. KC Becker & Don Coram and Sens. Cheri Jahn & Ellen Roberts. The bill requires the Colorado Department of Public Health and Environment to establish a radon education and awareness program to provide information and education statewide to citizens, businesses, and others in need of information, and requires that, by January 1, 2017, the CDPHE stablish a radon mitigation assistance program to provide financial assistance to low-income individuals for radon mitigation services.
HB 16-1153 – Concerning the Annual Date by which the General Assembly Receives a Report Regarding Outcomes of Decisions Made by the State Board of Parole, by Rep. Jovan Melton and Sen. John Cooke. The bill extends the deadline by which reports on parole outcomes made by the State Board of Parole and the Division of Criminal Justice are required from November 1 to March 31.
HB 16-1173 – Concerning the Continuation of the Regulation of Vessels by the Department of Natural Resources, by Rep. Diane Mitsch Bush and Sen. Ray Scott. The bill indefinitely removes the sunset of the Vessel Registration Program conducted by the Department of Regulatory Agencies to continue the registration and regulation of vessels program by Colorado Parks and Wildlife in the Department of Natural Resources.
HB 16-1198 – Concerning Computer Science Courses Fulfilling Certain Graduation Requirements, by Reps. Dan Pabon & Jim Wilson and Sens. Jack Tate & Andy Kerr. The bill encourages school districts to treat computer science and coding classes as mathematics or science courses and count completion of such computer-related courses toward the fulfillment of any mathematics or science graduation requirements.
HB 16-1215 – Concerning Changing the Statutory Purposes of Parole to Successfully Reintegrate Parolees into Society by Providing Enhanced Supportive Services, by Reps. Beth McCann & Daniel Kagan and Sen. Lucia Guzman. The bill redefines the purpose of parole to enhance public safety by reducing recidivism, select and prepare individuals who will be transitioned into the community, set individualized conditions of parole, and achieve a successful discharge from parole.
HB 16-1230 – Concerning the Inclusion of a County’s Financial Information in the State’s Financial Information Database, which is known as the Transparency Online Project, by Rep. Timothy Dore and Sen. John Cooke. The bill requires counties to provide the state Chief Information Officer with a copy of the county’s adopted budget no later than 30 days after the fiscal year begins, starting January 1, 2018.
HB 16-1255 – Concerning Additional Methods to Manage Forests to Secure Favorable Conditions for Water Supply, by Reps. Don Coram & Ed Vigil and Sen. Randy Baumgardner. The bill directs the Colorado state forest service to conduct demonstration pilot projects to implement forest management treatments that improve forest health and resilience, supply forest products to Colorado businesses, and target a Colorado watershed.
HB 16-1258 – Concerning the Posting by Court Clerks of Process When a Respondent is Served by Publication, by Rep. Jovan Melton and Sen. Kevin Lundberg. Current law mandates that clerks of court post the process for notice of a divorce proceeding on a bulletin board in their office when one party cannot be reached. This bill adds the option that clerks can post the process on a bulletin board or the website of the district court in which the case was filed.
HB 16-1259 – Concerning Local District Junior Colleges, and, in Connection Therewith, Changing the Term Local District Junior College to Local District College, by Reps. Diane Mitsch Bush & Jim Wilson and Sens. John Cooke & Kerry Donovan. The bill changes all statutory references to “local junior college” or “junior college” to “local district college” and changes requirements regarding number of board members, actions taken without regular meetings, and annexation.
HB 16-1270 – Concerning the Limitation of Laws Governing Security Interests to an Owner’s Interest in a Business Entity, by Rep. Pete Lee and Sens. Mark Scheffel & Rollie Heath. The bill allows small businesses to control their ownership under the Colorado Corporation and Associations Act and the Uniform Commercial Code.
HB 16-1271 – Concerning the Ability of a Limited Winery that has a Winery Direct Shipper’s Permit to Deliver Vinous Liquors of its Own Manufacture Directly to a Personal Consumer Without the Use of a Common Carrier, by Reps. Jonathan Singer & Dan Nordberg and Sens. Cheri Jahn & Kevin Lundberg. Under current law, a limited winery licensee with a winery direct shipper’s permit may only use a common carrier to deliver the wine it manufactures to personal consumers within Colorado. This bill allows a limited winery licensee to deliver the wine it manufactures directly to personal consumers without the use of a common carrier, as long as the licensee also has a winery direct shipper’s permit and follows the requirements of the permit.
HB 16-1306 – Concerning Revision of the State Statutes Governing Mortgage Loan Originators to Conform More Closely to Applicable Federal Law, and, in Connection Therewith, Amending, Relocating, and Repealing Provisions in Accordance with the Federal “Secure and Fair Enforcement for Mortgage Licensing Act Of 2008,” by Rep. Angela Williams and Sen. Chris Holbert. The bill amends, relocates, and repeals provisions of Colorado’s mortgage loan originator licensing statutes that conflict with or have been rendered unnecessary by recent changes to federal law, or no longer reflect current national industry standards.
HB 16-1316 – Concerning Procedures for Changing Venue for Proceedings Relating to a Child Placed in the Legal Custody of a County Department of Social or Human Services, by Rep. Paul Rosenthal and Sen. John Cooke. The bill amends the Colorado Children’s Code to state that a child who is placed in the legal custody of a county department shall be deemed, for the entire period of the placement, to reside in the county in which the child’s legal parent or guardian resides or is located. This applies even if the child physically resides in an out-of-home placement located in another county.
HB 16-1327 – Concerning the Colorado Dental Board’s Authority to Promulgate Rules Implementing Financial Responsibility Requirements for Dental Care Providers, by Rep. Joann Ginal and Sen. Kevin Grantham. The bill allows the State Dental Board to establish lesser financial responsibility requirements for professional liability insurance for dental hygienists that meet certain criteria.
HB 16-1070 – Concerning a Signature Verification Requirement for Municipal Mail Ballot Elections, and, in Connection Therewith, Making an Appropriation, by Rep. Patrick Neville and Sen. Tim Neville. The bill requires an election judge to compare the signature on each ballot return envelope with the signature of the eligible elector stored in the statewide voter registration system for every municipal mail ballot election.
HB 16-1155 – Concerning Authorization for a County to Designate a Four-Lane Controlled-Access Highway that is Located in the County as a Primary Road of the County Highway System, and, in Connection Therewith, Specifying the Jurisdiction, Control, and Duties of the County and of a Municipality Through which the Highway Passes with Respect to Such a Highway, by Reps. Lori Saine & Diane Mitsch Bush and Sen. Jerry Sonnenberg. The bill allows a county with a population of 250,000 or more to designate a four-lane, controlled-access county highway in an unincorporated county area that intersects with an interstate highway or a U.S. numbered highway as a primary road of the county if the construction begins in 2016.
HB 16-1323 – Concerning Changing the Name of the Division of Labor to the Division of Labor and Statistics, by Rep. Tracy Kraft-Tharp and Sen. John Cooke. The bill changes the name of the Division of Labor and Employment within the Colorado Department of Labor and Employment (CDLE) to the Division of Labor Standards and Statistics.
HB 16-1350 – Concerning the Department of Higher Education’s Authority to Make Transfers Relating to a Governing Board’s Fee-For-Service Contracts for Specialty Education, by Rep. Dave Young and Sen. Kevin Grantham. Under current law, the Department of Higher Education may transfer up to ten percent of the annual total governing board appropriation for an institution of higher education between that governing board’s appropriation for college opportunity fund (COF) stipends, and that governing board’s fee-for-service (FFS) contracts for higher education services and programs. The bill expands the department’s authority to transfer between the COF and FFS appropriations for specialty education programs.
HB 16-1352 – Concerning the Appropriation of Moneys from the State Museum Cash Fund for the Benefit of Facilities Owned and Operated by the State Historical Society, and, in Connection Therewith, Making an Appropriation, by Rep. Millie Hamner and Sen. Kevin Grantham. The bill allows moneys in the fund to also be appropriated for exhibit planning, development, and build-out at other State Historical Society facilities, and, for FY 2016-17, appropriates $2 million from the fund for those purposes. The State Historical Society has four years to spend the appropriation.
On March 11, 2016, Rep. Joseph Salazar and Sen. Lucìa Guzman introduced HB 16-1359 – Concerning the Use of Medical Marijuana while on Probation. The bill was introduced into the House Judiciary Committee, where it was amended. It was again amended on Second Reading and passed Third Reading with no further amendments.
Current law prohibits a court from requiring that a person on probation refrain from possessing or using medical marijuana unless the person was convicted of a crime related to medical marijuana or, based on an assessment, the court determines that a prohibition against such possession or use is necessary to accomplish the goals of sentencing. This bill eliminates the exception related to the assessment, and instead, allows a court to consider “any material evidence” in determining whether a prohibition on the possession or use of medical marijuana by an individual on probation is necessary to accomplish the goals of sentencing.
On March 16, 2016, Rep. Jessie Danielson introduced HB 16-1384 – Concerning Establishing a Legal Privilege Related to Testifying Without Consent for Disability Advocates. It was introduced into the House Judiciary Committee.
This bill establishes a legal privilege for disability advocates to not testify to communications between the disability advocate (herein also referred to as “advocate”) and a person with a disability. If a communication is between an advocate and a person with a disability who has retained the services of the advocate, and the communication is directly related to providing effective communication support accommodation – as the term is defined in the federal Americans with Disabilities Act – the advocate shall not be called upon to testify as to such communication without the consent of the person with the disability. A “disability advocate” means a person employed by a disability advocacy agency, who undergoes eight hours annually of specialized training, and whose primary function is to provide ongoing effective communication support accommodation to persons with disabilities.
The Tenth Circuit Court of Appeals issued its opinion in In re Gentry: FB Acquisition Property I, LLC v. Gentry on Tuesday, December 8, 2015.
Susan and Larry Gentry are the sole shareholders, officers, and directors of Ball Four Inc., a sports complex in Adams County. In 2005, Ball Four received a $1.9 million loan from FirsTier Bank, which was secured with various Ball Four assets and personally guaranteed by the Gentrys. After four years, Ball Four stopped making payments to FirsTier. FirsTier initiated foreclosure proceedings, and Ball Four filed for Chapter 11 bankruptcy. Ball Four proposed a reorganization plan that provided for the bank’s lien to be paid in full. Ball Four’s plan was approved in 2011.
Meanwhile, the Colorado Division of Banking closed FirsTier and the FDIC was appointed as receiver. The FDIC assigned its rights to SIP, and in December 2014 SIP was replaced by FB Acquisition.
In October 2010, one month after Ball Four filed for bankruptcy, FirsTier sued the Gentrys in Colorado state court to collect the guarantees. The Gentrys filed their Chapter 11 case in November 2011. The Gentrys filed disclosures and an amended plan, asserting that the Gentrys’ liability on the 2005 loan would be satisfied by Ball Four. The bankruptcy court confirmed the Gentrys’ plan in 2013.
FB Acquisition appealed two decisions of the bankruptcy court to the Tenth Circuit: first, that the Gentry plan was feasible, and second, that under the plan language, the Gentrys’ liability mirrors Ball Four’s liability. The Tenth Circuit first addressed the feasibility of the Gentry plan. Although FB Acquisition argued the Gentry plan did not offer a reasonable assurance of success, the Tenth Circuit noted that even though the bankruptcy court’s findings were brief, they were sufficient to satisfy a clear error inquiry.
The Tenth Circuit next addressed FB Acquisition’s contention that the bankruptcy court erred in limiting the Gentrys’ liability to the amount that Ball Four owed. The Tenth Circuit disagreed with the bankruptcy court’s evaluation of the Gentrys’ liability. The bankruptcy court found no provisions in the loan contract creating a greater obligation for the Gentrys than that owed by Ball Four, but the Tenth Circuit found three. Because the bankruptcy court misunderstood its duty to confer liability for the entirety of the debt on the guarantors, the Tenth Circuit remanded for the bankruptcy court to determine the amount of FB Acquisition’s claims under the guarantees. The Tenth Circuit noted the bankruptcy court should also reevaluate the feasibility of the plan.
The bankruptcy court’s ruling was affirmed in part, reversed in part, and remanded for further proceedings.
On Friday, April 22, 2016, the Tenth Circuit Court of Appeals issued three published opinions and two unpublished opinions.
Calloway v. Bank of America Corp.


Under the Federal Rules of Criminal Procedure, the filing of notice of appeal in a criminal case after expiration of the time prescribed in Rule 37(a)(2) does not confer jurisdiction upon the Court of Appeals, even though the District Court, proceeding under Rule 45(b), has found that the late filing of the notice of appeal was the result of "excusable neglect." Pp. 361 U. S. 220-230.
(a) To recognize a late notice of appeal is actually to "enlarge" the period for taking an appeal, which is explicitly forbidden by Rule 45(b). Pp. 361 U. S. 224-229.
(b) The policy question whether greater flexibility should be allowed with respect to the time for taking an appeal must be resolved through the rulemaking process, not by judicial decision, and it cannot be resolved by the Court of Appeals. Pp. 361 U. S. 229-230.
104 U.S.App.D.C. 200, 260 F.2d 718, reversed.
"ordered that the record reflect that the appeals were allowed and failure to act was due to excusable neglect under Rule 45(b) of the Federal Rules of Criminal Procedure."
On November 5, the Court of Appeals en banc, two judges dissenting, denied the Government's petition for rehearing, 104 U.S.App.D.C. 200, 260 F.2d 718. Because of the importance of the question to the proper and uniform administration of the Federal Rules of Criminal Procedure, we granted certiorari. 358 U.S. 940.
The single question presented is whether the filing of a notice of appeal in a criminal case after expiration of the time prescribed in Rule 37(a)(2) confers jurisdiction of the appeal upon the Court of Appeals if the District Court, proceeding under Rule 45(b), has found that the late filing of the notice of appeal was the result of excusable neglect.
"Enlargement. When an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion (1) with or without motion or notice, order the period enlarged if application therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion permit the act to be done after the expiration of the specified period if the failure to act was the result of excusable neglect; but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those rules, or the period for taking an appeal."
"the District Court has no authority to grant a greater period than ten days for taking an [appeal, it] may, however, if satisfied that the failure to note an appeal within ten days is excusable, permit late filing."
"for some cause amounting legally to 'excusable neglect' the party fails to take any action during the prescribed time, the rule seems plainly to allow the District Court discretion to permit him to file a late notice of appeal."
interpretations, and history of Rule 45(b) and the related Federal Rules of Criminal Procedure.
". . . but the court may not enlarge the period for taking any action under Rules 33, 34 and 35, except as otherwise provided in those Rules, or the period for taking an appeal."
If, as the Court of Appeals has held, the delayed filing of a notice of appeal -- found to have resulted from "excusable neglect" -- is sufficient to confer jurisdiction of the appeal, it would consistently follow that a District Court may, upon a like finding, permit delayed filing of a motion for new trial under Rule 33, [Footnote 5] of a motion in arrest of judgment under Rule 34, [Footnote 6] and the reduction of sentence under Rule 35, [Footnote 7] at any time -- months or even years -- after expiration of the periods specifically prescribed in those Rules.
"that, because the literal language of the Rule places the five-day limit only on the making of the motion [for a new trial], it does not limit the power of the court later to grant [a new trial]. . . ."
331 U.S. at 331 U. S. 473. This Court rejected the contention that such power "lingers on indefinitely," and pointed out that the Rules, in abolishing the limitation based on the Court Term, did not substitute indefiniteness, but prescribed precise times within which the power of the courts must be confined. 331 U.S. at 331 U. S. 474. See also Marion v. United States, 171 F.2d 185 (C.A. 9th Cir.); Drown v. United States, 198 F.2d 999 (C.A. 9th Cir.). The same rule must apply with respect to the time within which a motion in arrest of judgment may be filed under Rule 34. Similarly, it has been held that a District Court may not reduce a sentence under Rule 35 after expiration of the 60-day period prescribed by that Rule, regardless of excuse. United States v. Hunter, 162 F.2d 644 (C.A. 7th Cir.). Cf. Aronti v. United States, 350 U. S. 79.
From this review, it would seem that there is nothing in the language of Rule 45(b), or in the judicial interpretations of that Rule or its predecessor, which supports the conclusion of the Court of Appeals. We turn, then, to the history of Rule 45(b) to see whether any support for the court's conclusion can be found in that source.
"the court shall direct the clerk forthwith to prepare, file, and serve on behalf of the defendant a notice of appeal or shall extend the time specified by rule for the filing of a notice of appeal. [Footnote 9]"
(Emphasis added.) In conformity with that draft proposal, the preliminary draft of what is now Rule 45(b) [Footnote 10] stated: " . . . but it may not enlarge . . . the period for taking an appeal except as provided in Rule 35(a)(2)." The limited provision for an extension of the time within which to appeal that was contained in the first preliminary draft of those Rules was eliminated by the second preliminary draft, [Footnote 11] and never reappeared. This seems almost conclusively to show a deliberate intention to eliminate any power of the courts to extend the time for the taking of an appeal.
(c) thereof, or the period for taking an appeal as provided by law."
It had consistently been held that Civil Rule 6(b) was mandatory and jurisdictional, and could not be extended, regardless of excuse. [Footnote 13] It must be presumed that the Advisory Committee and the Justices of this Court were aware of the limiting language of Civil Rule 6(b) and of the judicial construction it had received when they prepared and adopted the Federal Rules of Criminal Procedure. No support for the conclusion of the Court of Appeals can be found in this history of Rule 45(b).
Rule 45(b) says in plain words that " . . . the court may not enlarge . . . the period for taking an appeal." The courts have uniformly held that the taking of an appeal within the prescribed time is mandatory and jurisdictional. The history of Rule 45(b) shows that consideration was given to the matter of vesting a limited discretion in the courts to grant an extension of time for the taking of an appeal, but, upon further consideration, the idea was deliberately abandoned. It follows that the plain words, the judicial interpretations, and the history, of Rule 45(b) not only fail to support, but actually oppose, the conclusion of the Court of Appeals, and therefore its judgment cannot stand.
States v. Isthmian S.S. Co., 359 U. S. 314. If, by that process, the courts are ever given power to extend the time for the filing of a notice of appeal upon a finding of excusable neglect, it seems reasonable to think that some definite limitation upon the time within which they might do so would be prescribed, for otherwise, as under the decision of the court below, many appeals might -- almost surely would -- be indefinitely delayed. Certainly that possibility would unnecessarily [Footnote 14] produce intolerable uncertainty and confusion. Whatever may be the proper resolution of the policy question involved, it was beyond the power of the Court of Appeals to resolve it.
MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissent, as they share the view of Judge Bazelon, 104 U.S.App.D.C. 200, 201, 260 F.2d 718, 719, that an extension of time, granted after the 10-day period for an appeal has passed, is not an "enlargement" of the time in the narrow sense in which Rule 45(b) uses the word.
"the day of sentencing, I advised my attorney that I was going to appeal the case. . . . I had told him that, from [what] other inmates at the District Jail [had told me], I knew I could appeal the judgment, but [I] did not file the necessary appeal paper, thinking that my attorney would do it, while I now [understand] he thought I would do it. . . . We misunderstood each other, and I now find that I gave him the wrong impression as to what I wanted done, and that he misunderstood what I was going to do or wanted to do."
"I was under the impression that he was going to [file the notice of appeal] without me, [and also] I neglected to differentiate the rules as to appealing this type of a case [from the Rules applying to the appeal] of a civil case."
All references to Rules are to the Federal Rules of Criminal Procedure unless otherwise stated.
"Time for Taking Appeal. An appeal by a defendant may be taken within 10 days after entry of the judgment or order appealed from, but if a motion for a new trial or in arrest of judgment has been made within the 10-day period an appeal from a judgment of conviction may be taken within 10 days after entry of the order denying the motion. When a court after trial imposes sentence upon a defendant not represented by counsel, the defendant shall be advised of his right to appeal and if he so requests, the clerk shall prepare and file forthwith a notice of appeal on behalf of the defendant. . . ."
See, e.g., Martin v. United States, 263 F.2d 516 (C.A. 10th Cir.); Bryant v. United States, 261 F.2d 229 (C.A. 6th Cir.); United States v. Isabella, 251 F.2d 223 (C.A.2d Cir.); Banks v. United States, 240 F.2d 302 (C.A. 9th Cir.); Wagner v. United States, 220 F.2d 513 (C.A.4th Cir.); Kirksey v. United States, 94 U.S.App.D.C. 393, 219 F.2d 499; Brant v. United States, 210 F.2d 470 (C.A. 5th Cir.); McIntosh v. United States, 204 F.2d 545 (C.A. 5th Cir.) Marion v. United States, 171 F.2d 185 (C.A. 9th Cir.); Swihart v. United States, 169 F.2d 808 (C.A. 10th Cir.); United States v. Froehlich, 166 F.2d 84 (C.A.2d Cir.).
It is thus made to appear that the court below has itself recognized and enforced this Rule in Kirksey v. United States, supra, as it did also in Richards v. United States, 89 U.S.App.D.C. 354, n. 2, at 356, 192 F.2d 602, n. 2, at 604.
". . . A motion for a new trial based on the ground of newly discovered evidence may be made only before or within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 5 days after verdict or finding of guilty or within such further time as the court may fix during the 5-day period."
"The court shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 5 days after determination of guilt or within such further time as the court may fix during the 5-day period."
"The court may correct an illegal sentence at any time. The court may reduce a sentence within 60 days after the sentence is imposed, or within 60 days after receipt by the court of a mandate issued upon affirmance of the judgment or dismissal of the appeal, or within 60 days after receipt of an order of the Supreme Court denying an application for a writ of certiorari."
See, e.g., Nix v. United States, 131 F. & 857 (C.A. 5th cir.); United States v. Infusino, 131 F.2d 617 (C.A. 7th Cir.); Miller v. United States, 104 F.2d 343 (C.A. 5th Cir.); United States v. Tousey, 101 F.2d 892 (C.A. 7th Cir.); O'Gwin v. United States, 90 F.2d 494 (C.A. 9th Cir.); Burr v. United States, 86 F.2d 502 (C.A. 7th Cir.); Fewox v. United States, 77 F.2d 699 (C.A. 5th Cir.). And compare United States ex rel. Coy v. United States, 316 U. S. 342, and United States v. Hark, 320 U. S. 531, 320 U. S. 533.
Federal Rules of Criminal Procedure, Preliminary Draft, with Notes and Forms, Prepared by the Advisory Committee on Rules of Criminal Procedure, United States Government Printing Office, 1943, Appeal Rule then No. 35(a)(2), p. 152.
What became Rule 45(b) was then treated as Rule 41(b). Id. at p. 179. The note to this proposed Rule stated that it ". . . is an adaptation for all criminal proceedings of Fed.Rules Civ.Proc., Rule 6 (Time)." Id. at p. 180.
Federal Rules of Criminal Procedure, Second Preliminary Draft, with Notes and Forms, Prepared by the Advisory Committee on Rules of Criminal Procedure, United States Government Printing Office, February 1944, Appeal Rule then No. 39(a)(2), p. 135.
The Notes of Advisory Committee on Rules of Criminal Procedure (Rule 45), state, "The rule is in substance the same as Rule 6 of the Federal Rules of Civil Procedure. . . ."
United Drug Co. v. Helvering, 108 F.2d 637 (C.A.2d Cir.); Alexander v. Special School District of Booneville, 132 F.2d 355 (C.A. 8th Cir.); Tinkoff v. West Publishing Co., 138 F.2d 607 (C.A. 7th Cir.); Lamb v. Shasta Oil Co., 149 F.2d 729 (C.A. 5th Cir.); Federal Deposit Insurance Corporation v. Congregation Poiley Tzedeck, 159 F.2d 163 (C.A.2d Cir.).
The allowance of an appeal months or years after expiration of the prescribed time seems unnecessary for the accomplishment of substantial justice, for there are a number of collateral remedies available to redress denial of basic rights. Examples are: the power of a District Court under Rule 35 to correct an illegal sentence at any time, and to reduce a sentence within 60 days after the judgment of conviction becomes final; the power of a District Court to entertain a collateral attack upon a judgment of conviction and to vacate, set aside or correct the sentence under 28 U.S.C. § 2255; and proceedings by way of writ of error coram nobis.


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Our firm has long-standing and substantial experience in representing tribes regarding off-reservation hunting, fishing and gathering rights. For example, one of our partners, during his tenure as Assistant to the Solicitor General of the United States, U.S. Department of Justice, briefed and argued one of the seminal Supreme Court decisions on these issues, Wash. Dep't of Game v. Puyallup Tribe, 414 U.S. 44 (1973). In that decision, the Supreme Court held that a state cannot - in an effort to regulate fishing activities in the interests of conservation - adopt and enforce against Indians exercising treaty-protected fishing rights, state laws that discriminate against the Indians’ exercise of such rights or fail to fairly apportion the natural resources between Indian and non-Indian harvesters.
We also represented a tribe in litigation to secure recognition of the rights of Chippewa Indians in Minnesota to hunt, fish and gather under their treaties with the United States on lands outside the tribe's reservations. That litigation resulted in a Supreme Court decision affirming the continued existing of the Chippewa's rights. Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), aff'g Mille Lacs Band of Chippewa Indians v. Minnesota.124 F.3d 904 (8th Cir. 1997); see also Fond du Lac Band of Chippewa Indians v. Carlson, 68 F.3d 253 (8th Cir. 1995). We successfully worked on all phases of the litigation which included the presentation of the historical record necessary to establish the continued existence of the tribe's treaty rights, as well as legal analysis necessary to show that those rights were not extinguished or diminished by, for example, the “equal footing doctrine” upon the state’s admission to the Union, or as a result of claims litigated before the Indian Claims Commission, or as a result of recent tribal economic success.
For another tribal client, we established fishing rights based on an 1894 Agreement with the United States. The case involved extensive historical research and the use of both historians and anthropological experts to demonstrate to the court that the Agreement should be read to secure a fishing right for the Tribe, and that the Tribe had maintained sufficient cohesion in modern day times to assert the right. See United States v. Oregon, 2008 WL 3834169 (D.Or. 2008), aff’d, United States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698 (9th Cir. 2010).
Our practice also includes significant work in defense of Alaska Native hunting and fishing rights, usually serving as of counsel to the Native American Rights Fund. This practice generally involves litigation to enforce Alaska Native "subsistence" rights under Title VIII of the Alaska National Interest Lands Conservation Act, a federal measure enacted when the State of Alaska failed to protect hunting and fishing rights under state law. Representative cases include Safari Club Int'l v. Demientiefff, No. A94-0414 CV (HRH) (D. Alaska Jan. 16, 2004); Katie John v. U.S., 72 F.3d 698 (9th Cir. 1995), on final judgment 247 F.3d 1032 (9th Cir. 2001) (en banc). We assisted in briefing in Native Vill. of Eyak v. Evans, 375 F.3d 1218 (9th Cir. 2004), involving unextinguished aboriginal fishing rights in the Outer Continental Shelf under the “paramountcy” doctrine.
In our work on tribal hunting and fishing rights we have also assisted tribes to develop tribal codes and resource management plans under which the tribes regulate their members' exercise of the rights and assume responsibility for management of the resource in a manner that allows the Tribe to pre-empt application of state hunting and fishing laws. We have also represented tribes in administrative and judicial proceedings to ensure that other activities – such as proposals to develop land or the use of water resources – do not adversely affect tribal rights to hunt, fish and gather natural resources both within and outside the tribe’s reservation.

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FindACase | Brooks Jay Transportation, Inc. v. Fedex Ground Package System, Inc.
Brooks Jay Transportation, Inc. v. Fedex Ground Package System, Inc.
FEDEX GROUND PACKAGE SYSTEM, INC., Defendant.
Plaintiff Brooks Jay Transportation, Inc., alleges that defendant FedEx Ground Package System, Inc., transferred a client account within Brooks Jay's service area to another FedEx Ground transportation provider in breach of the parties' operating agreement. Before the court is defendant's motion for summary judgment. (Dkt. #36.) For the reasons that follow, the court will deny that motion, finding genuine issues of material fact as to whether: (1) the operating agreement was limited to Brooks Jay's Madison, Wisconsin, station; (2) FedEx Ground breached the agreement by transferring the servicing of a customer account to a different station; and (3) Brooks Jay suffered damages as a result of any breach.
Before turning to the parties' proposed findings, the court must take up a number of preliminary objections. First, in proposing findings of facts and in response to defendant's proposed findings, plaintiff principally relies on an affidavit by its President and sole owner Bernard (“BJ”) McMahon. With respect to a number of proposed findings and responses, defendant invokes the “sham declaration rule, ” which provides that “parties cannot thwart the purposes of Rule 56 by creating ‘sham' issues of fact with affidavits that contradict their prior depositions.” Bank of Ill. v. Allied Signal Safety Restraint Sys., 75 F.3d 1162, 1168 (7th Cir. 1996). The Seventh Circuit has cautioned restraint in applying this rule, however, particularly when the witness testifies at an earlier deposition that he or she cannot remember a particular fact. See Id. at 1169; EEOC v. Aurora Health Care, Inc., 12-cv-984-JPS, 2015 WL 2344727, at *5 n.28 (E.D. Wis. May 14, 2015) (“[The witness's] general lack of memory at a specific time is not specifically contradicted by her later memory. Indeed, that is often the nature of memory.”). Having reviewed McMahon's deposition testimony, the court does not find contradictions that would warrant the court disregarding portions of his declaration. While defendant is free to cross-examine McMahon on the stand at trial regarding his inability to recall the specifics of certain discussions or provide a more complete description of the nature of plaintiff's claim, the court will not strike or otherwise disregard the challenged portions of McMahon's declaration.
Where the parties, without any fraud or mistake, have deliberately put their engagements in writing, the law declares the writing to be not only the best, but the only, evidence of their agreement. All preliminary negotiations, conversations and verbal agreements are merged in and superseded by the subsequent written contract ... and unless fraud, accident or mistake be averred, the writing constitutes the agreement between the parties, and its terms and agreements cannot be added to nor subtracted from by parol evidence.
DeArmitt v. N.Y. Life Ins. Co., 73 A.3d 578, 589 (Pa. 2013) (citing Yocca v. Pittsburgh Steelers Sports, Inc., 854 A.2d 425, 436 (Pa. 2004) (quoting Gianni v. R. Russel & Co., 126 A. 791, 792 (Pa. 1924)). Here, plaintiff is not attempting to usher in evidence of the parties' “preliminary negotiations, conversations and verbal agreements”; rather, plaintiff is relying on evidence of the parties' course of conduct evidence or of the scope of the contract after its execution.
Third, defendant is, of course, correct to point out that the court should not look at evidence extrinsic to the agreement if the agreement is unambiguous. See Duquesne Light Co. v. Westinghouse Elec. Corp., 66 F.3d 604, 613 (3d Cir. 1995) (“Only where the writing is ambiguous may the factfinder examine all the relevant extrinsic evidence to determine the parties' mutual intent.”) (examining Pennsylvania law). For the reasons explained below, however, the court finds a latent ambiguity in the parties' agreement. Therefore, McMahon and Verstraete's statements concerning the parties' implementation of the agreement may well be material to the parties' dispute. See, e.g., Beta Spawn, Inc. v. FFE Transp. Servs., Inc., 250 F.3d 218, 227 (3d Cir. 2001) (“Where a contract provision is ambiguous, however, extrinsic evidence may be properly admitted in an attempt to resolve the ambiguity.” (quoting In re Herr's Estate, 161 A.2d 32, 34 (Pa. 1982)).
Fourth, plaintiff asserts a number of hearsay objections to apparent FedEx Ground call logs because they have not been properly authenticated. On the docket, these exhibits are attached to defendant's proposed findings of facts. (Def.'s PFOFs, Exs. C, D, E (dkt. #38-2, 38-3, 38-4).) More importantly for purposes of summary judgment, a FedEx Ground paralegal identifies the exhibits in his declaration. (Kunkler Decl. (dkt. #39) ¶¶ 4-6.) Whatever plaintiff's further evidentiary objection may be at trial, this is certainly sufficient for the court's consideration of these documents as business records under Federal Rule of Evidence 803(6). See Norman v. AllianceOne Receivables Mgmt., Inc., 637 F. App'x 214, 216 (7th Cir. 2015) (“Business records, such as AllianceOne's call logs, are admissible when authenticated by a custodian.” (citing Rule 803(6))). Regardless, as described below, plaintiff disputes much of the content of these call logs, calling much of these records into question. Finally, again for reasons discussion below, these records do not materially aid defendant's motion.
Consistent with the above, the court finds the following facts undisputed and material for the purposes of deciding the present motion when viewed in a light most favorable to plaintiff as the non-moving party, unless otherwise noted.
Plaintiff Brooks Jay Transportation, Inc., is a Wisconsin Corporation with its principal place of business in Wisconsin. Brooks Jay provides ground transportation for the pick-up and delivery of packages in Wisconsin. BJ McMahon is the sole shareholder and President of Brooks Jay.
FedEx Ground Package System, Inc., is a Delaware Corporation, with its principal place of business in Pennsylvania. FedEx Ground is a leading provider of small-package ground delivery services to its customers.
In 1999, Brooks Jay entered into a Pick-Up and Delivery Contractor Operating Agreement with FedEx Ground's predecessor, RPS, Inc. (PFOFs, Ex. B (dkt. #38-2).) At that time, Brook Jay's “station of domicile” was established as Madison, Wisconsin. The Agreement had a one-year term, subject to renewal. (Id. at § 11.1 (defining “initial term”).) Upon the expiration of this initial term, the Agreement has been renewed annually, for 18 straight years.
The parties point out various portions of their Agreement in support of their respective positions on plaintiff's breach of contract claim. Section 5.1 of the Agreement defines the “Contractor Primary Service Area, ” and it provides, “Contractor shall be responsible for the daily pick-up and delivery of packages in the Contractor's Primary Service Area, as assigned to Contractor from time to time by RPS, and as shown in Addendum 4 to the Agreement.” (Id. at § 5.1.) Addendum 4, a 61-page document, describes Brooks Jay's Primary Service Area as at “Station 00537, ” and then lists the “delivery area, ” “delivery area exceptions, ” “pick up area” and “pick up area exceptions” by zip code, “core zone, ” city, street address and block ranges. (The pick up areas also designate begin and end times.) (Id. at pp. 106-68.) The bottom of each page of the Addendum identifies the Station Number as 00537. Madison's Station Number is 00537. This Addendum was executed in August 2015.
this Agreement contemplates the recognition both by the parties hereto and by other contractors in the RPS system of a proprietary interest by Contractor in the customer accounts in his/her Primary Service Area as that area is configured from time to time, and a consequent right of Contractor to receive payment in the event his/her Primary Service Area is reconfigured with the result that customers previously serviced by the Contractor are reassigned.
RPS has represented to shippers and cosignees that, in arranging transportation of packages within the RPS system, it will provide a standard of service that is fully competitive with that offered by other national participants in the industry. Contractor acknowledges the benefits to his/her business of participation in the RPS national system, and agrees to conduct activities under the terms of the Agreement to achieve the results represented to shippers and consignees.


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Messrs. Eugene F. Black and Jesse P. Wolcott, both of Port Huron, Mich., for petitioner.
Petitioner, a longshoreman, was injured at Port Huron while unloading a vessel lying in navigable water. He was about his work on the deck of the vessel when he was struck by a swinging hoist, lifting cargo from a hatch, and was precipitated upon the wharf. He sought compensation under the Compensation Act of the State of Michigan (Comp. Laws Mich. 1929, 8407 et seq., as amended). His employer, the Port Huron Terminal Company, contended that the accident occurred upon navi- [295 U.S. 647, 648] gable water and that the state law did not apply. The defense was overruled by the state commission in the view that the injury must have been occasioned by petitioner's fall upon the wharf, and hence that the claim was within the state statute, although the injury would not have been received except for the force applied to his person while on the vessel. The Supreme Court of the State vacated the commission's award, holding that the federal law controlled. 269 Mich. 295, 257 N.W. 831. Because on an asserted conflict with decisions of this Court, a writ of certiorari was granted. 294 U.S. 704 , 55 S.Ct. 548, 79 L.Ed. --.
We have held that the case of an employee injured upon navigable waters while engaged in a maritime service is governed by the maritime law. Southern Pacific Company v. Jensen, 244 U.S. 205 , 37 S.Ct. 524, L.R.A. 1918C, 451, Ann. Cas. 1917E, 900; Grant Smith-Porter Ship Company v. Rohde, 257 U.S. 469, 477 , 42 S.Ct. 157, 25 A.L.R. 1008. It is otherwise if the injury takes place on land. State Industrial Commission v. Nordenholt Corp., 259 U.S. 263, 272 , 273 S., 42 S.Ct. 473, 25 A.L.R. 1013; Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128, 133 , 50 S.Ct. 303. In the instant case, the injury was due to the blow which petitioner received from the swinging crane. It was that blow received on the vessel in navigable water which gave rise to the cause of action, and the maritime character of that cause of action is not altered by the fact that the petitioner was thrown from the vessel to the land.
We had the converse case before us in T. Smith & Son v. Taylor, 276 U.S. 179 , 48 S.Ct. 228. There a longshoreman, employed in the unloading of a vessel at a dock, was standing upon a stage that rested solely upon the wharf and projected a few feet over the water to or near the vessel. He was struck by a sling loaded with cargo, which was being lowered over the vessel's side, and was knocked into the water, where some time later he was found dead. It was urged that the suit was solely for the death which occurred in the water, and hence, that the case was exclusively within the admiralty jurisdiction. We held the argument [295 U.S. 647, 649] to be untenable. We said: 'The blow by the sling was what gave rise to the cause of action. It was given and took effect while deceased was upon the land. It was the sole, immediate and proximate cause of his death. The G. R. Booth, 171 U.S. 450 , 460 (19 S.Ct. 9). The Substance and consummmation of the occurrence which gave rise to the cause of action took place on land.' Id., 276 U.S. 179 , page 182, 48 S.Ct. 228, 229.
If, when the blow from a swinging crane knocks a longshoreman from the dock into the water, the cause of action arises on the land, it must follow, upon the same reasoning, that when he is struck upon the vessel and the blow throws him upon the dock the cause of action arises on the vessel. Compare Vancouver S.S. Co. v. Rice, 288 U.S. 445, 448 , 53 S.Ct. 420.
The decision in L'Hote v. Crowell, 286 U.S. 528 , 52 S.Ct. 499, upon which petitioner relies, is not opposed. In that case, we dealt only with the determination of the question of the dependency of a claimant for compensation, holding that the finding of fact by the deputy commissioner against the claimant upon that issue should not have been disturbed. The writ of certiorari was limited to that question, (C.C.A.) 54 F.(2d) 212; 285 U.S. 533 , 52 S.Ct. 406. The judgment is affirmed.

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Reported below: 11 N.Y.2d 740, 181 N.E.2d 456.
I think this appeal presents substantial federal questions, and that jurisdiction should be noted.
Under § 269 of the New York Surrogate's Court Act (now § 269-a) a Czechoslovakian beneficiary of a New York estate has been denied the power to make a gift of her interest in the estate to her niece residing in England. This result flows from a determination by the Surrogate's Court of Bronx County that, under its present government, conditions are such in Czechoslovakia that it is unlikely the beneficiary would be able to enjoy her interest. Therefore its use was denied her entirely, though none of it, so far as this record shows, will ever reach Czechoslovakia.
of property in one state to the citizens of another state is clearly a proper subject of international relations. See Geofroy v. Riggs, 133 U. S. 258. The Constitution by Art. I, § 10, imposes severe limitations on the several States' power to affect the foreign relations of the United States.
"[C]omplete power over international affairs is in the national government, and is not and cannot be subject to any curtailment or interference on the part of the several states."
"[i]f state action could defeat or alter our foreign policy, serious consequences might ensue. The nation as a whole would be held to answer if a State created difficulties with a foreign power."
United States v. Pink, 315 U. S. 203, 315 U. S. 232. Cf. 25 U. S. Maryland, 12 Wheat. 419.
immunity should be allowed, those views will control. Republic of Mexico v. Hoffman, 324 U. S. 30.
"Experience has shown that international controversies of the gravest moment, sometimes even leading to war, may arise from real or imagined wrongs to another's subjects inflicted, or permitted, by a government."
Certainly a State could not deny admission to a traveler from Czechoslovakia, nor bar its citizens from going there. The Passenger Cases, 7 How. 283; Crandall v. Nevada, 6 Wall. 35; cf. Kent v. Dulles, 357 U. S. 116. The present restraints are not as gross an intrusion in the federal domain as those others would be. Yet they affect international relations in a persistent and subtle way. The practice of state courts in withholding remittances to legatees residing in Communist countries or in preventing them from assigning them is notorious. Chaitkin, The Rights of Residents of Russia and its Satellites to Share in Estates of American Decedents, 25 So.Calif.L.Rev. 297.
The issue is of importance to our foreign relations, and I think this Court should decide whether, under existing federal policy and practice, the New York statute should be given effect. The issue was raised in No. 123, 1953 Term, where the appeal was dismissed. Matter of Braier, 305 N.Y. 148, 111 N.E.2d 424, app. dism. sub nom.
Kalmane v. Green, 346 U.S. 802, JUSTICES BLACK, DOUGLAS, and BURTON voting to note jurisdiction. The question seems substantial, and does not seem to be foreclosed by Clark v. Allen, 331 U. S. 503. We should note jurisdiction and ask the Solicitor General to file a brief.
"Had the Surrogate held a hearing, it might well have been developed, as alleged in the petition, that the beneficiaries are 'all of advanced age, who are [now] living [in Hungary] under difficult conditions and are in great need of assistance,' and that monetary assistance 'can be transferred to them by sending food and clothing packages to each of them . . . free of duty and of any taxation.' It might well have been further developed that these nationals have no way of leaving Hungary; that they are the very victims of the 'events in Hungary' to which the Surrogate referred; that they will probably die there and never receive the benefit of their legacies if the moneys are withheld; and that there are agencies which can assure delivery of food and clothing packages in reasonable amounts to named individuals."
packages upon a proper showing that they would reach the beneficiaries."
7 N.Y.2d at 113-114, 164 N.E.2d at 101, 102.
This means that no one residing in Czechoslovakia may receive or make any disposition of property under a will probated in New York, even though it is done without the intercession of the foreign government or in fact without its knowledge, and even though there is no danger of the funds' being confiscated or, in fact, being within Czechoslovakia's reach. If New York's purpose is to preclude unfriendly foreign governments from obtaining funds that will assist their efforts hostile to this Nation's interests, as Matter of Getream, 200 Misc. 543, 107 N.Y.S.2d 225, and In re Renard's Estate, 179 Misc. 885, 39 N.Y.S.2d 968, suggest, the complete prohibition of assignments made in those countries may have some basis in reason. But, if this is the purpose behind the statute, it seemingly is an attempt to regulate foreign affairs. If the statute is designed to effectuate the testator's intent, as appellees seem to argue, it would seem to have no basis in reason.
Viktoria Miculka, who was a distributee of an estate of a New York decedent, assigned at the American Embassy in Prague her interest in the estate to petitioner, her niece who lives in London. There is no connection between the fund in New York and Czechoslovakia because of the fact that Viktoria Miculka resides in Czechoslovakia. There is no evidence whatsoever that any of the funds will ever reach Czechoslovakia. Viktoria Miculka is an old woman who will probably never leave her homeland. An irrebuttable presumption that the testator would not have wanted his beneficiary to make a voluntary assignment of his interest under these circumstances flies in the face of reason or common sense, and is as questionable as the one sought to be sustained in Tot v. United States, 319 U. S. 463.


Individuals caring for deceased relatives and friends are encouraged to plan carefully and communicate in advance with any facilities and agencies that may be involved, such as a hospital, hospice, nursing home, board of health, funeral home, crematory or cemetery, to avoid confusion about the law or other requirements. There are generally two options for final disposition of a body in Massachusetts: cremation, or burial in an approved cemetery. Cremation must occur in a crematory approved by both the Massachusetts Department of Public Health and by the Massachusetts Department of Environmental Protection, and burial must occur in a cemetery that has been approved by the local board of health and authorized by the municipal government (e.g., town meeting).
In order to facilitate the death certificate process in Massachusetts, an individual must be either a funeral director registered with the Board of Registration of Embalmers and Funeral Directors (Board), a funeral director or embalmer licensed by an another state authority with which the Board has entered into a reciprocal agreement under M.G.L. c. 112, s. 85A, or an “other authorized person” or “other designee.” An “other authorized person” or “other designee” means a family member, friend, or other acquaintance that facilitates and prepares the death certificate without compensation. Facilitating a death certificate for compensation by an individual who is not a registered funeral director constitutes the unlicensed practice of funeral directing under Board regulations at 239 CMR 3.01 and is subject to penalties.
Prior to moving a deceased person, a family designee must obtain documentation from the certifying physician or nurse practitioner. The document received will be different, depending on whether the certifier uses the online Electronic Death Registration System (EDRS) or whether they use the manual fax attestation process. In most cases, the family designee will receive a Certifier Worksheet from an offline certifier or an Attestation Copy form from an online certifier, but this may vary somewhat by practice and facility. If a Registered Nurse Pronouncement of Death Form (R-312) is used to move the remains initially, a certification of death must still be obtained from the certifier. The family designee will then work with the City or Town Clerk in the community where the death occurred to complete an online record of death, by providing the Clerk with the Certifier Worksheet, Nurse Pronouncement Form, and a completed Informant Worksheet that will provide the legal and personal information about the decedent. The City or Town Clerk will enter the information into the EDRS, and release the electronic record to the burial agent for review prior to issuance of a burial permit.
In September 2014, the Massachusetts Registry of Vital Records implemented an online system for death certificates and burial permits. An individual who chooses to make arrangements for the final disposition of a body has the same responsibilities and obligations as a funeral director, including timely reporting and filing of death certificates and permits. For more information about the death certificate process, please visit VIP Electronic Death Registration System (EDRS).
In order to obtain a burial permit, an individual must be a funeral director registered with the Board, a funeral director or embalmer licensed by another state authority with which the Board has entered into a reciprocal agreement under M.G.L. c. 112, s. 85A or a family member, friend, or other acquaintance who obtains the burial permit without compensation. Obtaining a burial permit for compensation constitutes unlicensed practice of funeral directing under Board regulations at 239 CMR 3.01. Whenever possible, individuals who are not funeral directors and will be obtaining a burial permit for the final disposition of a body should notify the burial agent of the city or town before death occurs that a burial permit will be sought.
A burial permit is issued by the local board of health or its agent (often the town clerk) in the town where death occurred, even if cremation or burial will take place in another town. A complete death record, with a Registered Nurse Pronouncement of Death form, where applicable, must be submitted to the burial agent prior to issuance of the permit (M.G.L. c.114, s.45). The family designee will work with the City or Town Clerk in the community where the death occurred to complete the electronic death record for submission to the burial agent. As soon as possible (preferably within 36 hours after death), a burial permit must be obtained. As soon as the electronic death record has been released to the burial agent, the family designee may obtain the permit, provided that the record and disposition plan is approved by the burial agent. Upon burial or cremation, the person in charge of the cemetery or crematorium will countersign the burial permit and return it to the issuing municipality.
In order to transport a body, an individual must be either a funeral director registered with the Board, a funeral director licensed by an another state authority with which the Board has entered into a reciprocal agreement under M.G.L. c. 112, § 85A, or a family member, friend, or other acquaintance who transports the body without compensation. Transporting a body for compensation constitutes the unlicensed practice of funeral directing under Board statute and regulations at M.G.L. c. 112 § 82 and 239 CMR 3.01.
Individuals who are not undertakers and who will be transporting a body should consider the length of the box in choosing the vehicle for transportation to ensure the dignity of the body is preserved at all times.
It is legal to transport a body within the same town or city (from a Boston hospital to a home in Boston, for example) after receiving the death certificate but before obtaining a burial permit. However, a burial permit must be obtained before transporting a body across the town or city line. If death occurs in Massachusetts, but families wish to transport the body to another state for disposition, families should contact the health authorities for those states the body will pass through for specific requirements.
Time is an obvious constraint when preparing a body for burial. Nursing homes and hospitals often want a body removed immediately, even in the middle of the night. It is important to plan ahead whenever possible.
Common sense measures to prevent spread of infection in persons who need nursing and other care before death should apply after death as well. Such measures include good hygiene, avoidance of direct contact with body fluids, and most importantly, thorough hand washing.
The human body decomposes rapidly after death. Care must be taken to keep the body as cool as possible in order to slow the decomposition that results in noxious odors and the leakage of body fluids from body orifices. A human body can be kept in a cool room for at least 24 hours before decomposition begins. Heat in the room should be turned off in the winter, and air conditioning should be turned on in the summer. Ice can be used instead of refrigeration if necessary.
Infections are spread from person to person through coughing, sneezing, contaminated hands, intimate contact or through contact with contaminated drainage, blood or body fluids. Thus, many infections are not likely to be transmitted after death unless body fluids containing the infectious agent come in contact with living persons in a way that allows the infections to be passed.
Some infections are silent (with no signs or symptoms in the person who is infected), especially infections spread through the blood or other body fluids. Since persons may have blood-borne infections without a diagnosis or without their knowing it, all blood and other body fluids, regardless of source, should be considered infected and capable of transmitting infection. Barriers, such as rubber gloves, protective clothing, and eye protection should be used when contact with blood or other potentially hazardous infectious materials is likely. In general, any approach that prevents exposure to blood and body fluids prevents transmission of infection. In fact, exposure of intact skin rarely results in infection, so hand washing is an important way of limiting infection risk.
Soiling of the environment or materials with body fluids should be avoided. Soiled equipment, sheets, clothes, etc. should be carried out as they would in the care of a living person who is ill. Disposable materials should be bagged in non-leaking plastic and disposed of in the rubbish. Non-disposable materials should be disinfected. A half cup of household bleach in a gallon of water is an effective disinfectant.
Cremation requires an additional certificate from the medical examiner stating that they have viewed the body and that no further examination or judicial inquiry concerning the same is necessary (M.G.L. c.114, s.44). Such authorization is for the protection of evidence relating to the deceased, because once a body is cremated, all evidence from the body of possible crime is destroyed. Some crematories will hold a body under refrigeration for all or part of this period, provided they have room. The crematory will arrange for the medical examiner to view the body and provide certification for the cremation. Unless the death has been attributed to a communicable disease, cremation cannot occur until 48 hours after death.
There is no requirement to hold a body for a period of time before burial. Burial can take place as soon as a permit is issued and the cemetery is ready. Burial must take place in a municipal or private cemetery approved by the local board of health. If cremated remains are to be buried in a cemetery, a burial permit must be provided to the cemetery. Local jurisdictions should be contacted if a second burial permit is required. In the case of violent or unexplained death, the body must be turned over to a medical examiner or coroner and may be kept several days while the cause of death is investigated.
M.G.L. Chapter 114, Section 44A, requires a body to be placed in a "suitable receptacle" in order to be cremated. The body should be placed in a rigid container lined with plastic sheeting to prevent leakage of body fluids. The use of a simple covered box allows for some dignity for all involved in the handling and moving of a body, regardless of final disposition. A simple container, often made out of strong cardboard, which is designed to be destroyed during cremation and often called an "alternative container," can be obtained from a crematorium or funeral director. For additional information options consumers may choose from when selecting funeral services, please see the Federal Trade Commission’s (FTC’s) Funeral Rule.
Most cemeteries require that the container be placed inside a concrete grave liner to prevent the ground from subsiding. These may be purchased from some cemeteries or at a funeral home. Most cemeteries do not permit anyone other than their own staff to open or fill a grave.
A “green” burial or natural burial is a method of final disposition of a body with fewer environmental impacts than traditional burial. Generally, a green burial means that the body is not embalmed, no metal or hard wood are used to make the casket, and no grave liner or vault is used. The gravesite may have a low profile grave marker or no marker at all. There is no law in Massachusetts that directly address green burials, but anyone interested in green burial should keep certain considerations in mind. First, there is no law requiring a body to be embalmed, but one should be aware that decomposition sets on quickly. It is possible to store a body for a limited period of time and measures such as turning on the air conditioning or keeping dry ice in the room can help suppress decomposition for a period of time. Second, people interested in a green burial are still required to obtain a burial permit from their local city or town. Finally, there are no standards for green burials in Massachusetts and exclusively green cemeteries do not yet exist in the state. Therefore, anyone interested in green burials should speak directly with a cemetery about performing a green burial. Cemeteries may have their own requirements regarding burials, including the use of grave liners.
Burial at sea is regulated under 40 CFR § 229.1 in federal waters and MGL Chapter 38, Section 14 in state waters. According to federal regulations, human remains or cremains transported on U.S. vessels or planes travelling from U.S. ports may be buried at sea. The human remains must be prepared for burial at sea in accordance with accepted practices and any requirements set forth by the United States Navy, United States Coast Guard, or other civil authority charged with this responsibility.
For non-cremated remains, the burial must take place at least 3 nautical miles from land and at a depth of at least 600 ft. In Massachusetts, compliance with this depth requirement typically means the burial must take place between 25 and 75 miles offshore. The body must also be weighted down to sink quickly and permanently. For cremated remains, there is no depth requirement but the ash scattering must take place at least 3 nautical miles offshore. Decomposable flowers and wreaths may also be scattered where the final disposition takes place.
All burials taking place in federal waters must be reported to the proper Regional Administrator of the Environmental Protection Agency in the Region from which the vessel carrying the remains departed within 30 days of the burial. Massachusetts is in Region 1, and you may contact the EPA Burial at Sea Coordinator with additional questions. The report must include the name of the deceased, date of the burial, type of remains, burial site latitude and longitude, distance from land, depth of water (for non-cremated remains), and name/contact information of the funeral director or person responsible for the burial.
Inland water burials are governed according to the Clean Water Act and require a permit from the appropriate local and state agencies. This act was meant to protect waterways from pollution and human cremated remains generally don’t contribute to pollution or pose a health hazard. Local prohibitions against scattering human remains may exist in some waters.
Under M.G.L. Chapter 38, Section 14, a medical examiner must examine the body and determine the cause and manner of death for anybody intended for cremation or burial at sea. The examiner shall not authorize the cremation or burial at sea until they are satisfied that no further examination or judicial inquiry into the death is necessary.
Those wishing to have a burial at sea performed by the U.S. Navy or U.S. Coast Guard must submit additional paperwork to those entities. In order to be eligible, the deceased must have been an active duty member of the uniformed services at the time of death, a retiree or veteran honorably discharged, a dependent family member of active duty member, retiree, or veteran of the uniformed services, or U.S. civilian marine personnel of the Military Sealift Command. The Navy accepts both cremains and casketed bodies for disposition, but the Coast Guard will only accept cremated remains.
1 Mass. Gen. Laws ch. 114, §34 (2013).
2 Mass. Gen. Laws ch. 114, §34 (2013).
3 Mass. Gen. Laws ch. 114, §1 (2013).
4 Mass. Gen. Laws ch. 114, §34 (2013).
5 Mass. Gen. Laws ch. 114, §35 (2013).
6 Mass. Gen. Laws ch. 184, §21 (2013).
Disinterment (removing a buried body) without proper authorization is a crime under Massachusetts law punishable up to $4,000 or two and one-half years in prison.7 In order to have a body disinterred, the person seeking the removal must get a removal permit from the city or town in which the body to be disinterred is located. This requirement also applies to any relocation of human remains within a cemetery. Upon the removal of the body, the superintendent or other officer in charge of the cemetery shall “indorse upon the coupon accompanying the permit the fact of the removal and the date” Also the superintendent must keep a record of the removal, including any recitals in the removal permit relative to service of the deceased as a veteran and the location of the grave8. In situations where the Department has determined that a body has become a menace to the public health and the owner of the property has failed to address the problem to the satisfaction of the Department, a court may order the owner of the land to remove the body to a suitable location at the property owner’s expense9.
7 Mass. Gen. Laws ch. 272, §71 (2013).
8 Mass General Law ch. 114,§47 (2013).
9 Mass General Law ch. 114,§431 (2013).
Persons wishing to be an organ donor should obtain a donor card from the Registry of Motor Vehicles, which, after being signed and witnessed, is attached to an individual's driver’s license. Individuals wishing to become a body donor should contact a medical or dental school and ask about their donation program. In Massachusetts, donation must be arranged by the donor personally before death. There are some restrictions on the acceptance of bodies to schools. It is important to make alternative plans in case the school is unable to accept the body.


text:
Should students be be required to attend public or private school if that goes against their parents’ religious beliefs?
Jonas Yoder and Wallace Miller, both members of the Old Order Amish religion, and Adin Yutzy, a member of the Conservative Amish Mennonite Church, were prosecuted under a Wisconsin law that required all children to attend public schools until age 16. The three parents refused to send their children to such schools after the eighth grade, arguing that high school attendance was contrary to their religious beliefs.
Did Wisconsin's requirement that all parents send their children to school at least until age 16 violate the First Amendment by criminalizing the conduct of parents who refused to send their children to school for religious reasons?
And what happens when two important American values come into conflict: freedom of religion, and the state’s need to educate children?
Three Amish students from three different families stopped attending the New Glarus High School in the New Glarus, Wisconsin, school district at the end of the eighth grade because of their parents' religious beliefs.
The three families were represented by Jonas Yoder (one of the fathers involved in the case) when the case went to trial. They were convicted in the Green County Court. Each defendant was fined the nominal sum of $5. Thereafter the Wisconsin Supreme Court found in Yoder's favor. Thereupon, Wisconsin appealed that ruling in the US Supreme Court.
38% of all statistics are made up on the spot.
The Amish did not believe in going to court to settle disputes but instead follow the biblical command to "turn the other cheek." Thus, the Amish are at a disadvantage when it comes to defending themselves in courts or before legislative committees. However, a Lutheran minister, Reverend William C. Lindholm, took an interest in Amish legal difficulties from a religious freedom perspective and founded The National Committee for Amish Religious Freedom (partly as a result of this case) and then provided them with legal counsel.
Yoder was not in any way connected to Luke Skywalker.
Under Amish church standards, higher education was deemed not only unnecessary for their simple way of life, but also endangering to their salvation. These men appealed for exemption from compulsory education on the basis of these religious convictions. They sincerely held to the belief that the values their children would learn at home would surpass the worldly knowledge taught in school.
I've got my money on Yoda!
Check out this interesting recent court case which cites Wisconsin v. Yoder as precedent.
Here's a list of landmark Supreme Court cases dealing with the The Free Exercise Clause.
In a unanimous decision, the Court held that individual's interests in the free exercise of religion under the First Amendment outweighed the State's interests in compelling school attendance beyond the eighth grade. In the majority opinion by Chief Justice Warren E. Burger, the Court found that the values and programs of secondary school were "in sharp conflict with the fundamental mode of life mandated by the Amish religion," and that an additional one or two years of high school would not produce the benefits of public education cited by Wisconsin to justify the law.Justice William O. Douglas filed a partial dissent but joined with the majority regarding Yoder.
This case was decided in 1972 - there were women then - but none on the Supreme Court.
The first female Supreme Court Justice, Sandra Day O’Connor would not serve until 1981.
1. The State's interest in universal education is not totally free from a balancing process when it impinges on other fundamental rights, such as those specifically protected by the Free Exercise Clause of the First Amendment and the traditional interest of parents with respect to the religious upbringing of their children. Pp. 406 U. S. 213-215.
3. Aided by a history of three centuries as an identifiable religious sect and a long history as a successful and self-sufficient segment of American society, the Amish have demonstrated the sincerity of their religious beliefs, the interrelationship of belief with their mode of life, the vital role that belief and daily conduct play in the continuing survival of Old Order Amish communities, and the hazards presented by the State's enforcement of a statute generally valid as to others. Beyond this, they have carried the difficult burden of demonstrating the adequacy of their alternative mode of continuing informal vocational education in terms of the overall interest that the State relies on in support of its program of compulsory high school education. In light of this showing, and weighing the minimal difference between what the State would require and what the Amish already accept, it was incumbent on the State to show with more particularity how its admittedly strong interest in compulsory education would be adversely affected by granting an exemption to the Amish. Pp. 406 U. S. 212-29, 406 U. S. 234-236.
4. The State's claim that it is empowered, as parens patriae, to extend the benefit of secondary education to children regardless of the wishes of their parents cannot be sustained against a free exercise claim of the nature revealed by this record, for the Amish have introduced convincing evidence that accommodating their religious objections by forgoing one or two additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society. Pp. 406 U. S. 229-234.
And then complete the Wisconsin v. Yoder Questions and Actions below.
If you were a Supreme Court Justice how would you have ruled on Wisconsin v. Yoder?
Explain the reasoning behind your ruling.
What were two competing interests in Wisconsin v. Yoder?
What was a precedent that helped shape the decision in this case?
If this case were decided today do you think it would be decided differently? If so, how?
What are any current cases or issues today that relate to this case?
What are some things that the free exercise clause does NOT let you do just because it is part of your religion?
What are some things that the free exercise clause does let you do if you can prove it is a legitimate part of your religion?
In your opinion, is Wisconsin v. Yoder a good ruling?
Now draw Wisconsin v. Yoder. Don’t take more than 20 seconds. It doesn’t have to be detailed. I certainly won’t take this oup or grade it. Once you’re done with your drawing look at it. That’s all.
Write a law for your state regarding children, religion, and schooling that would not violate the ruling of Wisconsin v. Yoder.
Make a short video about this case.
Make a podcast about this case.
A storyboard is a graphic organizer in the form of illustrations or images displayed in sequence for the purpose of pre-visualizing a motion picture, animation, motion graphic or interactive media sequence. Filmmakers use these as ways to organize the story they tell. Think of it as sort of like a comic strip to summarize the main points of a story. You can draw out a basic storyboard for Wisconsin v. Yoder or you could use this great free storyboard animation creator to make your own. I made this three panel storyboard for free in about 90 seconds using a website I had never used before. Pretty nifty, huh?!

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


LA Rev Stat § 14:108 (2016) What's This?
A. Resisting an officer is the intentional interference with, opposition or resistance to, or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest, lawful detention, or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, detaining, seizing property, or serving process is acting in his official capacity.
(a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
(c) Refusal by the arrested or detained party to give his name and make his identity known to the arresting or detaining officer or providing false information regarding the identity of such party to the officer.
(d) Congregation with others on a public street and refusal to move on when ordered by the officer.
(e) Knowing interference with a police cordon resulting from the intentional crossing or traversing of a police cordon by an unauthorized person or an unmanned aircraft system (UAS). The cordoned area includes the airspace above the cordoned area.
(i) For purposes of this Subparagraph, "police cordon" means any impediment or structure erected or established by an officer for crowd or traffic control, or to prevent or obstruct the passage of a person at the scene of a crime or investigation.
(ii) "Impediment or structure" includes but is not limited to crime scene tape, rope, cable, wire or metal barricades, or the posting of uniformed officers or other personnel otherwise identifiable as law enforcement officers.
(iii) "Unmanned aircraft system" shall have the same meaning as provided by R.S. 14:337(B).
(iv) If the flight of a UAS into the cordoned area endangers the public or an officer's safety, law enforcement personnel or fire department personnel are authorized to disable the UAS.
(2) The word "officer" as used herein means any peace officer, as defined in R.S. 40:2402, and includes deputy sheriffs, municipal police officers, probation and parole officers, city marshals and deputies, and wildlife enforcement agents.
C. Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.
Amended by Acts 1952, No. 127, §4; Acts 1960, No. 76, §1; Acts 1963, No. 98, §1; Acts 1968, No. 647, §1; Acts 1984, No. 584, §1; Acts 1989, No. 206, §1; Acts 1991, No. 677, §1; Acts 1992, No. 302, §1; Acts 1993, No. 860, §1; Acts 1997, No. 565, §1; Acts 2001, No. 247, §1; Acts 2006, No. 132, §1; Acts 2016, No. 268, §1.


Q: What is the Dodd-Frank Act?
The Dodd-Frank Act , known formally as the Dodd-Frank Wall Street Reform and Consumer Protection Act, was signed into law July 21, 2010 and is a major piece of reform legislation covering commodities and securities actions worldwide. The Act is meant primarily to promote financial stability by improving accountability and transparency in the financial system. The DFA contained three major whistleblower laws, one covering the Commodity Exchange Act, one cover the Consumer Financial Protection Board and another covering the Security and Exchange Act.
Q: What does qui tam mean?
Qui Tam means “in the name of the king.” It refers to lawsuits brought by a private citizen (popularly called a "whistleblower"), on behalf of the United States, against a person or company who is believed to have violated the law. The major qui tam law in the United States is the False Claims Act.
The Dodd-Frank Act contained two modified qui tam provisions, covering violations of the Securities and Exchange Act, the Commodity Exchange Act and the Foreign Corrupt Practices Act.
The law permits individuals to file a complaints with the U.S. Securities and Exchange Commission (SEC) or the Commodity Futures Trading Commission (CFTC), alleging that a person or company violated U.S. securities or commodities law.
Under the Dodd Frank Act, once a complaint is filed, it is up to the SEC or CFTC to investigate the allegations. If the SEC or CFTC confirm the validity of the whistleblower’s complaint, and sanction the wrongdoer for $1 million or more, the whistleblower is entitled to a monetary reward. That reward is between 10-30% of any recovery made by the SEC or CFTC. If the SEC or CFTC does not investigate the wrongdoer and/or issue a sanction of $1 million or more, the whistleblower is not entitled to any award.
Unlike the False Claims Act, in which a whistleblower can initiate a lawsuit against the wrongdoer if the United States fails to investigate or sanction the wrongdoer, the Dodd-Frank Act does not provide for a private right of action. In other words, the whistleblower cannot file his or her own lawsuit against the company, but rather must rely on the SEC or CFTC to do their jobs.
Q: Who is a whistleblower?
Title 7 U.S.C. § 26 of the Commodity Exchange Act defines "whistleblower" as "any individual who provides, or 2 or more individuals acting jointly who provide, information relating to a violation of the securities laws to the Commission [i.e. the Commodity Futures Trading Commission], in a manner established, by rule or regulation, by the Commission [CFTC]."
Q: What does original information entail?
Q: What are monetary sanctions?
Title 7 U.S.C. § 26(a)(3) of the Commodity Exchange Act defines "monetary sanctions" as "any monies, including penalties, disgorgement, and interest, ordered to be paid; and any monies deposited into a disgorgement fund or other fund pursuant to section 7246(b) to title 15, as a result of such action or any settlement of such action."
Q: What type of award can a whistleblower receive for her information?
Title 7 U.S.C. § 26(b) of the Commodity Exchange Act requires the CFTC to give whistleblowers who provide original information to the Commission that leads to a successful enforcement 10% to 30% of the monetary sanctions over $1 million. If the total sanctions are less than $1 million the whistleblower is not entitled to any award. If the CFTC sanctions a company/individual at least $1 million, the “related action” provisions of the law kick-in. Under the related action provisions, a whistleblower can also obtain a reward of 10%-30% on sanctions obtained by other government agencies, if these agencies relied upon the information the whistleblower provided to the CFTC.
Q: Who does not qualify to receive an award as a whistleblower?
Title 7 U.S.C. § 26(b)(2) of the Commodity Exchange Act t excludes from the award provision: "
Any whistleblower who is convicted of a criminal violation related to the judicial or administrative action for which the whistleblower otherwise could receive an award under this section.
Q: How does one stay anonymous through the filing procedure?
Title 7 U.S.C. § 26(d)(2) of the Commodity Exchange Act reads as follows: "Any whistleblower who anonymously makes a claim for an award...shall be represented by counsel if the whistleblower anonymously submits the information upon which the claim is based. Prior to the payment of an award, a whistleblower shall disclose the identity of the whistleblower and provide other information as the Commission [CFTC] may require, directly or through counsel for the whistleblower."
Q: Does the CFTC have a Whistleblower Office?
The Dodd-Frank Act required the Commodity Futures Trading Commission to establish a Whistleblower Office . This Office contains useful information about the commodities whistleblower law. Complaints and requests for a reward must be filed with this Office. The Office has an excellent website located at www.whistleblower.gov.
Q: If the CFTC denies my award, can I appeal that decision?
Whistleblowers can appeal the denial of an award. Title 7 U.S.C. § 26(f) of the Commodity Exchange Act However, there is no appeal as to the percentage of the monetary sanction paid by the Commission. In other words, if the Commission provides you with a lower award (e.g.10%), you cannot appeal and claim you were entitled to a higher award (e.g. 30%). But if the Commission concludes that you were not a “whistleblower” entitled to an award, you can appeal the denial. Appeals must be filed within 30-days to the appropriate United States Court of Appeals.
Q: Can I be fired for filing a reward claim?
Title 7 U.S.C. § 26(h) of the Commodity Exchange Act prohibits retaliation against any employee who filed a claim for a reward under the Exchange Act and/or assists the CFTC in an investigation of any such claim. Whistleblower allegations filed internally with the company most likely are not protected under the law’s anti-retaliation provision. Thus, to ensure protection against retaliation whistleblowers should filed an official claim or compliant under the reward law.
For additional information on the Commodities Exchange Whistleblower Laws, please read the Rules published in The New Whistleblower's Handbook: A Step-by-Step Guide to Doing What's Right and Protecting Yourself (Lyons Press, 2017). An online resource for the Whistleblower handbook is available free of charge. It is indexed to the specific rules and contains links to the relevant statutes and here..