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the action in Texas, no notice of it was given him by publication, he never authorized Swett to appear for him, and was ignorant of the whole proceeding. In 1890, upon the matter's coming to his knowledge, he brought this action in the Circuit Court of the United States for the Eastern District of Texas against persons occupying and claiming part of the land, setting up the above facts and asking a decree that the judgment of 1850 was null and void, and not binding upon him. He died before trial could be had, and the action proceeded to trial and judgment in the name of his executors. The jury found a verdict in favor of the executors, judgment was rendered accordingly, and an appeal was taken to the court of appeals. In answer to a question certified to this Court by the court of appeals, it is held that the said judgment of the District Court of Brazoria, Texas, which was a court of general jurisdiction, was, under the circumstances stated, subject to collateral attack in the United States Circuit Court for the Eastern District of Texas, sitting in the same territory in which said district court sat, in this suit, between a citizen of the New York and a citizen of the Texas by evidence aliunde the record of the state court.
The circuit court of the United States sitting in the Texas was not bound to treat the judgment of the District Court of Brazoria County as if it were a domestic judgment drawn in question in one of the state courts, and to therefore hold that it could not be assailed collaterally, but, on the contrary, it was no more shut out from examining into jurisdiction than is a circuit court of the United States sitting in another state, or than are the courts of another state.
"suit was originally brought by Stuart Newell against Eliza Cooper and B. P. Cooper and Fannie Westrope, as defendants, in the Circuit Court in and for the Eastern District of Texas, sitting at Galveston, in the ordinary form of trespass to try title, under the Texas statutes, to recover one hundred and seventy-seven acres of land in Harris County, Texas, described in plaintiff's petition, which said petition was filed on the 5th day of July, 1890. The said Stuart Newell was alleged to be a citizen of New York, and the said defendants all citizens of Texas."
"that said judgment was null and void, and was not binding on the said Stuart Newell nor plaintiffs, nor could defendants claim title under said judgment, for the following reasons, viz.:"
"That at the time of the filing of said suit and the rendition of said judgment, said Stuart Newell was not a resident of Brazoria County, Texas, nor of the State of Texas, nor was he then within said Brazoria County or the State of Texas. That at no time did he ever reside in Brazoria County, Texas. That on the second day of January, 1848, said Stuart Newell, who then resided in Galveston County, Texas, removed from said Galveston County to the City of Philadelphia, in the State of Pennsylvania, and resided in said City of Philadelphia, in the State of Pennsylvania, continuously from said date until the year 1854, when he removed from said City of Philadelphia to the City of New York, in the State of New York, where he continued to reside up to the time of his death, to-wit, April 11, 1891."
authorize anyone to represent him or enter an appearance in said suit, nor did he know of the existence of said suit in any manner until just prior to the institution of this suit."
"That if any attorney appeared for said Stuart Newell in said suit, he did so without any authority, permission, knowledge, or consent of or from the said Stuart Newell, and that such appearance, if any there was, was through collusion with said attorney and plaintiff in said suit to injure and defraud the said Stuart Newell, and it was expressly denied that I. A. or J. A. Swett had any authority or permission from said Stuart Newell to enter an appearance in said cause, nor was such appearance on the part of the said I. A. or J. A. Swett done with the knowledge, consent, or approval of said Stuart Newell. That at the time of the entry of said judgment, said Stuart Newell had a meritorious defense to said suit, and was the owner in fee simple of the lands herein sued for by virtue of a deed of conveyance to him from said Peter McGrael, plaintiff in said suit, executed and delivered on August 9, 1848, and that at no time since said date had said Peter McGrael any title or interest in the lands in controversy. Attached to plaintiffs' said petition was a certified copy of the record in the case of Peter McGrael v. Stuart Newell in District Court of Brazoria County, Texas, to which was attached the certificate of the clerk that said record contained a full, true, and correct copy of all the proceedings had in said suit, and which record was afterwards put in evidence on the trial by defendants."
Newell be cited to appear before the next term of the said District Court of said Brazoria County, and that he be condemned to restore to plaintiff the peaceable possession of the said lands, and that he and all other persons be thereafter restrained from disturbing plaintiff in the possession and use thereof, and that defendant be condemned to pay plaintiff five thousand dollars damages for taking possession of said facts of land, and also be condemned to pay a reasonable rent for the same. Prayer was likewise made for general relief, and that plaintiff be quieted in his title and possession of the said land. This petition was filed on one 20th day of May, 1850, and contained the following endorsement: 'This suit is brought as well to try title as for damages. J. B. Jones, Att'y for Plaintiff.'"
"2d. The following answer, filed May 20, 1850, viz.:"
" In the Honorable District Court, May Term, A.D. 1850."
" And now comes the defendant, Stuart Newell, and says that the matters and things in plaintiff's petition are not sufficient in law for the plaintiff to have or maintain his said action against this defendant. Wherefore he prays judgment,"
" (Signed) J. A. Swett"
" And now at this term of your honorable court, comes the said defendant, Stuart Newell, and defends etc., and says that he denies all and singular the allegations in said plaintiff's petition contained."
" And for further answer in this behalf, the said defendant says that he is not guilty in manner and form as the said plaintiff in his said petition hath complained against him, and of this he puts himself upon the country."
"3d. The following order of court:"
" Monday, May 20, 1850"
" In this cause, both parties being present by their attorneys, the demurrer of defendant to plaintiff's petition came on, and, being heard by the court, was overruled."
" Tuesday, May 21, 1850."
" This day came the parties, by their attorneys, and, the demurrer of the defendant being heard, the same was overruled, and thereupon came the following jury of good and lawful men, to-wit [here follow names of the jurors], who, after hearing the evidence and argument, thereupon returned the following verdict:"
" We, the jury, find for the plaintiff, and that he recover the several tracts of land mentioned and described in the petition."
" It is therefore ordered, adjudged, and decreed by the court that the plaintiff do have and recover of and from the defendant the several tracts of land in plaintiff's petition mentioned and described, and all thereof; that the said Stuart Newell be forever barred from having or asserting any claim, right, or title to all or any portion of said tracts of land, or any part thereof, and that the said plaintiff be forever quieted in the title and in the possession of all the aforesaid tracts of land. It is further considered by the court that the plaintiff recover of the defendant his costs of this suit, and that execution issue for the same."
and alleged to be void the judgment of the District Court of Brazoria County, in the State of Texas, and within the said Eastern District thereof, a court of general jurisdiction of the parties and the subject matter connected with and involved in said judgment, and that said judgment was a domestic judgment, assailable only in a direct proceeding to impeach it, and that no proceeding had ever been taken to review, appeal from, vacate, or qualify said judgment, and that plaintiffs' right to do so is now barred by limitation and lost by laches. Defendants also answered by plea of not guilty, and the statute of limitation of three, five, and ten years."
there, and then a citizen of the State of New York whilst residing there."
"The evidence tending to establish the above facts was all objected to by the defendants upon the ground that said judgment in the case of Peter McGrael v. Stuart Newell was rendered by a domestic court of general jurisdiction, and that said Newell was sued as a citizen of said Brazoria County, and that the record in said suit showed that fact, and showed that he was sued therein for the recovery of land, and that he had appeared by his attorney, demurred, pleaded, and answered in the suit, and that his demurrer had been contested before the court, and a hearing had on the case before a jury, and that judgment was rendered in said suit for the plaintiff, and that said proceeding, judgment, and record import absolute verity, and that want of jurisdiction in said court could not be established outside of said record in a collateral proceeding such as the suit at bar."
"These objections were overruled, the evidence admitted, and defendants excepted thereto."
"The issue of the validity of said judgment in the case of Peter McGrael v. Stuart Newell was submitted to the jury by the following charge of the court, viz.:"
litigation, you need not consider the plea of limitation, but return a verdict for the defendants; but if you find from the testimony that Mr. Swett was not authorized to appear for him, then that judgment is a nullity, and the title to this property would be in the executors of Stuart Newell, plaintiffs in this case, unless you find, under the plea of limitation which I shall instruct you upon, in favor of the defendants. If you find for the plaintiffs, the form of your verdict will be, 'We, the jury, find for the plaintiffs against the defendants.' If you find for the defendants, the form of your verdict should be, 'We, the jury, find for the defendants the land described in the plaintiffs' petition, and against the plaintiffs,' and, in that event, you are further directed to state whether or not you find the Brazoria County judgment was a valid or void judgment, and you will also state whether you find the defendants have title to the property by limitation, and, if so, you will add, 'We, the jury, find the defendants have the title to the property by reason of the five-years limitation.' Those are two special findings, if you find for the defendants. If you find from the evidence in this case that Stuart Newell authorized Mr. Swett to appear for him in that case, the judgment is valid; but if you find he was not authorized to appear for him, then the judgment is a nullity. The burden of proof is upon the plaintiffs to show nullity of the judgment in Brazoria County."
"To this charge of the court the defendants duly excepted, and asked the court to give to the jury the following instructions:"
" The judgment of the District Court of Brazoria County, rendered on May 21, 1850, in the case of Peter McGrael v. Stuart Newell, put the title to the land now sued for in said McGrael, and McGrael's deed to Westrope on March 2, 1860, put the title in Westrope, and defendants are entitled to your verdict, and you will find for them."
in plaintiffs' petition,'which verdict was duly received, and upon it judgment rendered for plaintiffs."
"The defendants in time filed their bills of exception, and this case was brought to this court by writ of error. Among other assignments of error, it was complained that the circuit court had erred in overruling defendants' demurrer to plaintiffs' petition attacking the validity of said judgment in the case of Peter McGrael v. Stuart Newell, and in permitting the introduction of the evidence hereinbefore recited, and in charging the jury as hereinbefore recited, and in refusing to charge the jury as hereinbefore recited."
"Whereupon, the court desiring the instruction of the honorable Supreme Court of the United States for the proper decision of the questions arising on the record, it is ordered that the following question be certified to the honorable the Supreme Court of the United States in accordance with the provisions of section 6 of the act entitled"
"An act to establish circuit courts of appeals and to define and regulate in certain cases the jurisdiction of the circuit courts of the United States, and for other purposes,"
"approved March 3, 1891, to-wit:"
"Was the judgment of the District Court of Brazoria County, Texas (said court being a court of general jurisdiction) in the case of Peter McGrael v. Stuart Newell, subject to collateral attack in the United States Circuit Court for the Eastern District of Texas, sitting in the same territory in which said district court sat, in this suit, between a citizen of the State of New York and a citizen of the State of Texas, by evidence aliunde the record of the state court showing that the defendant, Stuart Newell, in said suit in said state court, was not a resident of the State of Texas at the time the suit was brought, nor a citizen of said state, but a resident citizen of another state, and that he was not cited to appear in said suit, and that he did not have any knowledge of said suit, and that he did not in fact appear in said suit, and that he did not authorize J. A. Swett, the attorney who purported to appear for him in said suit, to make any such appearance, and that the appearance by said attorney was made without his knowledge or consent? "
The question is whether the judgment entered by the District Court of Brazoria County, Texas in favor of McGrael and against Newell was open to the attack made upon it in the Circuit Court of the United States for the Eastern District of Texas. The record of the suit in which that judgment was entered showed a petition in the ordinary form of trespass to try title, filed May 20, 1850, alleging McGrael and Newell to be resident citizens of the County of Brazoria, Texas and describing several different tracts of land, one of which was situated in Brazoria County, and, among others, the tract in controversy, which was alleged to be situated then, as now, in Harris County, Texas; a demurrer and pleas, signed by a person as "Att'y for Defendant," filed the same day; a verdict and judgment against Newell, rendered and entered May 21, 1850. The record does not show that any process was issued on the petition and served on Newell, or any notice given to Newell, by publication or otherwise; or, affirmatively, that the person signing the demurrer and pleas was authorized to do so.
1848, when he went to the City of Philadelphia, and resided there until 1853 or 1854, when he removed to the City of New York, where he resided up to the date of his death, in 1891, and that, during the period from November, 1848, to 1891, he was first a citizen and resident of Pennsylvania and then a citizen and resident of New York. This evidence was objected to on the ground that the judgment was rendered by a domestic court of general jurisdiction, and that want of jurisdiction cannot be established aliunde the record in a collateral proceeding.
"neither the constitutional provision that full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state nor the act of Congress passed in pursuance thereof prevents an inquiry into the jurisdiction of the court by which a judgment offered in evidence was rendered;"
"the record of a judgment rendered in another state may be contradicted as to the facts necessary to give the court jurisdiction, and if it be shown that such facts did not exist, the record will be a nullity notwithstanding it may recite that they did exist,"
and that "want of jurisdiction may be shown either as to the subject matter or the person or, in proceedings in rem, as to the thing."
But, while these propositions are conceded, it is insisted that the Circuit Court of the United States for the Eastern District of Texas was bound to treat this judgment, rendered by one of the courts of the State of Texas, as if it were strictly a domestic judgment drawn in question in one of those courts, and to hold that it therefore could not be assailed collaterally.
state in which rendered, they are entitled to be regarded as on the same plane, in many senses, as judgments of the state, and so the judgments of the courts of the several states are not to be treated by each other, or by the courts of the United States, as in every sense foreign judgments. But the courts of the United States are tribunals of a different sovereignty, and exercise a distinct and independent jurisdiction from that exercised by the state courts, and this is true in respect of the courts of the several states as between each other. And the courts of the United States are bound to give to the judgments of the state courts the same faith and credit that the courts of one state are bound to give to the judgments of the courts of her sister states.
The same rule applies to each, and the question of jurisdiction is open to inquiry, even when the judgment of the court of a state comes under consideration in a court of the United States sitting in the same state. Christmas v. Russell, 5 Wall. 290; Galpin v. Page, 18 Wall. 350; Pennoyer v. Neff, 95 U. S. 714; Hart v. Sansom, 110 U. S. 151; Goldey v. Morning News, 156 U. S. 518.
"Be that as it may, the courts of the United States are not required to give effect to judgments of this character when any right is claimed under them. Whilst they are not foreign tribunals in their relations to the state courts, they are tribunals of a different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the state courts only the same faith and credit which the courts of another state are bound to give to them."
by actual service of notice within the jurisdiction upon him or upon someone authorized to accept service in his behalf, or by his waiver, by general appearance or otherwise, of the want of due service. Whatever effect a constructive service may be allowed in the courts of the same government, it cannot be recognized as valid by the courts of any other government. . . . For example, under the provisions of the Constitution of the United States and the acts of Congress by which judgments of the courts of one state are to be given full faith and credit in the courts of another state or of the United States, such a judgment is not entitled to any force or effect unless the defendant was duly served with notice of the action in which the judgment was rendered, or waived the want of such notice. . . . If a judgment is rendered in one state against two partners jointly, after serving notice upon one of them only, under a statute of the state providing that such service shall be sufficient to authorize a judgment against both, yet the judgment is of no force or effect in a court of another state, or in a court of the United States, against the partner who was not served with process. . . . So a judgment rendered in a court of one state against a corporation neither incorporated nor doing business within the state must be regarded as of no validity in the courts of another state or of the United States unless service of process was made in the first state upon an agent appointed to act there for the corporation, and not merely upon an officer or agent residing in another state, and only casually within the state, and not charged with any business of the corporation there. . . . The principle which governs the effect of judgments of one state in the courts of another state is equally applicable in the circuit courts of the United States, although sitting in the state in which the judgment was rendered. In either case, the court the service of whose process is in question and the court in which the effect of that service is to be determined derive their jurisdiction and authority from different governments."
the exercise of a right secured to him by the Constitution of the United States, and it would go far to defeat that right if it should be held that he was cut off in the circuit court from proving that he was not a citizen and resident of Texas when the controverted action was commenced, and that he had not authorized any attorney to appear for him in that action. As any provisions by statute for the rendition of judgment against a person not a citizen or resident of a state, and not served with process or voluntarily appearing to an action against him therein, would not be according to the course of the common law, it must follow that he would be entitled to show that he was not such citizen or resident, and had not been served or appeared by himself or attorney.
Accordingly it was held in Needham v. Thayer, 147 Mass. 536, that a defendant in an action brought in Massachusetts on a judgment in personam in that state might set up in defense that he was, at the time the original action was brought, a nonresident and neither was served personally with process nor appeared therein.
that the appearance was unauthorized, and this even where the proof directly contradicts the record."
"And as he had not been made a party to the suit by any of the modes known to the law, he would not be bound by the judgment, but he had the option either to have it vacated by direct proceedings or else to treat it as void in any collateral proceeding where rights might be asserted against him by reason of the same."
"The petition alleges substantially the facts necessary to be alleged in an action of trespass to try title, and the petition was so endorsed. Had it done this and no more, there could have been no ground for controversy in the court below as to its jurisdiction to hear and determine the cause, nor as to the sufficiency of the petition on general demurrer. The appellant, however, sought to remove cloud from his title, which a judgment in his favor in an action of trespass to try title would have accomplished as against the defendants, and to obtain this relief he undertook to show that appellees were claiming under a sheriff's sale and deed under an execution issued from the District Court for Navarro County on a judgment rendered by that court against him and in favor of S. J. T. Johnson, all of which he claimed were invalid."
"Some of the facts which he alleged to show the invalidity of that judgment, execution, and sale were such as might entitle him, by a proper proceeding, to have had them vacated, but not such as to render them void."
never was cited to appear, and did not appear, in person or by attorney, in the proceeding in which the judgment in favor of Johnson, and against himself, was rendered, and that appellees claimed through an execution and sale made under a judgment so rendered. If these averments be true, the judgment was void and no one could acquire rights under it."
We think the circuit court was clearly right in admitting evidence to contradict the recital that Newell was a citizen and resident of Texas, and to show that the attorney had no authority to represent him.
"it was within the power of the Legislature of Texas to provide for determining and quieting the title to real estate within the limits of the state, and within the jurisdiction of the court, after actual notice to all known claimants and notice by publication to all other persons."
Brown, 161 U. S. 256, 161 U. S. 274; Arndt v. Griggs, 134 U. S. 316. But it would seem that there was no such statute at the time of the commencement of the McGrael suit, and that suit could only be regarded as a personal action, and coming within the rule laid down in Pennoyer v. Neff, 95 U. S. 714.
"any party to a suit, his agent or attorney, may waive the necessity of the issuance or the service of any writ or process required to be served on him in the suit, and accept such service thereof, provided that such waiver or acceptance shall be made in writing, signed by such party, his agent or attorney, and filed among the papers of the suit, as a record."
Acts Texas 1846, p. 367. The record here showed no such acceptance or waiver of service.
had or waived as required, or that the jurisdiction of the court in fact so attached as to authorize the court to render the judgment. Galpin v. Page, 18 Wall. 350.

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Doughty Street International has unrivalled experience in practicing on the European continent. We have appeared in all the courts and tribunals of the European institutions, and regularly advise clients in relation to the law emanating from Europe. Members of DSI have been appointed as experts in various European programs and commissions, and regularly deliver training on EU law. In addition, members of the team teach EU law in European universities and have published widely on matters of European law.
The courts, tribunals and institutions within the European Union and the Council of Europe are central to litigation and dispute resolutions across the globe. From corporate governance to child abduction, media law to international crime increasingly the European judicial and quasi judicial institutions regulate the international framework. At the same time litigating in the European sphere is becoming more complex and specialist. Doughty Street International has leading expertise in the process of navigating the courts and tribunals of all the European institutions. We are remedies focused and therefore our experience is invaluable in ensuring that our clients get the most effective remedy within the shortest period of time.
Members of the international team regularly advise clients around the world who need to rely on law emanating from Europe in a variety of sectors including governments, business, media and individual rights. We straddle the EU and the Council of Europe effortlessly and are able to offer assistance with litigation before all courts and tribunals. Members of our team can be used to provide penetrating advice for ongoing litigation in courts around the world, as well as managing a case throughout the entire procedure. We have particular expertise before the Strasbourg and Luxembourg Courts where our style of incisive advocacy is very much appreciated.
Amal Clooney and Geoffrey Robertson QC represented Yulia Tymoshenko, former Ukrainian Prime Minister, in claim before the European Court of Human Rights challenging her politically-motivated prosecution in Ukraine.
Andrea Saccucci represented or still represents before the European Court of Human Rights a number of former Italian Ministers, Members of Parliament and politicians, including the former Italian Prime Minister.
Geoffrey Robertson QC and Amal Clooney currently represent the Republic of Armenia intervening as a third party in a case before the European Court of Human Rights concerning denial of the Armenian genocide (Perincek v. Switzerland).
Amal Clooney and Geoffrey Robertson QC advise the Greek Government on the return of cultural property – the Parthenon Marbles - from the United Kingdom to Greece.
Mark Muller QC was involved in landmark cases before the ECtHR including Tunc V Turkey (April 2014), Turkey v Ocalan No 2 (March 2014) Chiragov v Armenia (January 2014)and Innes Del Rio Prada v Spain (October 2013).
Edward fitzgerald QC was involved in the case of Othman (Abu Qatada) v. the United Kingdom (2012), the case of Mangouras v Spain (2012), the case of Venables and Thompson v. the United Kingdom (2000), the case of Stafford v. the United Kingdom (2002), the case of Johnson v. the United Kingdom (1999), the case of Singh and Hussain v. the United Kingdom (1996), the case of Portington v. Greece (1998), case of Scott v. Spain (1997), the case of Steel and Others v. the United Kingdom (1999).
Amal Clooney is currently representing Georgia in a case against Russia before the European Court of Human Rights regarding attacks against the civilian population in Abkhazia and South Ossetia in August 2008.
Andrea Saccucci has been involved in some among the most high-profile and politically sensitive judicial cases brought before European Courts, leading to landmark judgments such, for instance, Hirsi Jamaa and others v. Italy [GC], 23 February 2012 (concerning push-backs to Libya of sea migrants of African origin) and Kuric and others v. Slovenia [GC], 26 June 2012 (concerning the erased people of Slovenia). Currently he is acting before the Strasbourg Court on behalf of over 1.000 former citizens of the SFRY who were erased from the register of permanent residents of Slovenia in 1992, over 400 individuals who were infected with HCV or HIV due to contaminated blood products, and over 400 officers of the Italian Financial Police claiming a violation of the right to form and to join trade unions for the protection of their interests.
key expert in the Council of Europe’s business and human rights program for legal professionals.
international expert to the Council of Europe’s Working Group to develop their training programme for legal professionals.
expert of the Council of Europe, of the European Union and of the OSCE in many European States (especially, the Balkans and Eastern Europe).
The European team also include the General Editor of the European Human Rights Law Review and professors in EU law at various European universities. We have members of the team with particular expertise in the EU Charter of Fundamental Rights and human rights and equality in the EU. Other international team members wrote the human rights and terrorism programme and manual for the Organisation for Security and Co-operation in Europe (OSCE) and carried out counter-terrorism and human rights training programmes across Europe.

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17.337.060 Limitation on new application.
An application for a temporary use permit is not subject to pre-application review, unless included with an application that is subject to pre-application review. [Ord. 503 § 1 (Exh. B), 2018; Ord. 473 § 3 (Exh. A), 2016. Formerly 17.332.010].
(1) Review of a technically complete application for a temporary use permit for a use that will exist not more than 60 days is subject to a Type I process, CBDC 17.130.080.
(2) Review of a technically complete application for a temporary use permit for a use that will exist for more than 60 calendar days but less than six months is subject to a Type II process, CBDC 17.130.090. [Ord. 503 § 1 (Exh. B), 2018; Ord. 473 § 3 (Exh. A), 2016. Formerly 17.332.020].
An applicant for a temporary use permit shall submit the requisite fee and three paper copies and one electronic copy of the information required by CBDC 17.130.040 and other information the director determines necessary to review the application. [Ord. 503 § 1 (Exh. B), 2018; Ord. 473 § 3 (Exh. A), 2016. Formerly 17.332.030].
(c) Establishment and operation of the temporary use will not be materially detrimental to the public health, safety, convenience, and general welfare.
(2) The review authority may impose conditions of approval deemed necessary to ensure the proposed temporary use complies with the foregoing approval criteria. [Ord. 503 § 1 (Exh. B), 2018; Ord. 473 § 3 (Exh. A), 2016. Formerly 17.332.040].
(1) A temporary use permit shall automatically expire on the date specified in the approval.
(2) A temporary use permit approved through a Type I process may be extended for up to an additional 60 calendar days through a Type I process.
(3) A temporary use permit approved through a Type II process may be extended for up to an additional three calendar months through a Type I process, provided the duration of the temporary use permit may not exceed one calendar year. [Ord. 503 § 1 (Exh. B), 2018; Ord. 473 § 3 (Exh. A), 2016. Formerly 17.332.050].
(1) Where a temporary use permit was approved for a particular property through a Type I process, no new applications for a temporary use permit may be approved for the same property for six calendar months after the prior permit or extension expired.
(2) Where a temporary use permit was approved for a particular property through a Type II process, no new applications for a temporary use permit may be approved for the same property for one calendar year after the prior permit or extension expired. [Ord. 503 § 1 (Exh. B), 2018; Ord. 473 § 3 (Exh. A), 2016. Formerly 17.332.060].

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Blaise, M., & Pacini-Ketchabaw, V. (in press). Enacting feminist materialist movement pedagogies in the early years. In J. Osgood & K. Robinson (Ed.), Feminists researching gendered childhoods: Generative entanglements. London: Bloomsburry.
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Taylor, A. & Pacini-Ketchabaw, V. (2015) ‘Unsettling the Colonial Places and Spaces of Early Childhood Education in Settler Colonial Societies’ in V. Pacini-Ketchabaw & A. Taylor (Eds.), Unsettling the Colonialist Places and Spaces of Early Childhood Education, New York: Routledge.
Pacini-Ketchabaw, V. & Taylor, A. (2015) ‘Unsettling pedagogies through common world encounters: Grappling with (post)colonial legacies in Canadian forests and Australian bushlands’ in V. Pacini-Ketchabaw & A. Taylor (Eds.), Unsettling the Colonialist Places and Spaces of Early Childhood Education, New York: Routledge.
Taylor, A. & Pacini-Ketchabaw, V. (2015). Unsettling the Colonial Places and Spaces of Early Childhood Education in Settler Colonial Societies, in V. Pacini-Ketchabaw & A. Taylor (Eds.) Unsettling the Colonialist Places and Spaces of Early Childhood Education. New York: Routledge.
Pacini-Ketchabaw, V. & Taylor, A. (2015). Unsettling pedagogies through common world encounters: Grappling with (post)colonial legacies in Canadian forests and Australian bushlands, in V. Pacini-Ketchabaw & A. Taylor (Eds.) Unsettling the Colonialist Places and Spaces of Early Childhood Education, New York: Routledge.
Pacini-Ketchabaw, V. (2014). Postdevelopmental perspectives on play: Postcolonial and anti-racist approaches to research. In L. Brooker, S. Edwards, & M. Blaise (Eds.), The SAGE handbook of play and learning in early childhood (pp. 67-78). London: SAGE.
Pacini-Ketchabaw, V. (2014). Crafting new relationships in child and youth care: Human-nonhuman encounters. In K. Gharabaghi & H. Skott-Myhre, With children and youth: Emerging theories, practices, and discussions in child and youth care work (pp. 101-120). Waterloo, ON: Wilfrid Laurier University Press.
Pacini-Ketchabaw, V., & Nxumalo, F. (2014). Posthumanist imaginaries for decolonizing early childhood praxis. In M. N. Bloch, B. B. Swadener, and G. S. Cannella (Eds.), Reconceptualizing early childhood care and education: Critical questions, new imaginaries and social activism—A reader (pp. 131-142). New York: Peter Lang.
Kummen, K., Pacini-Ketchabaw, V., & Thompson, D. (2013). Making developmental knowledge stutter and stumble: Continuing pedagogical explorations with collective biography. In V. Pacini-Ketchabaw & L. Prochner, Re-situating Canadian early childhood education (pp. 125-145). NY, Peter Lang.
Pacini-Ketchabaw, V., & Nxumalo, F. (2013). Regenerating research partnerships in early childhood education: A non-idealized vision. In J. Duncan & L. Conner (Eds.), Research partnerships in early childhood education: Teachers and researchers in collaboration (pp. 11–26). New York, NY: Palgrave Macmillan.
Pacini-Ketchabaw, V., & Bernhard, J. (2012). Revisioning multiculturalism in early childhood education. In N. Howe & L. Prochner (Eds.), Recent perspectives in early childhood education and care in Canada (pp. 159-181). Toronto, ON: University of Toronto Press.
Pence, A., & Pacini-Ketchabaw, V. (2012). The ‘Investigating Quality’ project: Innovative approaches in early childhood. In N. Howe & L. Prochner (Eds.), Recent perspectives in early childhood education and care in Canada (pp. 229-244). Toronto, ON: University of Toronto Press.
Pacini-Ketchabaw, V. & Nxumalo, F. (2012). Unpacking racialization through pedagogical documentation: Exploring nomadic practices. In J. Robertson, A. Fleet, C. Patterson & J. Robertson (Eds.), Conversations: Behind Early Childhood Pedagogical Documentation (pp.259-272). Sydney, N.S.W.: Pademelon Press.
Pacini-Ketchabaw, V. (2011). Developmental theories and child and youth care. In A. Pence & J. White (Eds.), Child and youth care: Critical perspectives on pedagogy, practice and policy (pp. 19-32). Vancouver, BC: UBC Press.
Pacini-Ketchabaw, V., & Kocher, L. (2011). Destabilizing binaries in early childhood education: The possibilities of pedagogical documentation. In P. Danaher (Ed.), Beyond binaries in education research (pp. 46-59). New York: Routledge.
Pacini-Ketchabaw, V. (with F. Nxumalo) (2010). A curriculum for social change: Experimenting with politics of action or imperceptibility. In V. Pacini-Ketchabaw (Ed.), Flows, rhythms and intensities of early childhood education curriculum (pp. 133-154). NY: Peter Lang.
Pacini-Ketchabaw, V., & Bernhard, J. (2010). The politics of language and educational practices: Promoting truly diverse child care settings. In O. Saracho & Spodek, B. (Eds), Contemporary perspectives in language and cultural diversity in early childhood education (pp. 21-41). Charlotte, NC: Information Age Publishing.
Pacini-Ketchabaw, V., & Pence, A. (2010). A journey of beginnings: From the Stockholm Project to the Investigating ‘Quality’ Project and beyond. In M.A. Colliander, L. Strahle, & C. Wehner-Godee (Eds.), Om varden och omvarlden: pedagogic I praktik och teori med inspiration fran Reggio Emilia [Valuing the world: Pedagogical practice and theory with inspiration from Reggio Emilia] (pp.251-263). Stockholm, Sweden: Stockholm University Press.
Pacini-Ketchabaw, V., & Viruru, R. (2010). The ambivalence of citizenship in early childhood education: Anti-racist, transnational feminist and postcolonial contributions. In G. Cannella & L.D. Soto (Eds.), Childhoods: A handbook (pp. 265-280). New York: Peter Lang.
Pence, A., & Pacini-Ketchabaw, V. (2010). Investigating ‘Quality’ Project: Opening possibilities in early childhood education policies and practices. In N. Yelland (Ed.), Contemporary / new critical issues in early childhood education (pp. 121-138). UK: Open University Press.
Pacini-Ketchabaw, V., Kocher, L., Sanchez, A., & Chan, C. (2009). Rhizomatic stories of immanent becomings and intra-activity: Professional development reconceptualized. In L. Iannacci & P. Whitty (Eds.), Early childhood curricula: Reconceptualist perspectives (pp. 87-119). Calgary, AB: Destilig.
Pacini-Ketchabaw, V. (2007). Biculturalism. In R. S. New & M. Cochran (Eds.), Early childhood education: An international encyclopedia (72-75). Westport, CT: Greenwood Publishing Group.
Pacini-Ketchabaw, V. & McIvor, O. (2005). Negotiating bilingualism in early childhood: A study of immigrant families and early childhood practitioner. In V. Pacini-Ketchabaw & A. Pence (Eds.), Canadian early childhood education: Broadening and deepening discussions of quality (pp. 109-126). Ottawa, ON: Canadian Child Care Federation.
Pacini-Ketchabaw, V., & Pence, A. (2005). The reconceptualizing movement in Canadian early childhood education, care and development. In V. Pacini-Ketchabaw & A. Pence (Eds.), Canadian early childhood education: Broadening and deepening discussions of quality (pp. 5-20). Ottawa, ON: Canadian Child Care Federation.
Sale, L., Sliz, L., & Pacini-Ketchabaw, V. (2003). Creating an inclusive climate for newly arrived students. In S. Schecter & J. Cummins (Eds.), Multilingual education in practice: Using diversity as a resource (pp. 17-31). Portsmouth, NH: Heinemann Books.

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text:
All in One Digital Video Analyser from SMPTE to CCIR.
Amplitude - INPUT SIGNAL MAXIMUM LIMITS: ±10 V. MEASUREMENT RANGE: ±1.5 V. RIPPLE MEASUREMENT RANGE (Vrp): <1.5 V. Vrp FREQUENCY RANGE: 0 to 10 kHz. MEASUREMENT RESOLUTION: 12 mV. TEST OUTPUT FOR MEASUREMENTS: Vpp and Vrp identical value to voltage measured at 75 Ohms.
Jitter - PARALLEL SIGNAL JITTER RANGE: ±7.5 ns. SERIAL SIGNAL JITTER RANGE: ±1.5 ns. SERIAL SIGNAL JITTER RESOLUTION: 40 pS +10 pS with 10 m of cable. PARALLEL SIGNAL JITTER BANDWIDTH: 1.4 kHz. PARALLEL TEST OUTPUT JITTER: 100 mV/ns at 75 Ohms. SERIAL TEST OUTPUT JITTER: 300 mV/ns at 75 Ohms. MISCELLANEOUS - MON OUTPUT: 720 mV at 75 Ohms, DC component not transmitted. CLOCK OUTPUT: Parallel signal clock 400 mVpp at 75 Ohms, DC component not transmitted.
Measurements Common To Serial And Parallel Signals - PREAMBLE ERROR DETECTION: The analyser has a "hard" preamble detector, which allows detection of a preamble error on the 4 least significant bits. TEST OUTPUT LEVELS FOR DISPLAY OF RESERVED CODES AND TRS ERRORS: 700 mV at 75 Ohms.
SERIAL SIGNAL: Signal absence or TRS word error frequency of more than 10 errors in 500 ms. PARALLEL SIGNAL: When clock/data phase measurement shows clock phase to be outside the range of ±11 nS. SECONDARY ALARM THRESHOLD: When one parameter falls outside specifications. SERIAL LINK: Adjustable from 2,400 to 19,200 Baud; delivered set at 9,600 Baud. OTHER PARAMETERS: 8 bits, 1 start bit, no parity.
Amplitude - INPUT SIGNAL MAXIMUM LIMITS: 0 V to -5.2 V. CLOCK SIGNAL MEASUREMENT RANGE: -1.29 V ± 1.29 V. VAV DATA MEASUREMENT RANGE: -1.29 V ±1.29 V. MEASUREMENT RESOLUTION: 11mV. MEASUREMENT PRECISION: ±25 mV. TEST OUTPUT FOR VPP AND VRP MEASUREMENTS: Vpp value identical to the measured signal. VAV: Displayed value is measured value +1.79V.
Clock/Data Phase - PRECISION: ±1.5 ns. TEST OUTPUT LEVEL: 700 mV at 75 Ohms.
Outputs - 1 parallel digital output to CCIR Rec. 656, 2 270 Mb/s serial digital outputs at 75 Ohms.
Calibrated errors on parallel signal - Level errors can be introduced in the clock signal and on the two most significant bits. PEAK-TO-PEAK LEVEL ERROR: Vpp minimum = 0.25 V, ±0.1 V, Vpp nominal = 1.1 V, ±0.1 V. AVERAGE LEVEL ERROR: Vav min = 1.60 ±0.05 V, Vav nom = 1.29 ±0.05 V, Vav max = -0.95 ±0.05 V. RIPPLE VOLTAGE ERROR: 1V ±10% at 122 Hz or 7812 Hz. CLOCK/DATA PHASE ERROR: -12 ns to +16 ns in steps of 4 ns, ±2 ns precision for each step.
Errors common to parallel and serial signals - Ability to introduce reserved codes as well as errors in TRS word and preambles. JITTER ERROR: 4 ±1 ns at 122 Hz or 976 Hz.
Patterns - PATTERNS AVAILABLE: 34. OF WHICH: CCIR - 14 patterns, user configurable - 2 patterns, others - 18 patterns. ACCESSIBLE VIA FRONT-PANEL CONTROLS: 16 patterns. ACCESSIBLE VIA SOFTWARE/SERVICE MODULE: 34 patterns. PATTERN 1: 75% colour bars. PATTERN 2: 100% colour bars. PATTERN 3: multi-burst. PATTERN 4: green (270 Mb/s serial test). PATTERN 5: magenta (270 Mb/s serial test). PATTERN 6: grey. PATTERN 7: black and white alternating at 0.1 Hz. PATTERN 8: end-of-lines pulses. PATTERN 9: black/white ramp. PATTERN 10: yellow/grey ramp. PATTERN 11: grey/ blue ramp. PATTERN 12: cyan/grey ramp. PATTERN 13: grey/red amp. PATTERN 14: Cb, Y, Cr, Y ramps. PATTERN 15: programmable pattern. PATTERN 16: programmable pattern. PATTERN 17: white end-of-line porches. PATTERN 18: blue end-of-line porches. PATTERN 19: red end-of-line porches. PATTERN 20: yellow end-of-line porches. PATTERN 21: cyan line end-of-line porches. PATTERN 22-34: grey.
CONSTRUCTION:2U 19" rack mounting unit. DEPTH: 328 mm (13"). WEIGHT: Basic unit - 5 kg (11 lbs), with all options - 6.2 kg (13.64 lbs). AMBIENT TEMPERATURE RANGE: +5°C to +45°C.
POWER SUPPLY: 105-130 V AC, 50-60 Hz (220 V Opt). MAXIMUM CONSUMPTION: 50 watts (all optional modules included). FUSE: 1.6 A (time-delay fuse).

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PAUL LOETHER, in his official capacity as Keeper of the National Register of Historic Places, et al., Defendants.
This matter is pending for consideration of the defendants’ motion to dismiss the plaintiffs’ Complaint pursuant to Rules 12(b)(1), and (6) of the Federal Rules of Civil Procedure. [Record No. 12] The Court will grant in part, and deny, in part, the defendants’ motion.
Plaintiffs Thomas Norton, George Norton, Carl Norton, Clyde Wilcoxson, the Gess Family Partnership, Ltd., Troy Thompson, Larry White and Brenda White, Patsy A. Bratton, Mary Louis Bratton Quertermous, Wayne Quertermous, Irene Gerdeman, as Trustee of the Irene Gerdeman Living Trust, and Jane Greaves Blackford, under the J.H. Graves Trust, are individuals and entities with principal places of business and/or owners of real property in Clark and Fayette Counties, Kentucky. [Record No. 1, ¶ 3] In the summer of 2008, they became aware of the efforts of parties to have the area known as the Upper Reaches of Boone Creel (“the Property”) listed on the National Register of Historic Places (“National Register”). Id. at ¶ 11.
The National Historical Preservation Act (the “Preservation Act”) authorizes the Secretary of the Interior “to expand and maintain a National Register of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture.” 36 C.F.R. § 60.1. The Secretary is charged under the Preservation Act with promulgating regulations for nominating properties to the National Register and notifying property owners when property is being considered for inclusion on the register. 54 U.S.C. § 302103. Before any property may be included in the National Register, the owners of such property-or a majority of owners within the district in the case of a historic district- must be given the opportunity to object to the nomination of the property for inclusion. Id. at § 302105. The Preservation Act generally prohibits inclusion of the district on the register if a majority of the owners in the district object. See id.
The plaintiffs, along with other landowners of property in the area, were notified by the Kentucky Heritage Counsel through the Kentucky state Historic Preservation Office via a letter that the Property would be considered by the Kentucky Historic Preservation Review Board for nomination to the National Register and an informational meeting would take place in August 2008 in Lexington, Kentucky. Id. at ¶ 12. At the meeting, a Kentucky state official informed those in attendance that objection letters were required to be submitted to the Kentucky Review Board at a meeting in Russellville, Kentucky, three hours away from the Property, at a later date. Id. at ¶ 13. Counsel for the plaintiffs presented a letter at the meeting stating that they had objection letters from 129 landowners covering 95 parcels of properties out of the 157 properties listed, and demanded the Board stop the action to submit the nomination. Id. at ¶ 14. Following receipt of a letter from the State indicating that, regardless of whether the majority of landowners object, the nomination must still be forwarded to the Keeper of the National Register of Historic Places (“the Keeper”) for a determination of eligibility. Id. at ¶ 15.
The plaintiffs filed suit in the Fayette Circuit Court against the state and local agencies involved in the nomination process (“the state court defendants”) in late 2008. The suit challenged the efforts to have the Property listed on the National Register. Protracted litigation ensured over the next several years. During this time, the Kentucky State Review Board met and approved the nomination of the Property. It was subsequently listed in the National Register on November 27, 2009. Id. at ¶¶ 19, 25. The matter worked its way to the Kentucky Court of Appeals and then back to the Fayette Circuit Court. Id. at ¶¶ 16-31. The circuit court granted partial summary judgment in the plaintiffs favor in September 2016, concluding that the state court defendants had violated their due process rights. Id. at ¶ 32.
The plaintiffs’ counsel then submitted a petition to the Kentucky State Historic Preservation Officer on October 28, 2016, seeking to remove the Property from the National Register based upon alleged procedural irregularities under 26 C.F.R. 60.15(a)(4). The plaintiffs relied, in part, on the state court holdings. The petition was then submitted to and received by the Keeper from the state on January 27, 2017. Id. at ¶ 35. The Keeper subsequently denied the petition to delist the Property from the National Register on March 13, 2017. Id.
The plaintiffs now seek review of the Keeper’s denial of the petition to delist the Property under the Administrative Procedure Act, 5 U.S.C. § 702. They assert that they have been damaged as a result of the actions and inactions of the defendants. [Record No. 1, ¶¶ 38- 43] They also allege that the actions and inactions of the defendants violated and continue to violate their rights to substantive and procedural due process. Id. at ¶¶ 44-46. The plaintiffs also contend that they are entitled to a writ of mandamus under the Mandamus Act. Id. at ¶¶ 47-50. Finally, the plaintiffs seeks permanent injunctive relief and attorneys’ fees. Id. at ¶¶ 51-59.
The defendants’ arguments that the plaintiffs’ claims are time-barred and that the plaintiffs lack of standing to bring this action contests this Court’s subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure. Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017) (citations omitted). A 12(b)(1) motion “can either attack the claim of jurisdiction on its face, in which case all allegations of the plaintiff must be considered as true, or it can attack the factual basis for jurisdiction, in which case the trial court must weigh the evidence and the plaintiff bears the burden of proving that jurisdiction exists.” DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A facial challenge to the Court’s subject matter jurisdiction, such as the defendants’ challenge here, “merely questions the sufficiency of the pleading.” Ohio Nat. Life Ins. Co. v. United States, 922 F.2d 320, 325 (6th Cir. 1990). “In reviewing such a facial attack, a trial court takes the allegations in the complaint as true, which is a similar safeguard employed under 12(b)(6) motions to dismiss.” Id. “[T]he party claiming jurisdiction bears the burden of demonstrating that the court has jurisdiction over the subject matter.” Id. at 324.
Next, in considering a motion under Federal Rule of Civil Procedure 12(b)(6), the Court must determine whether the complaint states a claim for which relief is available. It “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The factual allegations must be sufficient to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, and permit the Court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. While a complaint need not contain detailed factual allegations, it must contain more than an “unadorned, the defendant-unlawfully-harmed-me accusation.” Id. “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action’” is insufficient. Id. (quoting Twombly, 550 U.S. at 555).


text:
1. In this batch of matters, a scheme propounded by the Government of India popularly known as "Aadhaar Card Scheme" is under attack on various counts. For the purpose of this order, it is not necessary for us to go into the details of the nature of the scheme and the various counts on which the scheme is attacked. Suffice it to say that under the said scheme the Government of India is collecting and compiling both the demographic and biometric data of the residents of this country to be used for various purposes, the details of which are not relevant at present.
2. One of the grounds of attack on the scheme is that the very collection of such biometric data is violative of the "right to privacy". Some of the petitioners assert that the right to privacy is implied under Article 21 of the Constitution of India while other petitioners assert that such a right emanates not only from Article 21 but also from various other articles embodying the fundamental rights guaranteed under Part-III of the Constitution of India.
3. When the matter was taken up for hearing, Shri Mukul Rohatgi, learned Attorney General made a submission that in view of the judgments of this Court in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300 and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided by Eight and Six Judges respectively) the legal position regarding the existence of the fundamental right to privacy is doubtful.
Further, the learned Attorney General also submitted that in a catena of decisions of this Court rendered subsequently, this Court referred to "right to privacy", contrary to the judgments in the abovementioned cases which resulted in a jurisprudentially impermissible divergence of judicial opinions. "A power of search and seizure is in any system of jurisprudence an overriding power of the State for the protection of social security and that power is necessarily regulated by law.
4. Learned Attorney General submitted that such impermissible divergence of opinion commenced with the judgment of this Court in Gobind v. State of M.P. & Another, (1975) 2 SCC 148, which formed the basis for the subsequent decision of this Court wherein the "right to privacy" is asserted or at least referred to. The most important of such cases are R. Rajagopal & Another v. State of Tamil Nadu & Others, (1994) 6 SCC 632 (popularly known as Auto Shanker's case) and People's Union for Civil Liberties (PUCL) v. Union of India & Another, (1997) 1 SCC 301.
5. All the judgments referred to above were rendered by smaller Benches of two or three Judges.
6. Shri K.K. Venugopal, learned senior counsel appearing for one of the respondents submitted that the decision of this Court in Gobind (supra) is not consistent with the decisions of this Court in M.P. Sharma and Kharak Singh. He submitted that such divergence is also noticed by the academicians, Shri F.S. Nariman, Senior Advocate of this Court and Shri A.M. Bhattacharjee, Former Chief Justice, High Court at Calcutta and High Court at Bombay.
(i) whether there is any "right to privacy" guaranteed under our Constitution.
(ii) If such a right exists, what is the source and what are the contours of such a right as there is no express provision in the Constitution adumbrating the right to privacy. It is therefore submitted that these batch of matters are required to be heard and decided by a larger bench of at least five Judges in view of the mandate contained under Article 145(3) of the Constitution of India.
(i) The conclusions recorded by this Court in R. Rajagopal and PUCL are legally tenable for the reason that the observations made in M.P. Sharma regarding the absence of right to privacy under our Constitution are not part of ratio decidendi of that case and, therefore, do not bind the subsequent smaller Benches.
(ii) Coming to the case of Kharak Singh, majority in Kharak Singh did hold that the right of a person not to be disturbed at his residence by the State and its officers is recognized to be a part of a fundamental right guaranteed under Article 21 which is nothing but an aspect of privacy. The observation in para 20 of the majority judgment at best can be construed only to mean that there is no fundamental right of privacy against the State's authority to keep surveillance on the activities of a person. Even such a conclusion cannot be good law any more in view of the express declaration made by a seven-Judge bench decision of this Court in Maneka Gandhi v. Union of India & Another, (1978) 1 SCC 248.
(iii) They further argued that both M.P. Sharma (supra) and Kharak Singh (supra) came to be decided on an interpretation of the Constitution based on the principles expounded in A.K. Gopalan v. State of Madras, AIR 1950 SC 27. Such principles propounded by A.K. Gopalan themselves came to be declared wrong by a larger Bench of this Court in Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248. Therefore, there is no need for the instant batch of matters to be heard by a larger Bench.
9. It is true that Gobind (supra) did not make a clear declaration that there is a right to privacy flowing from any of the fundamental rights guaranteed under Part-III of the Constitution of India, but observed that "Therefore, even assuming that the right to personal liberty, the right to move freely throughout the territory of India and the freedom of speech create an independent right of privacy as an emanation from them which one can characterize as a fundamental right, we do not think that the right is absolute". This Court proceeded to decide the case on such basis.
10. However, the subsequent decisions in R. Rajagopal (supra) and PUCL (supra), the Benches were more categoric in asserting the existence of "right to privacy". While R. Rajagopal's case held that the "right to privacy" is implicit under Article 21 of the Constitution, PUCL's case held that the "right to privacy" insofar as it pertains to speech is part of fundamental rights under Articles 19(1)(a) and 21 of the Constitution.
11. Elaborate submissions are made at the bar by the learned counsel for the petitioners to demonstrate that world over in all the countries where Anglo-Saxon jurisprudence is followed, 'privacy' is recognised as an important aspect of the liberty of human beings. It is further submitted that it is too late in the day for the Union of India to argue that the Constitution of India does not recognise privacy as an aspect of the liberty under Article 21 of the Constitution of India. At least to the extent that the right of a person to be secure in his house and not to be disturbed unreasonably by the State or its officers is expressly recognized and protected in Kharak Singh (supra) though the majority did not describe that aspect of the liberty as a right of privacy, it is nothing but the right of privacy.
12. We are of the opinion that the cases on hand raise far reaching questions of importance involving interpretation of the Constitution. What is at stake is the amplitude of the fundamental rights including that precious and inalienable right under Article 21. If the observations made in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally and accepted as the law of this country, the fundamental rights guaranteed under the Constitution of India and more particularly right to liberty under Article 21 would be denuded of vigour and vitality.
At the same time, we are also of the opinion that the institutional integrity and judicial discipline require that pronouncement made by larger Benches of this Court cannot be ignored by the smaller Benches without appropriately explaining the reasons for not following the pronouncements made by such larger Benches. With due respect to all the learned Judges who rendered the subsequent judgments - where right to privacy is asserted or referred to their Lordships concern for the liberty of human beings, we are of the humble opinion that there appears to be certain amount of apparent unresolved contradiction in the law declared by this Court.
13. Therefore, in our opinion to give a quietus to the kind of controversy raised in this batch of cases once for all, it is better that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is scrutinized and the jurisprudential correctness of the subsequent decisions of this Court where the right to privacy is either asserted or referred be examined and authoritatively decided by a Bench of appropriate strength.
14. We, therefore, direct the Registry to place these matters before the Hon'ble the Chief Justice of India for appropriate orders.
Having regard to importance of the matter, it is desirable that the matter be heard at the earliest.
After the matter was referred for decision by a larger Bench, the learned counsel for the petitioners prayed for further interim orders.
In the meanwhile, no person should suffer for not getting the Aadhaar card inspite of the fact that some authority had issued a circular making it mandatory and when any person applies to get the Aadhaar card voluntarily, it may be checked whether that person is entitled for it under the law and it should not be given to any illegal immigrant."
It was submitted by Shri Shyam Divan, learned counsel for the petitioners that the petitioners having pointed out a serious breach of privacy in their submissions, preceding the reference, this Court may grant an injunction restraining the authorities from proceeding further in the matter of obtaining biometrics etc. for an Aadhaar card. Shri Shyam Divan submitted that the biometric information of an individual can be circulated to other authorities or corporate bodies which, in turn can be used by them for commercial exploitation and, therefore, must be stopped.
The learned Attorney General pointed out, on the other hand, that this Court has at no point of time, even while making the interim order dated 23.9.2013 granted an injunction restraining the Unique Identification Authority of India from going ahead and obtaining biometric or other information from a citizen for the purpose of a Unique Identification Number, better known as "Aadhaar card". It was further submitted that the respondents have gone ahead with the project and have issued Aadhaar cards to about 90% of the population. Also that a large amount of money has been spent by the Union Government on this project for issuing Aadhaar cards and that in the circumstances, none of the well-known consideration for grant of injunction are in favour of the petitioners.
The learned Attorney General stated that the respondents do not share any personal information of an Aadhaar card holder through biometrics or otherwise with any other person or authority.
This statement allays the apprehension for now, that there is a widespread breach of privacy of those to whom an Aadhaar card has been issued. It was further contended on behalf of the petitioners that there still is breach of privacy. This is a matter which need not be gone into further at this stage. The learned Attorney General has further submitted that the Aadhaar card is of great benefit since it ensures an effective implementation of several social benefit schemes of the Government like MGNREGA, the distribution of food, ration and kerosene through PDS system and grant of subsidies in the distribution of LPG.
 Para 5. .. It was in Kharak Singh v. State of U.P., AIR 1963 SC 1295 that the question as to the proper scope and meaning of the expression 'personal liberty' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view "that 'personal liberty' is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of man other than those- dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes, of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue".
The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: "No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping.
There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned". There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India, (1970) 2 SCC 298 the minority view must be regarded as correct and the majority view must be held to have been overruled.
 Para 9. "Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21."
 Para 18. "The right to privacy - by itself - has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one's home or office without interference can certainly be claimed as "right to privacy".
Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man's life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man's private life. Right to privacy would certainly include telephone conversation in the privacy of one's home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law.
19. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one's convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution."

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from, any proceeds the person obtained, directly or indirectly, as the result of certain drug crimes.” 21 U.S.C. 853(a)(1).
Terry Honeycutt and his brother, Tony, were charged with conspiring to distribute meth. Tony pled guilty. Terry went to trial and was convicted.
Tony owned a hardware store that Terry worked at. Tony agreed to forfeit $200,000 to the Government as part of his plea. These monies were supposed profits the hardware store made from drug money that Tony put into the business. The Government sought forfeiture of $69,751.98 from Terry as well, but the district court refused to enter a federal forfeiture order and the Government appealed.
The Sixth Circuit reversed, holding that Terry was subject to a federal forfeiture order under a theory of “joint and several liability” because he was convicted of a conspiracy charge. This ruling came in the face of the Government’s concession that Terry had no ownership interest in the hardware and received no direct benefit from the hardware store’s sales.
A creature of tort law, joint and several liability “applies when there has been a judgment against multiple defendants.” McDermott, Inc. v. AmClyde, 511 U. S. 202, 220– 221 (1994). If two or more defendants jointly cause harm, each defendant is held liable for the entire amount of the harm; provided, however, that the plaintiff recover only once for the full amount. See Restatement (Second) of Torts 875 (1977). Application of that principle in the forfeiture context when two or more defendants conspire to violate the law would require that each defendant be held liable for a forfeiture judgment based not only on property that he used in or acquired because of the crime, but also on property obtained by his co-conspirator. An example is instructive. Suppose a farmer masterminds a scheme to grow, harvest, and distribute marijuana on local college campuses. The mastermind recruits a college student to deliver packages and pays the student $300 each month from the distribution proceeds for his services. In one year, the mastermind earns $3 million. The student, meanwhile, earns $3,600. If joint and several liability applied, the student would face a forfeiture judgment for the entire amount of the conspiracy’s proceeds: $3 million. The student would be bound by that judgment even though he never personally acquired any proceeds beyond the $3,600. This case requires determination whether this form of liability is permitted under 853(a)(1). The Court holds that it is not.
(a) Section 853(a) limits forfeiture to property flowing from, 853(a)(1), or used in, 853(a)(2), the crime itself—providing the first clue that the statute does not countenance joint and several liability, which would require forfeiture of untainted property. It also defines forfeitable property solely in terms of personal possession or use. Section 853(a)(1), the provision at issue, limits forfeiture to property the defendant “obtained, directly or indirectly, as the result of” the crime. Neither the dictionary definition nor the common usage of the word “obtain” supports the conclusion that an individual “obtains” property that was acquired by someone else. And the adverbs “directly” and “indirectly” refer to how a defendant obtains the property; they do not negate the requirement that he obtain it at all. Sections 853(a)(2) and 853(a)(3) are in accord with this reading. Pp. 3–7.
(b) Joint and several liability is also contrary to several other provisions of 853. Section 853(c), which applies to property “described in subsection (a),” applies to tainted property only. See Luis v. United States, 578 U. S. ___, ___. Section 853(e)(1) permits pretrial asset freezes to preserve the availability of property forfeitable under subsection (a), provided there is probable cause to think that a defendant has committed an offense triggering forfeiture and “the property at issue has the requisite connection to that crime.” Kaley v. United States, 571 U. S. ___, ___. Section 853(d) establishes a “rebuttable presumption” that property is subject to forfeiture only if the Government proves that the defendant acquired the property “during the period of the violation” and “there was no likely source for” the property but the crime. These provisions reinforce the statute’s application to tainted property acquired by the defendant and are thus incompatible with joint and several liability. Joint and several liability would also render futile 853(p)—the sole provision of 853 that permits the Government to confiscate property untainted by the crime. Pp. 7–9.
(c) The plain text and structure of 853 leave no doubt that Congress did not, as the Government claims, incorporate the principle that conspirators are legally responsible for each other’s foreseeable actions in furtherance of their common plan. See Pinkerton v. United States, 328 U. S. 640. Congress provided just one way for the Government to recoup substitute property when the tainted property itself is unavailable—the procedures outlined in 853(p). And as is clear from its text and structure, 853 maintains traditional in rem forfeiture’s focus on tainted property unless one of 853(p)’s preconditions exists. Pp. 9–10.
The judgment of the Sixth Circuit was accordingly reversed, and the case was remanded for further proceedings.
The Court’s decision in Honeycutt also overturns decisions from the Second, Third, Fourth, and Eighth Circuits which previously held that forfeiture is available under a theory of joint and several liability. United States v. Van Nguyen, 602 F. 3d 886, 904 (CA8 2010) (applying joint and several liability to forfeiture under §853); United States v. Pitt, 193 F. 3d 751, 765 (CA3 1999) (same); United States v. McHan, 101 F. 3d 1027 (CA4 1996) (same); and United States v. Benevento, 836 F. 2d 129, 130 (CA2 1988) (per curiam) (same).
Only the D.C. Circuit in United States v. Cano-Flores, 796 F.3d 83, 91 (CADC 2015) previously held that joint and several liability was not applicable to federal forfeiture proceedings.
Brandon’s take: This decision is very important, but federal forfeiture issues cannot be raised in a 2255 motion except in possibly the Sixth Circuit. This is because most courts have held that a 2255 motion does not extend to monetary penalties like fines and restitution because a claim concerning same does not satisfy the “in custody” requirement of 28 U.S.C. 2255. Honeycutt represents a new rule of statutory construction, and thus may be amenable to a 28 U.S.C. 2241 petition, but there are questions about whether a similar “in custody” requirement in 2241 may also bar a 2241 petition. As a result, it may be difficult to raise a Honeycutt claim in a post-conviction proceeding. Further exploration of these issues will be necessary in an appropriate case. See: United States v. Honeycutt, No. 16-142 (2017). The Court's docket for Honeycutt can be accessed here.


UNITED STATES of America, Plaintiff-Appellee, v. Christopher HOLYFIELD, Defendant-Appellant.
Before McCONNELL, BALDOCK, and TYMKOVICH, Circuit Judges. Beth L. Krulewitch, Beth L. Krulewitch P.C., Denver, CO, for Defendant-Appellant. Martha Ann Paluch, Assistant United States Attorney (Philip A. Brimmer, Assistant United States Attorney, with her on the brief), Office of the United States Attorney, Denver, CO, for Plaintiff-Appellee.
A federal jury convicted Christopher Holyfield of conspiracy to distribute over fifty grams of crack cocaine and over five kilograms of powder cocaine, a crime with a sentencing range spanning ten years to life in prison. 21 U.S.C. § 841(b)(1)(A). The district court sentenced him to life in prison based on a minimum sentence statutorily mandated due to two prior convictions in California state court.
On appeal, Holyfield challenges the mandatory minimum as violating his Sixth Amendment right to jury trial. First, he claims the district court violated the Sixth Amendment by establishing his prior convictions without letting a jury decide whether the convictions existed or not. Second, he claims the district court violated the Sixth Amendment by applying the minimum based upon two prior convictions when the second conviction overlapped with the conduct in the instant offense. Holyfield contends the overlapping nature of the offenses required a jury finding on whether he engaged in illicit activity after his 1998 state conviction for marijuana possession became final.
United States Supreme Court precedent forecloses both arguments. The Sixth Amendment is not violated where a judge determines the existence of prior violations. We therefore AFFIRM the life sentence.
Christopher Holyfield was indicted along with nineteen others for a conspiracy to distribute over fifty grams of crack cocaine and over five kilograms of powder cocaine in violation of 21 U.S.C. § 846. Due to two prior state convictions, the Government notified the court prior to trial of its intent to seek increased punishment against Holyfield pursuant to 21 U.S.C. §§ 841(b) and 851 in the form of a mandatory minimum sentence.1 A superseding indictment added a murder charge to Holyfield's indictment. Holyfield was subsequently acquitted of the murder charge, but found guilty of the drug conspiracy. As a result of the mandatory minimum required by his two prior convictions, the district court sentenced Holyfield to life in prison.
Holyfield's two prior convictions were the result of guilty pleas in California state court (1) on August 18, 1993 for transporting cocaine, and (2) on July 13, 1998 for possession of marijuana for sale. The conspiracy charged in this federal case ran from October of 1996 through September of 2000, thus overlapping in part with the 1998 charges.
Both of Holyfield's challenges to his § 841(b)(1)(A) mandatory minimum rely upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), so we review the question of whether his sentence violates that decision de novo. United States v. Michel, 446 F.3d 1122, 1132 (10th Cir.2006).
The Supreme Court has held that the Sixth Amendment requires the government to submit to a jury facts which increase a crime's penalty beyond the statutory maximum to avoid a Sixth Amendment violation. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Excepted from this rule is judicial fact-finding used solely to establish a prior conviction. Id. at 489-90, 120 S.Ct. 2348. To determine the “fact of prior conviction,” a sentencing court may examine “the language of the statute of conviction, the terms of the charging document, the terms of a plea agreement or transcript of colloquy between judge and defendant ․, or to some comparable judicial record of this information.” United States v. Taylor, 413 F.3d 1146, 1157 (10th Cir.2005) (internal quotations omitted).
Holyfield contends recent decisions by the Supreme Court portend the elimination of Apprendi's prior conviction exception, see Shepard v. United States, 544 U.S. 13, 26 n. 5, 125 S.Ct. 1254, 161 L.Ed.2d 205 (2005); see also id. at 27, 125 S.Ct. 1254 (Thomas, J., concurring) (“a majority of the Court now recognizes [the prior conviction rule] was wrongly decided.”). While there may be some truth to Holyfield's contention, we have repeatedly rejected these types of challenges. “Unless and until the Supreme Court determines otherwise, we will continue to follow applicable precedent.” United States v. Moore, 401 F.3d 1220, 1224 (10th Cir.2005); see also United States v. Harris, 447 F.3d 1300, 1303 n. 1 (10th Cir.2006) (same).
But even if the Apprendi exception for prior convictions was modified by the Supreme Court, Holyfield's appeal would still fail. The district court's fact-finding regarding the prior convictions did not raise Holyfield's sentence beyond the statutory maximum.
Holyfield's alternative Sixth Amendment argument is that “[e]ven if the fact of a prior felony conviction need not be determined by a jury, where a prior conviction overlaps with [the instant] offense, additional factual findings are required to determine the propriety of using the overlapping conviction as a basis for [establishing a mandatory minimum sentence] and thus must be found by a jury.” Aplt. Br. at 13.
The year following Apprendi, the Supreme Court held that judicial fact-finding leading to a mandatory minimum sentence is permissible as long as the mandatory minimum sentence does not exceed the maximum sentence available under the jury's verdict. Harris v. United States, 536 U.S. 545, 567-68, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002). The Court in Harris determined that Sixth Amendment jury protections only ensure that the defendant will get no “more punishment than he bargained for when he did the crime” absent a jury verdict or guilty plea; it does not ensure that he will get less. Id. at 566, 122 S.Ct. 2406. Accordingly, if the defendant faces no greater punishment because of judicial fact-finding, the rule of Apprendi does not apply: “[I]t does not include facts triggering a mandatory minimum. The minimum may be imposed with or without the factual finding; the finding is by definition not ‘essential’ to the defendant's punishment.” Harris, 536 U.S. at 561, 122 S.Ct. 2406 (citing McMillan v. Pennsylvania, 477 U.S. 79, 87, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986)).
The holding in Harris forecloses Holyfield's appeal. In this case, the two prior convictions set his mandatory minimum equal to the statutory maximum-life in prison-but did not push the sentence beyond that maximum. Due to the quantity of crack cocaine involved in the offense, Holyfield was eligible for a sentence ranging from ten years to life in prison. 21 U.S.C. § 841(b)(1)(A). Based on the two prior convictions, Holyfield was sentenced to life.
Since the sentence mandated by the prior convictions fell within the statutory range established before considering the prior convictions, Apprendi does not apply and the district court's sentence did not run afoul of the Sixth Amendment. See also United States v. Estrada, 428 F.3d 387, 390 (2d Cir.2005) (same; applying 21 U.S.C. § 841 mandatory minimum of life); United States v. Dare, 425 F.3d 634, 640-41 (9th Cir.2005) (same; applying mandatory minimum of ten years for brandishing a firearm).
Based on the foregoing analysis, we AFFIRM the district court sentence of life in prison.
1. The parties, district court, and even many of our prior decisions have referred to the mandatory minimum required by § 841(b) as a “sentence enhancement,” see United States v. McKissick, 204 F.3d 1282, 1300-01 (10th Cir.2000); United States v. Green, 175 F.3d 822, 833-34 (10th Cir.1999), because the language in § 851(a)(1) requires notice if “increased punishment” will be based on prior convictions. We find discussing the prior convictions component of § 841(b) as a mandatory minimum rather than as an enhancement is more precise since it follows the language of the statute.
2. Holyfield also argues that the district court did not make a factual finding that he engaged in criminal conduct after the 1998 conviction. The record, however, is clear that Holyfield in fact engaged in criminal conduct after the conviction became final in July 1998 and before he began serving his sentence for that crime.
3. Only a few months ago, the Supreme Court reiterated that the statutory maximum is the top of the applicable sentencing range “without finding an additional fact.” Cunningham v. California, 549 U.S. 270, 127 S.Ct. 856, 865, 166 L.Ed.2d 856 (2007) (“In other words, the relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.”) (internal quotations omitted).


In Massachusetts there is only one standard, non-commercial automobile insurance policy. This policy must be approved by the Commissioner of Insurance. As a result, each Massachusetts resident is issued the same exact policy. To the extent possible, the coverages are explained in plain language within that policy. The first place to look when dealing with automobile insurance issues would be the standard policy.
No fault law was adopted to reduce the number of small motor vehicle tort cases being entered in the courts of the Commonwealth, to provide a prompt, inexpensive means of reimbursing claimants for out-of-pocket expenses, and to address the high cost of motor vehicle insurance in the Commonwealth.
Massachusetts General Laws, Ch. 231, §6D establishes a threshold which the injured party must meet before that party can obtain damages for pain and suffering. This applies to any accident within Massachusetts whether out-of-state drivers are involved or not. If you do not meet the threshold, you do not get pain and suffering damages. This applies to pedestrians and bicyclists as well as operators and passengers of motor vehicles. The threshold does not apply to collisions outside the Commonwealth. Furthermore, the threshold does not apply to Massachusetts operators and passengers on motorcycles.
In most cases the question is whether there is more than $2,000 in medical bills, scarring or a fracture. Theoretically a claimant could have a soft tissue injury which is permanent in nature, but if the claimant’s medical bills are $1,999.99, there would be no lawsuit for pain and suffering.
Because the $2,000 threshold is so important, concern arises as to whether the expenses are reasonable and necessary. In order to prove necessity, the plaintiff must show “that the [medical] treatment rendered by a competent medical doctor was a bona fide effort to alleviate and ameliorate the injury,” not that the treatment was an absolute necessity. Victum v. Martin, 367 Mass. 404, 407, 326 N.E.2d 12, 15 (1975); Pietroforte v. Yellow Cab of Somerville, Inc., 19 Mass. App. 961, 963, 473 N.E.2d 1148, 1150 (1985).
In Massachusetts, itemized medical bills subscribed and sworn to under the pains and penalties of perjury by the attending physician are admissible as evidence of the necessity, fairness and reasonableness of the charges. Mass. Gen. Laws. Ch. 233, §79G. Expert medical testimony is ordinarily not required to establish the necessity of medical services. The plaintiff’s own testimony may be taken into consideration along with the medical bills and reports. Scalia v. Liberty Mutual Insurance Co., 1995 Mass. App. Div. 69, 1995 WL 296772.
A New Hampshire resident injured in a Massachusetts crash is more fortunate. First, if the New Hampshire claimant meets the threshold, a claim can be maintained for pain and suffering in Massachusetts against the tortfeasor. If the threshold is not met, then the New Hampshire claimant has a claim against his/her insurance company. A New Hampshire resident injured in Massachusetts who does not meet the tort threshold is deemed to have been injured by an uninsured tortfeasor and therefore could pursue an uninsured claim. Green Mountain Insurance Co. v. George, 138 N.H. 10, 634 A.2d 1011 (1993).
Therefore, if your client is a New Hampshire resident, does not meet the threshold and has a policy of insurance, file a claim for uninsured coverage with that policy. If your client is a New Hampshire resident and has no insurance whatsoever, your client can still pursue damages other than pain and suffering as applicable. The reason for that is the tort threshold only applies to pain and suffering damages. Cyr v. Farias, 367 Mass. 720, 724, 327 N.E.2d 890, 893 (1975).
In New Hampshire, a claimant often has Medical Payments coverage available to him from the car in which he/she was riding at the time of the injury. In Massachusetts, while many people still purchase Medical Payments coverage, the primary coverage for medical expenses is Personal Injury Protection (PIP). The statutes pertaining to Personal Injury Protection are Mass. Gen. Laws. Ch. 90, §34A which defines PIP in detail and Mass. Gen. Laws. Ch. 90, §34M which makes it a mandatory requirement in insurance policies and elaborates on its enforcement and coverage.
While a named insured can waive PIP coverage for himself and his household (but not for other occupants or pedestrians), it is a very rare event. Therefore, if there is a Massachusetts insurance policy, there will be PIP coverage available.
(c) Payment to people for necessary services they rendered to the household which the injured party would have performed without pay (i.e. cleaning, etc.).
2. Individuals Covered under PIP.
PIP does not cover motorcycles or their passengers and is not payable if workers’ compensation benefits are available to the claimant.
3. Amount of PIP Coverage Available.
PIP is available up to $8,000. However, if the claimant has health insurance, a different rule applies. In that situation, once $2,000 in medical expenses is paid by PIP, the claimant must submit the rest of the medical expenses to health insurance. Then, whatever health insurance will not pay is re-submitted to PIP. Health insurers are aware that by law they are not obligated to pay the first $2,000 in medical expenses. Therefore, they will automatically refuse coverage in an automobile situation.
Many people buy Medical Payments coverage (Med Pay) in addition to PIP coverage. It is seen in multiples of $5,000.
Med Pay covers anyone occupying the insured motor vehicle with consent. It also covers the insured and any household member if occupying someone else’s automobile or if struck as a pedestrian.
In limited situations, Med Pay policies may be stacked. If the claimant is a pedestrian or riding in an automobile not owned by himself or a household member, then make sure to investigate whether the claimant and any household members have policies containing Med Pay.
In a pure Massachusetts situation, whatever is received in PIP reduces the eventual personal injury recovery. If the case is tried to a judgment, the judge actually takes the verdict and reduces it by the amount of PIP paid. The PIP carrier is entitled to reimbursement from the defendant’s insurance company. Therefore, any offers to settle made by the defendant’s insurance company have already taken into consideration the fact that it must make PIP reimbursement.
The tortfeasor’s insurance company only has a duty to pay up to its policy limits, whether it reimburses the PIP carrier or pays the injured party. Therefore, if the tortfeasor’s insurance company pays the policy limits to the claimant, it is under no duty to reimburse the claimant’s insurance company for PIP.
In a situation where you represent a Massachusetts claimant against a New Hampshire defendant for an accident which occurred in New Hampshire, get the PIP payments first before filing suit. For out of state lawsuits, Mass. Gen. Laws. Ch. 90, §34M allows the PIP carrier to withhold payments once suit is filed. Then they are exempted from payment up to the amount that you obtain in a final judgment.
Pip reimbursement is somewhat unsettled when a New Hampshire insurance company (insuring the tortfeasor) is involved. A New Hampshire insurance company may be involved because its insured caused injury to a person covered under PIP and the injury occurred either in Massachusetts or New Hampshire. There is no statute authorizing a New Hampshire insurance company to withhold from a personal injury settlement that amount necessary to reimburse PIP benefits (Mass. Gen. Laws Ch. 90, §34M does require Massachusetts companies to do that).
The New Hampshire insurance company is more apt to insist that they must pay the PIP carrier back if the accident occurred in Massachusetts. If the collision occurred in New Hampshire, they are less likely to take that position. Mass. Gen. Laws Ch. 90, §34M gives a PIP carrier subrogation rights against any tortfeasor in a situation where the carrier has paid PIP benefits. Sometimes reimbursement does not occur when the collision happened in New Hampshire. Frequently the PIP carrier will contact the claimant to discuss PIP reimbursement and in that case the PIP carrier is usually willing to negotiate the amount.
6. Coordination of Benefits for PIP, Health Insurance and Medical Payments Coverage.
Where there is PIP and health insurance but no Med Pay, PIP pays the first two thousand ($2,000.00) dollars in medical expenses. After that, the medical expenses must be submitted to the health insurance. Whatever the health insurance will not pay can be re-submitted to PIP (Medicaid and Medicare are not considered health insurance and therefore the full $8,000 in PIP would be applicable to medical expenses).
Where the plaintiff has health insurance, that plaintiff must take care in choosing medical providers. The first $2,000 in PIP coverage can be paid to any medical provider regardless of whether that provider is covered under the plaintiff’s health plan. However, for that amount over the first $2,000 in medical expenses, the plaintiff has a duty to seek treatment within his/her health plan. If the plaintiff is treated by a medical provider outside of the health plan, for treatment which the health plan would have covered had it been given a provider within the health plan, then not only will the health insurance not cover the treatment, but that amount cannot later be submitted under PIP. Dominguez v. Liberty Mutual Insurance Co., 429 Mass. 112, 706 N.E.2d 647 (1999). In summary, if you have PIP coverage and health insurance coverage but no Med Pay, be careful that after the first $2,000 in medical expenses, any other expense is covered within your health plan. If the health plan only covers a certain percentage, the remaining balance can be re-submitted to PIP.
Where there is PIP, health insurance, and Med Pay, it is important to pay close attention to who pays what. Because there is no offset from the personal injury settlement for Med Pay, you want to get at that as soon as possible. There is no deduction from the personal injury settlement for Med Pay whereas there is a dollar for dollar offset for PIP benefits.
When there is PIP coverage, health insurance and Medical Payment coverage, you first exhaust $2,000 in PIP for medical bills, and then submit the rest under your health insurance. If your health insurance only pays a percentage, submit the remaining balance to PIP. Medical Payment coverage will cover what PIP does not pay.
If you have Med Pay coverage you can use that to cover bills if you go outside your health plan. Therefore, if you decide for personal reasons to choose a doctor who is not within your health plan, and your health plan would normally provide a doctor in that same specialty, then you can still get reimbursed under Med Pay.
If there is PIP coverage and Med Pay coverage but no health insurance, then PIP must first be exhausted before Med Pay comes into play. However, remember that PIP may be exhausted not only by medical expenses but also by lost wages and other services. In general exhaust as much of the PIP coverage with wages and other services as possible. Steer as much of the medical expense toward health insurance and Med Pay as possible.
Experience has found that in the area of coordination of benefits, attention to detail is necessary. Unfortunately, this area of the practice is not lucrative and sometimes takes up an inordinate amount of time.
As a final point, attorneys cannot charge a contingent fee for obtaining PIP benefits for their clients. At best they can charge an administrative fee but many practitioners do not charge any fee at all.
PIP benefits are contractual in nature. The policy requires the claimant to cooperate in terms of giving a statement as well as submitting to medical exams. The use of IME exams in PIP practice is standard. Non-cooperation is a defense, and insurance companies commonly refuse to pay once a claimant has missed two scheduled IME exams. Finally, even though the PIP carrier has an IME exam stating that no further treatment is necessary, you can still litigate the issue of further PIP payments.
8. Claimant’s Enforcement of PIP Rights.
Insurance companies have become aggressive in their attempts to limit PIP benefits. One method used by insurers is to obtain an early IME exam. In a soft tissue case the report may typically say that no further treatment is necessary. Based on that report the PIP carrier will shut off benefits.
Another way of cutting costs is for the insurance company to pay only a portion of the submitted medical expenses on the grounds that they are unreasonable. Remember, to be reimbursable under PIP coverage, the expenses must be both reasonable and necessary.
The test for whether medical bills are necessary for qualification under PIP is probably the same as that for qualification under the threshold requirements discussed earlier. The plaintiff must show only “that the [medical] treatment rendered by a competent medical doctor was a bona fide effort to alleviate and ameliorate injury,” not that the treatment was an absolute necessity. Victum v. Martin, 367 Mass. 404, 407, 326 N.E.2d 12, 15 (1975); Pietroforte v. Yellow Cab of Somerville, Inc., 19 Mass. App. 961, 963, 473 N.E.2d 1148, 1150 (1985).
The amount of money contested under PIP is usually not great. Nevertheless, it is a thorn in the side of practitioners because it affects the claimant’s eventual total recovery. If you find that a PIP carrier has denied benefits because of an IME exam, because the charges are not reasonable, or for any other reason, the best way to handle that is to begin with a 93A demand letter pursuant to Mass. Gen. Laws Ch. 93A, §9. Independent of Mass. Gen. Laws Ch. 93A, Mass. Gen. Laws. Ch. 90, §34M contains a provision for payment of attorney’s fees if you are successful in suing an insurance company for failure to pay PIP benefits.