D.C. Law Library - Chapter 5. Regulatory Provisions.
Chapter 4. Recreation Volunteer Background Check and Screening. [Repealed].
Chapter 5A. Department of General Services.
Subchapter V. Protection of Property Outside of District.
Subchapter VI. Capitol Grounds and Botanic Garden Tunnel.
Subchapter VII. Federal Activities Affecting District Property.
Part A. Authority to Make Regulations; Duty of Capitol Police.
§ 10–503.01. Authority to make regulations.
The Sergeants at Arms of the Senate and of the House of Representatives are authorized to make such regulations as they may deem necessary for preserving the peace and securing the Capitol from defacement, and for the protection of the public property therein, and they shall have power to arrest and detain any person violating such regulations, until such person can be brought before the proper authorities for trial.
Metropolitan Police jurisdiction, see § 5-133.02.
United States Park Police, see § 5-201 et seq.
Enlargement of Capitol Grounds: Act of March 4, 1929, 45 Stat. 1694, ch. 708, as amended, provided for the enlargement of the Capitol Grounds.
§ 10–503.02. Duty of Capitol Police.
It shall be the duty of the Capitol Police hereafter to prevent any portion of the Capitol Grounds and terraces from being used as playgrounds or otherwise, so far as may be necessary to protect the public property, turf and grass from destruction.
The United States Capitol Grounds shall comprise all squares, reservations, streets, roadways, walks, and other areas as defined on a map entitled “Map showing areas comprising United States Capitol Grounds”, dated June 25, 1946, approved by the Architect of the Capitol and recorded in the Office of the Surveyor of the District of Columbia in Book 127, Page 8, including all additions added thereto by law subsequent to June 25, 1946, and the jurisdiction and control over the United States Capitol Grounds, vested prior to July 31, 1946 by law in the Architect of the Capitol, is extended to the entire area of the United States Capitol Grounds, and the Architect of the Capitol shall be responsible for the maintenance and improvement thereof, including those streets and roadways in said United States Capitol Grounds as shown on said map as being under the jurisdiction and control of the Mayor of the District of Columbia, except that the Mayor of the District of Columbia shall be responsible for the maintenance and improvement of those portions of the following streets which are situated between the curblines thereof: Constitution Avenue from Second Street Northeast to Third Street Northwest, First Street from D Street N.E. to D Street S.E., D Street from First Street S.E. to Canal Street S.W., and First Street from the north side of Louisiana Avenue to the intersection of C Street and Canal Street S.W., Pennsylvania Avenue Northwest from First Street Northwest to Third Street Northwest, Maryland Avenue Southwest from First Street Southwest to Third Street Southwest, Second Street Northeast from F Street Northeast to C Street Southeast; C Street Southeast from Second Street Southeast to First Street Southeast; that portion of Maryland Avenue Northeast from Second Street Northeast to First Street Northeast; that portion of New Jersey Avenue Northwest from D Street Northwest to Louisiana Avenue; that portion of Second Street Southwest from the north curb of D Street to the south curb of Virginia Avenue Southwest; that portion of Virginia Avenue Southwest from the east curb of Second Street Southwest to the west curb of Third Street Southwest; that portion of Third Street Southwest from the south curb of Virginia Avenue Southwest to the north curb of D Street Southwest; that portion of D Street Southwest from the west curb of Third Street Southwest to the east curb of Second Street Southwest; that portion of Canal Street Southwest, including sidewalks and traffic islands, from the south curb of Independence Avenue Southwest to the west curb of South Capitol Street; provided, that the Mayor of the District of Columbia shall be permitted to enter any part of said United States Capitol Grounds for the purpose of repairing or maintaining or, subject to the approval of the Architect of the Capitol, for the purpose of constructing or altering, any utility service of the District of Columbia government.
District planning, powers and duties of mayor, see § 1-204.23.
Extension of United States Capitol Grounds: Section 739(g)(3) of the Act of December 24, 1973, 87 Stat. 828, Pub. L. 93-198, provided that § 1 of the Act of July 31, 1946, 60 Stat. 718, as amended, is amended to include within the definition of the United States Capitol Grounds the streets as set forth in the Act of December 24, 1973.
Section 1 of the Act of October 10, 1980, 94 Stat. 1852, Pub. L. 96-432, and the Act of December 22, 1982, 96 Stat. 1935, Pub. L. 97-379, provided that § 1 of the Act of July 31, 1946, 60 Stat. 718, as amended, is amended to include within the definition of the United States Capitol Grounds the areas as set forth in the Act of December 22, 1982.
Law Enforcement Authority of Capitol Police: Title I of Act of October 6, 1992, 106 Stat. 1949, Pub. L. 102-397, provided that “An Act to define the area of the United States Capitol Grounds, to regulate the use thereof, and for other purposes” is amended to expand the jurisdiction of the Capitol Police.
Order of House Office Building Commission: By order, dated October 17, 1967, the House Office Building Commission ordered that the Rayburn House Office Building, the subway connecting such building to the Capitol Building, the pedestrian tunnels connecting such building to the Longworth House Office Building, the underground garages in squares 637 and 691 and the tunnels connecting these garages to the House Office Buildings, are declared to be House Office Buildings and, as such, are made subject to the provisions of the Act of July 31, 1946, including any amendments to such Act, which are applicable to the Capitol Buildings.
It is forbidden to offer or expose any article for sale in said United States Capitol Grounds; to display any sign, placard, or other form of advertisement therein; to solicit fares, alms, subscriptions, or contributions therein.
§ 10–503.15. Removal or injury of property forbidden.
It is forbidden to step or climb upon, remove, or in any way injure any statue, seat, wall, fountain, or other erection or architectural feature, or any tree, shrub, plant, or turf in said United States Capitol Grounds.
(2) Knowingly, with force and violence, to enter or to remain upon the floor of either House of the Congress.
(c) Nothing contained in this section shall forbid any act of any member of the Congress, or any employee of a member of the Congress, any officer or employee of the Congress or any committee or subcommittee thereof, or any officer or employee of either House of the Congress or any committee or subcommittee thereof, which is performed in the lawful discharge of his official duties.
(a) Subject to the direction of the Capitol Police Board, the United States Capitol Police is authorized to protect, in any area of the United States, the person of any member of Congress, officer of the Congress, as defined in 2 U.S.C. § 60-1(b), and any member of the immediate family of any such member or officer, if the Capitol Police Board determines such protection to be necessary.
(b) In carrying out its authority under this section, the Capitol Police Board, or its designee, is authorized, in accordance with regulations issued by the Board pursuant to this section, to detail, on a case-by-case basis, members of the United States Capitol Police to provide such protection as the Board may determine necessary under this section.
(2) To utilize equipment and property of the Capitol Police.
(d) Whoever knowingly and willfully obstructs, resists, or interferes with a member of the Capitol Police engaged in the performance of the protective functions authorized by this section shall be fined not more than $300 or imprisoned not more than 1 year, or both.
(e) Nothing contained in this section shall be construed to imply that the authority, duty, and function conferred on the Capitol Police Board and the United States Capitol Police are in lieu of or intended to supersede any authority, duty, or function imposed on any federal department, agency, bureau, or other entity, or the Metropolitan Police of the District of Columbia, involving the protection of any such member, officer, or family member.
(f) As used in this section, the term “United States” means each of the several states of the United States, the District of Columbia, and territories and possessions of the United States.
§ 10–503.21. Employees to assist enforcement authorities.
It shall be the duty of all persons employed in the service of the government in the Capitol or in the United States Capitol Grounds to prevent, as far as may be in their power, offenses against this part, and to aid the police, by information or otherwise, in securing the arrest and conviction of offenders.
In order to admit of the due observance within the United States Capitol Grounds of occasions of national interest becoming the cognizance and entertainment of Congress, the President of the Senate and the Speaker of the House of Representatives, acting concurrently, are hereby authorized to suspend for such proper occasions so much of the prohibitions contained in §§ 10-503.12 to 10-503.17 as would prevent the use of the roads and walks of the said grounds by processions or assemblages, and the use upon them of suitable decorations, music, addresses, and ceremonies; provided, that responsible officers shall have been appointed, and arrangements determined which are adequate, in the judgment of said President of the Senate and Speaker of the House of Representatives, for the maintenance of suitable order and decorum in the proceedings, and for guarding the Capitol and its grounds from injury.
This section is referenced in § 10-503.17 and § 10-503.23.
Nothing in this part shall be construed to prohibit the giving of concerts in the United States Capitol Grounds, at such times as will not interfere with the Congress, by any band in the service of the United States, when and as authorized by the Architect of the Capitol.
§ 10–507.01. Control of District of Columbia buildings.
All buildings belonging to the District of Columbia shall be under the jurisdiction and control of the Mayor of the District of Columbia.
For temporary (90 days) amendment to section 422 of D.C. Law 18-370, see § 4072 of Fiscal Year 2018 Budget Support Congressional Review Emergency Act of 2017 (D.C. Act 22-167, Oct. 24, 2017, 64 DCR 10802).
For temporary (90 days) amendment to section 422 of D.C. Law 18-370, see § 4072 of Fiscal Year 2018 Budget Support Emergency Act of 2017 (D.C. Act 22-104, July 20, 2017, 64 DCR 7032).
For temporary (90 day) addition, see § 2 of University of the District of Columbia Expansion Emergency Act of 2009 (D.C. Act 18-144, July 18, 2009, 56 DCR 5877).
For temporary (90 day) addition, see § 3021 of Fiscal Year 2010 Budget Support Second Emergency Act of 2009 (D.C. Act 18-207, October 15, 2009, 56 DCR 8234).
For temporary (90 day) addition, see § 4091 of Fiscal Year 2010 Budget Support Second Emergency Act of 2009 (D.C. Act 18-207, October 15, 2009, 56 DCR 8234).
For temporary (90 day) addition, see § 3021 of Fiscal Year Budget Support Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-260, January 4, 2010, 57 DCR 345).
For temporary (90 day) addition, see § 4091 of Fiscal Year Budget Support Congressional Review Emergency Amendment Act of 2009 (D.C. Act 18-260, January 4, 2010, 57 DCR 345).
For temporary (90 day) addition of section, see § 1502 of Fiscal Year 2010 Balanced Budget Support Emergency Act of 2010 (D.C. Act 18-450, June 28, 2010, 57 DCR 5635).
For temporary (90 day) addition of section, see § 1502 of Fiscal Year 2010 Balanced Budget Support Congressional Review Emergency Act of 2010 (D.C. Act 18-531, August 6, 2010, 57 DCR 8109).
For temporary (90 day) additions, see § 3(b) of Budget Support Act Clarification and Technical Amendment Emergency Amendment Act of 2010 (D.C. Act 18-543, October 5, 2010, 57 DCR 9630).
For temporary (90 day) addition of section, see § 422 of Fiscal Year 2011 Supplemental Budget Support Emergency Act of 2010 (D.C. Act 18-694, January 19, 2011, 58 DCR 662).
Section 4(b) of D.C. Law 18-73 provided that the act shall expire after 225 days of its having taken effect.
“SUBTITLE R. UNIVERSITY OF THE DISTRICT OF COLUMBIA EXPANSION.
“This subtitle may be cited as the ‘University of the District of Columbia Expansion Act of 2010’.
“Sec. 1172. The University of the District of Columbia shall have exclusive use of the closed Patricia R. Harris Educational Center School building and site located at 4600 Livingston Road, S.E., in Ward 8, to expand upon its collegiate mission and Workforce Development and Lifelong Learning Program by continuing to provide Vocational Education and Community College of the District of Columbia courses.
“This subtitle may be cited as the ‘African-American Civil War Museum Clarification Act of 2010’.
Section 6(b) of D.C. Law 18-283 provides that the act shall expire after 225 days of its having taken effect.
Short title: Section 3020 of D.C. Law 18-111 provided that subtitle C of title III of the act may be cited as the “FEMS and DOC Headquarters Act of 2009”.
Short title: Section 4090 of D.C. Law 18-111 provided that subtitle J of title IV of the act may be cited as the “University of the District of Columbia Expansion Act of 2009”.
Short title: Section 421 of D.C. Law 18-370 provided that subtitle C of title IV of the act may be cited as “University of the District of Columbia Expansion Act of 2010”.
"Sec. 422. (a) The University of the District of Columbia shall have exclusive use of the closed Patricia R. Harris Educational Center School building and site located at 4600 Livingston Road, S.E., in Ward 8, to expand upon its collegiate mission and Workforce Development and Lifelong Learning Program by continuing to provide Vocational Education and Community College of the District of Columbia courses.
"(b) Subsection (a) of this section shall not apply if the Mayor submits to the Council a proposed resolution pursuant to section 1(b) of An Act Authorizing the sale of certain real estate in the District of Columbia no longer required for public purposes, approved August 5, 1939 (53 Stat. 1211; D.C. Official Code § 10-801(b)), to dispose of the Patricia R. Harris Educational Center School building that contains a provision to lease or sublease space in the building to the University of the District of Columbia and such resolution is approved by the Council."
“Sec. 3021. Relocation of headquarters for Fire and Emergency Medical Services Department and Department of Corrections.
“(a) The headquarters of the Fire and Emergency Medical Services Department and the headquarters of the Department of Corrections shall not be relocated to or housed in the Patricia R. Harris Education Center and no funds shall be expended for those purposes.
§ 10–509.01. Designation of District employees to protect life and property outside the District; powers of arrest; weapons and uniforms.
(3) To arrest without warrant within such buildings or grounds, any person whom he has reasonable grounds to believe has committed a felony in such buildings or grounds.
(b) Any individual having the power to arrest as provided in subsection (a) of this section may carry firearms or other weapons and shall wear such uniform with such identification badge as the Mayor may direct or the Council by regulation may prescribe.
This section is referenced in § 10-509.01a, § 10-509.04, and § 10-509.05.
Restriction on use of funds: Section 133 of Pub. L. 102-382, the District of Columbia Appropriations Act, 1993, provided that none of the funds made available in this Act may be used by the District of Columbia to operate, after June 1, 1993, the juvenile detention facility known as the Cedar Knoll Facility, and the Mayor shall transmit a plan and timetable for closing the Cedar Knoll Facility to the Committees on Appropriations of the House of Representatives and the Senate by January 15, 1993.
Authority to Director of Department of Administrative Services delegated: See Mayor’s Order 85-4, January 17, 1985.
This section originated at a time when local government powers were delegated to a Board of Commissioners of the District of Columbia (see Acts Relating to the Establishment of the District of Columbia and its Various Forms of Governmental Organization in Volume 1). Section 402 (188, 189) of Reorganization Plan No. 3 of 1967 (see Reorganization Plans in Volume 1) transferred all of the functions of the Board of Commissioners under this section to the District of Columbia Council, subject to the right of the Commissioner as provided in § 406 of the Plan. The District of Columbia Self-Government and Governmental Reorganization Act, 87 Stat. 818, § 711 ( D.C. Code, § 1-207.11), abolished the District of Columbia Council and the Office of Commissioner of the District of Columbia. These branches of government were replaced by the Council of the District of Columbia and the Office of Mayor of the District of Columbia, respectively. Accordingly, and also pursuant to § 714(a) of such Act ( D.C. Code, § 1-207.14(a)), appropriate changes in terminology were made in this section.
§ 10–509.01a. Escape from juvenile facilities.
No child who has been committed to a juvenile facility shall escape or attempt to escape from a District of Columbia institution described in § 10-509.01. No person shall aid or abet any person to violate this section.
§ 10–509.02. Council authorized to make rules and regulations.
The Council of the District of Columbia may make and amend such rules and regulations as it deems necessary for the protection of life and property in or on the buildings and grounds of any such institution.
This section originated at a time when local government powers were delegated to a Board of Commissioners of the District of Columbia (see Acts Relating to the Establishment of the District of Columbia and its Various Forms of Governmental Organization in Volume 1). Section 402 (190) of Reorganization Plan No. 3 of 1967 (see Reorganization Plans in Volume 1) transferred all of the functions of the Board of Commissioners under this section to the District of Columbia Council, subject to the right of the Commissioner as provided in § 406 of the Plan. The District of Columbia Self-Government and Governmental Reorganization Act, 87 Stat. 818, § 711 ( D.C. Code, § 1-207.11), abolished the District of Columbia Council and the Office of Commissioner of the District of Columbia. These branches of government were replaced by the Council of the District of Columbia and the Office of Mayor of the District of Columbia, respectively. Accordingly, and also pursuant to § 714(a) of such Act ( D.C. Code, § 1-207.14(a)), appropriate changes in terminology were made in this section.
§ 10–509.03. Penalty for violation of rules and regulations.
Any person who knowingly and willfully violates any rule or regulation prescribed under this subchapter shall be guilty of a misdemeanor, and shall be fined not more than $500 or imprisoned not more than 6 months or both.
§ 10–509.04. Acceptance of collateral for appearance before United States Magistrate; deposit of collateral.
The officer on duty in command of those employees designated by the Mayor of the District of Columbia as provided in § 10-509.01 may accept deposit of collateral from any person charged with the violation of any rule or regulation prescribed under this subchapter, for appearance in court or before the appropriate United States Magistrate; and such collateral shall be deposited with the United States Magistrate sitting in the district where the offense has been committed.
§ 10–509.05. Reciprocal agreements with states.
The Mayor of the District of Columbia may enter into agreements with any of the states, or any political subdivision thereof, where any such institution mentioned in § 10-509.01 is located, for such governmental services as the Mayor shall deem necessary to the efficient and proper government of such institution, and they may, from time to time, agree to modifications in any such agreement; provided, that where the charge for any such service is established by the laws of the state within whose territorial limits such institution is situated, the Mayor may not pay for such service an amount in excess of the charge so established. There is hereby authorized to be appropriated such sums as may be necessary for the making of payment for services under any such agreement.
§ 10–511.01. Tunnel under Capitol Grounds and Botanic Garden grounds — Required.
The Mayor of the District of Columbia is authorized and directed, in constructing, maintaining, and operating a vehicular tunnel in the City of Washington, District of Columbia, extending from the vicinity of 2nd and C Streets Southwest, to the vicinity of 3rd and Constitution Avenue Northwest, as a part of the Innerloop Freeway System, to locate a portion of such tunnel under square W-576, which is a part of the United States Botanic Garden grounds, and reservation 12, which is a part of the United States Capitol Grounds.
§ 10–511.02. Tunnel under Capitol Grounds and Botanic Garden grounds — Construction.
Subject to the approval of the Architect of the Capitol and to such conditions as he may prescribe, the Mayor of the District of Columbia is authorized to make such use of square W-576 and reservations 12 and 6B as may be necessary for the construction of the tunnel, including borings and other preliminary work and storing of materials, and the reconstruction of that section of the Tiber Creek sewer located under square W-576 and reservation 6B.
§ 10–511.03. Tunnel under Capitol Grounds and Botanic Garden grounds — Right, title and interest to remain in the United States; jurisdiction and responsibility of Mayor.
Except as provided in § 10-511.06, nothing in this subchapter shall be construed to grant to the Mayor of the District of Columbia any right, title, or interest in or to any real property of the United States, and reservation 12 shall in its entirety continue to be a part of the United States Capitol Grounds, and square W-576 shall in its entirety continue to be a part of the United States Botanic Garden grounds. The Mayor shall have jurisdiction and control of, and sole responsibility for the operation and maintenance of, those portions of the tunnel beneath square W-576 and reservation 12.
§ 10–511.04. Tunnel under Capitol Grounds and Botanic Garden grounds — Restoration of grounds to original condition.
All areas of square W-576 and reservations 12 and 6B disturbed by reason of operations under this subchapter shall, except as otherwise provided in this subchapter, be restored to their original condition to the satisfaction of the Architect of the Capitol.
§ 10–511.05. Tunnel under Capitol Grounds and Botanic Garden grounds — United States not to incur expense or liability.
Except as provided in § 10-511.06, the United States shall not incur any expense or liability whatsoever under or by reason of this subchapter, or be liable under any claim of any nature or kind that may arise from the construction, or the operation or maintenance, of that portion of the tunnel authorized by this subchapter.
§ 10–511.06. Conveyance of real property for Innerloop Freeway System.
The Architect of the Capitol is authorized to convey to the Mayor of the District of Columbia, for purposes of constructing the Innerloop Freeway System, all, or so much as he determines necessary, of the right, title, and interest of the United States in and to reservations 6B, 6C, 6D, 6E, 6F, and 286 in the District of Columbia. Any real property conveyed under this section shall thereafter be under the sole jurisdiction and control of the Mayor of the District of Columbia.
This section is referenced in § 10-511.03 and § 10-511.05.
§ 10–511.07. Area authorized for construction of vehicular tunnel; conditions.
(3) The surface ingress and egress to such property is not limited.
§ 10–513.01. Prior notice for federal activities affecting district property.
Pub. L. 105-33, title XI, § 11715, Aug. 5, 1997, 111 Stat. 784, added this section.


© 2017 by Julie A. Goren, Esq.
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Judicial Council forms POS-040, POS-040(P), POS-050, POS-050(P) were revised to delete the time of service.
Judicial Council forms MC-010 and 011 (Memo of Costs Summary and Worksheet) are revised effective 9/1/17.
New rules apply to Mandatory Settlement Conferences in L.A.S.C. P.I. Cases in Departments 91 and 97.
Allowable Costs – C.C.P. § 1033.5 is revised to add two more items of recoverable costs: (1) fees for mandatory eFiling or eService through an EFSP, and (2) fees for mandatory hosting of electronic documents by an EFSP.
“Technical” Changes affect format of papers, page numbering, exhibits – C.R.C., Rules 2.109, 3.1110(c), and 3.1113(d) and (h) are all revised.
Service by Fax and Electronic Service – The proofs of service no longer have to include the time of service.
eFiled Documents – entirety of document, including exhibits, must be text searchable where technologically feasible; exhibits must be bookmarked in a particular manner, and more.
Expedited Jury Trials – are mandatory in all limited cases except unlawful detainer and eviction. The rules have been completely revised and reorganized; new procedures include opt out procedure. New and revised Judicial Council forms affect mandatory and voluntary EJT’s. Voir dire is now included in the 5-hour time limit for each side to present its case.
Civil Case Cover Sheet Addendum (L.A. County court form) has been revised.
Notice of Deposition – C.C.P. § 2025.220(a)(8) added to require disclosure of contractual relationships between deposing party/third party financing case and court reporting agency or requirement that attorney use a particular reporting agency.
Demurrers – C.C.P. § 430.41 added to require demurring party to attempt to meet and confer prior to filing demurrer and file meet and confer declaration with demurrer; limits on subsequent demurrers; limits amendments to pleadings after demurrer.
MSJ’s and MSA’s – Adds definition of “material fact” to emphasize that only material facts are to be raised and disputed; revised and renumbered the section allowing parties to stipulate to an MSA not disposing of an entire cause of action.
Expedited Jury Trials – Expedited Jury Trial Act divided into two separate sections, one for Voluntary EJT’s and one, effective 7/1/16, for Mandatory EJT’s in certain limited cases. Voluntary EJT section remains as before except that the time limit to put on a case is increased from three hours to five hours.
C.C.P. § 998 – revised to limit recovery for both sides to post-offer costs.
Telephone Appearances – C.R.C., Rule 3.670 revised timing of notice of intent to appear telephonically for regular motions and ex parte hearings.
Memorandum of Costs – C.R.C., Rule 3.1700(a)(1) revised so time runs from service by clerk as opposed to mailing.
Added Fresno, Santa Barbara, and Tulare.
C.C.P. § 135 is amended (via the budget trailer bill) to add Native American Day to the list of Gov. Code § 6700 holidays which are not also court holidays.
Five new courts have instituted mandatory or voluntary eFiling: Kern, Kings, Merced, Riverside, and San Luis Obispo.
Gov. Code § 6700 adds “Native American Day” on the 4th Friday of September. Although there was no intent to create a court holiday, one was created by virtue of the fact that C.C.P. § 135 was not concurrently amended.
C.C.P. § 659a is revised to provide that the timing of post-trial motions, oppositions, and replies is uniform: moving papers due 10 days after filing notice of motion; opposition due 10 days after service of moving papers; reply due five days after service of opposition.
Gov. Code § 26720.9 increases the fee for serving a writ to $40.
San Francisco is the first court to open a direct portal for eFiling. It also now mandates eFiling in all General Civil cases (not Limited Unlawful Detainer or Small Claims) after the conventional filing of the complaint.
As of March 1, 2014, the Antelope Valley courthouse began handling filings and pre-trial matters in Personal Injury Court cases (“PI Cases”) within its district.
Regarding motions format: the hearing reservation ID number must be included on the face page of the notice and the receipt for payment of the hearing fee must be attached as the last page of the motion.
C.R.C., Rule 2.101 no longer requires the use of recycled paper.
C.R.C., Rule 3.670, regarding telephone appearances, has been revised in many respects, including timing of notice (reduced from 3 to 2 court days), and a new set of rules authorizing telephone appearances at ex parte hearings by either applicant or opponent, or both, with specific (and confusing) notice requirements due to error by Judicial Council rules committee. Several subsections have been renumbered.
Changes throughout the C.C.P. clarify that the deadline for moving to compel further responses is triggered by the service of verified responses.
Several eFiling and eService rules changed and/or were renumbered. Key changes: (1) any court may make eFiling mandatory in any civil case; (2) eService is mandatory in any case in which eFiling is mandatory; (3) any court can establish a midnight eFiling deadline; (4) self-represented parties are automatically exempt from any mandatory eFiling and eService rules and orders, and self-represented parties can only consent to eService by serving notice that they agree – eFiling a document does not mean consent.
Telephonic appearance fee increased to $86.
Expedited Jury Trials – Two new forms: (1) [Proposed] Consent Order for Expedited Jury Trial [EJT-020]; (2) Attachment to [Proposed] Consent Order for Expedited Jury Trial [EJT-020A].
C.C.P. §631 changes the deadline for making the jury fee deposit.
Government Code § 70616 increases appearance fees, complex case fees and caps, hearing fees, and more.
Many courts have ceased providing court reporters all together or drastically reduced availability of court reporters. It is now up to the parties to determine whether the court will make a court reporter available, and if not, to follow the steps to obtain the appointment of a court reporter pro tempore.
San Francisco Superior Court adds to those cases which must be eFiled: Complex, Single Assignment, and by stipulation.
SUBP-002 – has been renamed “Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and Declaration” and revised to reference ESI and to remind the user that they may specify the format in which ESI is to be produced.
CIV-120 – “Notice of Entry of Dismissal and Proof of Service” has been revised to include electronic service.
EJ-130 – “Writ of Execution” has been revised to conform to the January 2011 changes to C.C.P. § 699.520 relating to the legal entity of the judgment debtor and designating whether the case is limited or unlimited.
C.C.P. § 437c has been revised to add new subsection (s). Generally, motions for summary adjudication (“MSA”) are only to be granted where they will completely dispose of a cause of action, affirmative defense, a claim for damages, or an issue of duty. However, parties may now stipulate to bringing MSA’s that do not do so.
C.C.P. § 116.221 has been revised to increase the jurisdictional limits of small claims court for individuals to $10,000, however, claims for bodily injury in auto accident cases where the defendant is covered by an automobile insurance policy that includes a duty to defend cannot exceed $7,500.
Government Code § 70616 has been revised to clarify that one $550 complex case fee covers all plaintiffs.
On 12/15/11 the Orange County Superior Court issued an Administrative Order requiring documents in breach of contract actions commenced after 1/1/12 to be eFiled.
In October of 2011 the Los Angeles Superior Court developed a set of Voluntary Efficient Litigation Stipulations meant to encourage cooperation between the parties and to assist in resolving issues in a manner that promotes economic case resolution and judicial efficiency.
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SAMMIE L. BROOKINS ET AL.
OWEN B. TABOR, JR., ETAL.
A plaintiff filed a health care liability complaint in 2015 against several physicians and entities that he later non-suited in order to comply with the pre-suit notice requirements set forth in Tenn. Code Ann. § 29-26-121(a). The plaintiff then filed a second complaint against the same defendants, relying on the saving statutes of Tenn. Code Ann. § 28-1-105 and Tenn. Code Ann. § 29-26-121(c) to extend his statute of limitations. The plaintiff's wife joined him as a plaintiff in the second complaint. The defendants filed motions to dismiss, alleging non-compliance with the pre-suit notice requirements and the statute of limitations. The trial court granted all of the defendants' motions and dismissed the complaint. The plaintiffs appealed the trial court's dismissal of the complaint against the physicians. Interpreting the complaint liberally and presuming the truth of plaintiffs' allegations regarding the HIPAA authorizations, we reverse the trial court's dismissal of the complaint against two of the physicians and affirm the dismissal of the complaint against one of the physicians on statute of limitations grounds. We affirm the trial court's judgment dismissing the wife's claims against all of the defendants.
Sammie L. Brookins and Deloris T. Brookins, Memphis, Tennessee, Pro Se.
John O. Alexander, IV, Memphis, Tennessee, and Jennifer Vallor Ivy, Jackson, Tennessee, for the appellee, John D. Fleenor.
Joseph M. Clark and Samantha Erin Bennett, Memphis, Tennessee, for the appellees, Owen B. Tabor, Jr., Margarita Lamothe, and MSK Group, PC.
Andy D. Bennett, J., delivered the opinion of the Court, in which Arnold B. Goldin and Brandon O. Gibson, JJ., joined.
Sammie L. Brookins filed a health care liability complaint on January 29, 2015, against three individuals and five entities based on an alleged failed hip replacement, subsequent infection, and kidney failure that he alleged were a result of the defendants' negligent care. Mr. Brookins failed to provide the defendants with pre-suit notice of a potential claim as required by Tenn. Code Ann. § 29-26-121(a)(1), and several of the defendants filed motions to dismiss based on this oversight. Mr. Brookins filed a notice of voluntary non-suit as to all defendants other than Dr. John Fleenor and St. Francis Hospital Foundation ("St. Francis Hospital") on March 3, and the trial court entered an order of voluntary non-suit as to these other defendants on April 16, 2015. The trial court then dismissed the plaintiffs' complaint against St. Francis Hospital and Dr. Fleenor on September 21, 2015, "for lack of prosecution without prejudice."
Mr. Brookins filed a second complaint against the same defendants for the same acts of negligence on July 6, 2016. Mr. Brookins' wife, Deloris T. Brookins, joined Mr. Brookins as a plaintiff in the 2016 complaint, and she sought damages for loss of consortium as a result of the harm her husband suffered from the defendants' negligence. In the first full paragraph of their complaint, the Brookinses stated that they were filing the complaint pursuant to Tennessee's saving statute, Tenn. Code Ann. § 28-1-105. The Brookinses attached a certificate of good faith to the complaint, and Mr. Brookins also attached an affidavit of mailing notice of claim letters to each of the defendants. Mr. Brookins included copies of the notice of claim letters, each of which were dated November 7, 2015, with his affidavit. He also included copies of HIPAA compliant authorizations dated November 7, 2015, that he certified he provided to the defendants along with the pre-suit notices.
On August 2, 2016, Dr. Owen B. Tabor, Jr., Dr. Margarita Lamothe, and MSK Group, P.C. filed motions to dismiss the complaint on the ground that it was time-barred as a result of the Brookinses' failure to comply with the pre-suit notice requirements set forth in Tenn. Code Ann. § 29-26-121(a)(2)(E). According to these defendants, Mr. Brookins was not permitted to rely on the 120-day extension of the saving statute available under the health care liability act at Tenn. Code Ann. § 29-26-121(c) because he failed to comply with all of the pre-suit notice requirements set forth in the statute. With respect to Mrs. Brookins, these defendants argued her claim was time-barred because she did not file her consortium claim within the applicable one-year statute of limitations.
Dr. John D. Fleenor filed an answer to the complaint as well as a motion to dismiss and/or for summary judgment. According to Dr. Fleenor, the saving statute was not available to Mr. Brookins because the original complaint was never served upon him in accordance with Tennessee Rule of Civil Procedure 3. Dr. Fleenor also contended that the first complaint, filed on January 29, 2015, was time-barred because the negligence Mr. Brookins attributed to Dr. Fleenor occurred more than one year prior to that date. Alternatively, Dr. Fleenor argued the Brookinses failed to comply with the pre-suit notice requirements of Tenn. Code Ann. § 29-26-121(a). With regard to Mrs. Brookins, Dr. Fleenor made the same statute of limitations argument as Dr. Tabor and Dr. Lamothe.
The Brookinses served interrogatories and a request for the production of documents on each of the individual physicians on October 11, 2016. When the defendants failed to respond to the discovery requests, the Brookinses filed a motion to compel discovery. The defendants responded to the motion to compel by stating that the discovery requests were served prematurely. If the trial court granted their motions to dismiss, the defendants argued, the dismissal would be dispositive of any remaining issues in the case.
1. On January 29, 2015, the Plaintiff, Sammie Brookins, acting pro se, filed a complaint against Dr. Tabor asserting a claim for health care liability.
2. On April 16, 2015, the Court entered the Order of Voluntary Non-Suit Without Prejudice as to Dr. Tabor.
3. On or about November 12, 2015, Mr. Brookins sent pre-suit notice to Dr. Tabor giving notice of a potential health care liability claim that may be filed against him by Mr. Brookins and his wife, Deloris Brookins.
4. The pre-suit notice letter sent to Dr. Tabor did not include a HIPAA compliant medical authorization that would allow him to obtain Mr. Brookins' medical records from all other health care providers who were sent notice.
5. The Plaintiffs failed to substantially comply with the pre-suit notice requirements of Tennessee Code Annotated § 29-26-121(a)(2)(E).
6. The Plaintiffs were not entitled to the 120-day extension of the statute of limitations available under Tennessee Code Annotated § 29-26-121(c) to plaintiffs who satisfy the requisite degree of compliance with the requirements of Tennessee Code Annotated § 29-26-121.
7. Under the Tennessee saving statute, Tennessee Code Annotated § 28-1-105, the statute of limitations on Mr. Brookins' claim ran on April 16, 2016.
8. The Plaintiffs' Complaint, which was filed on July 6, 2016, was filed after the lapse of the statute of limitation and is, therefore, time-barred.
9. Plaintiff, Deloris Brookins, was not named as a plaintiff in the action filed on January 29, 2015.
10. The loss of consortium claim of Deloris Brookins is also time-barred by the statute of limitations, as she was made a party for the first time in the July 6, 2016 Complaint.


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The relationship between a professional athlete, his or her professional sports team, and a team physician is legally complex and has inherent potential for conflict. Although a physician should always consider an athlete’s best interest when determining an athlete’s fitness to participate in competitive sport, a physician also has a responsibility to his or her employer to act in the best interest of the team. The dual role of a team physician results in the potential for conflict if a professional sports team and the professional athlete’s best interests do not coincide. The workers’ compensation co-employee doctrine immunizes a professional sports team from vicarious liability in tort for its team physician’s negligence. Recent judicial opinions and legal commentary suggest that the workers’ compensation law barring tort suits between a professional athlete and a co-employee team physician for injuries caused within the scope of employment should not ipso facto confer absolute tort immunity for a physician. The argument being made is that if a team physician breaches the ethical and legal duty to provide the standard of care, the co-employee doctrine should not provide a shield from tort liability for harm caused to professional athletes. Physicians must be aware of legal opinions surfacing in the literature so they can understand that their most prudent approach, no matter what the circumstance, is to practice in a manner in which a professional athlete’s health interest supersedes all other interests.
Present-day judicial opinions and legal commentary suggest that the absolute tort immunity provided under the co-employee doctrine of workers’ compensation law may need limits to encourage the implementation of medical care that, above all other interests, protects the health and safety of professional athletes. Sport- medicine physicians involved as co-employees in the care of professional athletes must be aware of current opinions and commentary to better understand their risk of liability. The shield of workers’ compensation law may not be a fail-safe defense for employed team physicians. Judicial and legal commentary about tort immunity in the context of the co-employee professional sports physician demonstrates why a prudent approach by all professional team physicians, despite their co-employee status, would be to act as a fiduciary where an athlete’s health interest supersedes all other interests.
The most frequent claim raised against a team physician by a professional athlete is negligence. Negligence for sports medicine physicians may arise for 1) allegedly failing to diagnose a medical condition in an athlete, 2) failing to appropriately warn an athlete of a medical condition when the condition is diagnosed, or 3) improperly deeming an athlete medically safe for sports competition when a physician knows or should know of an imposing medical condition that should limit or suspend competition.
To establish a negligence claim, an athlete must prove four elements: first, that a duty of care exists between the athlete and the team physician; second, that the team physician has breached that duty; third, that the breach caused harm to the athlete; fourth, that the athlete has sustained injuries that can be quantified into damages.
The existence of a patient-physician relationship legally establishes a physician’s duty to appropriately diagnose and treat patients. In the environment of sports medicine, this relationship also involves a duty to disclose any material information to an athlete about his or her physical condition and to sufficiently inform an athlete regarding potential risks of participating in the sport. This is, arguably, a variation on the doctrine of informed consent; that is, an athlete must have all available information to make an informed decision to participate in a sport. Team management should expect a sport-medicine physician to discuss with management and athletes the risks and benefits of playing a sport on the basis of a medical evaluation.
Demonstration of a breach of the duty of care requires establishment of the appropriate standard of care. A team physician should consider only an athlete’s best interest when determining an athlete’s fitness to participate in competitive sports. A physician’s determination should be based on a broad range of variables, including 1) the physical demands and intensity of the sport in relation to an athlete’s unique clinical condition; 2) whether an athlete has previously participated in a sport with similar physical demands; 3) all available clinical, personal, and family history and a comprehensive physical examination of an athlete; 4) available medical organization and national conference guidelines pertinent to participation in competitive sports; 5) the probability and potential severity of adverse health events from sports participation, given an athlete’s unique health status; 6) whether medication, monitoring, or protective equipment could mitigate the potential health risks and support safe sports participation; and 7) in the case of minors and young adults, whether an athlete has the capacity to make an informed decision if risks are present (Krueger v. San Francisco Forty Niners, 1987).
The standard of care has evolved as sports medicine has evolved from general medical practice to specialty practice. Supportive of the theory that sports medicine involves specialized practice and a potentially higher standard of care is the publication of guidelines by medical societies and specialty boards which have articulated medical clearance guidelines for use by clinicians making athletic participation recommendations (Maron et al., 1996). Courts have recognized standards and guidelines by national medical associations as evidence of acceptable medical practice (James v. Woolley, 1988).
Expert medical testimony is necessary to establish a breach of the standard of care. For example, an expert may testify that any treatment that benefits the short-term needs of a team but creates long-term damage to a competitive athlete is a breach of duty to an athlete (Keim, 1999).
The burden of proof that the breach caused injury or harm is an athlete’s. A physician’s failure to recognize or failure to warn of potential harm must result in injury to an athlete. Causation requires a nexus between a physician’s negligence and the actual damage an athlete has sustained.
Causation may be reviewed at two levels: 1) cause in fact and 2) proximate cause. Cause in fact occurs when a physician’s action is a cause of the actual harm to an athlete. Proximate cause considers whether a physician’s behavior is a substantial factor in causing the harm an athlete may have incurred as a result of a physician’s actions or inactions. For example, an argument can be made that a physician’s failure to identify risk factors for heat stroke was the proximate cause of an athlete’s death (Lapchick, 2006). Alternatively, failure to disclose the extent of an existing injury could be considered the proximate cause of a further injury (Krueger v. San Francisco Forty Niners, 1987).
Damages may include long-term recovery from an injury and loss of salary or limitations to other work capacity because of inability to play after injury. In the case of an athlete’s death, the claims are typically pursued by an athlete’s estate or surviving kin. It is their responsibility to prove what an athlete’s life may have been worth in order for a court or jury to award damages. Awarding damages is an attempt to make an athlete whole, that is, as though the injury never occurred. Expert medical testimonies, in conjunction with an economic analysis provided by an expert economist, are often necessary to measure damages.
Although negligence is the most frequent claim brought against team physicians, other claims have been successfully and unsuccessfully litigated, including, but not limited to, 1) fraudulent misrepresentation, 2) concealment of medical information, 3) intentional infliction of emotional distress, and 4) when an athlete is not cleared to play, discrimination under the Americans With Disabilities Act (1990) and the Rehabilitation Act (1973). Each of these claims deserves to be evaluated as a unique legal concept, and they are not discussed here.
Is the Shield of Workers’ Compensation Law a Myth for a Physician Employed by a Professional Sports Team?
Workers’ compensation law is state defined. Thus, it varies by jurisdiction. Generally, in the case of an employee injured while acting within the scope of employment, workers’ compensation law is thought to be an efficient and adequate remedy to compensate injured employees without the necessity of proving fault of an employer. The law allows compensation for employees for work-related injuries. In exchange for the absolute requirement to pay injured employees, the law shields employers by setting recovery limits at modest amounts and specifying the remedy provided as the exclusive remedy (Workers’ Compensation Law, 1993). No tort liability is allowed.
A professional athlete is entitled to workers’ compensation benefits for aggravation of an athletic injury caused by the negligent care by a team’s medical personnel. A player whose injury is secondary to negligent medical care or the failure to provide reasonable medical care is barred from recovering tort damages against the team or its employees, including a team physician who has co-employee status (Keim, 1999; Mitten, 2002).
Generally, the exclusivity provided under workers’ compensation law bars all tort claims against physicians employed by professional sports teams. It is likely the defense on which most employed team physicians rely when sued for negligence by an employed athlete.
There is an exception in most jurisdictions for certain common law claims, such as injuries resulting from the fraud or defamation of an athlete by a team physician, team management, or both. Similarly, the exclusivity remedy provisions of the state workers’ compensation laws will not bar a medical malpractice claim against an employer or co-employee team physician for an injury caused by conduct intended to harm an athlete (Hertz, 2001; Mitten, 2002).
Beyond the exceptions carved out for fraudulent and intentional tort claims, some courts’ dissenting opinions, as well as some legal commentaries, argue for the erosion of the shield of workers’ compensation as a fail-safe defense for employed team physicians. One argument is that a special relationship exists between a team physician and a professional athlete, extending the duty of care beyond the duty of a company physician to a company employee. The argument is grounded in the belief that professional sports have elevated economic incentives, and the pressure to win causes a team physician to meet the teams’ immediate needs rather than the health interests of professional athletes. The belief is that potential tort liability creates a legal incentive which urges team physicians not to succumb to the pressures that are inherent in professional sports.
Korey Stringer, a professional football player for the Minnesota Vikings, died from complications of heat stroke during preseason training camp in 2001. His heirs alleged that the Vikings’ team physician provided negligent medical care. In Stringer v. Minnesota Vikings Football Club, LLC (2004), the trial court held that there is no immunity if a co-employee, in this case the team physician, owes a personal duty of care to a fellow employee, namely the football player, which is “not pursuant to the employer’s non-delegable duty to provide a safe workplace.” Thus, the trial court is saying that the employer has a duty to provide a safe workplace for all employees, and beyond that, team physicians have a separate duty of care to football players that goes beyond the owner’s responsibility to provide a safe workplace. Reversing the decision, the Minnesota Supreme Court (Stringer v. Minnesota Vikings Football Club, LLC 2005) subsequently ruled that the Minnesota Vikings team physician’s duty to the professional athlete was fulfilled within the employment relationship and the professional sports team’s effort to provide a safe workplace for its players. Thus, the Minnesota Supreme Court ruled that, in the case of Korey Stringer’s death, the team physician did not have a separate duty of care to the football player beyond that of the team owner to provide a safe workplace. The dissenting opinion for the Minnesota Supreme Court expressed doubt that concealing the duty of a co-employee physician under the umbrella of an owner’s responsibility to provide a safe workplace is a reliable legal remedy when a physician co-employee provides medical care to employees. The dissent also articulated a policy argument stating that extending immunity to co-employee physicians would encourage them to neglect their duties. Of note, dissenting opinions do not define the law but can give authority to an argument supporting a change in the law.
The California case of Hendy v. Losse (1990) raised issues that make the absolute immunity of a co-employee team physician less certain. Hendy explored a dual-capacity theory, that is, when an employer has two separate relationships with employees. An employer, normally shielded from tort liability by the exclusive remedy principle, may become liable in tort to an employee if the employer occupies, in addition to its capacity as employer, a second capacity that confers additional obligations. California courts have long recognized that a physician, as an employee of a company, may operate in the dual capacity of co-employee and physician. In Hendy, a professional football player’s malpractice case against the team physician was allowed to proceed at the trial level on the basis of the dual-capacity doctrine. The California Supreme Court (1991) dismissed the claims, holding that the state’s workers’ compensation laws bar tort suits between co-employees for injuries caused within the scope of employment. However, the Supreme Court stated that if a co-employee provides medical care other than that contemplated by the employee’s employment, the physician co-employee no longer enjoys immunity from tort.
Professional sport-teams physicians in charge of clearing professional athletes for competition and treating professional athletes’ injuries have a complex position with unique responsibilities to athletes. A co-employee professional team physician should be mindful of the best interests of athletes and sustain the appropriate standard of care. If physician negligence is alleged, workers’ compensation laws may shield a physician from tort liability arising from injuries occurring in the course of an athlete’s employment, so long as there is no finding of fraudulent or intentional misconduct. However, the dual-capacity doctrine articulated in Hendy, the dissenting opinion from the Minnesota Supreme Court in the Korey Stringer case, and expert legal commentary should give physicians, acting in the co-employee role for professional sports teams, reason to reflect on their potential liability. A prudent approach-in an attempt to reduce potential for tort liability-would be to understand that, despite the co-employee status of team physicians, all the inherent responsibilities of independent contractor physicians, who are not shielded from tort liability, may apply in a court of law, and an athlete’s medical interest should supersede all competing interests.
Americans with Disabilities Act, 42 USC §§1210 et seq; 1990.
California Supreme Court 819 P.2d 1 (Cal. 1991).
Hendy v. Losse, No. D010557. Court of Appeals of California, 4th appellate District, Division One. 231 Cal. App. 3d 1149; 274 Cal. Rptr. 31; 1990.
Hertz, G. (2001). Professional athletes and the law of workers’ compensation: rights and remedies. Law of Professional and Amateur Sports, 2, 15-1.
James v. Woolley. 523 So. 2d 110, 112 (Ala. 1988).
Keim, T. (1999). Physicians for professional sports teams: Health care under pressure of economics and commercial interests. Seton Hall Journal of Sport Law, 9, 139-58.
Krueger v. San Francisco Forty Niners. 189 Cal. App. 3d 823, 2 Cal. Rptr. 579 (1987).
Lapchick, R. E. Dying for the game. Retrieved June 9, 2006, from http://www.northeastern.edu/csss/rel-article22.html.
Maron, B. J., Thompson, P. D., Puffer, J. C., McGrew, C. A., Strong, W. B., Douglas, P. S., et al. (1996). Cardiovascular preparticipation screening of competitive athletes: A statement for health professionals from the Sudden Death Committee (clinical cardiology) and Congenital Cardiac Defects Committee (cardiovascular disease in the young), American Heart Association. Circulation, 94, 850-856.
Mitten, M. J. (2002). Emerging legal issues: A synthesis, summary, and analysis. St John’s Law Rev, 76, 5.
Mitten, M. J. (2005). Team physicians as co-employees: A prescription that deprives professional athletes of an adequate remedy for sports medicine malpractice. St. Louis Univ Law J, 50.
Rehabilitation Act, 29 USC §§504, 794; 1973.
Stringer v. Minnesota Vikings Football Club, LLC. 686 N.W. 2d 545 (Minn. App. 2004).
Stringer v. Minnesota Vikings Football Club, LLC. 705 N.W. 2d 746, 762 (Minn. 2005).
Workers’ Compensation Law 68.13 (1993).
Young, J. D. (2003). Liability for team physician malpractice: A new burden shifting approach. Rutgers L Rec, 27:4.

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Packaging licensing, collection and disposal is based on national and European laws or regulations relating to all aspects of the closed substance cycle. You will find the most important legal regulations below.
What is the task of a dual system?
The task of a dual system is to organise the collection, sorting and recycling of used system participation obliged packaging and to document this recovery in accordance with the law. The background to this is the product responsibility of manufacturers and distributors for their packaging, as enshrined in the Packaging Act, as well as the ensuing regulation of comprehensive takeback, recovery and deposit obligations. Any company which markets (for the first time) the system participation obliged packaging must take it back free of charge and recycle it after use. For sales packaging and repackaging which is typically generated by the private end-user § 7 (1) sentence 1 Packaging Act provides for compulsory participation in an approved disposal and recycling system pursuant to § 3 (16) Packaging Act (dual system) to fulfill the legal requirements.
BellandVision with its dual system BELLANDDual is recognised throughout Germany by the responsible authorities and organises in accordance with the Packaging Act the nationwide collection of used packaging for private end-users. BellandDual fulfills the packaging obligations for producers and distributors.
What are the specifications for the type and scope of recovery?
Which packaging is system participation obliged?
Packaging is a product made of any material for the reception, protection, handling, supply or presentation of goods which may range from raw materials to processed products. It is passed on by the packaging manufacturer to the final distributor or directly to the end-user via the producer of goods / bottler and, if applicable, different distribution levels.
System participation obliged packaging is sales packaging and repackaging filled with goods which, after use, is typically generated by the private end-user as waste.
In addition, packaging that enables or supports the shipment of goods to the end user (shipment packaging) is sales packaging. A typical example is the shipping carton of an Internet retailer.
Repackaging is packaging which contains a certain number of sales units and is typically offered to the end-user together with the sales units or serves for equipping the shelves.
Which packaging "typically" is generated by private end-user and is therefore considered to be system participation obliged packaging, can in the future be looked up in the catalogue of system participation obliged packaging from the Central Agency. The catalogue is currently only available in a draft version and in German as it will be revised and re-agreed upon after the consultation process is completed.
Who is system participation obliged?
According to § 7 (1) sentence 1 Packaging Act, the manufacturer is responsible for system participation. The manufacturer is the distributor who, for the first time, delivers the packaging filled with goods, which is typically generated by the private end-user, to a third party engaged in commercial transactions, for a charge or free of charge. It includes distributors from stationary trade as well as mail order companies, online retailers and importers who first import the goods into German territory and are legally responsible for the import process. Under certain conditions, a final distributor is also a manufacturer of sales packaging for private label products.
Who is a private end-user?
Private end-users are private households and equivalent sources of waste generation according to § 3 (11) Packaging Act, which do not resell the goods in the form supplied to them.
What is a so-called industry solution?
An industry solution refers to a closed system for the return and recovery of system participation obliged packaging from the equivalent sources of waste generation as in § 3 (11) sentences 2 and 3 Packaging Act. Operators of the industry solution may be one or more manufacturers or even a dual system as a third party. Pursuant to § 8 (1) sentence 2 no. 1 Packaging Act, manufacturers and distributors or third parties who operate an industry solution must provide evidence by means of an expert certificate that an appropriate industry-specific collection structure is set up at all the delivery points supplied that are integrated in an industry solution. An industry is a collective term for companies that produce largely substitutable products or services. An industry solution is thus characterized by including only a group of companies involved in the manufacture or distribution of the same or similar products and services.
What is an equivalent source of waste generation?
An equivalent source of waste generation in accordance with § 3 (11) sentence 2 and 3 Packaging Act is a commercial enterprise or a cultural institution. Due to the comparable disposal requirements and the generation of comparable system participation obliged packaging which is on sale in shops, equivalent sources of waste generation are equated in the Packaging Act to a private end-user. This includes e.g. restaurants, hotels, canteens, administrations, barracks, hospitals, educational institutions, charitable institutions, freelancers and typical cultural institutions such as cinemas, operas and museums and recreational areas such as resorts, amusement parks, sports stadiums and rest areas. This also includes agricultural businesses and craft businesses that have household standard collection containers for paper, cardboard, board and lightweight packaging with no more than a maximum of a 1,100-liter revolving emptying system per material fraction which can be collected in the usual household discharge cycle.
The Completeness Statement (CS) is intended to ensure that manufacturers and distributors comply fully and correctly with their obligation to participate in the system according to § 7 (1) Packaging Act.
According to § 11 of the Packaging Act, manufacturers and distributors who exceed the quantity thresholds of 80 tons of glass or 50 tons of paper, cardboard and board or 30 tons in total over the material types ferrous metals, aluminium, plastic, beverage carton packagings and composites are obliged to submit the CS until 15 May of the following year to the Central Agency. The Central Agency or the competent regional authority may demand at any time, even if these thresholds are not met, that a Completeness Statement is filed.
According to the wording of Section 11 (1) of the Packaging Act, the CS must include "all" sales packaging and repackaging that was first marketed in the previous year.
The type and mass of all packaging and repackaging which has been placed on the market for the first time in the previous calendar year.
The type and mass of all packaging and repackaging which has been placed on the market for the first time in the previous calendar year but that typically didn’t produce waste at households and equivalent sources of waste generation (e.g. hotels, canteens and hospitals).
Information on participation in dual systems with regard to the obliged packaging that was placed on the market in the previous calendar year for the first time.
The type and mass of all packaging and repackaging taken back in the previous calendar year via one or more industry solutions in accordance with § 8 Packaging Act.
The type and mass of all packaging taken back in the previous calendar year pursuant to § 7 (3) Packaging Act.
Information on the fulfilment of the recycling requirements with regard to the sales packaging and repackaging taken back in the previous calendar year pursuant to § 15 (1) Packaging Act.
Information on the fulfilment of the recovery requirement with regard to the packaging taken back in the previous calendar year pursuant to § 7 (3) Packaging Act.
The CS must be checked and confirmed by a registered expert or by a registered public accountant, tax consultant or certified auditor pursuant to § 27 (2) Packaging Act and submitted in electronic form together with the associated test reports to the Central Agency. The confirmation must be provided with a qualified electronic signature in accordance with § 2 of the Signature Act.
The dual systems are obliged to confirm the participating packaging quantities to the manufacturers and distributors involved. Thus, manufacturers and distributors have a claim that the dual system itself confirms their participation, broken down into packaging materials. So there is a claim to the original licensed quantity confirmation of the commissioned dual system. Confirmations from third parties (e.g. brokers) are not a confirmation of licensed quantity within the meaning of § 7 (1) sentence 3.
The responsibility under packaging law for an incorrect, incomplete CS or one not delivered in time remains with the manufacturer or distributor, even if he has commissioned or authorized a third party.
According to § 20 (1) Packaging Act, the dual systems are also required to provide information on the quantities of packaging licensed to them in relation to the respective companies. The assignment to the CS of the manufacturer or distributor is made via the registration number of the manufacturer. The Central Agency compares the reported quantities of the manufacturer with the reported quantities of the dual system. In addition, manufacturers and dual system reports are compared with each other and algorithms are programmed to detect abnormalities.


Argued: December 5 and 6, 1906.
This is a proceeding in the nature of a criminal information in the district court of the United States for the western district of Pennsylvania against the Union Bridge Company, a corporation of Pennsylvania, owning and controlling a bridge across the Allegheny river near where it joins the Monongahela river to form the Ohio river,the Allegheny river being a navigable waterway of the United States, having its source in New York and being navigable in both New York and Pennsylvania.
Stating the matter generally, the Secretary of War found the bridge to be an unreasonable obstruction to the free navigation of the Allegheny river, and required the Bridge Company to make certain changes or alterations in order that navigation be rendered reasonably free, easy, and unobstructed. These alterations, it was charged, the company wilfully failed and refused to make. Hence the present information against it. There was a verdict of guilty, followed by a motion in arrest of judgment, which motion being overruled, the company was sentenced to pay a fine of $5,000. To review that order this writ of error is prosecuted.
The information was based on § 18 of the river and harbor act of March 3d, 1899, which provides: 'That whenever the Secretary of War shall have good reason to believe that any railroad or other bridge now constructed, or which may hereafter be constructed, over any of the navigable water ways of the United States, is an unreasonable obstruction to the free navigation of such waters on account of insufficient height, width of span, or otherwise, or where there is difficulty in passing the draw opening or the draw span of such bridge by rafts, steamboats, or other water craft, it shall be the duty of the said Secretary, first giving the parties reasonable opportunity to be heard, to give notice to the persons or corporations owning or controlling such bridge, so to alter the same as to render navigation through or under it reasonably free, easy, and unobstructed; and in giving such notice he shall specify the changes, recommended by Chief of Engineers, that are required to be made, and shall prescribe in each case a reasonable time in which to make them. If, at the end of such time, the alteration has not been made, the Secretary of War shall forthwith notify the United States district attorney for the district in which such bridge is situated, to the end that the criminal proceedings hereinafter mentioned may be taken. If the persons, corporation, or association owning or controlling any railroad or other bridge shall, after receiving notice to that effect, as hereinbefore required, from the Secretary of War, and within the time prescribed by him, wilfully fail or refuse to remove the same or to comply with the lawful order of the Secretary of War in the premises, such persons, corporation, or association shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by a fine not exceeding five thousand dollars; and every month such persons, corporation, or association shall remain in default in respect to the removal or alteration of such bridge shall be deemed a new offense, and subject the persons, corporation, or association so offending to the penalties above prescribed: Provided, That in any case arising under the provisions of this section an appeal or writ of error may be taken from the district courts or from the existing circuit courts direct to the Supreme Court, either by the United States or by the defendants.' 30 Stat. at L. 1121, 1153, chap. 425, U. S. Comp. Stat. 1901, p. 3545.
Legislation similar in its general character can be found in river and harbor acts passed at previous sessions of Congress. Act of 1884 (23 Stat. at L. 133, 148, chap. 229, U. S. Comp. Stat. 1901, p. 3532); act of April 11th, 1888 (25 Stat. at L. 400, 424, 425, chap. 860, §§ 9, 10); and act of September 19th, 1890 (26 Stat. at L. 426, 453, chap. 907, §§ 4, 5). Finally, we have the act of March 23d, 1906 (34 Stat. at L. 84, chap. 1130, §§ 4, 5), which covers the same ground as the act of 1899 under which the present information was filed.
The matter was referred by the Secretary of War to the proper officers of the Engineer Corps of the Army for examination and report. Such examination was had upon notice to the Bridge Company, and, under date of December 8th, 1902, Capt. Sibert, cap tain of engineers, who conducted the examination, reported and recommended to the Chief of Engineers that the company be given notice to make certain alterations in its bridge.
In the opinion of the district court, delivered on a motion in arrest of judgment, it was said: 'The obstruction here involved consists of a bridge over the Allegheny river just above its junction with the Monongahela at Pittsburgh. The Allegheny river rises in Pennsylvania, flows north into New York state, and thence back into Pennsylvania. The latter state, by act of March 21, 1798 (3 Smith's Laws, p. 320), enacted the Allegheny, from the New York state line to its mouth, a navigable stream, and the state of New York, by act of March 31, 1807, did likewise in its counties of Genesee and Allegheny. The Allegheny is the principal branch of the Ohio, its volume being six times greater than that of the Monongahela. It is included in the general plan for the improvement by the national government of local interstate waterways and the harbor of Pittsburg. The government has built, or has now in process of construction, a system of locks and dams on the Allegheny which will slackwater the stream for 27 miles from its mouth. The Davis Island dam, situate 5 miles below Pittsburg, on the Ohio river, raises the water in the Allegheny and Monongahela at their junction 6 feet above their normal depths, and backs its water to the first dams of the Allegheny and Monongahela slackwater systems respectively. These waters form the harhor of Pittsburg, the importance of which harbor will be appreciated from the fact that the tonnage in water transportation passing from it the past year exceeded that of the Suez canal for the same period. From its size, interstate relation, and its being a part of this really great harbor, it will be seen that the Allegheny answers the requirement of a navigable stream (The Montello United States v. The Montello, 11 Wall. 411, 20 L. ed. 191), and is also one over which the national government has assumed jurisdiction. The Union bridge is a pier-supported, wooden structure; it crosses from Pittsburg to Allegheny City; and is the first bridge on the Allegheny.' 143 Fed. 378.
Assistant to the Attorney General Purdy for defendant in error.
The first principal question raised by the defendant is whether the 18th section of the river and harbor act of March 3d, 1899, is in violation of the Constitution of the United States as delegating legislative and judicial powers to the head of an executive department of the government. This question, the government contends, has been determined in its favor by the principles heretofore announced by this court, and need not be discussed as if now presented for the first time. In its judicial as well as legal aspects the question is of such importance as to justify a full reference to prior decisions.
It would seem too clear to admit of serious doubt that the statute under which the Secretary of War proceeded is in entire harmony with the principles announced in former cases. In no substantial, just sense does it confer upon that officer, as the head of an executive department, powers strictly legislative or judicial in their nature, or which must be exclusively exercised by Congress or by the courts. it has long been the policy of the government to remove such unreasonable obstructions to the free navigation of the water ways of the United States as were caused by bridges maintained over them. That such an object was of common interest and within the competency of Congress, under its power to regulate commerce, everyone must admit: for commerce comprehends navigation, and therefore to free navigation from unreasonable obstructions is a legitimate exertion of that power. Gibbons v. Odgen, 9 Wheat. 1, 189, 190, 6 L. ed. 23, 68, 69. As appropriate to the object to be accomplished, as a means to an end within the power of the national government, Congress, in execution of a declared policy, committed to the Secretary of War the duty of ascertaining all the facts essential in any inquiry whether particular bridges, over the water ways of the United States, were unreasonable obstructions to free navigation. Beyond question, if it had so elected, Congress, in some effective mode and without previous investigation through executive officers, could have determined for itself, primarily, the fact whether the bridge here in question was an unreasonable obstruction to navigation, and, if it was found to be of that character could, by direct legislation, have required the defendant to make such alterations of its bridge as were requisite for the protection of navigation and commerce over the water way in question. But investigations by Congress as to each particular bridge alleged to constitute an unreasonable obstruction to free navigation, and direct legislation covering each case, separately, would be impracticable, in view of the vast and varied interests which require national legislation from time to time. By the statute in question Congress declared in effect that navigation should be freed from unreasonable obstructions arising from bridges of insufficient height, width of span, or other defects. It stopped, however, with this declaration of a general rule, and imposed upon the Secretary of War the duty of ascertaining what particular cases came within the rule prescribed by Congress, as well as the duty of enforcing the rule in such cases. In performing that duty the Secretary of War will only execute the clearly-expressed will of Congress, and will not, in any true sense, exert legislative or judicial power. He could not be said to exercise strictly legislative or judicial power any more, for instance, than it could be said that executive officers exercise such power when, upon investigation, they ascertain whether a particular applicant for a pension belongs to a class of persons who, under the general rules prescribed by Congress, are entitled to pensions. If the principle for which the defendant contends received our approval the conclusion could not be avoided that executive officers, in all the departments, in carrying out the will of Congress, as expressed in statutes enacted by it, have, from the foundation of the national government, exercised, and are now exercising, powers as to mere details, that are strictly legislative or judicial in their nature. This will be apparent upon an examination of the various statutes that confer aothority upon executive departments in respect of the enforcement of the laws of the United States. Indeed, it is not too much to say that a denial to Congress of the right, under the Constitution, to delegate the power to determine some fact or the state of things upon which the enforcement of its enactment depends, would be 'to stop the wheels of government' and bring about confusion, if not paralysis, in the conduct of the public business.
To this may be added the consideration that Congress, by the act of 1899, did not invest the Secretary of War with any power in these matters that could reasonably be characterized as arbitrary. He cannot act in reference to any bridge alleged to be an unreasonable obstruction to free navigation without first giving the parties an opportunity to be heard. He cannot require any bridge of that character to be altered, even for the purpose of rendering navigation through or under it reasonably free, easy, and unobstructed, without giving previous notice to the persons or corporations owning or controlling the bridge, specifying the changes recommended by the Chief of Engineers, and allowing a reasonable time in which to make them. If, at the end of such time, the required alterations have not been made, then the Secretary is required to bring the matter to the attention of the United States district attorney in order that criminal proceedings may be instituted to enforce the act of Congress. In the present case all the provisions of the statute were complied with. The parties concerned were duly notified and were fully heard. Nor is there any reason to say that the Secretary of War was not entirely justified, if not compelled, by the evidence, in finding that the bridge in question was an unreasonable obstruction to commerce and navigation as now conducted.
The propositions are combated by the government, which contends that the alterations or changes required to secure navigation against an unreasonable obstruction is not a taking of private property for public use within the meaning of the Constitution, and that the cost of such alterations or changes is to be deemed incidental only to the exercise of an undoubted function of the United States, when exerting, through Congress, its power to regulate commerce among the states, and therefore navigation upon the water ways on and over which such commerce is conducted.
A leading case upon this subject is Gibson v. United States, 166 U. S. 269, 271, 41 L. ed. 996, 998, 17 Sup. Ct. Rep. 578, 579, et seq. Congress, by the river and harbor acts of 1884 and 1886 (23 Stat. at L. 133, 147, chap. 229, U. S. Comp. Stat. 1901, p. 3524, 24 Stat. at L. 316, 327, chap. 929), authorized and directed the improvement of the Ohio river, and made appropriations to effect that object. Under the authority of the Secretary of War, and the Engineer Corps of the Army, a dike was constructed in that river for the purpose of concentrating the water-flow in the main channel of the river, near Neville island. The dike began at a certain point on the island. Its construction substantially destroyed the landing on and in front of a farm, owned by Mrs. Gibson, on that island, preventing, during most of the year, free egress and ingress from and to such farm to the main or navigable channel of the river. At the time of the construction of the dike that farm was in high state of cultivation, well improved, with a dwelling house, barn, and outbuildings. It had a frontage of a thousand feet on the main navigable channel, and the owner had a landing there which was used in the shipping of products from and supplies to her farm, and was the only one from which such products and supplies could be shipped. Before the construction of the dike the farm, by reason of the use to which it was put, was worth $600 per acre. The obstruction caused by the dike reduced its value to $150 or $200 per acre, resulting in damages to the owner in excess of $3,000. Suit was brought against the United States in the court of claims to recover such damages. That court found, as a conclusion of law, that the owner was not entitled to recover.
Do the principles announced in the above cases require us to hold, in the present case, that the making of the alterations of its bridge specified in the order of the Secretary of War will be a taking of the property of the Bridge Company for public use? We think not. Unless there be a taking, within the meaning of the Constitution, no obligation arises upon the United States to make compensation for the cost to be incurred in making such alterations. The damage that will accrue to the Bridge Company, as the result of compliance with the Secretary's order, must, in such case, be deemed incidental to the exercise by the government of its power to regulate commerce among the states, which includes, as we have seen, the power to secure free navigation upon the water ways of the United States against unreasonable obstructions. There are no circumstances connected with the original construction of the bridge, or with its maintenance since, which so tie the hands of the government that it cannot exert its full power to protect the freedom of navigation against obstructions. Although the bridge, when erected under the authority of a Pennsylvania charter, may have been a lawful structure, and although it may not have been an unreasonable obstruction to commerce and navigation as then carried on, it must be taken, under the cases cited, and upon principle, not only that the company, when exerting the power conferred upon it by the state, did so with knowledge of the paramount authority of Congress to regulate commerce among the states, but that it erected the bridge subject to the possibility that Congress might, at some future time, when the public interest demanded, exert its power by appropriate legislation to protect navigation against unreasonable obstructions. Even if the bridge, in its original form, was an unreasonable obstruction to navigation, the mere failure of the United States, at the time, to intervene by its officers or by legislation and prevent its erection, could not create an obligation on the part of the government to make compensation to the company if, at a subsequent time, and for public reasons, Congress should forbid the maintenance of bridges that had become unreasonable obstructions to navigation. It is for Congress to determine when it will exert its power to regulate interstate commerce. Its mere silence or inaction when individuals or corporations, under the authority of a state, place unreasonable obstructions in the water ways of the United States, cannot have the effect to cast upon the government an obligation not to exert its constitutional power to regulate interstate commerce except subject to the condition that compensation be made or secured to the individuals or corporation who may be incidentally affected by the exercise of such power. The principle for which the Bridge Company contends would seriously impair the exercise of the beneficent power of the government to secure the free and unobstructed navigation of the water ways of the United States. We cannot give our assent to that principle. In conformity with the adjudged cases, and in order that the constitutional power of Congress may have full operation, we must adjudge that Congress has power to protect navigation on all water ways of the United States against unreasonable obstructions, even those created under the sanction of a state, and that an order to so alter a bridge over a water way of the United States that it will cease to be an unreasonable obstruction to navigation will not amount to a taking of private property for public use for which compensation need be made.
Independent of the grounds upon which we thus place our decision, it is appropriate to observe that the conclusion reached finds support in the charter of the Bridge Company and in the law of Pennsylvania, as declared by its highest court. The charter of the company, as we have seen, expressly warned the company that its bridge must not obstruct navigation,that is, in legal effect, navigation as it then was, or might be, at any subsequent time. In Dugan v. Bridge Co. 27 Pa. 303, 309, 311, 67 Am. Dec. 464, we have the case of a bridge company on which was conferred the franchise to erect and maintain a toll-bridge across Monongahela river, coupled, however, with the condition that such bridge should not be erected 'in such manner as to injure, stop, or interrupt the navigation of such river by boats, rafts, or other vessels.' The supreme court of Pennsylvania interpreted these words as meaning that 'the bridge was to be so built as not to injure, stop, or interrupt the navigation, either then or now, whether in its infancy or full growth.' The same general question arose in Chicago, B. & Q. R. Co. v. Illinois, 200 U. S. 589, 50 L. ed. 607, 26 Sup. Ct. Rep. 348. This court held that the adjudged cases 'negative the suggestion of the railway company that the adequacy of its bridge and the opening under it for passing the water of the creek at the time the bridge was constructed determine its obligations to the public at all subsequent periods. In Cooke v. Boston & L. R. Corp. 133 Mass. 185, 188, it appeared that a railroad company had statutory authority to cross a certain highway with its road. The statute provided that if the railroad crossed any highway it should be so constructed as not to impede or obstruct the safe and convenient use of the highway. And one of the contentions of the company was that the statute limited its duty and obligation to provide for the wants of travelers at the time it exercised the privilege granted to it. The court said: 'The legislature intended to provide against any obstruction of the safe and convenient use of the highway for all time; and if, by the increase of population in the neighborhood, or by an increasing use of the highway, the crossing, which, at the outset, was adequate, is no longer so, it is the duty of the railroad corporation to make such alteration as will meet the present needs of the public who have occasion to use the highway.' In Lake Erie & W. R. Co. v. Cluggish, 143 Ind. 347, 42 N. E. 743, the court said (quoting from Lake Erie & W. R. Co. v. Smith, 61 Fed. 885): 'The duty of a railroad to restore a stream or highway way which is crossed by the line of its road is a continuing duty; and if, by the increase of population or other causes, the crossing becomes inadequate to meet the new and altered conditions of the country, it is the duty of the railroad to make such alterations as will meet the present needs of the public.' So, in Indiana ex rel. Muncie v. Lake Erie & W. R. Co. 83 Fed. 284, 287, which was the case of an overhead crossing lawfully constructed on one of the streets of a city, the court said: 'If, by the growth of population or otherwise, the crossing has become inadequate to meet the present needs of the public, it is the duty of the railroad company to remedy the defect by restoring the crossing so that it will not unnecessarily impair the usefulness of the highway." Some stress was laid in argument upon the fact that compliance with the order of the Secretary of War will compel the Bridge Company to make a very large expenditure in money. But that consideration cannot affect the decision of the questions of constitutional law involved. It is one to be addressed to the legislative branch of the government. It is for Congress to determine whether, under the circumstances of a particular case, justice requires that compensation be made to a person or corporation incidentally suffering from the exercise by the national government of its constitutional powers.
FEDERAL RADIO COMMISSION v. NELSON BROS. BOND & MORTGAGE CO. (Station WIBO). SAME v. NORTH SHORE CHURCH (Station WPCC). FEDERAL RADIO COMMISSION et al. (Station WJKS) v. NELSON BROS. BOND & MORTGAGE CO. (Station WIBO). SAME v. NORTH SHORE CHURCH (Station WPCC).
DELAWARE, LACKAWANNA, & WESTERN RAILROAD COMPANY, Plff. in Err., v. UNITED STATES OF AMERICA.
SOUTHERN PAC. CO. et al. v. OLYMPIAN DREDGING CO.
CINCINNATI, INDIANAPOLIS, & WESTERN RAILWAY COMPANY, Plff. in Err., v. CITY OF CONNERSVILLE.
LOUISVILLE BRIDGE COMPANY, Appt., v. UNITED STATES.