CASE NAME: FCF S.A. v. Adriafil Commerciale S.r.l.
[*] Section C.5 of the judgment is highlighted because it contains the Court's only reference to the CISG in this case: it refers to the discussion of the [seller]'s appeal against the cantonal Appellate Court decision to reject the [seller]'s argument for exemption from liability for failure to perform his contractual obligations, under Article 79 CISG.
COURT COMPOSITION: M.M. Walter, President; Corboz, Judge; Pagan, Substitute Judge. Clerk of the Court: Ramelet. PARTIES and COUNSEL: FCF S.A., of Geneva, Switzerland, Defendant and Appellant, [seller], represented by Me Michel Amaudruz, Lawyer in Geneva, v. Adriafil Commercial S.r.l., of Rimini, Italy, Claimant and Appellee, [buyer], represented by Me Le Houelleur, Lawyer in Geneva.
In a matter of: Art. 9 Cst.; Civil Procedure.
Judgment concerning an appeal raised by [seller] against the judgment rendered on 18 February 2000, by the Appellate Court of the Canton of Geneva, regarding a dispute between [seller] and [buyer].
a) Intervening for the [buyer], an Italian company with its registered office in Rimini, Italy, a company under Italian law, Vieffe S.r.l. (hereinafter: Vieffe), located at Milan, Italy, sent, on 15 February 1994, to [seller], a Swiss company for which Vieffe was an agent, a proposal of Order No. 28 concerning the purchase by [buyer] of four times five tons of cotton, goods to which the quality and place of delivery had been specified. The goods were to be delivered between 25 May and 5 June 1994, payment to be made by letter of credit due sixty days after the date of customs clearance.
- 5,000 kg +/- 10% of cotton Ne 30/1 for �IT 5,510 / kg.
The contract stipulated that the loading of the goods must take place in a harbor in Egypt during the month of May 1994.
On 14 April 1994, Vieffe sent to [seller] a new proposal, Order No. 69, concerning the purchase by [buyer] of twenty tons of cotton thread with delivery at the end of August, payment due sixty days after customs clearance.
- 5,000 kg +/- 10% of cotton Ne 30/1 for �IT 6,850 / kg.
The loading was planned for the month of August 1994, payment due in sixty days.
The total goods included in the order were according to these two contracts, "cotton GIZA 75 on cone with Q.D.R. 5,57 non parafiné, raw".
b) On 27 April 1994, [seller] sent an acknowledgement by fax to [buyer] advising that the Egyptian authorities had imposed on the weaving mill of the country an increase in the price of cotton between 8.5% and 9% and that [buyer] was obliged to pay an increase of 8% in the price of sale. On 2 May 1994, [seller] sent to [buyer] a second message asking [buyer] to accept and confirm the increase of prices decided by the contract of 2 March 1994 by 6%, which represented �IT 5,790 / kg for the cotton Ne 8/1, 12/1 and 16/1 and �IT 5,840 / kg for the cotton Ne 30/1. [Buyer] accepted the increase of 6%.
c) On 3 June 1994, [buyer] was surprised to be informed that, after the delay taken by the [seller], both the agreement of 2 March and that of 14 April 1994 would not be respected. After having explained that this had the consequence of limiting [buyer]'s ability to fulfil its own contractual obligations, [buyer] invited [seller] to perform the contract. [Buyer] also asked to be informed exactly which goods would be delivered and reserved the possibility of legal action in case of non-performance.
Receiving no answer to this letter, [buyer] informed [seller] on 27 June 1994 that, concerning the goods of the contract of 2 March 1994, [buyer] was forced to purchase substitute goods from other suppliers at a more expensive price. Insistent especially upon the damage caused to its reputation, [buyer] valued its damages at �IT 100,000,000 and asked for compensation by [seller]. [Buyer]'s written document of 27 June 1994 was not a letter of termination from the [buyer], but an incentive for the [seller] to execute its obligations.
On 30 June 1994, Vieffe informed [buyer] that the "thread" contained in the contract of 2 March 1994 could be delivered during the month of July 1994 against payment by letter of credit due in sixty days.
On 8 July 1994, [buyer] wrote to [seller] that it had taken note that [seller] was ready to deliver during the month of July, the total quantity of the goods contained in the two contracts, and that [buyer] was happy with this result as far as the contract of 14 April 1994 was concerned. However, [buyer] stated that it could not accept the delivery of cotton contained in the contract of 2 March 1994 for the reasons explained in [buyer]'s letter of 27 June 1994. [Buyer] noted that if it had waited for an answer from [seller] before purchasing substitute goods from other suppliers, the damages for which it would be asking reparation would have been more significant.
On 23 July 1994, quantities of 6,357 kg and 5,697 kg of cotton Ne 16/1 and also 6,745 kg and 6,085 kg of cotton Ne 8/1 were loaded at Alexandria by [seller], and unloaded at Genoa on 7 August 1994. These goods corresponded little to the goods described in the contract of 14 April 1994.
After 7 August 1994, the parties had not established contact in relation to the delivery of cotton.
d) Between 31 May 1994 and 30 August 1994, [buyer] ordered elsewhere 47,243 kg of cotton of several categories to replace the undelivered cotton ordered from [seller]. 35,197 kg of the same quality cotton ordered in the earlier contracts concluded with [seller], were ordered on 7 July and 30 August.
In the purchase made on 7 July 1994, of 10,197 kg of cotton at an average price of �IT 6,500 / kg, which related to the contract of 2 March 1994, there was a difference of �IT 700 per kg in comparison with the price fixed after the increase of 6% at �IT 5,800 / kg. The increase of the cost represented �IT 7,137,900 (10,197 kg x �IT 700).
In the purchase concluded on 30 August 1994, amounting to 25,000 kg of cotton at an average price of �IT 7,640 / kg, which related to the contract of 14 April 1994, there was a difference of �IT 1,492 / kg in comparison with the increased price of this contract of �IT 6,148 / kg. Therefore, [buyer] paid an extra �IT 29,840,000 in comparison with the purchase of 20 tons of cotton stipulated in the previous contract (20,000 kg x �IT 1,492).
[Buyer] was able to acquire 35,197 kg of replacement cotton of the same quality; thus, 4,803 kg less of what was decided in the contracts. [Buyer] resold 31,000 kg, making a profit of �IT 17,000 / kg. The loss caused by the 4,803 kg that was missing was therefore �IT 81,651,000 (4,803 kg x �IT 17,000).
Founded on the fact that no quantity of cotton had been delivered, [buyer] claimed from [seller], on 21 October 1994, the payment of the sum of �IT 334,527,898.
On 5 December 1994, [buyer] notified [seller] that it would commence a lawsuit, and, on 5 April 1995, it brought an action against [seller], claiming the payment of Sf [Swiss francs] 238,000.60 (�IT 294,925,126). [Buyer] claimed against the [seller] that [seller] had breached its contractual obligations by not delivering the cotton included in the contracts of 2 March and 14 April 1994, conduct which, first, forced the [buyer] to purchase replacement goods with an increase of �IT 127,983,126 in the price, and to indemnify [buyer]'s clients, for �IT 52,800,000, and second, caused [buyer] a loss of profit of �IT 104,142,000 and commercial damage of �IT 10,000,000.
The [seller] replied that the [buyer] had unilaterally cancelled the contracts and, additionally, that the loss claimed was neither justified nor proven.
By judgment on 20 May 1999, the Court of First Instance [District Court of Geneva] held that the [seller] is in debt towards the [buyer] in the total amount of �IT 232,125,126 plus interest at the rate of 5% from 16 July 1994. Upon establishing the liability of the [seller] in view of the non-performance of the contracts, the Court of First Instance ordered the [seller] to indemnify the [buyer] for the loss it suffered.
By judgment on 18 February 2000, the Appellate Court of the Canton of Geneva, ruled on an appeal made by the [seller], partly quashing the judgment of the Court of First Instance on 20 May 1999; it ordered [seller] to pay to [buyer] Sf 95,720 plus interest at the rate of 5% from 5 December 1994, and ordered the withdrawal.
In substance, the cantonal Appellate Court declared applicable the United Nations Convention on Contracts for the International Sale of Goods, concluded in Vienna on 11 April 1980 (CVIM [*], RS 0.221.211.1).
The cantonal Appellate Court recognized that the [buyer], who had never received the goods ordered by the contract of 2 March 1994 in the period of time fixed by article 33(b) CISG, validly avoided the contract by the letter of 8 July 1994.
Concerning the contract of 14 April 1994, the cantonal Appellate Court considered that, on 8 July 1994, [buyer] had noted without protest that the goods would be deliverable during the month of August 1994. Many tons of cotton Ne 16/1 and 8/1 had been unloaded in Genoa on 7 August 1994 by the [seller]; nonetheless, these goods corresponded only partly to the subject matter of the contract, which required the delivery of cotton Ne 8/1, 12/1, 16/1, 20/1 and 30/1. [Seller] did not succeed in establishing an offer to [buyer] for the cotton that arrived at Genoa, nor did it ask the [buyer] to take delivery.
The cantonal Appellate Court concluded that the [seller] had given up fulfilling its obligations and that it could not complain of the fact that [buyer] considered the contract as not being performed. The Appellate Court referring to articles 45(1), 74 and 75 CISG, noted that [buyer] had a right to claim damages and interest for replacement purchases of substitute goods that [buyer] had made since the month of July 1994; the damage represented �IT 7,137,900 and �IT 29,840,000; thus, a total of �IT 36,977,900. Concerning the loss of profit, it was �IT 81,650,000. Nonetheless, the Appellate Court held that the [buyer] did not render proof that it had indemnified some subcontractors, or proof of loss of any clients. The damage justified was therefore �IT 118,627,900; i.e., Sf 95,720.15 at the exchange rate of the day of filing the [buyer]'s claim.
The [seller] resorted to the Federal Supreme Court by raising an appeal in public law, as well as an appeal for reversal. With regards to the appeal in public law, the [seller] sought the annulment of the judgment rendered by the cantonal Appellate Court.
The cantonal Appellate Court rejected the [seller]'s appeal for reversal, as well as to confirm the judgment challenged.
a) Pursuant to the general rule in Art. 57(5) OJ, firstly, it should be discussed whether the appeal in public law is appropriate in the present case.
b) Appealing in public law to the Federal Supreme Court may be employed against cantonal decisions that violate constitutional rights of its citizens (Art. 84(1)(a) OJ).
The judgment rendered by the cantonal Appellate Court, which is a final decision, is not subject to any other means of ruling, whether in the federal or cantonal instances, in the matter which the [seller] claims direct violation of constitutional rights. Therefore, the subsidiary rule concerning appeals in public law is respected (Arts. 84(2) and 86(1) OJ). On the other hand, if the [seller] claims a matter of applicability of federal law, then the claim should not be accepted, since such matter may be discussed by means of an appeal for reversal (Arts. 43(1) and 84(2) OJ).
The [seller] is personally affected by the judgment challenged herein, which orders the [seller] to make payment. Therefore, the [seller] has personal, legal and current interest in assuring that the judgment is not enforced in violation of its constitutional rights. In view of that, the [seller] has standing right to appeal such decision (Art. 88 OJ).
c) When considering appeals in public law, the Federal Supreme Court will solely examine the constitutional matters as claimed with sufficient grounds for appealing (Art. 90(1)(b) OJ; ATF 125 T consid. 1b and the references; cf. equally, ATF 110 Ia 1 consid. 2a).
Initially, the [seller] pleaded to the cantonal Appellate Court to refrain from proceeding an arbitrary examination of the evidence in the case.
a) aa) In accordance with the jurisprudence, an arbitrary judgment may result not only from the fact that another solution could be considered or even that such different solution is preferable. The Federal Supreme Court recognizes that a challenged judgment is obviously unsustainable when it is in clear contradiction with the facts and it seriously violates an indisputable rule or legal principle and also clashes with the ideas of justice and equality. However, in order to have a judgment annulled, it is necessary that (i) the reasoning rendered is unsustainable, as well as that (ii) the results of such judgment are found to be arbitrary (ATF 125 I 166 consid. 2a; 125 II 10 consid. 3a; 129 consid. 5b; 124 I 247 consid. 5g; 124 V 137 consid. 2b).
With regards to the evaluation of evidence, the judgment will be deemed arbitrary if (i) the judge takes in consideration evidence that clearly violates the rules of fact finding; or (ii) the judge refrains from accepting any evidence that is important to obtain the reversal of a challenged decision without sustainable reasoning; or (iii) the judge unreasonably rejects evidence raised from the fact finding (cf. ATF 120 Ia 31 consid. 4b; 118 Ia 28 consid. 1b).
bb) It shall be outlined, however, that the [seller]'s memorandum of appeal lacks the requirements of reasoning prescribed under Art. 90(1)(b) OJ [*], since the [seller] claims the arbitrary condition of the challenged judgment without providing sufficient argumentation to allow the court to recognize such arbitrary condition in the challenged decision. Thus, the acceptability of such claim is doubtful. In view of that, the disputed matter may remain undecided since no reasoning at all has been provided to support such claim.
b) The [seller] contends that the cantonal Appellate Court has taken as indisputable the contents of document No. 20, submitted by the [buyer], which suggests that the cotton in question has been resold by [buyer] for the amount of 31,000 �IT/kg. However, such document does not mention the type of cotton it relates to. Additionally, the [seller] contends that depending on the way the cotton is industrialized, the price may have been a lot less than 31,000 �IT/kg, for the same type of cotton.
The document referred to above is a contract entered into with the [buyer] on 27 April 1994. Although the specifications of the goods sold is clearly indicated thereon, the amount of 31,000 �IT/kg refers to the cotton 16/3, 8/3, and 12/3. Moreover, the [seller] has not submitted any documentation that could support its contention that the cotton could have been sold for a price lower than the amount referred to above.
Such claim is merely appellative; thus, it does not deserve deep analysis.
c) The [seller] contends that the cantonal Appellate Court arbitrarily mentioned in its judgment of the appeal for reversal that the letter issued by the [buyer] on 8 July 1994 constitutes the termination of the agreement executed by the parties on 2 March 1994, so the purchase of cotton by the [buyer] on 7 July 1994 should be considered for replacement purposes.
However, such claim by [seller] is not consistent. On one hand, the terms of the letter challenged are clear, as the [buyer] makes its point in refusing to accept the goods that are the object of the agreement of 2 March 1994. On the other hand, on 27 June 1994, the [buyer] had notified the [seller] that, among other actions, [buyer] had contacted other suppliers due to the failure of the [seller] to perform. Whatever the [seller] had concluded from such notifications, those circumstances should not prevent the [buyer] from expecting that, until 8 July 1994, the sale agreement would be performed, so that the [buyer] could make use of the cotton ordered with the [seller]. Moreover, the [buyer] should be allowed to manage its stock as it pleases.
The [seller]'s claim herein has been found to be reckless.
The [seller] contends that the cantonal Appellate Court has applied in an arbitrary manner Article 186 of the Civil Procedure Law of Geneva (LPC gen.), which regulates the burden of proof, in view of the fact that the cantonal Appellate Court has accepted the documents from 5 to 19, submitted by the [buyer], as having due evidential value, even though the [seller] challenged those documents in its memorandum dated 2 November 1995.
Although the [seller] outlines the alleged inconsistency, the [seller] has indicated neither the nature of the documents mentioned above, nor the reasons why those documents should not be given evidential value.
Nevertheless, whether this Court decides to examine the merit of such claim, it should be taken into consideration that the [seller], in its memorandum dated 2 November 1995, page 11, has challenged those documents in a general way, without specifically mentioning the reasons for taking that position.
Yet, in view of the lack of accuracy in the [seller]'s contention, it is impossible to acknowledge the facts reported thereon, whether based on Art. 186(1) of LPC gen. (cf. Bertossa/Gaillard/Guyet/Schmidt, Commentaire de la loi de procedure civile genevoise, n. 3 ad Art. 186 LPC gen.); or under Art. 126(3) LPC gen., which provides that silence or an evasive response may be considered a confession (Bertossa/Gaillard/Guyet/Schmidt, op. cit., n. 4 ad Art. 126 LPC gen.) In fact, such accuracy requirement exists primarily to enable the adversary party to submit evidence of the contrary (Bertossa/Gaillard/ Guyet/Schmidt, op. cit, n. 2 ad Art. 126 LPC gen.). In particular, the general challenge raised by the [seller], upon reviewing the documents challenged, has not enabled the [buyer] to submit further documentation, or to call witnesses in an efficient manner, once the [buyer] could not identify what were the issues challenged by the [seller] in connection with the documents.
Lastly, it should be also considered that as such documents relate to the contents of the contracts executed by the [buyer] with other companies, it is not unreasonable to accept them as evidence of existence of the aforementioned agreements. Therefore, the allegations made by [seller] are unacceptable as to allow the interpretation that such agreements do not correspond to reality, that they are fictitious, or that they have not been executed (Bertossa/ Gaillard/ Guyet/ Schmidt, op. cit., n. 4 ad art. 186 LPC gen.).
According to the [seller], the cantonal Appellate Court applied Art. 126 of LPC gen. in an arbitrary manner because it accepted that the [buyer] has contended, without contradicting itself, that [buyer]'s net profit rate, upon payment of the costs, dying, grouping into smaller quantities, packing, and transport, amounted to 17,000 �IT/kg of cotton. The [seller] refers to its memorandum in pages 2 and 4.
Once again, the contention made by the [seller] totally lacked precision. In particular, the [seller] generally alleged that the [buyer] counted in double, if not triple, or even four times certain mail indicating its claimed damages, as well as its silence resulted in the interpretation that the cotton order should be taken as a mere reservation, considering that the modifications and restrictions imposed by the Egyptian authorities have not been attended.
In view of such nebulous and improper way of reporting the circumstances, it was not been possible for the [buyer] to submit a proof of contraire, because the [buyer] was not able to determine the issues in relation to which it should submit contradicting documents, or call up witnesses in its defense. Taking into consideration item 3 above, this claim by [seller] has been rejected.
Lastly, the [seller] contended that the cantonal Appellate Court denied it justice. According to the [seller], the cantonal Appellate Court remained silent with regards to one of the pleadings made by the [seller] in connection with the existence of an impossibility of performance beyond [seller]'s control in the terms of Art. 79 CVIM [*].
Accordingly, the [seller] contends that, in fact, the reasoning of the cantonal Appellate Court challenged decision was insufficient. Since [seller] has not pleaded the violation of rules of cantonal law, such issue should be examined in light of Art. 29(2) Cst., which allows the Federal Court to examine freely whether the minimum guarantees afforded by Constitutional Law have been respected (cf. ATF 125 I 257 consid. 3a and other judgments mentioned).
a) The jurisprudence has inferred from the right to be heard that courts should provide reasoning for their decisions, in order to enable the interested party to comprehend any decision and to reasonably challenge such decision where appropriate, and to allow appellate courts to exercise their reviewing powers (ATF 126 I 15 consid. 2s/ss, 97 consid. 2b; 125 II 369 consid. 2e; 124 II 146 consid. 2a). In accordance with the jurisprudence, it is sufficient that the judge mentions, at least briefly, the reasons that guided him and those facts upon which he has based his decision. There is no need to indicate and discuss all the facts, means of evidence and pleadings made by the parties. The reasoning may be limited to those issues that appear pertinent, without being arbitrary (ATF 126 I 97 consid. 2b; 123 I 31 consid. 2c.).
b) In considering those principles, one may not seriously support that the challenged decision has not been sufficiently reasoned.
In fact, the cantonal Appellate Court did not examine the claim based on Art. 79(1) CVIM [*]. In not doing so, however, the cantonal Appellate Court has not in any way violated the [seller]'s right to be heard. In effect, in order for a supplier to be exempt from liability for a failure to perform any of its obligations in the terms of the previously mentioned provision, [seller] must prove that the failure was due to an unpredictable and inevitable impediment, which lies outside its sphere of control, or due to an overwhelming obstacle, which is not the case in situations within its sphere of control and facts could be attributed to its personally, especially events that affect the supply of the goods (cf. Neumayer/Ming, Vienna Convention on International Sales of Goods: comments, n.2 and 4 ad. Art. 79 CVIM [*]).
Thus, the facts recognized by the cantonal Appellate Court, concerning the performance of the agreements dated 2 March 1994 and 14 April 1994, whether the seller had been exposed to an impediment, which was placed outside the [seller]'s sphere of control, or that [seller] faced an overwhelming or inevitable obstacle, have resulted in nothing.
In view of these conditions, the cantonal Appellate Court is partially excluded from examining such claim, which does pertain to the case.
Considering that there are no grounds for this appeal, it is dismissed with regard to the issues examined.
As for the issues of litigation that were examined, the costs and expenses shall be borne by the [seller] (Art. 156(1) and 159(1) OJ).
Transmits the present decision in copy to the representatives of the parties and to the Civil Chamber of the cantonal Appellate Court of Geneva.
* All translations should be verified by cross-checking against the original text. For purposes of this translation, Defendant-Appellant FCF S.A., of Geneva, Switzerland, is referred to as [seller]; Plaintiff-Respondent Adriafil Commercial S.r.l., of Rimini, Italy, is referred to as [buyer]. Monetary amounts in Swiss francs are indicated by [Sf]; amounts in Italian Lira are indicated by [�IT].
Translator's note on other abbreviations: ATF = ___; CVIM = CISG [United Nations Convention on Contracts for the International Sale of Goods]; OG = Bundesgesetz über die Organisation der Bundesrechtspflege [Swiss Federal Code on Court Organization]; OJ = ___.
** Helena C.C. Mendes, Brazilian, a graduate of the University of Sao Paulo, Brazil, is currently a candidate for LL.M. in International Business and Economic Law at the University of Kyushu, Japan. The second-iteration redaction of this translation was by Dr. John Felemegas of Australia.


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Judgment - Collateral Estoppel - Elements - Identity of Issues - Stipulation - Effect. A person is not collaterally estopped from litigating an issue which was subject to a stipulated finding in a previous action unless the person was a party to the stipulation.
 Judgment - Collateral Estoppel - Elements - Identity of Issues - Critical Issue. The doctrine of collateral estoppel applies only to the resolutions of factual issues upon which the outcome of the previous claim depended.
 Judgment - Collateral Estoppel - Elements - Privity. Whether a party against whom the doctrine of collateral estoppel is asserted was in privity with a party to a prior action depends on the degree to which the parties shared the same rights or property interests decided in the prior action.
 Waiver - Elements - Knowledge of Consequences. A waiver of a right must be predicated on conduct which the person knows has the effect of relinquishing his right.
 Estoppel - Elements - Reliance - In General. No equitable estoppel arises absent a change in behavior in reliance on another person's conduct.
 Juveniles - Paternity - Right of Action - Nonfamily Member - Test. A person outside a child's present family may commence a paternity action if the trial court determines that the action is in the child's best interests. In deciding whether a paternity determination is in the best interests of the child, a court will consider the recommendation of the child's guardian ad litem and all the facts and circumstances present, including the stability of the present home environment, the presence of a continuing family unit, and the extent to which the child is uncertain of his parentage.
NAMES OF CONCURRING OR DISSENTING JUDGES: Dore, J., concurs in the result only; Andersen and Brachtenbach, JJ., concur by separate opinion.
NATURE OF ACTION: Paternity action. The plaintiff was living with the child's mother at the time the mother and defendant ended their marriage. Based on a stipulation between the mother and defendant, the trial court in the dissolution action found that the defendant was the child's father.
Superior Court: The Superior Court for Snohomish County, No. 85-5-00122-1, Stuart C. French, J., dismissed the action on October 29, 1985.
Supreme Court: Holding that the plaintiff was not estopped from bringing the action, the court REVERSES the judgment.
COUNSEL: KENNETH A. LEE, for appellant.
MARK T. PATTERSON, for respondent.
SULLIVAN, GRAAFSTRA & TWISSELMAN, by WILLIAM R. SULLIVAN, as guardian ad litem.
MAJORITY OPINION: Shawn McDaniels appeals from the trial court's dismissal of his action to establish paternity of a child. The trial court held that appellant McDaniels was collaterally estopped from bringing the action because he had resided with the child's mother during the pendency of a dissolution action at which time respondent Gary Carlson was declared to be the father and ordered to pay child support. We reverse.
Respondent and Lisa Carlson were married on May 9, 1981. In June 1981, Lisa met appellant at the company where they both worked, and a 5-month romantic relationship ensued.
Lisa gave birth to Wendy Lynne Carlson on June 29, 1982. Appellant alleges that at the time of pregnancy, he and Lisa determined they had been together three times in a 5-day period surrounding the presumed date of conception, September 5, 1981. He further alleges that Lisa represented to him and others that he was Wendy's father. Respondent and Lisa both deny these allegations and contend that respondent is the natural father of the child.
Respondent and Lisa separated during April or May of 1983. At some time thereafter, but not later than September 1983, Lisa began living with Shawn. Appellant alleges that throughout most of the period he was living with Lisa, he took care of Wendy on a full-time basis while Lisa worked. Meanwhile, respondent exercised visitation rights. It appears that both men have developed strong bonds with the child.
Lisa filed for dissolution on June 3, 1983, claiming Wendy to be "the issue" of the marriage and seeking custody and child support. No question as to Wendy's paternity was raised during the dissolution proceedings. Appellant claims that he "reluctantly agreed" with Lisa not to come forward on the paternity issue, because Lisa "did not want to hurt Gary." Clerk's Papers, at 114-15. The dissolution decree, issued February 17, 1984, found Wendy to be the minor child of Lisa and respondent, awarded custody to Lisa with liberal visitation and consultation rights to respondent, and ordered respondent to pay $300 per month in child support. Appellant alleges that only $400 support money was actually received.
Lisa severed her relationship with appellant on February 24, 1985, and approximately 2 months later moved back in with respondent. Respondent and Lisa were remarried on August 21, 1985.
Appellant filed this paternity action in Snohomish County Superior Court on March 20, 1985, seeking to establish himself as Wendy's father and obtain visitation rights. Respondent moved to dismiss on grounds of collateral estoppel contending that appellant had brought this suit for the sole purpose of continuing his relationship with Lisa. The court commissioner denied respondent's motion to dismiss and ordered that blood tests be taken.
The trial judge reversed the commissioner's order. The trial judge held that because appellant was in privity with Lisa during the dissolution proceeding which established respondent as the father, appellant was collaterally estopped from bringing suit. He subsequently vacated this ruling in light of this court's recent holding in STATE v. SANTOS, 104 Wn.2d 142, 702 P.2d 1179 (1985) that a child's interests must be separately represented before there can be a binding paternity determination. However, upon motion for reconsideration, the trial judge decided that SANTOS was inapplicable. The judge then reversed the order to vacate and reinstated his original ruling that appellant was estopped. This court granted direct review and ordered the appointment of a guardian ad litem to represent the interests of the child.
The guardian ad litem's report, filed September 9, 1986, states that both appellant and respondent have adequate parenting ability, genuinely love Wendy, and maintain an excellent relationship with her. Wendy speaks of both men as her father and has at various times addressed then as "daddy Gary" and "daddy Shawn". Other relatives of her family are well acquainted with the circumstances of this case. The guardian recommends that paternity be determined to resolve the invariable confusion and tension in Wendy's life and, regardless of the paternity determination, that both appellant and respondent be awarded rights of visitation "because it is clearly in Wendy's best interest to preserve her relationships with each [of them]." Report of Guardian ad Litem, at 7-8.
Since the initiation of these proceedings, Lisa and respondent have again separated and have copetitioned for dissolution. As of March 1986, Lisa, together with Wendy and a second daughter Rebecca (by respondent), has been living with appellant.
1. Did the trial court err in dismissing appellant's paternity action on the basis of estoppel?
2. What role do public policy and the best interests of the child play in the allowance of paternity actions brought under the Uniform Parentage Act (UPA), RCW 26.26?
whom the doctrine is to be applied?
RAINS v. STATE, 100 Wn.2d 660, 665, 674 P.2d 165 (1983); LUCAS v. VELIKANJE, 2 Wn. App. 888, 894, 471 P.2d 103 (1970). The burden of proof is on the party asserting estoppel. ALASKA MARINE TRUCKING v. CARNATION CO., 30 Wn. App. 144, 633 P.2d 105 (1981), CERT. DENIED, 456 U.S. 964 (1982).
Appellant argues that the above four elements of estoppel have not been met. Specifically, he argues there is neither identity of issues nor finality of judgment because paternity was never actually "litigated" at the dissolution proceeding; it was simply assumed. Privity is not established, appellant claims, because persons in privity must be on equal footing in all respects, DUFFY v. BLAKE, 91 Wash. 140, 157 P. 480 (1916); the fact that he and Lisa were living together is not enough to meet privity requirements. Finally, appellant argues that application of collateral estoppel will work an injustice by depriving him of a fundamental right to assert and prove his paternity of a child. SEE, E.G., LITTLE v. STREATER, 452 U.S. 1, 13, 68 L. Ed. 2d 627, 101 S. Ct. 2202 (1981); STANLEY v. ILLINOIS, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972).
Respondent argues that the four elements of collateral estoppel are met. Respondent claims paternity WAS an issue in the dissolution action, although not expressly litigated, because questions of support and custody were involved. The dividing up of parental rights and duties in a dissolution proceeding by implication necessitates a paternity determination; "identity of issues" and finality requirements are therefore satisfied. Further, respondent argues that privity denotes a mutual or successive relationship to the same right or property. SEE HACKLER v. HACKLER, 37 Wn. App. 791, 794, 683 P.2d 241 (1984). Respondent cites recent cases holding that cohabitants acquire certain mutual rights in each other's property accumulations not unlike the community property rights of married persons. SEE IN RE MARRIAGE OF LINDSEY, 101 Wn.2d 299, 678 P.2d 328 (1984); WARDEN v. WARDEN, 36 Wn. App. 693, 698, 676 P.2d 1037 (1984). By living together, respondent contends, appellant and Lisa possessed mutual rights in any received child support and consequently were in privity as to this dissolution proceeding. Finally, respondent argues there is no injustice since appellant had a full and fair opportunity under CR 24 to intervene in the dissolution, an opportunity he voluntarily relinquished after discussion with Lisa. Respondent concludes that any possible injustice to Shawn from not being able to declare his paternity must be balanced against the injustice caused to Wendy by interfering with the stability of her world.
Appellant's arguments are persuasive. We hold that neither identity of issues nor privity has been established in this case.
«1» Collateral estoppel is thus distinguished from res judicata. SEE SCHOEMAN v. NEW YORK LIFE INS. CO., 106 Wn.2d 855, 861, 726 P.2d 1 (1986).
Where, for example, an earlier judgment has been entered upon stipulated findings of fact and embodying a settlement of the parties, appellate courts have refused to apply collateral estoppel against persons not actually participating in the stipulations. Trautman, CLAIM AND ISSUE PRECLUSION IN CIVIL LITIGATION IN WASHINGTON, 60 Wash. L. Rev. 805, 833 (1985); SEE YAKIMA CEMENT PRODS. CO. v. GREAT AM. INS. CO., 14 Wn. App. 557, 562, 544 P.2d 763 (1975); MARQUARDT v. FEDERAL OLD LINE INS. CO., 33 Wn. App. 685, 658 P.2d 20 (1983). Finally, collateral estoppel extends only to "ultimate facts", I.E., those facts directly at issue in the first controversy upon which the claim rests, and not to "evidentiary facts" which are merely collateral to the original claim. Trautman, at 833-34; SEATTLE-FIRST NAT'L BANK v. KAWACHI, 91 Wn.2d 223, 588 P.2d 725 (1978); BEAGLES v. SEATTLE-FIRST NAT'L BANK, 25 Wn. App. 925, 931, 610 P.2d 962 (1980).
The issue of paternity was never actually litigated in the dissolution proceeding; it was merely presumed upon the parties' stipulations. Moreover, paternity was only collateral to the real issues in controversy: custody, support, and visitation rights. Therefore, there was no identity of issues between the paternity finding in the prior dissolution case and the present cause of action.
 The privity requirement in collateral estoppel is based on the principle that "a stranger's rights cannot be determined in his absence from the controversy." OWENS v. KURO, 56 Wn.2d 564, 568, 354 P.2d 696 (1960). Respondent is correct in stating that privity denotes a "mutual or successive relationship to the same right or property." SEE OWENS, at 568. However, respondent's argument that appellant was in privity with Lisa by virtue of their living together is tenuous at best. First, it is unthinkable that appellant should have rights, as a cohabitant, to support money received by Lisa on Wendy's behalf. The support money paid to Lisa is not her property, but is to be expended for the benefit of her child. SEE ROBERTS v. ROBERTS, 69 Wn.2d 863, 869, 420 P.2d 864 (1966). Moreover, PATERNITY, not support money, is the right at stake. Clearly, Lisa's and appellant's interest in paternity rights were distinct. Lisa did not give up HER rights to be known as Wendy's mother by choosing to accept support money from respondent. It would be unjust to hold Shawn to Lisa's declarations of paternity, where Lisa had very little to lose, and Shawn everything, from such declarations.
In recent years, Washington courts have created some exceptions to the strict privity requirement in collateral estoppel. These have always been narrowly construed. For example, in KYREACOS v. SMITH, 89 Wn.2d 425, 427-28, 572 P.2d 723 (1977), this court held that a police detective's prior conviction for first degree murder precluded the victim's wife from suing the police department on a theory of respondeat superior, even though the wife was neither a party nor in privity with a party in the criminal case, since relitigation of the character of the murder act would be an "absurd result". However, the court took pains to point out that this was "a most unique case which must be confined to its peculiar facts". KYREACOS, at 428. KYREACOS is also distinguishable in that the plaintiff was not left remediless (she had alleged three alternative causes of action), and therefore no injustice would result. SEE KYREACOS, at 426-29. Here, appellant would be left without a remedy if estopped.
Respondent relies on a Court of Appeals case, HACKLER v. HACKLER, SUPRA, which held that "[o]ne who was a witness in an action, fully acquainted with its character and object and interested in its results, is estopped by the judgment as fully as if he had been a party." HACKLER, at 795 (citing BACON v. GARDNER, 38 Wn.2d 299, 229 P.2d 523 (1951)). In HACKLER, the plaintiff had testified on behalf of his son in a dissolution proceeding that he had sold his son and daughter-in-law a home. He failed to reveal that the house had been resold back to himself. After the dissolution decree awarded the home to the daughter-in-law, plaintiff then brought an action to quiet title. In holding that plaintiff was estopped from relitigating the ownership of the home, the court reasoned that by testifying plaintiff had taken an active role in the controversy and was clearly interested in its results. HACKLER, at 795.
In the present case, appellant did not testify as a witness or participate whatsoever in the dissolution case. Furthermore, the facts do not establish that appellant was fully aware of the character of the dissolution proceeding, I.E., that it would result in a conclusive paternity determination. Thus, the limited exception suggested by HACKLER does not apply. SEE, E.G., STATE EX REL. LIDRAL v. SUPERIOR COURT, 198 Wash. 610, 89 P.2d 501 (1939) (one must be a party or in privity with a party to be bound by collateral estoppel; merely being aware of certain proceedings is not enough).
Finally, IN RE BURLEY, 33 Wn. App. 629, 658 P.2d 8 (1983) suggests that our courts have not been willing to abandon strict privity requirements in the context of paternity cases. BURLEY held that the fact that the State had previously dismissed its own paternity suit would not operate as RES JUDICATA to bar the mother and child from bringing a similar action. BURLEY, at 640.
 Although not addressed by the trial judge, respondent has also raised issues of waiver and equitable estoppel. The doctrine of waiver provides that "[o]nce a party has relinquished a known right or advantage, he cannot reclaim it without the consent of his adversary." BOWMAN v. WEBSTER, 44 Wn.2d 667, 670, 269 P.2d 960 (1954). The evidence does not establish that appellant knew he was relinquishing his rights by not coming forward during the dissolution action. He was not a party to the action and not represented by counsel at the time. Thus, the doctrine of waiver does not apply.
HARBOR AIR SERV., INC. v. BOARD OF TAX APPEALS, 88 Wn.2d 359, 366-67, 560 P.2d 1145 (1977). Estoppel can arise through silence, as well as statements, when one has a duty to speak out. KESSINGER v. ANDERSON, 31 Wn.2d 157, 169, 196 P.2d 289 (1948) (quoting 21 C.J. ESTOPPEL 116, at 1113 (1920)). However, no matter how communicated, the assertion on which estoppel is based must induce RELIANCE by the other party. IN RE ESTATE OF BOSTON, 80 Wn.2d 70, 76, 491 P.2d 1033 (1971).
Respondent argues that he relied to his detriment on appellant's "silent affirmation of his parentage". Brief of Respondent, at 16. Respondent claims that he has developed a bond with Wendy and paid support money (although it is alleged that only $400 has been received) on belief that he is her true father. Yet, respondent does not establish that the requisite reliance occurred. He could not have "relied" on Shawn's silence during the dissolution action because he admittedly had no idea that he might not be Wendy's father. Moreover, even if respondent had possessed some doubts, he probably would have acted no differently. Respondent has eagerly continued to pursue his relationship with Wendy, despite the present uncertainty of her parentage. As a presumed father, he would probably have been ordered to pay temporary support even if appellant had come forward in the dissolution proceeding. SEE RCW 26.26.040, .137. In short, respondent has demonstrated no change in behavior resulting from appellant's failure to raise the paternity issue during the dissolution. The elements of equitable estoppel are not satisfied.
Appellant has also argued that even if the elements of ordinary estoppel are present, it is in Wendy Carlson's best interest to allow this paternity action. SEE ETTORE I. v. ANGELA D., 129 Misc. 2d 301, 305, 492 N.Y.S.2d 1013 (Fam. Ct. 1985); SEE ALSO IN RE MARRIAGE OF STUDEBAKER, 36 Wn. App. 815, 818, 677 P.2d 789 (1984). According to appellant, a child's "compelling interest" in the ascertainment of its parentage, SEE LITTLE v. STREATER, 452 U.S. 1, 13, 68 L. Ed. 2d 627, 101 S. Ct. 2202 (1981) and STATE v. SANTOS, 104 Wn.2d 142, 148, 702 P.2d 1179 (1985), prevents a court from dismissing a paternity action, at least without first considering the effect on the rights of the child. Moreover, appellant argues, public policy favors accurate paternity determinations even to the detriment of family unity and harmony. Because we find no estoppel, we do not need to address appellant's claims. Nevertheless, we believe it would be helpful to clarify precisely what role public policy and the "best interests of the child" standard play in paternity actions brought under the UPA.
Appellant is correct that in actions relating to the care and welfare of minor children the best interests of the child control. SEE IN RE ASCHAUER, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980); IN RE BECKER, 87 Wn.2d 470, 553 P.2d 1339 (1976); IN RE DOMBROWSKI, 41 Wn. App. 753, 756-57, 705 P.2d 1218 (1985). Yet appellant errs in assuming that ANYONE can assert those rights by stepping into the shoes of a minor child.
Child development experts widely stress the importance of stability and predictability in parent/child relationships, even where the parent figure is not the natural parent. SEE, E.G., J. Goldstein, A. Freud & A. Solnit, BEYOND THE BEST INTERESTS OF THE CHILD (1979); Watson, THE CHILDREN OF ARMAGEDDON: PROBLEMS OF CUSTODY FOLLOWING DIVORCE, 21 Syracuse L. Rev. 55 (1969-1970); ALTERNATIVES TO "PARENTAL RIGHT" IN CHILD CUSTODY DISPUTES INVOLVING THIRD PARTIES, 73 Yale L.J. 151 (1963); SEE GENERALLY E. Erickson, CHILDHOOD AND SOCIETY (1963). Our courts and Legislature have echoed these concerns. ASCHAUER, at 695; IN RE MARRIAGE OF ALLEN, 28 Wn. App. 637, 644, 626 P.2d 16 (1981); SEE ALSO RCW 26.09.280 (modification of custody standard). A paternity suit, by its very nature, threatens the stability of the child's world. We are concerned that the best interests of the child standard, too broadly interpreted, could become a blanket license for any person to disrupt long-fostered family relationships by claiming to be the parent of a child. It may be true that a child's interests are generally served by accurate, as opposed to inaccurate or stipulated, paternity determinations. SEE SANTOS, at 148. However, it is possible that in some circumstances a child's interests will be even better served by no paternity determination at all. SEE, E.G., RCW 26.33.330 (mandating permanent sealing of adoption files except for good cause shown). The best interests of the child standard does not entitle a court to presume that paternity determination is AUTOMATICALLY in the child's best interest. Therefore, absent a showing that such determination is in fact within the child's best interests, this standard cannot be invoked on behalf of someone other than the child.
The case law recognizes three rights of particular importance under the UPA - the rights of the child, parent, and State. SANTOS, at 148 & n.3; BURLEY, at 640. The child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of his or her parents. SANTOS, at 147-48; SEE ALSO HAYWARD v. HANSEN, 97 Wn.2d 614, 617, 647 P.2d 1030 (1982). The putative parent has an interest in family bonds and in not being erroneously required to pay child support. SANTOS, at 146-48; STREATER, at 13. The parent also has a recognized right to the companionship, care, and custody of his or her minor children of which he or she cannot be deprived without due process of law. STANLEY v. ILLINOIS, 405 U.S. 645, 650, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972). Finally, the State has an interest in protecting the public from the burden of supporting children born out of wedlock and in accurately determining who should pay support. SANTOS, at 148-50; STREATER, at 14. Where these rights come into conflict, the rights of the child should prevail. SEE, E.G., SANTOS, at 148-49 (State's temptation to accept stipulation of paternity as a means of solving support problem must give way to child's interest in accurate determination of parentage); STATE v. MEACHAM, 93 Wn.2d 735, 741, 612 P.2d 795 (1980) (interests of child and State in paternity action prevail over privacy rights of putative parent in regards to compelled blood tests); SEE ALSO IN RE BECKER, 87 Wn.2d 470, 473, 553 P.2d 1339 (1976) (parent's right to custody of child must yield to child's interests when the two are in conflict); SEE GENERALLY PATERNITY DETERMINATIONS IN WASHINGTON: BALANCING THE INTERESTS OF ALL PARTIES, 8 U. Puget Sound L. Rev. 653, 660 (1985). As this court has observed: "Despite the numerous burdens and benefits of being a father . . . it is the child who has the most at stake in a paternity proceeding." SANTOS, at 143.
 We contemplate that in some circumstances the rights of the child will be better served by maintaining a stable family relationship than by allowing a paternity action. Where someone outside the family files a paternity action, the trial judge should consider the impact upon the child in deciding whether the action may proceed. This determination must depend on the particular circumstances of the case and needs of the implicated child. ETTORE I., at 305-06.
of the father and child relationship.
RCW 26.26.060(1)(a). The UPA further requires that the child be made a party to the action and represented by a guardian ad litem. RCW 26.26.090(1). Failure to make the child a party divests the court of jurisdiction to decide this issue and voids any decision rendered. STATE v. SANTOS, SUPRA; HAYWARD v. HANSEN, SUPRA; MILLER v. SYBOUTS, 97 Wn.2d 445, 645 P.2d 1082 (1982). In short, the statute's requirement that a guardian ad litem be appointed BEFORE a court can act ensures that due consideration will be paid to the rights of a child. Yet, we must stress, the trial judge is not bound by the guardian ad litem's recommendations. Rather, the court must balance the interests of all parties involved, while keeping in mind that the child's interests are paramount.
The criteria for determining the best interests of the child are varied and highly dependent on the facts and circumstances of the case at hand. ASCHAUER, at 695. Yet continuity of established relationships is a key consideration. ASCHAUER, at 695; ALLEN, at 648. In determining whether it is in the child's best interests to allow a paternity action by one outside the present family, the trial court should consider the stability of the present home environment, the existence or lack thereof of an ongoing family unit, the extent to which uncertainty of parentage already exists in the child's mind, and any other factors which may be relevant in assessing the potential benefit or detriment to the child. In the present case the guardian ad litem advocated, and the record supports, that it is in Wendy Carlson's best interest for this paternity action to proceed. The integrity of the marriage between respondent and Lisa Carlson has long dissolved. The stability of the family is shattered and great uncertainty prevails as to who Wendy's true father is. The only way to put an end to the speculation, doubt, and questions that will continue to plague Wendy and those who will substantially interact with her in the future is to allow this paternity action.
In sum, we do not dispute the language appellant cites from ETTORE I. that "where the welfare of a child is involved, the best interest of the child MAY mandate that the court proceed on the matter in spite of facts warranting an estoppel." (Italics ours.) ETTORE I., at 305. However, we reiterate, the mere filing of a paternity action does not automatically imply that the action is in the child's best interest. A court must reach this conclusion independently based on the facts in the record and the recommendations of the guardian ad litem appointed to represent the interests of the child.
In light of our disposition of this case, we find it unnecessary to address appellant's other challenges to the trial court's prehearing dismissal. We hold that appellant is not estopped from bringing an action to establish his paternity of Wendy Carlson and that it is in Wendy Carlson's best interest to have her biological father identified. Also, in light of Wendy's strong relationship with both appellant and respondent and the genuineness of their affection, we accept the recommendation of the guardian ad litem that it would be in Wendy's best interest to preserve her relationship with each. Regardless of the outcome of the paternity determination, either party will be entitled to petition the trial court for reasonable visitation rights. SEE ETTORE I. v. ANGELA D., 129 Misc. 2d 301, 310-11, 492 N.Y.S.2d 1013 (Fam. Ct. 1985); IN RE DOMBROWSKI, 41 Wn. App. 753, 755, 705 P.2d 1218 (1985); RCW 26.09.240. We reverse the trial court and remand for reinstatement of appellant's paternity action.
CONCURRING JUDGES: Pearson, C.J., and Utter, Dolliver, Callow, and Durham, JJ., concur.
CONCURRING OPINION: In this case, the child's mother alternatively cohabited with two men during the period of time when her child could have been conceived, with the result being that either man could be the biological father of the child. Under these circumstances, I believe that the best interests of the child, and of society, would be served by establishing the fact of paternity.
Accordingly, I concur with the result of the majority opinion and would reverse and remand.
CONCURRING JUDGES: Brachtenbach, J., concurs with Andersen, J.

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text:
There is no other person who has contributed as much to the development and growth of the Cork Branch as the late and much loved Derry Barrett.
Since joining the branch in the early sixties, when he was persuaded by the prominent referees, Charlie Duggan, Jack Cooke and the then branch secretary, Frank Casey, Derry has served on numerous occasions at committee level. He has been elected chairman on no fewer than six occasions and vice chairman on a further four. Perhaps, his finest achievement was his election as President of the Irish Soccer Referees’ Society in July 1980. The respect he commanded throughout football circles in Ireland was enormous. A former branch secretary spoke of Derry as being “revered in society”.
He was born in the heart of Cork City, the Coal Quay, one of four sons to Bartholomew and Ellen Barrett. In between playing gaelic games, he played junior football with Mountview, Brideville and St. Paul’s. It was while playing with Paul’s and the chance unavailability of regular goalkeeper, John O’Connor, that Derry stood between the posts and impressed the watching Kevin Dillon to such a degree that he contacted Frank Desmond, a director of Evergreen United, with a view to signing the promising goalkeeper.
Derry made his debut on December 2nd 1951 against Dundalk, and continued to play at senior level for nine years, appearing in the all-Cork 1953 F.A.I. Cup Final with Cork Athletic, as well as representing the League of Ireland on three occasions, against the Irish, Scottish and English Leagues. His outstanding form in the run up to the 1953 cup final not only caught the eye of fans and media alike, but also the international selection committee, who selected the young custodian as reserve to first choice Jimmy O’Neill for the forthcoming World Cup Qualifier against France at Dalymount Park Sunday, October 4th 1953. He became the Republic of Ireland’s first reserve goalkeeper for the following World Cup ties with Luxembourg and Switzerland.
Upon finishing his career with Glasheen and taking up refereeing, in 1961 in the AUL and Munster Senior League, Derry progressed onto the League of Ireland panel in 1965. In 1970, he refereed the three match F.A.I. Cup Final between Bohemians and Sligo Rovers and the Dublin City Cup Final between Limerick and Waterford. In 1971, he took charge of the prestigious inter-league clash involving the League of Ireland and the English League at Lansdowne Road. In 1973, he was appointed to handle the first-leg final of the Texaco Cup at Shamrock Park between Portadown and Bohemians. The tie played in Portadown emphasized the esteem at which he was held at that time that the Irish League would see fit to appoint officials from the Republic. Along with his own appointment, Derry must have had a special feeling of satisfaction to have been assisted by his nephews, Barry Kearney and Kevin O’Sullivan.
Following his appointment to the F.I.F.A. and U.E.F.A. panel in 1968, Derry’s list of European duties makes interesting reading; 1968 European Cup: Valur(Iceland) v. Benfica, 1969 World Cup: Scotland v. Cyprus, 1970 European Cup Quarter Final: F.C. Basle v. Ajax Amsterdam, 1971 UEFA Cup: Reykjavik v. Tottenham Hotspur, European Cup: Barcelona v. Steaua Bucharest & P.S.V. Eindhoven v. Real Madrid.
In 1972, he refereed the unusual double of an amateur international between England and Malta, and a schoolboy international between Ireland and Wales.
In his retirement season (1976) from the League of Ireland and UEFA panels, he was the man in the middle of a youth international involving England and Wales.
He continued to officiate in local football up to the 1995/96 season, maintaining his fitness by walking to and from the B.& I. in the morning and afternoon during his lunch hour. He covered all major finals at local level, including an unprecedented three AOH Cup Finals. He continued to contribute hugely to the work of the society, especially the encouragement of new referees. He was always willing to assist anyone in any aspect of refereeing. He was the leading example in all that was good in refereeing. His untimely death on Friday, July 31st 1998 “has left a vacuum in our game”, as Bill George wrote in the Evening Echo. He may no longer be with us, but he will never be forgotten by anyone who had the pleasure of being in his company.
Anyone who has played junior football over the past twenty years and had the benefit of viewing Derry’s refereeing ability would inevitably have ranked him among their favourite referees. He commanded the respect of players and officials alike, in his own unique way. It’s rare that a man who makes an absolute virtue of complete honesty is well loved, for he most inevitably upset people along the way simply by speaking his mind.
Ar dheis De a raibh a ainm.

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MARISOL QUEZADA-CARABALLO, Petitioner, v. LORETTA E. LYNCH, Attorney General of the United States, Respondent.
Before Howard, Chief Judge, Lynch and Kayatta, Circuit Judges. Randy Olen on brief for petitioner. Enitan O. Otunla, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and John W. Blakeley, Assistant Director, on brief for respondent.
Marisol Quezada-Caraballo, a native and citizen of the Dominican Republic, petitions for review of the Board of Immigration Appeals' (“BIA”) decision affirming an Immigration Judge's (“IJ”) denial of her application for a good-faith-marriage waiver of the joint-filing requirement for a Petition to Remove Conditions on Residence (“Form I-751 waiver”). See 8 U.S.C. § 1186a(c)(4)(B). We deny the petition.
As she admitted to the IJ, Quezada-Caraballo made a series of misrepresentations to advance her Form I-751 waiver application. During two interviews with United States Citizenship and Immigration Services (“USCIS”), she claimed that her ex-husband, Jose Garay, lived with her in Rhode Island when, in fact, she and Garay had separated before she moved from Puerto Rico to the continental United States, and he had never lived with her in Rhode Island. Quezada-Caraballo also admitted that she had submitted fabricated documents, including a Verizon bill purportedly issued to her and Garay, and other mail apparently sent to Garay at their joint residence in Rhode Island. She had done so in order to make it appear as if Garay lived with her in Rhode Island. And she admitted to submitting several misleading affidavits, including one from Garay.
The IJ denied Quezada-Caraballo's application for review of USCIS's denial of her Form I-751 waiver application and granted Quezada-Caraballo voluntary departure. After taking into account the record evidence, including testimony by Quezada-Caraballo and two others who spoke on her behalf at the hearing, the IJ found that Quezada-Caraballo's numerous misrepresentations to USCIS undermined the credibility of her testimony.
The BIA affirmed. It found that the IJ was warranted in drawing a “falsus in uno, falsus in omnibus” (false in one thing, false in everything) inference from Quezada-Caraballo's misrepresentations. And it agreed with the IJ that, in light of Quezada-Caraballo's misrepresentations, the record evidence as a whole was insufficient to meet her burden to establish by a preponderance of the evidence that she had entered into a good-faith marriage.
Under the substantial evidence standard, we must uphold the BIA's decision unless Quezada-Caraballo can show that “the evidence not only supports [reversal], but compels it.” INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Quezada-Caraballo contends that the record as a whole establishes that her marriage to Garay was in good faith; that the IJ and BIA erroneously focused solely on her admitted misrepresentations and failed to consider the countervailing evidence; and that the BIA's approval of the IJ's falsus in uno, falsus in omnibus inference was unreasonable under the circumstances of her case.
We disagree. This court has already held that “the REAL ID Act [gives an] IJ discretion to draw [a] 'falsus in uno, falsus in omnibus”' inference. Wen Feng Liu v. Holder, 714 F.3d 56, 61 (1st Cir. 2013). The relationship between the falsehoods and the undermined claim here is stronger than it was in Wen Feng Liu. Quezada-Caraballo's misrepresentations about the duration and scope of her cohabitation with Garay were directly material to her claim that she had married him in good faith. Further, Quezada-Caraballo was not dishonest about just one thing -- she made and relied on repeated misrepresentations. Consequently, the IJ was permitted to discredit Quezada-Caraballo's testimony.
The BIA, like the IJ, considered the entire record. It agreed with the IJ that, in light of Quezada-Caraballo's misrepresentations, the record was insufficient to meet the burden of proof needed to establish a good-faith marriage. That conclusion is well supported by our precedent. This case is not like Cho v. Gonzales, 404 F.3d 96, 103 (1st Cir. 2005), in which we granted a petition for review and remanded to the BIA because the petitioner had submitted a jointly held health insurance policy, tax returns, bank accounts, automobile financing agreements, a credit card, and health and telephone records to corroborate her good-faith-marriage claim. Quezada-Caraballo's evidentiary showing, including the testimony of Garay's ex-wife and son, falls far short of that. See Valdez v. Lynch, 813 F.3d 407, 411–13 (1st Cir. 2016) (holding that petitioner's general testimony as to validity of his marriage and his submission of tax returns that provided little evidence of commingled assets were insufficient to demonstrate good-faith marriage).
Nothing Quezada-Caraballo argues on appeal compels us to reverse the BIA's reasonable decision.


Negotiable certificates, issued by the Board of Public Works of the District of Columbia, redeemed according to law, and cancelled by the proper officers by stamping in ink across the face words stating such cancellation, are thereby extinguished, and if a clerk, who has no duty or authority connected with their redemption or care, afterwards steals them, fraudulently effaces the marks of cancellation, and puts them in circulation, the District of Columbia is not liable to a purchaser in good faith, for value and before maturity.
"Registered: GEO. E. BAKER, Comptroller"
This certifies that for work done under direction of the Board of Public Works and chargeable to the private property adjoining and benefited thereby, there is due to the bearer, five hundred dollars, payable July 1st, 1876, with eight percentum interest, payable semiannually, as per coupons attached. Issued in accordance with act of legislative assembly. Secured by pledge to the commissioners of the sinking fund of assessments made in accordance with act approved June 26, 1873, against private property benefited by improvements, and receivable in payment of such assessments.
"By JAMES A. MAGRUDER, Treasurer"
"For Commissioners of Sinking Fund"
"Last six months' interest payable with certificate "
On July 1, 1873, such certificates, to the amount of about $2,000,000, were issued by the board of public works under an act of the Legislative Assembly of the District of Columbia approved June 26, 1873, and were paid out to contractors, jobbers, and laborers, and soon became greatly depreciated in value and were bought and sold by brokers and speculators.
After the creation of the board of audit by the Act of Congress of June 20, 1874, c. 337, § 6, most of these certificates, including those in question, were presented to that board, and redeemed as provided in that act. 18 Stat. 119.
good faith, and without notice that they had been redeemed or cancelled, and the certificates were then in the same condition, in respect of their appearance as to indicating signs or evidences of cancellation or redemption, as they were at the time they were first negotiated by Farnham and as they are now. The judgment of the Court of Claims in favor of the claimant was for the amount of such certificates as were shown to have been so purchased by him before their maturity. 20 Ct.Cl. 229.
When the maker of a negotiable instrument lawfully cancels it before maturity, his liability upon it is extinguished, and cannot be revived without his consent. It is immaterial whether the cancellation is by destroying the instrument or by writing or stamping words or lines in ink upon its face, provided the instrument, in the condition in which he puts it, unequivocally shows that it has been cancelled. Scholey v. Ramsbottom, 2 Camp. 485; Burbridge v. Manners, 3 Camp.
193; Ingham v. Primrose, 7 C.B. (N.S.) 82, 86; Yglesias v. Mercantile Bank, 3 C.P.D. 60.
In Burbridge v. Manners, Lord Ellenborough said: "It is the duty of bankers to make some memorandum on bill and notes which have been paid," clearly indicating his opinion that the making of such a memorandum upon the securities would be sufficient to protect the bankers from being afterwards held liable to any holder thereof.
"was at least as consistent with its having been divided into two for the purpose of safer transmission by the post as with its having been torn for the purpose of annulling it."
And the decision can be maintained, if at all, on that ground only. Baxendale v. Bennett, 3 Q.B.D. 525, 532.
In Baxendale v. Bennett, one who had given his blank acceptance on stamped paper to another, and authorized him to fill in his own name as drawer, and received it back from him unfilled, and put it in the unlocked drawer of his desk, from which it was afterwards stolen and filled up without his authority by inserting the name of another person as drawer, was held not liable to an endorsee for value.
In State v. Wells, Fargo & Co., 15 Cal. 336, cited by the claimant, treasury warrants of the State of California had been once lawfully issued, presented, and paid, but never cancelled in any way before they were stolen and again put in circulation, and the suit was not upon the warrants, but was brought by the state against bona fide holders who had presented them a second time, and to recover back the value of bonds which the state had delivered to them in exchange for the warrants, and which they in good faith had since parted with.
States were held by a majority of this Court to be liable to a bona fide holder of interest-bearing Treasury notes, printed by the Treasury Department from genuine plates, and perfect in form, complete and ready for issue, and never issued by any authorized officer, but fraudulently or surreptitiously put in circulation. In the opinion, much stress was laid upon the considerations that the notes were perfect and complete as soon as printed, and did not require the signature of any officer, but, as soon as they had received the impression of all the plates and dies necessary to perfect their form, were ready for circulation and use; that in this respect they did not differ from coins of the mint when fully stamped and prepared for issue, and that these notes were intended to circulate and take the place of money, to some extent, for commercial purposes, were made a legal tender for their face value, exclusive of interest, as between the government and its creditors, and passed readily fro hand to hand as or in lieu of money. 91 U.S. 91 U. S. 404.
We are not prepared to extend the scope of that decision, and the facts of this case as found by the Court of Claims are quite different.
The certificates in suit, after they had been redeemed according to law, were cancelled by the proper officers by distinctly stamping in ink across the face words stating that fact, and in that condition were made up in bundles and put away on a shelf, whence they were afterwards stolen by a clerk, who had no duty or authority connected with their redemption or care and who afterwards fraudulently effaced the marks of cancellation by the use of detersive soap, and by pasting coupons over them, and then put the certificates in circulation.
The provision of the Act of Congress of March 3, 1875, c. 162, § 16, by which officers of the District of Columbia are required to destroy by burning all redeemed certificates, is in terms and effect merely directory, and does not make the District liable on such certificates fraudulently put in circulation after they have been otherwise unmistakably cancelled. 18 Stat. 505.
stamping across their face marks of cancellation as clear and permanent as the original signatures, the liability of the district upon them as negotiable paper could not be revived by its omission to take additional precautions against their being stolen and fraudulently restored to their original condition by such means as ingenious wickedness might devise.
"Vouchers for money due, certificates of indebtedness for services rendered or for property furnished, for the uses of the city, orders or drafts drawn by one city officer upon another, or any other device of the kind, used for liquidating the amounts legitimately due to public creditors, are, of course, necessary instruments for carrying on the machinery of municipal administration and for anticipating the collection of taxes. But to invest such documents with the character and incidents of commercial paper, so as to render them in the hands of bona fide holders absolute obligations to pay, however irregularly of fraudulently issued, is an abuse of their true character and purpose."
Mayor v. Ray, 19 Wall. 468, 86 U. S. 477; Wall v. Monroe County, 103 U. S. 74, 103 U. S. 78; Claiborne County v. Brooks, 111 U. S. 400, 111 U. S. 408.
Considering the nature of these certificates, the method in which they had been cancelled, and the means by which they were afterwards put in circulation, we are of opinion that there is no ground for holding the District of Columbia liable to this claimant.


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On February 20, 2007, the U.S. Supreme Court denied the petition for writ of certiorari filed by Clark County, Nevada seeking review of the Nevada Supreme Court’s decision in McCarran International Airport v. Sisolak, 137 P.3d 1110 (Nev. 2006). The Nevada Supreme Court held that Clark County’s regulation of building heights around McCarran International Airport constituted an uncompensated taking of private property. The County’s cert petition was supported by a broad array of airport and aviation industry groups, including Airports Council International – North America, the Air Transport Association, and the Air Line Pilots Association.
As reported in a previous Airport Law Alert, the Nevada Supreme Court declared the County’s height ordinance to be a per se regulatory taking under the U.S. Supreme Court’s analytical approach set forth in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982). The Nevada Supreme Court found that the County’s height ordinance imposed a permanent physical occupation of the airspace above Sisolak’s property up to an altitude of 500 feet.
The Nevada Supreme Court’s decision is anomalous for a variety of reasons, including that the Nevada Supreme Court conducted its analysis under Loretto rather than the analytical approach set forth in Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978); and the court seemingly ignored FAA regulations stating that airspace below 500 feet is part of the navigable airspace when needed for takeoffs and landings. The court did not recognize the County’s possession of an avigation easement over part of the property as a valid defense.
The U.S. Supreme Court’s denial of the County’s cert petition left intact the state court judgment of more than $16 million. The decision further calls into question the validity of similar height ordinances around the country, which may be suspect if analyzed in the same manner as the Nevada Supreme Court.
On March 2, 2007, the U.S. Court of Appeals for the District of Columbia Circuit ruled on an airport fee dispute in Port Authority of New York and New Jersey v. Dept. of Transportation, 479 F.3d 21 (D.C. Cir. 2007). The court largely affirmed DOT’s decision that fee increases imposed on air carriers in the international terminal at Newark International Airport were reasonable. The court also affirmed DOT’s decision rejecting complainant’s claim of unjust discrimination. Notably, the court overruled DOT in holding that the statute authorizing “air carriers” to challenge airport rates and charges, 49 U.S.C. Section 47129, did not apply to foreign air carriers, which included 12 of the 13 complainants in the case. The court affirmed DOT’s decision that certain fees were unreasonable but remanded the case to DOT for further proceedings as to other fees declared unreasonable.
On December 22, 2006, the U.S. Court of Appeals for the District of Columbia Circuit struck down EPA’s implementation rule for the eight-hour ozone standard under the Clean Air Act. The decision in South Coast Air Quality Mgmt. Dist. v. EPA has affected a number of airports that are located in ozone nonattainment areas throughout the country. The decision has delayed the process of including airport projects in State Implementation Plans, affected general conformity analyses, and may influence the permitting of certain facilities on airports such as heating plants. EPA and other parties filed notices for rehearing of the decision on March 22, 2007, but a decision on these motions is not expected for some time. While EPA has issued interim guidance, there remains considerable confusion regarding the status of Clean Air Act requirements in ozone nonattainment areas.
On April 2, 2007, the U.S. Supreme Court held in Massachusetts v. EPA that the Clean Air Act covers greenhouse gas emissions, such as carbon dioxide, from motor vehicles. The Court concluded that the Act provides EPA with authority to regulate greenhouse gases and that EPA’s justification for not exercising this authority was inadequate. The case is of particular interest to airports because it may prompt regulatory measures relating to climate change, including specific measures related to aviation. Indeed, the Clean Air Act provision relating to aircraft engines, 42 U.S.C. Section 7571, is quite similar to the section on motor vehicles that was at issue in the case.
In January 2007, the District Court for Hennepin County, Minnesota, granted summary judgment in favor of the City of Minneapolis and other plaintiffs in litigation against the Metropolitan Airports Commission (“MAC”). The court found that MAC had failed to comply with its state law obligation to provide noise insulation in the DNL 60-65 decibel contour around the Minneapolis-St. Paul International Airport (“MSP”) as promised in the Environmental Impact Statement for the construction of the new Runway 17/35 and other documents. After a trial held in February, the court is considering whether the Minnesota Environmental Rights Act also requires noise insulation to protect “quietude” in the neighborhoods surrounding MSP. A final decision from the trial court is expected in late Spring. A separate class action lawsuit brought by homeowners is pending in Minnesota state court.
While the debate over user fees for air traffic services has garnered the most media attention, FAA Reauthorization promises to bring significant changes to the AIP and PFC programs and to create several new FAA initiatives. The Bush Administration released its bill, the Next Generation Air Transportation System Financing Reform Act of 2007; however, preliminary drafts of the Senate bill reveal that Congress will approach the same issues from a much different perspective. The major features of Reauthorization should crystallize during the summer months.
The Administration’s bill includes elimination of AIP entitlement funds for large and medium hub airports, recalculation of entitlement funds available to other airports, increases in the amount of individual PFCs, and reforms in project eligibility and the process for imposing and using PFCs. The bill also includes a considerable number of other reforms, including expanding the pilot program on airport privatization, creating pilot programs and funding eligibility for certain environmental initiatives, and creating programs and guidelines for airport congestion pricing.
A group of airlines operating from Terminal 1, Terminal 3 and the Tom Bradley International Terminal at the Los Angeles International Airport are challenging recent rate increases imposed by Los Angeles World Airports. The dispute concerns the methodology used by LAWA to calculate the fees as well as issues of reasonableness and unjust discrimination. The dispute is governed by the expedited procedures of FAR Part 302. The Administrative Law Judge’s Recommended Decision is due in mid-May.
The City of Las Vegas is seeking review by the Ninth Circuit Court of Appeals of a November 2006 decision by the FAA to redirect some aircraft departing McCarran International Airport. The FAA’s decision reinstates a “right turn” for some aircraft departing to the west from McCarran, a move that is intended to reduce delay at the nation’s sixth busiest airport. Las Vegas sought and was denied a stay pending the appeal, arguing that the FAA failed to perform the required air quality conformity analysis before rendering its decision.
In January 2007, the FAA released Advisory Circular No. 150/5190-6, Exclusive Rights at Federally-Obligated Airports. The new Advisory Circular continues and further clarifies longstanding FAA policies concerning the prohibition on granting exclusive rights to aeronautical users of airports.
In compliance with federal law, the FAA has created a website with links to airport noise exposure maps for many airports around the country. The website contains maps prepared under FAR Part 150 and for other purposes. Airport sponsors are encouraged to review the website to ensure that the maps and information are correct.
The FAA will soon release guidance on airport sponsor acquisition, management and disposition of lands purchased for land use compatibility. The guidance is the FAA’s latest response to an audit by the DOT Office of Inspector General in 2005, which found that airport sponsors are not complying with statutory and grant assurance obligations regarding noise buffer lands.
In March 2007, Secretary Peters announced the appointment of Kerry B. Long as the new FAA Chief Counsel. The Chief Counsel oversees 258 employees in Washington DC and eleven field offices. Mr. Long formally was a partner with Fulbright & Jaworski in Washington, DC.
The latest issue of the Journal of Airport Management is about to be published. The new edition contains an article by Dan Reimer, The law of airline competition in the USA: Recent developments and future outlook.
The 23rd Annual Basics of Airport Law and Legal Update will be held September 23-25, 2007, in the Baltimore/Washington DC area. The conference is being presented by the American Association of Airport Executives, the FAA, and Kaplan Kirsch & Rockwell LLP.


This matter is before the court for judicial review of a final decision of the defendant Commissioner of Social Security Administration denying Plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) as provided for in the Social Security Act. Section 205(g) of the Act provides, inter alia, "[a]s part of his answer, the [Commissioner] shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the case for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).
The law provides that an applicant for DIB or SSI must establish an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of no less than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an impairment exists. It must be shown that the impairment is severe enough to preclude the plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill. 1979). It is well established that the burden of proving entitlement to disability insurance benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v. Cohen, 425 F.2d 20 (7th Cir. 1970).
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2017.
2. The claimant has not engaged in substantial gainful activity since April 1, 2014, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: osteoarthritis, fibromyalgia, depression and anxiety (20 CFR 404.1520(c) and 416.920(c)).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is limited to simple, routine, repetitive tasks in a relatively unchanging setting and process, working with things instead of data or people, only brief and superficial contact with coworkers and supervisors.
7. The claimant was born on May 8, 1962, and was 51 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).


Und das Ganze im Detail !!
by Nancy Talanian On October 26, 2001, President Bush signed into law the USA PATRIOT Act (acronym for "Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism"). Passed hurriedly (many Congressmen stated later they had not even had time to read the law) it creates a new crime, "domestic terrorism," so broadly defined that it could conceivably apply to acts of civil disobedience.
The USA PATRIOT Act gives the FBI and the CIA greater rights to wiretap phones, monitor e-mail, survey medical, financial and student records, and break into homes and offices without prior notification. It creates a new crime of domestic terrorism that is so broadly defined that it may be applied to citizens acting legally to express their dissent. Under this Act and other legislation, noncitizens are being deported or detained indefinitely without judicial appeal.
The dangers of the USA PATRIOT Act are augmented by a Bureau of Prisons order allowing federal agents to abridge the attorney-client privilege by eavesdropping on conversations between lawyers and their clients held in federal custody. The Justice Department has also dismantled regulations against COINTELPRO operations that were enacted following abuses of the civil rights and peace movements of the 50's, 60's and 70's. The Administration has ordered secret military tribunals for suspected terrorists. In addition to being unfair and unnecessary, the U.S. threat of using military tribunals increases the likelihood that U.S. citizens will be treated accordingly overseas, and decreases the likelihood that other governments will be willing to extradite suspected terrorists or other parties wanted by the U.S.
For ease of reference, this article summarizes how the USA PATRIOT Act and certain Federal Executive Orders threaten and diminish the civil liberties of U.S. citizens and noncitizens guaranteed by the Bill of Rights. The Bill of Rights Defense Committee advocates the repeal of several sections of the Act and Orders. For example, Congress showed its concern about certain sections of the Act relating to enhanced surveillance by including in the Act Section 224, a "sunset" provision. We are also concerned about the powers for enhanced surveillance, and so we call upon Congress to accelerate the sunset provision so that the sections expire immediately rather than on Decemb er 31, 2005.
We are concerned not only that the government is using its new powers but is refusing to provide unclassified information on how it is using them under the Freedom of Information Act, such as who is being detained. The refusal prevents anyone, including citizens, the media, federal judges and members of Congress, from knowing whether the powers have been or are being abused. We believe the enhanced secrecy imposed by the administration makes it all the more imperative that Congress repeal unwarranted and unnecessary powers that provide little or no security but that clearly threaten our civil liberties.
What follows is a brief summary of some of the provisions of the USA PATRIOT Act (USAPA) and Federal Executive orders that threaten our rights as guaranteed by the Bill of Rights. We recommend that these sections be repealed.
of domestic terrorism. Creates a new crime, "domestic terrorism," which it defines as "acts dangerous to human life that are a violation of the criminal laws of the United States or of any State" and that "appear to be intended … to influence the policy of a government by intimidation or coercion." Broad definition may be used against activists exercising their rights to assemble and to dissent.
Act It permits the FBI director to seek records from bookstores and libraries of books that a person suspected of terrorism has purchased or read, or of his or her activities on a library's computer. It also places a gag order to prevent anyone from disclosing that they have been ordered to produce such documents. Puts people at risk for exercising their free speech rights to read, recommend, or discuss a book or to write an email. It also denies booksellers and library personnel the free speech right to inform anyone, including an attorney, that the FBI has asked for someone's reading list.
Organizations Rescinds anti-COINTELPRO regulations and authorizes the FBI to monitor and surveil religious groups and political groups without evidence of wrongdoing. Opens the door to COINTELPRO operations, which were used in the past to harass and to intimidate people who disagreed with the government on issues such as civil rights and the Vietnam War.
requests Replaced Attorney General Janet Reno's previous guidelines to agencies for fulfilling FOIA requests, which were to make allowable discretionary disclosures except where there was "demonstrable harm." Ashcroft assures agencies that "decide to withhold records, in whole or in part," that they "can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records." Enables federal agencies to ignore many FOIA requests for unclassified information. For example, the administration has used this edict to keep secret the names of detainees detained for long periods, and to close their hearings.
surveillance order Removes requirement to obtain judicial permission before listening in on conversations between prisoners (both prior to trial and convicted) and their attorneys. Abridges freedom of speech.
This amendment forms a substantial basis of the constitutional right to privacy.
place to be searched, and the persons or things to be seized."
USAPA §203: Authority to share criminal investigative information. Permits law enforcement to give CIA sensitive information gathered in criminal investigations, including wiretaps and internet trapping. No court order is required. CIA may share the information with other agencies and with foreign governments.
USAPA §218: Foreign intelligence information Amends Foreign Intelligence Surveillance Act (FISA) by eliminating the need for the FBI to show "probable cause" before conducting secret searches or surveillance to obtain evidence of a crime. Eliminates judicial supervision by giving the FBI the ability to gather "foreign intelligence information" without a warrant, unless the evidence sought is to be used in a criminal proceeding. Former standard of "foreign intelligence information" is weakened.1 Agent may now say that foreign intelligence is relevant or plays a part in the investigation. "Probable cause" of a crime is no longer needed.
USAPA §206: Roving surveillance authority under the Foreign Intelligence Surveillance Act of 1978. (AKA "roving wiretaps) Extends roving wiretap authority to "intelligence" wiretaps authorized by the Foreign Intelligence Surveillance Court. These wiretaps may be authorized secretly. Expands the power broadly by tapping any device used by a terrorist suspect, regardless of who is using the device at the time.
USAPA §213: Authority for delaying notice of the execution of a warrant (AKA "sneak and peek") Permits the government to search your home with no one present and to delay notification indefinitely. Court may authorize delayed notification "if the court finds reasonable cause to believe that providing immediate notification … may have an adverse result." Unlike the former "knock and announce" policy, a person whose home is to be searched cannot view the warrant to make sure the address is correct or to make sure that the agent adheres to the warrant's description of what is to be searched.
USAPA §215: Access to records and other items under the Foreign Intelligence Surveillance Act Relaxes requirements and extends capabilities of FISA by enabling anyone within the FBI down to rank of Assistant Special Agent in Charge to request a court order for tangible items sought for an investigation "to protect against international terrorism or clandestine intelligence activities." The judge must give permission if an agent has so certified.
For example, it permits the FBI director to seek records from bookstores and libraries of books that a person has purchased or read, or of his or her activities on a library's computer. It also places a gag order to prevent anyone from disclosing that they have been ordered to produce such documents.
Eliminates the former test, that "there are specific and articulable facts giving reason to believe that the person to whom the records pertain is a foreign power or an agent of a foreign power." No legitimate checks and balances; rather, the judge becomes a 'rubber stamp'. No privacy protection for U.S. citizens or legal residents acting legally. Transfers power from the judiciary to the executive branch.
USAPA §411: Definitions relating to terrorism Allows Secretary of State to designate any foreign or domestic group that has engaged in a violent activity a "terrorist organization." Lowers standard for terrorist designation; possibility of groups that dissent peacefully being so designated as the result of an action by an agent provocateur.
USAPA §412: Mandatory detention of suspected terrorists; habeas corpus; judicial review Gives Attorney General broad powers to certify immigrants as risks. Reduces previous standard from "probable cause."
Attorney General's Edict for Increased Surveillance of Religious and Political Organizations Rescinds anti-COINTELPRO regulations and authorizes the FBI to monitor and surveil religious groups and political groups without evidence of wrongdoing Reduces standard for surveillance from "probable cause."
Attorney General's approval of a Bureau of Prisons emergency surveillance order Removes requirement to obtain judicial permission before listening in on conversations between prisoners (both prior to trial and convicted) and their attorneys. Constitutes "unreasonable searches" without the necessity to meet the standard of "probable cause."
Attorney General's TIPS program Sets up a system for up to 2 million Americans, more than were involved in the heyday of East Germany's Stasi, to secretly provide information to the government about any persons whom they consider suspicious, and for the government to set up a file on these persons. May potentially damage someone's record due to innocent activities that are misunderstood or are invented or enhanced by the caller because of a personal vendetta. How the "tips" would be used has been neither reported nor approved, nor have there been assurances that anyone who is reported as "suspicious" will be confronted with the evidence against him/her and given an opportunity to correct it.
any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law."
Attorney General's approval of a Bureau of Prisons emergency surveillance order Removes requirement to obtain judicial permission before listening in on conversations between prisoners (both prior to trial and convicted) and their attorneys. A prisoner may be made to be a witness against himself or herself.
President Bush's Military Order Establishes trials by military tribunal, at president's discretion, for noncitizens. Denies "due process of law," which applies not only to citizens but to all "persons" in the United States. Allows secret evidence and hearsay to be used against the accused.
President Bush's order designating "Enemy combatant" Allows committee of attorney general, defense secretary, and CIA director to label citizens and noncitizens as "enemy combatants," placing them in military custody, holding them in detention indefinitely, interrogating them, and denying them communication with outsiders or judicial review. No opportunity to prove innocence. Denial of "liberty without due process of law."
Attorney General's Edict for Increased Surveillance of Religious and Political Organizations Rescinds anti-COINTELPRO regulations and authorizes the FBI to monitor and surveil religious groups and political groups without evidence of wrongdoing An unsuspecting participant in a religious or political meeting may be "compelled to be a witness against himself."
USAPA §412: Mandatory detention of suspected terrorists; habeas corpus; judicial review Gives Attorney General broad powers to certify immigrants as risks. Deprives immigrants of "liberty … without due process of law."
USAPA §412: Mandatory detention of suspected terrorists; habeas corpus; judicial review Gives Attorney General broad powers to certify immigrants as risks. Infringes upon the rights "to a speedy and public trial, by an impartial jury of the State and district…, to be informed of the nature and cause of the accusation, to confronted with the witnesses against him," and "to have the Assistance of Counsel for his defence."
President Bush's order designating "Enemy combatant" Any U.S. citizen or noncitizen designated as an enemy combatant may be placed in military custody, held in detention indefinitely, interrogated, and denied communication with outsiders or judicial review. Infringes upon the rights "to a speedy and public trial, by an impartial jury of the State and district…, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him," and "to have the Assistance of Counsel for his defence."
USAPA §412: Mandatory detention of suspected terrorists; habeas corpus; judicial review Gives Attorney General broad powers to certify immigrants as risks. May result in "cruel and unusual punishments" (deportation).