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[ [ "10542156", "932 F.2d 495", "RYAN, Circuit Judge.\nPlaintiff William G. Brooks appeals from the district court’s denial of his motion to amend his complaint to include allegations that 1) American Broadcasting Companies, Inc. (ABC) and other defendants violated 18 U.S.C. § 2511, which prohibits electronic interception of certain conversations, and 2) ABC and other defendants violated 42 U.S.C. §§ 1981, 1985, which prohibit certain forms of racial discrimination. The district court denied the motion to amend on the grounds that the new allegations could not survive a motion to dismiss for failure to state a claim. Brooks also appeals the district court’s grant of summary judgment for ABC and other defendants with respect to his state-law action for libel.\nWe are presented with two issues. The first is whether taking as true the well-pleaded allegations of his motion to amend, Brooks states a cause of action for violation of his rights under 18 U.S.C. § 2511 or 42 U.S.C. §§ 1981, 1985. The second is whether genuine issues of material fact remain concerning ABC’s and the other defendants’ alleged libeling of Brooks.\nWe conclude that Brooks fails to state a cause of action for violation of the federal statutes. We also conclude that under the analysis the district court employed in entering summary judgment, genuine issues of material fact remain with respect to defendants’ alleged libel.\nI. Background\nABC television personality Geraldo Rivera traveled to Akron, Ohio, to investigate rumors that a local judge persuaded women to have sex with him by offering the women favorable rulings in certain cases. Rivera suspected that Brooks, an Akron resident with a substantial and slightly publicized criminal background, was assisting the judge by attempting to frighten the women out of testifying against him. Rivera persuaded Brooks to meet Rivera at a hotel. As soon as Brooks got out of his taxi, Rivera emerged from the hotel and rapidly asked Brooks a series of questions concerning Brooks’s suspected role as “hit-man” for the judge.\nAfter this questioning, during which Brooks may not have known that ABC was recording his answers, Rivera summoned a camera crew from a nearby van. Muttering some obscenities, Brooks fled, with Rivera and camera crew in close pursuit. On a 1980 episode of ABC’s television program “20/20,” the network broadcast Rivera’s and other persons’ negative comments concerning Brooks and his alleged involvement with the judge. The remarks were to the effect that the judge employed Brooks as a “hitman,” that five witnesses attested to his role, and that Brooks was a “pimp,” “betrayed” by the judge, a “muscleman,” and a “street knowledgeable jive turkey.” Before the broadcast of the “20/20” segment, a grand jury indicted Brooks on charges related to obstruction of justice.\nOver the years, police had taken Brooks into custody 20 times on suspicion of various misdeeds. Brooks’s criminal history included convictions for 1) breaking and entering, 2) grand larceny, 3) first-degree manslaughter, and 4) carrying a concealed weapon under disability. Adverse publicity had compromised Brooks’s reputation severely prior to the “20/20” broadcast. The Akron Beacon Journal publicized Brooks’s convictions in four articles. In addition to reporting the convictions, the Beacon Journal also had noted Brooks’s “involvement” in a 1979 Akron slaying. Ten days before the “20/20” broadcast, the newspaper reported Brooks’s indictment for intimidation of witnesses and obstruction of justice in relation to the judge, and referred to Brooks as “the man police suspect of being the so-called ‘hit-man’ in the sex case involving [the judge]_” According to Brooks, potential employers had become wary of hiring him as a result of his prior convictions.\nIn 1981, Brooks filed a complaint in the United States District Court invoking diversity jurisdiction and alleging that ABC and others libeled him by broadcasting Rivera’s derogatory and allegedly false remarks. Brooks sought $20 million in compensatory and $20 million in punitive damages. Brooks next filed a motion to amend his complaint and alleged that ABC and others violated 18 U.S.C. § 2511 by using electronic, mechanical, or similar devices to unlawfully intercept his statements to Rivera and by broadcasting the statements at a later date. Brooks also alleged that defendants violated 42 U.S.C. §§ 1981, 1985 by conspiring to deprive him of his constitutional right to privacy inasmuch as he and the women with whom the judge allegedly had sex were black and the judge was white. Brooks continued to seek $40 million in damages, as well as attorneys’ fees.\nDefendants then filed a motion for summary judgment. The district court denied Brooks’s motion to amend and also granted summary judgment for ABC and the defendants with respect to the claims in the original complaint, 737 F.Supp. 431. Brooks appeals from the summary judgment and from the denial of his motion to amend.\nII. Federal Claims\nA. Standard of Review\nWe have previously set forth the standards governing dismissal of a civil rights action under Fed.R.Civ.P. 12(b)(6), for failure to state a claim:\nDismissals of complaints under the civil rights statutes are scrutinized with special care. A complaint need not set down in detail all the particularities of a plaintiff’s claim against a defendant. Rule 8(a)(2) simply requires ‘a short and plain statement of the claim showing that the pleader is entitled to relief_’ Fed.R. Civ.P. 8(1)(2). All a complaint need do is afford the defendant ‘fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’ [citation omitted], A motion to dismiss under Rule 12(b)(6) should not be granted ‘unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’\nJones v. Duncan, 840 F.2d 359, 361 (6th Cir.1988) (citations omitted) (emphasis in original).\nB. Section 1981 and Section 1985 Claims\nIn his complaint, Brooks alleges that the defendants conspired to violate sections 1981 and 1985 by using photographs of Brooks and tape recordings of his voice “only for the reason that [Brooks] was a black male alleged to be the friend and associate of a white male judge, who had had sexual relations with black women.” Brooks alleges that these actions violated his “constitutional right of privacy.” Beyond these broad statements, Brooks’s pleadings did not clarify his legal basis for proceeding. While Brooks’s motion to amend alleged that ABC acted under color of state law, Brooks has since retreated from that position.\n1. Section 1981\nSection 1981 provides:\nAll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.\n42 U.S.C. § 1981.\nBrooks argues that the broadcast violated section 1981 because the adverse publicity interfered with his right to a fair trial and because the broadcast labeled Brooks with a “badge of infamy.” According to his brief, however, Brooks never stood trial but instead pleaded guilty to obstruction of justice “in exchange for a plea bargain that he would receive probation.”\nThe district court denied Brooks’s section 1981 claim on the grounds that 1) Brooks failed to allege state action, and 2) his allegations were fatally vague and conclu-sory in omitting any mention of the laws of which he allegedly was denied the full and equal benefit. While there exists some federal appellate authority for the proposition that clauses two and three of section 1981 contemplate state action, e.g., Mahone v. Waddle, 564 F.2d 1018, 1029-30 (3d Cir.1977), we need not resolve that issue today. Especially in view of the fact that he never stood trial, Brooks’s vague and conclusory allegations cannot survive a motion to dismiss, and the district court correctly denied the motion to amend.\n2. Section 1985\nSection 1985 provides:\nObstructing justice; intimidating party, witness, or juror\n(2) If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;\nDepriving persons of rights or privileges\n(3) If two or more persons in any State or Territory conspire ... for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; ... in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy whether another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.\n42 U.S.C. § 1985.\nBrooks in his reply brief alleges that by intercepting him, Rivera and the camera crew committed “a prima facie violation of 42 U.S.C. § 1985(2)(n)(3) [sic].” That is as much explication of the section 1985 claim as is offered. Thus, even at this late date in the litigation, Brooks fails to state a basis for relief. Defendants cannot effectively answer the allegation because there is nothing specific to answer. The district court denied the claim on the basis that the claim could not withstand a motion to dismiss. The district court’s grounds were that 1) Brooks failed to plead the conspiracy in detail and 2) Brooks failed to allege any violation of a federally protected right, as required under section 1985(3).\nMore generally and more simply, however, we conclude that the section 1985 claim fails on the same ground as the section 1981 claim: the allegations are too vague and conclusory to withstand a motion to dismiss. See Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir.1984); see also Blackburn v. Fisk Univ., 443 F.2d 121, 124 (6th Cir.1971).\nC. Federal Wiretapping or Eavesdropping Claim\nAs effective in 1981, section 2511 of Title 18 generally prohibited willfully intercepting, disclosing, or using wire or oral communications. “Oral communication” meant “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation.” 18 U.S.C. § 2510 (1968). Section 2511 permitted interception where a person not acting under color of law was “a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortious act in violation of the Constitution or laws of the United States or of any State or for the purpose of committing any other injurious act.” The phrase “or for the purpose of committing any other injurious act” was not legally binding since the phrase is unconstitutionally vague. See Boddie v. ABC, 881 F.2d 267, 270-72 (6th Cir.1989).\nThe district court concluded that even under the facts alleged, Brooks had failed to allege that ABC’s interception was “for the purpose of committing any criminal or tortious act.” Brooks disagrees. Specifically, he contends that ABC violated a now-repealed Ohio statute, O.R.C. § 2933.58. Section 2933.58 provided:\n(A) Except as provided in this section, or as permitted under the laws of the United States, no person shall willfully, surreptitiously, and by means of any device listen to, transmit, amplify, or record a private oral communication carried on in circumstances which reasonably indicate that the parties thereto desire it to be confined to them, and no person shall willfully disclose or willfully use or attempt to use any information, knowing or having reasonable cause to believe such information was obtained in violation of this section.\nWhoever violates this section shall be fined not more than one thousand dollars or imprisoned not less than one nor more than three years, or both.\n(B) This section does not apply to communications by or through a line, cable, or wire under the control of a telegraph or telephone company, or to communications in which at least one party thereto, in order to prevent a crime or bring an offender to justice, has consented in advance to such communications being listened to, transmitted, amplified, or recorded, or to communications carried on publicly or under circumstances in which the parties thereto might reasonably expect such communications to be listened to, transmitted, amplified, or recorded.\n(Emphasis added.) This now-repealed section prohibited only conduct “not permitted under the laws of the United States.” Since the only United States Code section arguably forbidding ABC’s conduct was section 2511, the district court concluded that ABC had not violated O.R.C. § 2933.58 and thus had not committed a tort that would trigger a violation of 18 U.S.C. § 2511:\nIn essence, this statute deferred] to federal law, yet Brooks wishes to use it to establish the legality or illegality of an interception under federal law. This is not logically sound because it results in circular reasoning; i.e., Title III [wa]s violated if § 2933.58 [wa]s violated but § 2933.58 [wa]s violated only if Title III [wa]s violated.\nWe agree. In part, section 2511 serves to outlaw surveillance undertaken to violate state law, while section 2933.58 apparently serves to outlaw actions also violating federal surveillance law. Under these circumstances, plaintiffs claim of wrongdoing, while semantically interesting, lacks genuine substance, and the district court properly denied the claim.\nIII. Libel Claim\nA. Standard of Review\nThe district court granted summary judgment dismissing Brooks’s state law libel claim. We review a district court’s grant of summary judgment de novo. Pinney Dock & Transp. Co. v. Penn Central Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). Summary judgment is appropriate where no genuine issue of material fact exists so that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court determines whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Of course, “inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Riebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). The movant meets its initial burden “by ‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 324-25, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986). At that point, the non-movant “must set forth specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(c); Anderson, 477 U.S. at 250, 106 S.Ct. at 2511.\nB. “Libel Proof Concept\nIn dismissing Brooks’s libel claim, the district court agreed with the defendants that, as a matter of law, Brooks was “libel-proof,” a rather loose-woven legal conception of the federal courts. At the federal appellate level, the “libel-proof” concept makes its home only in the Second Circuit, although the Eighth, Third, and Fifth Circuits have referred to the concept as if those circuits might apply it under the right circumstances. Ray v. United States Dept. of Justice, 658 F.2d 608, 611 (8th Cir.1981); Marcone v. Penthouse Int’l Magazine, 754 F.2d 1072, 1078-79 (3d Cir.1985); Zerangue v. TSP Newspapers, Inc., 814 F.2d 1066, 1074 (5th Cir.1987). Restated in its most viable form, defendant’s argument is as follows: due to his prior publicized criminal acts and due to other publicity concerning the “hitman” allegations, any additional damage to Brooks’s reputation that might have occurred due to the “20/20” broadcast was de minimis as a matter of law.\nIn a critical case in the libel-proof doctrine’s evolution, the Second Circuit held: “We consider as a matter of law that appellant is, for purposes of this case, libel-proof, i.e., so unlikely by virtue of his life as a habitual criminal to be able to recover anything other than nominal damages as to warrant dismissal of the case.” Cardillo v. Doubleday & Co., 518 F.2d 638, 639 (2d Cir.1975) (emphasis added). At the time of the appeal, Cardillo was serving a 21-year sentence for assorted federal felonies. Id. at 640. A subsequent Second Circuit opinion further defined the contours of the libel-proof concept:\nThe libel-proof plaintiff doctrine is to be applied with caution, since few plaintiffs will have so bad a reputation that they are not entitled to obtain redress for defamatory statements, even if their damages cannot be quantified and they receive only nominal damages. But in those instances where an allegedly libelous statement cannot realistically cause impairment of reputation because the person’s reputation is already so low ..., even nominal damages are not to be awarded. Instead, the claim should be dismissed so that the costs of defending against the claim of libel, which can themselves impair vigorous freedom of expression, will be avoided.\nGuccione v. Hustler Magazine, Inc., 800 F.2d 298, 303 (2d Cir.1986) (emphasis added). Criminal convictions are the well-worn path to achieving libel-proof status, but a specific reputation obtained through means such as newspaper and magazine articles also will suffice. See id. Courts even have admitted articles published as much as five to eight years before the fact, to show that a plaintiff is libel-proof. Id. at 304.\nIn contrast to the Second Circuit, the District of Columbia Circuit has rejected libel-proof notions: “Because we think it [libel-proof theory] a fundamentally bad idea, we are not prepared to assume that it is the law of the District of Columbia; nor is it part of federal constitutional law.” Liberty Lobby, Inc. v. Anderson, 746 F.2d 1563, 1569 (D.C.Cir.1984) (Scalia, J.), vacated on other grounds, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The Liberty Lobby court implied that in applying libel-proof doctrine, the federal courts were spinning loose-woven legal theory not firmly attached to the loom of state law. Id. at 1568-69.\nIn the only relevant appellate case in this circuit, we affirmed without opinion the district court’s dismissal for failure to state a claim. Ray v. Time Inc., 452 F.Supp. 618 (W.D.Tenn.1976) (Wellford, J.), aff'd without opinion, 582 F.2d 1280 (6th Cir.1978). Plaintiff James Earl Ray, the notorious assassin of Martin Luther King, Jr., brought action for libel against Time and others for publishing false information concerning Ray and his crimes. With respect to the allegedly false information that Ray was a narcotics addict and narcotics peddler as well as a robber, the district court concluded:\nThe Court is persuaded, in the light of all the circumstances in this cause and in the public record involved in the other cases mentioned, that ... James Earl Ray is libel-proof, as that term was used in Cardillo v. Doubleday & Co., Inc., 518 F.2d 638, 639 (2d Cir.1975).... Ray, as Cardillo, is a convicted habitual criminal and is unlikely to be able to recover damages to his reputation as to warrant dismissal of his libel claim in the light of First Amendment considerations attendant to publication of material dealing with his background and criminal activities. As in [another Second Circuit case], this Court agrees ... that all the circumstances indicate this action is frivolous.\nId. at 622.\nAlthough we may question whether all aspects of the libel proof doctrine are sound policy, in this diversity action, our task is to anticipate how the Supreme Court of Ohio would rule if confronted with Brooks’s claim. See Bailey v. V & O Press Co., 770 F.2d 601, 604 (6th Cir.1985). Unfortunately, to date the Ohio courts have not addressed the libel-proof concept.\nIn any event, regardless of whether the Supreme Court of Ohio would endorse some version of the libel-proof theory, we cannot affirm the district court’s summary judgment on the basis of such a concept. In our view, genuine issues of material fact remain as to whether defendants’ statements could have done further damage to Brooks’s already tarnished reputation. While prior to the broadcast, some Akron residents knew Brooks as an occasionally violent criminal, no popular nationwide television program or other publicity had portrayed Brooks as a “hitman” for a corrupt judge, a “pimp,” a “muscleman,” or a “street knowledgeable jive turkey.” We leave it to a trier of fact to determine whether, and to what extent, the “20/20” episode damaged Brooks’s reputation.\nAccordingly, we remand this case to the district court for further proceedings. On remand, the district court may conclude that a trial is necessary to resolve the question of Brooks’s libel-proofness. On the other hand, the district court may grant summary judgment for defendants on the basis of one or more of the several alternative grounds, not based upon the libel-proof concept, that defendants have advanced.\nIV.\nFor the foregoing reasons, the district court’s denial of Brooks’s motion to alter or amend his complaint is AFFIRMED. The district court’s summary judgment with respect to the libel claim is VACATED, and this case is REMANDED to the district court for a trial on the libel claim or for summary judgment based upon a different ground.\n. O.R.C. § 1.16 authorizes civil actions to recover damages for violations of Ohio criminal statutes.\n. By \"permitted,” the Ohio legislature might have meant “explicitly authorized,” but finding no evidence of such intention in the case law, we apply the plain language of the statute.\n. Thus far the Ninth Circuit has adopted only the \"incremental harm branch\" of the libel-proof doctrine. Masson v. New Yorker Magazine, Inc., 881 F.2d 1452, 1457 (9th Cir.1989). “This doctrine measures the incremental reputa-tional harm inflicted by the challenged statements beyond the harm imposed by the non-actionable remainder of the publication; if that 'incremental harm’ is ... nominal or nonexistent, the statements are dismissed as not actionable.” Id. at 1458 (quotation omitted)." ], [ "405464", "114 F.3d 596", "OPINION\nNATHANIEL R. JONES, Circuit Judge.\nPlaintiff Beacon Journal Publishing Company (“the Beacon Journal”) appeals the district court order granting Defendant Akron Newspaper Guild Local Number 7’s (“the Union”) motion for summary judgment. In granting the motion, the district court enforced an arbitration award favorable to the Union. The Beacon Journal asserts that the award ignores the express terms of the parties’ collective bargaining agreement and that the arbitrator unreasonably created new conditions not provided for in the agreement, For the following reasons, we reverse the district court’s grant of summary judgment and vacate the arbitrator’s award,\nI.\nThe Beacon Journal publishes a daily newspaper in Akron, Ohio. The Union is the bargaining representative for all non-supervisory employees in the Beacon Journal’s editorial department, which contains approximately 150 people. These non-supervisory employees include reporters, copy editors, photographers, library assistants, secretaries, and maintenance personnel.\nOn July 23, 1993, the Beacon Journal and the Union entered into a collective bargaining agreement. This collective bargaining agreement is the most recent labor contract in a labor-management relationship that extends back to at least 1972. Article VII of the collective bargaining agreement provides for arbitration of all unresolved grievances involving the “interpretation, application, administration or alleged violation” of the labor contract.\nThe current arbitration arose under Article XIII, section 3 of the Collective Bargaining Agreement, which provides:\nEMPLOYER may exercise the right to assign vacations. However, it is understood that preference as to choice of time shall be given to employees in the order of seniority by desk or department.\nSince 1972, the Beacon Journal has handled the vacation process in the same manner. At the beginning of the year, the Beacon Journal would send around a memorandum designating the times that members of the Union could sign up for vacations. The Beacon Journal typically would create three vacation slots for every week of the year except Thanksgiving, Christmas, and New Year’s, when only two slots were available. Additionally, the Beacon Journal would not schedule any vacation slots for election weeks, because of press demands. Once the Beacon Journal posted the slots, employees would sign up in order of seniority.\nThe current dispute arose from the establishment of new exempt editorial positions in the 1989 and 1991 collective bargaining agreements. In 1989, the Beacon Journal created three exempt supervisory positions, and in 1991, it added a fourth exempt supervisory position. The new supervisors were former members of the Union and continued to perform many of the same duties they had performed prior to being promoted.\nThe parties’ Collective Bargaining Agreement reflected these changes. Article I of the Collective Bargaining Agreement provides in pertinent part:\nThis Agreement covers all employees ... except ... one executive news editor, one Sunday news editor, one deputy news editor, one copy desk chief____\nAfter the amendment, the Beacon Journal did not change the process of assigning vacations. Thus, the four newly promoted employees took their vacation as they had in the past, by signing on the memorandum in order of seniority with the collective bargaining employees.\nUltimately, the Beacon Journal found this approach problematic because it needed to assure that exempt supervisors did not take vacation at the same time as exempt managers. These members were indispensable to the company, and thus, at least one of the exempt supervisors had to be at work at all times. Consequently, the Beacon Journal unilaterally decided to allow the supervisors to work out their vacation schedules first, so their vacation schedules would not overlap with those of other management employees. Under the new process, the Beacon Journal treated the new four supervisory employees as it did all of its other supervisory employees.\nThese changes took effect in 1993. The company deducted the weeks the supervisors took from the available slots offered to bargaining unit employees, which the company apparently had never done in the past when its other exempt supervisors scheduled vacations. Thus, under the new regime, bargaining unit employees with more seniority than the supervisors had to schedule their vacation time after these “less senior” supervisors. The parties settled the problem in 1993, but did not agree to a policy for future years.\nIn 1994, the Beacon Journal once again used the new vacation system. This time the parties could not resolve their differences. Thus, the Union filed a grievance against the Beacon Journal. The Beacon Journal denied the grievance, and it was presented to an arbitrator selected by the Beacon Journal and the Union pursuant to their collective bargaining agreement.\nThe arbitrator framed the issue for arbitration as follows:\nDid the management of the Akron Beacon Journal have the right, under the terms of the labor agreement, to change the method of establishing priorities for vacation schedule for the exempt supervisory positions? The positions involve the Copy Desk, the National Desk and the News Desk? If not, what is the remedy?\nArbitrator’s Decision, Slip op. at 1. The arbitrator held a hearing on August 8, 1994, at which both parties presented evidence to the arbitrator. On October 29,1994, the arbitrator sustained the Union’s grievance.\nIn his report, the arbitrator first delineated the aforementioned factual history. He found that the supervisory employees were not part of the bargaining unit. The arbitrator recognized that while these supervisors were no longer part of the Guild they eontin ued to perform some of the “tasks performed by Guild members.” Interestingly, the Union did not present any evidence that a member had “to modify or change his/her vacation plans due to the management’s ‘new interpretation of its rights under the vacation and management rights clauses of the labor agreement.” Arbitrator’s Decision, Slip op. at 6. In contrast, management was “vague on the specifics of not being able to meet the necessities of the supervisors and the production needs of the newspaper.” Id.\nThe arbitrator made no further findings, but instead found that the Union’s grievance was justified. He then crafted his own solution, whereby the four new supervisors and the Union employees were thrown into a “seniority pool” for vacation selection purposes. He also provided for a grievance procedure through the Union for employees that believed they were adversely affected by the new procedure.\nThe Beacon Journal refused to comply with the arbitration award and instead instituted this lawsuit under section 801 of the Labor Management Relations Act, 29 U.S.C. § 185. The parties filed cross-motions for summary judgment, and the district court enforced the award. The Beacon Journal filed this timely appeal.\nII.\nThis court reviews the district court’s grant of summary judgment de novo. Rowley v. United States, 76 F.3d 796, 799 (6th Cir.1996). Nevertheless, our scope of review, like the review of the district court, is extremely limited.\nThe Supreme Court has made clear in the Steelworkers’ Trilogy and its progeny that courts must accord an arbitrator’s decision substantial deference because it is the arbitrator’s construction of the agreement, not the court’s construction, to which the parties have agreed. See United Paperworkers Int’l Union v. Misco, 484 U.S. 29, 37-8, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987) (“Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept.”). Hence, our review is extremely limited. We review the arbitrator’s decision only to determine whether the arbitrator was “arguably construing or applying the contract and acting within the scope of his authority.” Id. at 38, 108 S.Ct. at 371. If the arbitrator’s award “draws its essence from the collective bargaining agreement,” and is not merely the arbitrator’s “own brand of industrial justice,” the award is legitimate. United Steelworkers of Am. v. Enterprise Wheel & Car Co., 363 U.S. 593, 597, 80 S.Ct. 1358, 1361, 4 L.Ed.2d 1424 (1960). Courts will not weigh the merits of the claim or determine whether the claim is supported by language in the written instrument; otherwise, the policy of settling labor disputes through arbitration would be undermined. Misco, 484 U.S. at 36, 108 S.Ct. at 369-70; see also United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 568, 80 S.Ct. 1343, 1346, 4 L.Ed.2d 1403 (1960) (“[C]ourts, therefore, have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim.”).\nDespite the great amount of deference accorded an arbitrator’s decision, our review is not toothless when an arbitrator’s award disregards the collective bargaining agreement and its terms. See Lattimer-Stevens Co. v. United Steelworkers, 913 F.2d 1166, 1171-72 (6th Cir.1990) (Boggs, J., dissenting) (delineating eases setting aside arbitrator’s decision). Even though arbitrators are not flawless, courts must refrain from reversing an arbitrator simply because the court disagrees with the result or believes the arbitrator made a serious legal or factual error. Misco, 484 U.S. at 38, 108 S.Ct. at 371 (“that a court is convinced [the arbitra tor] committed serious error does not suffice to overturn his decision.”). However, an arbitrator does not have unfettered discretion and when he or she departs from “even arguably construing the contract,” this court must vacate the award. See Enterprise Wheel, 863 U.S. at 597, 80 S.Ct. at 1361 (“When the arbitrator’s words manifest an infidelity to this obligation, courts have no choice but to refuse enforcement of the award.”). In fact, since Misco, this court has not backed away from reviewing an arbitrator’s decision when that decision departs from any conceivable interpretation of the contract. See, e.g., Ficks Reed Co. v. Local Union 112, 965 F.2d 123, 126 (6th Cir.1992) (affirming district court’s decision to vacate arbitrator’s award); International Ass’n of Machinists v. Lourdes Hosp., 958 F.2d 154, 157 (6th Cir.1992) (vacating arbitrator’s decision).\nThe key issue in this case is whether the arbitrator’s award draws its “essence” from the terms of the collective bargaining agreement. An arbitrator’s award fails to draw its essence from the agreement when:\n(1) it conflicts with express terms of the agreement; (2) it imposes additional requirements not expressly provided for in the agreement; (3) it is not rationally supported by or derived from the agreement; or (4) it is based on “general considerations of fairness and equity” instead of the exact terms of the agreement.\nDallas & Mavis Forwarding Co. v. Local Union No. 89, 972 F.2d 129, 134 (6th Cir.1992) (quoting Cement Divisions, National Gypsum Co. v. United Steelworkers of Am., 793 F.2d 759, 766 (6th Cir.1986) (citations omitted)). In this case, the arbitrator’s award does not conflict with express terms of the agreement, but it does impose additional requirements not found in the contract, is not rationally supported by or derived from the agreement, and is based on general considerations of fairness and equity rather than the exact terms of the agreement. Thus, the district court erred in not vacating the award.\nThis case is very similar to Lourdes Hospital. In Lourdes Hospital, the union filed a complaint when a part-time employee was called back to work on an unscheduled weekend and did not receive overtime pay. 958 F.2d at 156. The arbitrator found that the employee was not entitled to overtime under the contract, but did find that the hospital abused its power to schedule. Id. Thus, the arbitrator ruled in favor of the employee. Id. The district court affirmed the arbitration award, and this court reversed. Id. at 156-57. This court found that the hospital could not abuse a right specifically given to it in the collective bargaining agreement — the right to schedule. Id. at 157. We further found that the arbitrator imposed his own brand of industrial justice by creating a contract term requiring notice of all schedule changes. Id.\nIn this ease, the four supervisors are specifically exempt from the collective bargaining agreement and, thus, not subject to the vacation provisions of the agreement. Moreover, the Beacon Journal has the exclusive right to schedule vacations. Consequently, the Beacon Journal did not violate a specific provision of the collective bargaining agreement by doing something it had a right to do — schedule vacation slots after its supervisors had chosen when to take their vacations.\nFurthermore, the arbitrator imposed his own brand of “industrial justice” in this case by crafting guidelines that do not even arguably derive themselves from the contract. It appears that the arbitrator imposed these guidelines in an effort to form a “better solution” for the parties than that which could be found in the terms of the agreement itself. This is in direct contravention of the principle that awards not be based on principles of fairness, but instead on precise terms of the collective bargaining agreement. The arbitrator’s decision violates the very touchstone of arbitration — that the award “draw its essence” from the collective bargaining agreement.\nUnable to point to a contractual basis for the arbitrator’s award, the Union argues that the award was based upon an unwritten past practice. Arbitrators commonly utilize past practice or industry customs to interpret the meaning of ambiguous, or even general, terms and clauses in a contract. See Perry v. Million Air, 943 F.2d 616, 619 (6th Cir.1991) (recognizing that the arbitrator may use past practice and industry customs to interpret the collective bargaining agreement); see also Excel Corp. v. United Food and Commercial Workers, 102 F.3d 1464, 1468 (8th Cir.1996) (“[A]n arbitrator can and should consider the parties’ past practices and ‘common law of the shop’ to determine the scope of their agreement.”); Strathmore Paper v. United Paperworkers Int'l 900 F.2d 423, 427-28 (1st Cir.1990) (holding that arbitrator may factor in past practices when attempting to interpret the collective bargaining agreement). But past practice or custom should not be used to interpret or give meaning to a provision or clause of the collective bargaining agreement that is clear and unambiguous. Excel Corp., 102 F.3d at 1468; Keebler Co. v. Milk Drivers and Dairy Employees Union, 80 F.3d 284, 288 (8th Cir.1996) (holding that arbitrator may look to past practice only to interpret ambiguous terms and not to add new terms to an already clear agreement); Frank Elkouri and Edna Asper Elkouri, How Arbitration Works 454 (4th ed. 1985) (“While custom and past practice are used very frequently to establish the intent of contract provisions which are so ambiguous or so general as to be capable of different interpretations, they ordinarily -will not be used to give meaning to a provision which is clear and unambiguous.”).\nThe terms of the agreement are clear in this case. While the Beacon Journal may have included its four new supervisors in with bargaining unit employees for a short period of time, it never rescinded its right to schedule vacations. Hence, the Beacon Journal retained the right to unilaterally change its vacation policy; to hold that once the Beacon Journal sets forth a vacation policy, it is bound by it, would be incongruous with the collective bargaining agreement.\nFinally, and perhaps most importantly, even if the Union was correct, the arbitrator’s findings foreclose the Union’s argument. The arbitrator specifically stated that “[t]he vacation and job assignment procedures have not been clear cut in the past or in recent years.” Arbitrator’s Decision, Slip op. at 6-7. Simply put, the arbitrator did not find that a past practice existed.\nIII.\nAccordingly, we hereby REVERSE the decision of the district court affirming the arbitration award and VACATE the arbitrator’s award.\n. This language has remained virtually unchanged since at least 1972.\n. The Beacon Journal also restricted how many employees from a certain department could sign up for the same week. This procedure allowed the Beacon Journal to ensure adequate staffing throughout the year, which the Beacon Journal has maintained is of paramount importance.\n. The Beacon Journal, however, continued to schedule its other exempt senior level employees separately from members of the Union. Only the four new supervisors were included in the Union members’ vacation slot process.\n.The Union has never claimed, and does not now claim, that exempt supervisors, other than the four involved in this dispute, are subject to the bargaining unit seniority claims for the purposes of vacation scheduling.\n. United Steelworkers of Am. v. Enterprise Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960); United Steelworkers of Am. v. Warrior & Gulf Navig. Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960).\n. In so holding, we must add that the strong desire of courts to ensure that fairness and equity are accorded creates a difficult chore in these cases. Yet, first and foremost, judges and arbitrators are mandated to respect the agreement the parties have reached." ] ]

[ "932 F.2d 495\n\n2511 serves to outlaw surveillance undertaken to violate state law, while section 2933.58 apparently serves to outlaw actions also violating federal surveillance law. Under these circumstances, plaintiffs claim of wrongdoing, while semantically interesting, lacks genuine substance, and the district court properly denied the claim. III. Libel Claim A. Standard of Review The district court granted summary judgment dismissing Brooks’s state law libel claim. We review a district court’s grant of summary judgment de novo. Pinney Dock & Transp. Co. v. Penn Central Corp., 838 F.2d 1445, 1472 (6th Cir.), cert. denied, 488 U.S. 880, 109 S.Ct. 196, 102 L.Ed.2d 166 (1988). Summary judgment is appropriate where no genuine issue of material fact exists so that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). The court determines whether “there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). Of course, “inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the motion.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986) (quoting United States v. Riebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962)). The movant meets its initial burden “by ‘showing’ — that is,", "114 F.3d 596\n\n“seniority pool” for vacation selection purposes. He also provided for a grievance procedure through the Union for employees that believed they were adversely affected by the new procedure. The Beacon Journal refused to comply with the arbitration award and instead instituted this lawsuit under section 801 of the Labor Management Relations Act, 29 U.S.C. § 185. The parties filed cross-motions for summary judgment, and the district court enforced the award. The Beacon Journal filed this timely appeal. II. This court reviews the district court’s grant of summary judgment de novo. Rowley v. United States, 76 F.3d 796, 799 (6th Cir.1996). Nevertheless, our scope of review, like the review of the district court, is extremely limited. The Supreme Court has made clear in the Steelworkers’ Trilogy and its progeny that courts must accord an arbitrator’s decision substantial deference because it is the arbitrator’s construction of the agreement, not the court’s construction, to which the parties have agreed. See United Paperworkers Int’l Union v. Misco, 484 U.S. 29, 37-8, 108 S.Ct. 364, 371, 98 L.Ed.2d 286 (1987) (“Because the parties have contracted to have disputes settled by an arbitrator chosen by them rather than by a judge, it is the arbitrator’s view of the facts and of the meaning of the contract that they have agreed to accept.”). Hence, our review is extremely limited. We review the arbitrator’s decision only to determine whether the arbitrator was “arguably construing or applying the contract and acting within the scope of his authority.” Id. at" ]

[["8937772","413 F.3d 330","Judge JON 0. NEWMAN concurs in the majority opinion and in a separate op(...TRUNCATED)

["413 F.3d 330\n\nCourt has squarely rejected” the argument that “actions for breach of fiduciar(...TRUNCATED)

[["6639699","11 U.S.C.M.A. 99","Opinion of the Court\nROBERT E. Quinn, Chief Judge:\nThis case is be(...TRUNCATED)

["11 U.S.C.M.A. 99\n\nmany cases dealing with the effect of remarks by the prosecuting attorney. We (...TRUNCATED)

[["9014373","404 F.3d 537","LIPEZ, Circuit Judge.\nJosé Figuereo pled guilty to being found in the (...TRUNCATED)

["404 F.3d 537\n\n(“PSR”). Cf. Heldeman, 402 F.3d 220, 222. Moreover, the PSR indicated that alt(...TRUNCATED)

[["3782494","478 F.3d 1226","KELLY, Circuit Judge.\nDefendant-Appellant Miguel Angel Jar-rillo-Luna (...TRUNCATED)

["478 F.3d 1226\n\nbelow the Guideline range. First, he contended that his illegal reentry “is non(...TRUNCATED)

[["11139482","241 F.3d 895","DIANE P. WOOD, Circuit Judge.\nAppellate review of sentencing decisions(...TRUNCATED)

["241 F.3d 895\n\nappealing party wants to raise is one that the court is authorized to hear under 1(...TRUNCATED)

[["6482937","96 B.R. 376","FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION\nALEXANDER L.(...TRUNCATED)

["96 B.R. 376\n\nfor a creditor to prevail under § 523(a)(2)(B), it is sufficient for a creditor to(...TRUNCATED)

[["5901843","487 B.R. 705","ORDER\nJ. RICH LEONARD, Bankruptcy Judge.\nThis matter came before the c(...TRUNCATED)

["487 B.R. 705\n\nantecedent debt, where the underlying obligation or debt has been avoided, any pay(...TRUNCATED)

[["11840874","220 B.R. 1005","OPINION\nBOULDEN, Bankruptcy Judge.\nClarendon National Insurance Comp(...TRUNCATED)

["220 B.R. 1005\n\nrejecting the Appellants’ contemporaneous exchange, new value, and ordinary cou(...TRUNCATED)

[["1034964","541 F.2d 1073","RONEY, Circuit Judge:\nPlaintiff, a university professor, brought this (...TRUNCATED)

["541 F.2d 1073\n\nthe situation. Again the Board looked to Megill’s inability to make accurate pu(...TRUNCATED)