ALEA Mid- and Post-Train Resources
Collection
Various Q&A, abstractive/extractive summarization, classification, drafting, prediction, and conversational tasks
•
9 items
•
Updated
•
2
Dataset Viewer
source_identifier
stringlengths 99
113
| parties
sequencelengths 1
202
| text
stringlengths 261
648k
|
|---|---|---|
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-88-01659/USCOURTS-ca10-88-01659-0/pdf.json | [
[
"American Mining Congress",
"Amicus Curiae"
],
[
"Emery Mining Corporation",
"Petitioner"
],
[
"Federal Mine Safety and Health Review Commission",
"Respondent"
],
[
"Secretary of Labor",
"Respondent"
],
[
"United Mine Workers of America",
"Intervenor"
]
] | PUBLISH
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UTAH POWER & LIGHT COMPANY, Substituted)
for Emery Mining Corporation, )
)
Petitioner, )
)
FI LED
U!litcd Srntes 0:>Urt of Appeals
'teorh Ci ····,,,;t
FEB 2 G 1990
ROBERT L. HOECKER
Clerk
V • )
)
SECRETARY OF LABOR, FEDERAL MINE & )
Nos. 88-1655
&
88-1659
SAFETY. REVIEW COMMISSION, )
)
Respondents, )
) '
UNITED MINE WORKERS OF AMERICA, )
)
Intervenor, )
)
)
AMERICAN MINING CONGRESS, )
)
Amicus Curiae. )
ON PETITION FOR REVIEW OF AN ORDER
OF THE FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION
(Nos. West 86-126-~,
West 86-131-R,
West 86-140-R, and
West 86-141-R)
Submitted on the briefs:
John A. Macleod, Thomas C. Means, and Ellen B. Moran, Crowell &
Moring, Washington, D.C., for Petitioner.
George R. Salem, Solicitor of Labor, Edward P. Clair, Associate
Solicitor, Dennis D. Clark, Counsel, Appellate Litigation, and
Barry F. Wisor, Attorney, United States Department of Labor,
Arlington, Virginia, for Respondent.
Michael H. Holland, and Mary Lu Jordan, Washington, D.C., for
Intervenor.
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 1
Charles w. Newcom, and Susan K. Grebeldinger, Sherman & Howard,
Denver, Colorado, Edward M. Green, and Mark G. Ellis, American
Mining Congress, Washington, D.C., filed an Amicus Curiae Brief
for American Mining Congress.
Before TACHA, BALDOCK, and BRORBY, Circuit Judges.
PER CURIAM.
After examining the briefs and appellate record, this panel
has determined unanimously that oral argument would not materially
assist the determination of these appeals. See Fed. R. App. P.
34(a); 10th Cir. R. 34.1.9.
submitted without oral argument.
The cases are therefore ordered
These cases present two issues of first impression in this
circuit:
1. Whether walkaround rights established in§ 103(f)
of the Federal Mine Health and Safety Act of 1977 (Act),
30 u.s.c. § 813(f), extend to miners' representatives
who are not employees of the mine operator?
2. Whether a miners' representative seeking to
exercise walkaround rights under § 103(f) of the· Act
must first comply with the requirements of 30 C.F.R.,
Part 40?
The Federal Mine Safety and Health Review Commission (Commission)
answered the first question in the affirmative and the second in
the negative.
second.
We affirm on the first issue and reverse on the
2
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 2
On the morning of April 15, 1986, Vern Boston, a Mine Safety
and Health Administration (MSHA) inspector, arrived at the Deer
Creek Mine, an underground coal mine in Utah, to conduct an
inspection. Deer Creek Mine was owned by Utah Power & Light Co.
(.UPL} and operated by Emery Mining Corporation (Emery). Inspector
Boston was met at the gates of the mine by Tom Rabbitt, a member
of the International Health and Safety Department of the United
Mine Workers of America (UMWA), who introduced himself to the
inspector and asked to accompany him on the inspection.
Boston agreed that Rabbitt could accompany him on the
inspection, and he and Rabbitt entered the premises to get
clearance for Rabbitt. The mine manager, Earl White, met with
Rabbitt and told him he could enter the mine pursuant to the
collective bargaining agreement with the UMWA but for the fact
that he had not given the twenty-four hour advance notice re·quired
by Emery. Rabbitt then said he was seeking entrance under
§ 103(f) of the Act, which provides for walkaround rights. 1
1 Section 103(f) of the Act provides:
Participation of representatives of operators and
miners in inspections
Subject to regulations issued by the Secretary, a
representative of the operator and a representative
authorized by his miners shall be given an opportunity
to accompany the Secretary or his authorized
representative during the physical inspection of any
coal or other mine made pursuant to the provisions of
subsection (a) of this section, for the purpose of
aiding such inspection and to participate in
pre- or post-inspection conferences held at the mine.
Where there is no authorized miner representative, the
Secretary or his authorized representative shall consult
with a reasonable number of miners concerning matters of
health and safety in such mine. Such representative of
(Continued on next page.)
3
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 3
White, Rabbitt, and Boston discussed the scope of walkaround
rights under§ 103(f). White was of the opinion that since
Rabbitt was not an Emery employee, he had no walkaround rights
under the Act. Boston disagreed, saying that Rabbitt had
walka~ound rights because he was a member of the UMWA
International. Boston then wrote White a citation under § 104(a)
of the Act, 30 U.S.C. § 814(a), for violating§ 103(f). He gave
White ten minutes to abate the violation.
White, fearing that Boston might issue a withdrawal order if
White did not abate the violation, agreed to let Rabbitt
participate in the inspection, but said he must first sign a
hazard recognition and waiver of liability form that Emery
required nonemployees to sign before entering the mine. Rabbitt
refused to sign the form. Boston then called his supervisor, who
was not familiar with Emery's waiver form. Based on his belief
that a representative of the UMWA International had an unlimited
right of access to a mine under § 103(f), the supervisor
(Continued from previous page.)
miners who is also an employee of .the operator shall
suffer no loss of pay during the period of his
participation in the inspection made under this
subsection. To the extent that the Secretary or
authorized representative of the Secretary determines
that more than one representative from each party would
further aid the inspection, he can permit each party to
have an equal number of such additional representatives.
However, only one such representative of miners who is
an employee of the operator shall be entitled to suffer
no loss of pay during the period of such participation
under the provisions of this subsection. Compliance
with this subsection shall not be a jurisdictional
prerequisite to the enforcement of any provision of this
chapter.
4
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 4
instructed Boston to proceed with Rabbitt on the inspection.
Boston then informed White that his refusal to permit Rabbitt to
participate in the inspection unless Rabbitt signed a waiver of
liability was in violation of§ 103(f). Boston added a second
violation of§ 103(f) to the original citation.
Thereafter, White agreed to abate the alleged violation by
allowing Rabbitt to accompany the inspector without signing the
waiver of liability. The inspection party, consisting of Boston,
Rabbitt, Mark Larsen, a representative of miners from the safety
committee, and Terry Jordan and Dixon Peacock, representatives of
Emery, then proceeded underground.
On April 17, 1986, pursuant to § 105(d) of the Act,
30 u.s.c. § 815(d), Emery filed a notice of contest of the
citation issued April 15, 1986. Shortly thereafter, the UMWA
moved to intervene in the proceedings. On April 24, 1986, Emery's
contract with UPL was terminated and UPL took over the operation
of its mines, including the Deer Creek Mine. UPL subsequently
received three more citations from the MSHA for violations of
§ 103(f) ~imilar to Emery's. UPL filed a timely notice pf contest
with respect to each citation. The parties agreed to try the
citation issued to Emery and to have the administrative law
judge's (ALJ) ruling on that citation control the disposition of
the three citations issued to UPL.
The ALJ held an evidentiary hearing on May 14 and 15, 1986.
The issues before him were the two under consideration in this
appeal, as well as a third, concerning whether an operator can
require a nonemployee representative of miners to sign a waiver of
5
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 5
liability before exercising walkaround rights. On August 7, 1986,
the ALJ ruled against Emery on all three issues. Emery Mining
Corp., 8 F.M.S.H.R.C. 1192 (1986).
Thereafter, the Commission granted discretionary review of
the ALJ's decision-.pursuant to 30 u.s.c. § 823(d)(2)(A)(i). After
briefing and oral arguments, the Commission issued its decision on
Emery's citation on March 29, 1988. Emery Mining Corp., 10
F.M.S.H.R.C. 276 (1988). The Commission also issued a
consolidated summary opinion on UPL's three citations the same
day. Utah Power & Light Co., 10 F.M.S.H.R.C. 302 (1988). The
Commission affirmed the ALJ on the first two issues and reversed
him on the third issue concerning the waiver of liability.
Emery and UPL petitioned this court for review of the
Commission's decisions pursuant to § 106(a) of the Act,
30 u.s.c. § 816(a). They challenge the Commission's rulings with
respect to nonemployee walkaround rights and compliance with the
requirements of 30 C.F.R., Part 40. We consolidated the petitions
under the caption Utah Power & Light Co. v. Secretary of Labor.
Since UPL has been substituted for Emery on appeal, we will refer
to the arguments of UPL hereinafter.
I.
We first address UPL's contention that § 103(f) walkaround
rights do not extend to nonemployee representatives of miners. In
reviewing the interpretation of§ 103(f) asserted by the Secretary
of Labor (Secretary) and the Commission, we are mindful of the
6
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 6
United States Supreme Court's directions in Chevron, U.S.A., Inc.
v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
When a court reviews an agency's construction of
the statute which it administers, it is confronted with
two questions. First, always, is the question whether
Congress has directly spoken to the precise question at
.issue. If the intent of Congress is clear, that is the
end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent
of Congress. If, however, the court determines Congress
has not directly addressed the precise question at
issue, the court does not simply impose its own
construction on the statute, as would be necessary in
the absence of an aoministrative interpretation.
Rather, if the statute is silent or ambiguous with
respect to the specific issue, the question for the
court is whether the agency's answer is based on a
permissible construction of the statute.
Id. at 842-43 (footnotes omitted).
We have held that an agency's interpretation of a statute
entrusted to that agency for administration should be accepted if
it is a reasonable one, even if another interpretation may exist
that is equally reasonable. Jones v. Federal Deposit Ins. Corp.,
748 F.2d 1400, 1405 (10th Cir. 1984); Brennan v. Occupational
Safety and Health Comm'n, 513 F.2d 553, 554 (10th Cir. 1975),
Congress did not speak to the precise issue before us when it
drafted § 103(f) of the· Act. Nonetheless, we, like the
Commission, find the language of § 103(f) dispositive. See
Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102,
108 (1980)("[T]he starting point for interpreting a statute is the
language of the statute itself. Absent a clearly expressed
legislative intention to the contrary, that language must
ordinarily be regarded as conclusive."); Colorado Property
Acquisitions, Inc. v. United States, No. 87-2564, slip op. at 4
7
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 7
(10th Cir. Jan. 24, 1990)("When the meaning of a statute is clear
from its face, resort to rules of statutory construction or
legislative intent is unnecessary.").
The first sentence of § 103(f) provides that "a
representative authorized by [the operator's] miners shall be
given an opportunity to accompany the Secretary or his authorized
representative during the physical inspection of any coal or other
mine made pursuant to the provisions of subsection (a) of this
section." This sentence confers upon the miners the right to
authorize a representative for walkaround purposes without any
limitation on the employment status of the representative. See
Council of s. Mountains, Inc. v. Federal Mine Safety and Health
Review Comm'n, 751 F.2d 1418, 1421 n.18 (D.C. Cir. 1985)("The Mine
Act, however, merely refers
articulate any distinction
to 'repre~entatives' and does not
between the rights of employee and
nonemployee :r:epresentatives.").
The third sentence of § 103(f) provides that "[s]uch
representative of miners who is also an employee of the operator
shall suffer no loss of pay during the period of his participation
in the inspection ·made under this subsection." (Emphasis added.)
As noted by the Commission, "also" means "in addition," "as well,"
"besid.es," and "too." Emery Mining Corp., 10 F.M.S.H.R.C. at 284
(quoting Webster's Third Int'l Dictionary 62 (Unabridged ed.
1971)). Put in other words, the third sentence of§ 103(f) reads:
"A representative of miners who, in addition to being a
representative, is an employee of the operator shall suffer no
8
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 8
loss of pay during the period of his participation in the
inspection • II
By creating a subclass of representatives who are entitled to
compensation while exercising walkaround rights under § 103(f),
.Congress clearly recognized that some miners.' representatives may
be employees of the operator and some may not. Those who are
employees are entitled to compensation. Those who are not
employees may participate in the inspection, but are not entitled
to compensation from the operator under § 103(f) for their
participation.
UPL argues that the Commission ignored other reasonable
interpretations of the third sentence of§ 103(f). Specifically,
UPL contends that the third ,sentence represents a congressional
recognition that
there would be situations in which mine operators might
consent to walkarounds by non-employee representatives
of miners, or in which non-employee representatives had
contractual rights to enter upon mine property for the
purpose of accompanying inspectors. [Congress] simply
wanted to be clear that the compensation right under
§ 103(f) did not attach in those circumstances.
Brief of Petitioner Utah. Power & Light Co. at 19-20.
We are not persuaded by UPL's argument. UPL would have us
read a limitation into the statute that has no basis in the
statutory language. Furthermore, if a nonemployee representative
could exercise walkaround rights only if the operator so consented
or the parties' contractual rights so provided, and could not
exercise walkaround rights under§ 103(f), Congress would have no
reason to clarify that a nonemployee representative is not
entitled to compensation from the operator under§ 103(f).
9
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 9
UPL asserts that selected excerpts from the Act's legislative
history support its theory that Congress did not intend to extend
walkaround rights to nonemployee representatives. In particular,
UPL cites to a debate between Senator Javits, who was a sponsor of
the Senate bill that eventually became the Act, and Senator Helms.
See 123 Cong. Rec. 20,019-20 (1977).
While we agree with UPL that the Senators' debate focused on
the importance of miners participating in inspections of the mines
in which they work, 2 that focus is explained by the context of the
Senators' debate. Senator Helms had introduced an amendment that
would strike the third and fifth sentences of the present
§ 103(f), thereby deleting the provisions concerning compensation
for employee representatives. Senator Javits opposed the
amendment. See 123 Cong. Rec. 20,019 (1977). The two Senators,
therefore, were debating the merits of compensating employee
representatives. They were not concerned with whether
2 For instance,
participation in
essential in order
health problems
(1977).
Senator Javits remarked: "[G]reater miner
health and safety matters, we believe, is
to increase miner awareness of the safety and
in the mine " 123 Cong. Rec. 20,019
Senator Javits also said:
If miners are going to accompany inspectors, they are
going to learn a lot about mine safety, and that will be
helpful to other employees and to the mine operator.
In addition, if the worker is along he knows a lot
about the premises upon which he works and, therefore,
the inspection can be much more thorough. We want to
encourage that because we want to avoid, not incur,
accidents.
123 Cong. Rec. 20,020 (1977).
10
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 10
nonemployees, who would not be compensated by the operator, could
be miners' representatives for purposes of walkaround rights. 3
UPL also argues that the purposes of§ 103(f), which include
encouraging miners to participate in inspections and enhancing
miners' understanding and awareness of the health and safety
requirements of the Act, 4 will not be furthered by allowing
nonemployees to act as miners' representatives under§ 103(f). We
disagree. A congressional desire to increase miners' knowledge
about health and safety issues does not require the exclusion of
nonemployees as miners' representatives for walkaround purposes.
Miners may benefit in a number of ways from nonemployee
representatives participating in walkarounds. For instance, the
ALJ in this case found that Rabbitt had held virtually every job
in a coal mine and had received special t~aining in health and
safety matters, including seminars sponsored by the MSHA that are
given to federal inspectors. Furthermore, Rabbitt had
investigated "accidents, disasters, fires, and explosions'' in
various mines. Emery Mining Corp., 8 F.M.S.H.R.C. at 1186. These
findings. illustrate that a nonemployee representative may have
greater expertise in health and safety matters than an employee
representative.
3 Senator Helms, himself, appeared to recognize that a
representative of miners might not be an employee of the operator.
In arguing for the adoption of his amendment, the Senator said:
"As written, the act states that the representative of the miners,
if he 'is also an employee of the operator shall suffer no loss of
pay as a result of his participation in the inspection."' 123
Cong. Rec. 20,019 (1977) (emphasis added).
4 See S. Rep. No. 181, 95th Cong., 1st Sess. 28,
1977 U.S. Code Cong. & Admin. News 3401, 3428.
11
reprinted in
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 11
In addition, if a nonemployee representative has inspected
other mines, his knowledge of those mines may increase his ability
to spot problems and to suggest solutions in the mine under
consideration. Furthermore, a nonemployee representative is not
subject to the same pressures that can be exerted by an operator
on an employee representative. Therefore, the underlying purposes
of § 103(f), and the Act in general, can be furthered by allowing
both employees and nonemployees to act.as miners' representatives
for walkaround purposes.
UPL contends that statements in an interpretive bulleti~
issued by the Secretary in April of 1978 support its position that
walkaround rights were not intended to extend to nonemployee
representatives. 5 While isolated comments in the bulletin may
support, UPL's position, other comments support the present
position·of the Secretary, that walkaround rights do extend to
nonemployee representatives. The interpretive bulletin is
inconclusive on the issue before us. Neither the ·bulletin nor the
legislative history .convince us that the interpretation accorded
the statute by the agency is unreasonable or unsupportable.
Finally, UPL argues that permitting nonemployees to exercise
walkaround rights under § 103(f) impermissibly infringes on an
operator's property rights. UPL relies on a number of fourth
amendment cases which express the United States Supreme Court's
concern with the infringement of property rights by federal
inspections. In particular, UPL cites Donovan v. Dewey, 452 U.S.
594, 605 (1981), in which the Court held that warrantless
5 See 43 Fed. Reg. 17,546 (1978).
12
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 12
inspections of mines by federal inspectors under the Federal Mine
Safety and Health Act are not unreasonable.
UPL contends that although the Act ''establishes a predictable
and guided federal regulatory presence" so that "the operator of a
mine 'is not left. to wonder. about the purposes· .of the inspector or
the limits of his task,'" id. at 604 (quoting United States v.
Biswell, 406 U.S. 311, 316 (1972)), the same cannot be said of a
nonemployee miners' representative. UPL cautions that "[t]he Mine
Act presents an inherent temptation for abuse by non-employee
union representatives," and cites as an example a case in which
the UMWA acknowledged that "its designation of walkaround
representatives 'was made for purposes unrelated to the Act's
safety objectives and thereby constituted an inappropriate
exercise of the UMWA's de~ignatio_n right under § 103(f). '" Brief
of Petitioner Utah Power & Light Co. at 35 n.21 (quoting Nacco
Mining Co., 6 F.M.S.H.R.C. 2734, 2738 (1984)).
UPL's argument ignores the fact that, as with a federal
inspector, the Act clearly spells out the purpose of a miners'
representative's participation in an inspection. Section 103(f)
provides that an authorized miners' representative shall have the
opportunity to accompany a federal inspector during the inspection
0£ a mine "for the purpose of aiding such inspection." While we
recognize UPL's concern that walkaround rights may be abused by
nonemployee representatives, the potential for abuse does not
require a construction of the Act that would exclude nonemployee
representatives from exercising walkaround rights altogether. The
13
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 13
solution is for the operator to take action against individual
instances of abuse when it discovers them.
In sum, we conclude that the Secretary's and the Commission's
interpretation of the Act is both reasonable and supportable, and
we hold that miners may authorize nonemployees to act as their
representatives under§ 103(f) of the Act.
II.
The second issue we must address concerns the Commission's
holding that "an operator may not refuse a miner's (sic)
representative access to a mine for walkaround purposes solely
because the representative has not filed identifying information
under [30 C.F.R.,] Part 40." Emery Mining Corp., 10 F.M.S.H.R.C.
at 279.
The regulations set forth in 30 C.F.R., Part 40 provide as
follows:
S 40.1 Definitions.
As used in this Part 40:
(a) "Act" means the Federal Mine Safety and Health
Act of 1977.
(b) "Representative of miners" means:
(1) Any person or organization which represents
two or more miners at a coal or other mine for the
purposes of the Act, and
(2) "Representatives authorized by the miners",
"miners or their representative", "authorized miner
representative", and other similar terms as they appear
in the Act.
S 40.2 Requirements.
(a) A representative of miners shall file with the
Mine Safety and Health Administration District Manager
for the district in which the mine is located the
14
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 14
information required by
Concurrently, a copy of
provided to the operator.
representative of miners.
§ 40.3 of this part.
this information shall be
of the mine by the
(b} Miners or their representative organization
may appoint or designate different persons to represent
them under various sections of the act relating to
representatives of miners.
(-c) All information filed pursuant to this part
shall be maintained by the appropriate Mine Safety and
Health Administration District Office and shall be made
available for public inspection.
S 40.3 Filing procedures.
(a) The following information shall be filed by a
representative of miners with the appropriate District
Manager, with copies to· the operators of the affected
mines. This information shall be kept current:
(1) The name, address, and telephone number of the
representative of miners. If the representative is an
organization, the name, address, and telephone number of
the organization and the title of the official or
position, who is to serve as the representative and his
or her telephone number.
(2) The name and address of the operator of the
mine where the represented miners work and the name,
addre~s, and· Mine Safety and Health Administration
identification number, if known, of the mine.
(3) A copy of the document evidencing the
designation of the representative of miners.
(4) A statement that the person or position named
as the representative of miners is the representative
for all purposes of the Act; or if the representative's
authority is limited, a statement of the limitation.
(5) The names, addresses, and telephone numbers,
of any representative to serve in his absence.
(6) A statement that copies of all information
filed pursuant to this section have been delivered to
the operator of the affected mine, prior to or
concurrently with the filing of this statement.
(7) A statement certifying that all information
filed is true and correct followed by the signature of
the representative of miners.
- ( b) The representative of miners shall be
responsible for ensuring that the appropriate District
Manager and operator have received all of the
information required by this part and informing such
District Manager. and operator of any subsequent changes
in the information.
15
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 15
S 40.4 Posting at mine.
A copy of the information provided the operator
pursuant to§ 40.3 of this part shall be posted upon
receipt by the operator on the mine bulletin board and
maintained in a current status.
S 40.5 Termination of designation as representative of
miners.
(a) A representative of miners who becomes unable
to comply with the requirements of this part shall file
a statement with the appropriate District Manager
terminating his ·or her designation.
(b) The Mine Safety and Health Administration
shall terminate and remove from its files all
designations of representatives of miners which have
been terminated pursuant to paragraph (a) of this
section or which are not_ in compliance with the
requirements of this part. The Mine Safety and Health
Administration shall notify the operator of such
termination.
The Commission, in holding that Emery could not refuse
Rabbitt admission to the mine for walkatound purposes just because
neither he nor his position were listed on .the documents filed
with Emery pursuant to Part 40, 6 relied on its holding in
Consolidation Coal· Co., 3 F.M.S.H.R.C. 617 (1981), which it found
"to represent a sound interpretation of section 103(f) and to
accurately reflect the Secretary's clearly expressed intent in
promulgating his Part 40 regulations." Emery Mining Corp., 10
F.M.S.H.R.C. at 287.
6 The information submitted to Emery under Part 40 listed Frank
Fitzek as the selected representative of miners and listed
thirteen other people, including Mark Larsen, as selected multiple
representatives. In the space provided for listing the
organization, if any, with which the representative is associated,
the document listed the UMWA and reflected that Frank Fitzek,
safety chairman, was the representative associated with that
organization.
16
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 16
The "Secretary's clearly expressed intent" to which the
Commission referred, arose from the preamble to the final Part 40
regulations which stated in part: "However, it should be noted
that miners and.their representatives do not lose their statutory
rights under section 103(f) by their failure to file as
representatives of miners under this part.'' 43 Fed. Reg~ 29,508
(1978). The Secretary argues on appeal that the foregoing
language "is dispositive of the Secretary's intent in promulgating
the Part 40 regulations." Brief for the Secretary of Labor at 26.
In reviewing the Secretary's interpretation of the Part 40
regulations, we are mindful of two rules. First, an agency's
regulation "is entitled to deference unless it can be said not to
be a reasoned and supportable interpretation of the Act."
Whirlpool Corp. v. Marshall, 445 u.s~ 1, 11 (1980). Second, " ' a
regulation must be interpreted so as to harmonize with and further
and not to conflict with the objective of the statute it
implements.'" Emery Mining Corp. v. Secretary of Labor, 744 F.2d
1411, 1414 (10th Cir. 1984)(quoting Trustees of Ind. Univ. v.
United States, 618 F.2d 736, 739 (Ct. Cl. 1980)).
The Part 40 regulations themselves do not make any exception
for representatives of miners who desire to be authorized
representatives for § 103(f) purposes. The only place such an
exception is set forth is in the aforementioned preamble to the
regulations, which is not part of the regulations as published in
the Code of Federal Regulations. Neither the preamble nor the
Secretary's interpretive bulletin to which it refers, 7 cite any
7 43 Fed. Reg. 17,546 (1978). ' ., ... '
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 17
reasons for making an exception to the regulations for purposes .of
§ 103(f). Likewise, the Secretary, here, gives no explanation for
such an exception.
Section 103(f) of the Act provides that "[s]ubject to
regulations issued by the Secretary, ••• a representative
authorized by [the] miners shall be given the opportunity to
accompany the Secretary or his authorized representative during
the physical inspection of any coal or other mine." (Emphasis
added.) As both the Secretary and the Commission have
acknowledged, the Part 40 regulations were implemented pursuant to
the authority delegated to the Secretary in§ 103(f) of the Act.
See Brief for Secretary of Labor at 15-16; Emery Mining Corp., 10
F.M.S.H.R.C. at 285. On their face, the regulations apply to all
representatives of miners for all purposes under the Act. Thus,
the Secretary's interpretation of the regulations is at odds with
both the Act and the plain language of the regulations themselves.
Furthermore, valid reasons exist for requiring compliance
with the Part 40 regulations for§ 103(f) purposes. As Chairman
Ford pointed out in his dissent below, the information required to
be filed by Part 40 establishes the identity and bona fides of
each miners' representative, as well as the scope of his
authority. See Emery Mining Corp., 10 F.M.S.H.R.C. at 294-95; __
30 C.F.R. § 40.3. The information must be provided to both the
MSHA district manager and the operator of the affected mine. 30
C.F.R. § 40.3(a). The operator, in turn, is required to post a
copy of the information filed on the mine bulletin board, and to
keep the information current. Id. at§ 40.4.
18
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 18
The Secretary has explained the importance of posting the
Part 40 information on the mine bulletin board. as follows:
The posting of "Representative of Min~r'' information
will keep the miners abreast of who their.
representatives are, and for what purpose under the act
their representatives serve. This knowledge will better
acquaint the miner with MSHA's health and safety
programs which will further promote an awareness among
the miners of the importance of health and safety at the
mine.
43 Fed. Reg. 29,508, 29,509 (1978).
The Secretary and the Commission have stressed the importance
walkaround rights throughout this litigation, and the
legislative history of the Act reflects that Congress, too,
thought walkaround rights to be important in increasing miner
awareness and knowledge of health and safety ·conditions and
requirements. See s. Rep. No. 181, 95th Cong., 1st Sess. 28,
reprinted in 1977 U.S •. Code Cong. & Ad. News 3401, 3428; ·secretary
of Labor ex rel. 1Truex, 8 F.M.S.H.R.C. 1293,· 1299 (1986).
Every miner cannot participate in a federal inspection.
Therefore, § 103(f) provides that miners may authorize
representatives who will participate in the inspection on their
behalf. Pursuant to 30 C.F.R. § 40.l(b), any person or
organization who represents two or more miners is considered a
"miners' representative.''· The regulatory scheme contemplates that
the miners at a mine may have more than one representative for
walkaround purposes and may have different representatives for
other purposes under the Act. See id. at§ 40.2(b).
Under such a scheme, it is imperative that both the miners
and the operator know who the miners' representatives are and the
19
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 19
scope of their authority. As the Secretary has said, knowledge on
the part of the miners of the identity, whereabouts, and scope of
responsibility of their representatives promotes the purposes of
the Act. See 43 Fed. Reg. 29,508, 29,509 (1978). Allowing people
~o act .as representatives of miners unde~ § 103(f) does little to
further the purposes of the Act unless the miners know who their
§ 103(f) representatives are so that they may communicate with
them regarding health and safety issues related to the
inspections.
Furthermore, since a person need only represent two miners to
qualify as a "miners' representative," compliance with the
requirements of Part 40 is necessary to ensure that a person who
attempts to exercise walkaround rights on behalf of miners is in
fact ''authorized" by the miners to do so, as required by•§ 103(f)
of the Act.
In addition, the Secretary's interpretation of the Part 40
regulations places the operator in a precarious and untenable
position. If an operator cannot rely on the Part 40 information
to determine whether someone is an authorized representative of
miners for walkaround purposes, he has no settled criteria· by
which to judge an alleged representative's authority.
As the Secretary has recognized, an operator's refusal to
permit an authorized miners' representative to exercise the
walkaround rights provided in§ 103(f) is a violation of the Act
for which the operator is subject to a citation under§ 104 and a
civil penalty under § 105 of the Act. See 43 Fed. Reg. 17,546,
17,547 (1978). Furthermore, if the operator fails to abate the
20
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 20
violation of § 103(f), not only will it be subject to additional
civil penalties for each day of nonabatement, but the inspector
may issue a withdrawal order pursuant to§ 104(b) of the Act. See
43 Fed. Reg. 17,546, 17,547 (1978).
Thus, the consequences of an operator's refusal to permit an
authorized miners' representative to exercise walkaround rights
under§ 103(f) are quite severe. This severity requires that an
operator have a sure and settled method by which to determine who
is an authorized miners' representative for walkaround purposes.
Under the method adopted by the Commission in Consolidation
Coal Co., and reaffirmed below, whether an operator is justified
in denying a purported miners' representative walkaround rights
depends on the circumstances of the particular case. See
Consolidation Coal Co., 3 F.M.S.H.R.C. at 619. If the inspector
does not agree with the operator's determination that someone is
not an authorized miners' representative for§ 103(f) purposes, as
happened in the present case, the operator must risk the issuance
of a citation, the assessment of civil penalties, and the possible
closure of a portion of the mine before it can get a determination
from the Commission whether it was justified in refusing to allow
the purported representative to exercise walkaround rights. 8
8 In contrast, if an operator. refuses to allow a federal
inspector to inspect a mine, the inspector cannot gain immediate
access. Instead, the Secretary must bring a civil suit against
the operator to enjoin future refusals of admission. See
30 u.s.c. § 818(a)(l). Thus, the operator is furnished a forum
prior to the inspection in which "to show that a specific search
is outside the federal regulatory authority, or to seek from the
district court an order accommodating any unusual privacy
interests that the mineowner might have." Donovan, 452 U.S. at
605.
21
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 21
The interpretation of the Part 40 regulations asserted by the
Secretary and adopted.by the Commission is contrary to the plain
language of the regulations, fails to further the purposes of the
Act, and puts the operator in an untenable position. We therefore
reject the Secretary's interpretation and hold that the mandatory
requirements of the Part 40 regulations apply to miners'
representatives for § 103(f) purposes. Thus, a miners'
representative's failure to comply with the regulations entitles
an operator to refuse the representative access to the mine for
walkaround purposes. Our holding will not work a great hardship
on the miners since the requirements of Part 40 are
straightforward, and if a miners' representative fails to comply
with them and, therefore, cannot exercise walkaround rights, the
Act requires the federal inspector to "consult with a reasonable
number of miners concerning matters of health and safety in such
mine." 30 U.S.C. § 813(f).
In the present case, the parties do not dispute that on
April 15, 1986, Rabbitt was not listed as an authorized miners'
representative for walkaround purposes on the documents filed with
Emery pursuant to Part 40. Therefore, Emery.did not violate the
Act by refusing Rabbitt access to the mine for walkaround purposes
under§ 103(f).
22
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 22
The Corru:nission's
F.M.S.H.R.C. 276 (1988),
III.
decisions in _E_m_e_r..._y __ M_i_n_i_n_g..___c_o_r_p_. ,
and Utah Power & Light Co.,
10
10
F.M.S.H.R.C. 302 (1988), are AFFIRMED in part and REVERSED in
part. The.citations at issue in those cases are hereby VACATED.
23
Appellate Case: 88-1659 Document: 010110191577 Date Filed: 02/26/1990 Page: 23 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca4-07-04453/USCOURTS-ca4-07-04453-0/pdf.json | [
[
"Randall Eugene Hillian",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-4453
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
RANDALL EUGENE HILLIAN,
Defendant - Appellant.
Appeal from the United States District Court for the Middle
District of North Carolina, at Durham. William L. Osteen, Senior
District Judge. (1:04-cr-00041-WLO)
Submitted: January 9, 2008 Decided: January 24, 2008
Before NIEMEYER, KING, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Ames C. Chamberlin, THE LAW OFFICES OF AMES C. CHAMBERLIN, PLLC,
Greensboro, North Carolina, for Appellant. Robert Albert Jamison
Lang, OFFICE OF THE UNITED STATES ATTORNEY, Winston-Salem, North
Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
Appeal: 07-4453 Doc: 34 Filed: 01/24/2008 Pg: 1 of 4
- 2 -
PER CURIAM:
Randall Eugene Hillian appeals his sentence imposed
following this court’s remand for resentencing. See United
States v. Hillian, 210 F. App’x 251 (4th Cir. 2006) (unpublished).
Finding no error, we affirm.
On appeal, counsel filed a brief pursuant to Anders v.
California, 386 U.S. 738 (1967), asserting there are no meritorious
grounds for appeal, but questioning whether the sentence is
reasonable. In his pro se supplemental brief, Hillian joins his
counsel in arguing that the sentence is unreasonable. Hillian
additionally contends that 18 U.S.C. § 3553(a) (2000), as applied
to him, is unconstitutional. The Government elected not to file a
responding brief.
Initially, Hillian contends that his sentence is
unreasonable. However, the district court appropriately treated
the Sentencing Guidelines as advisory, properly calculated and
considered the advisory guideline range, and weighed the relevant
18 U.S.C. § 3553(a) factors. See United States v. Hughes, 401 F.3d
540, 546-47 (4th Cir. 2005). As Hillian’s applicable advisory
guideline range of 120 to 150 months was greater than the statutory
maximum of 120 months’ imprisonment, see 18 U.S.C. § 924(a)(2)
(2000), the court properly determined that the statutory maximum
was the advisory guideline sentence. See U.S. Sentencing
Guidelines Manual § 5G1.1(c)(1) (2003). Thus, Hillian’s 120-month
Appeal: 07-4453 Doc: 34 Filed: 01/24/2008 Pg: 2 of 4
- 3 -
sentence is presumptively reasonable. See United States v. Green,
436 F.3d 449, 457 (4th Cir.), cert. denied, 126 S. Ct. 2309 (2006);
see also Rita v. United States, 127 S. Ct. 2456, 2462-65 (2007)
(approving presumption of reasonableness accorded sentences within
properly calculated guideline range).
Hillian additionally contends that § 3553(a), as applied
to him, is unconstitutional. He argues that “[t]his must be so,
because the factors lead to nothing more than a guideline
sentence.” However, the mere fact that Hillian received the
advisory guideline sentence does not render § 3553(a)
unconstitutional. Rather, it reflects that the district court
found the Sentencing Commission’s view of the appropriate
application of § 3553(a) factors suitable. Therefore, we discern
no basis in the record to conclude that the presumption of
reasonableness has been overcome.
In accordance with Anders, we have reviewed the entire
record in this case and have found no meritorious issues for
appeal. Accordingly, we affirm Hillian’s sentence. This court
requires that counsel inform his client, in writing, of his right
to petition the Supreme Court of the United States for further
review. If the client requests that a petition be filed, but
counsel believes that such a petition would be frivolous, then
counsel may move this court for leave to withdraw from
representation. Counsel’s motion must state that a copy thereof
Appeal: 07-4453 Doc: 34 Filed: 01/24/2008 Pg: 3 of 4
- 4 -
was served on the client. We dispense with oral argument because
the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid in the
decisional process.
AFFIRMED
Appeal: 07-4453 Doc: 34 Filed: 01/24/2008 Pg: 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_13-cv-01357/USCOURTS-caed-1_13-cv-01357-5/pdf.json | [
[
"Abdul Alrowhany",
"Defendant"
],
[
"Mohammed Alrowhany",
"Defendant"
],
[
"Hifdhuulah A. Alrowhany",
"Defendant"
],
[
"Debra Anglin",
"Plaintiff"
],
[
"The Cell Phone Store",
"Defendant"
]
] | 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
CENTER FOR DISABILITY ACCESS
MARK D. POTTER, ESQ., SBN 166317
PHYL GRACE, ESQ., SBN 171771
Mail: P.O. Box 262490
San Diego, CA 92196-2490
Deliveries: 9845 Erma Road, Suite 300
San Diego, CA 92131
Phone: (858) 375-7385
Fax: (888) 422-5191
[email protected]
Attorney for Plaintiff DEBRA ANGLIN
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
DEBRA ANGLIN,
Plaintiff,
v.
HIFDHUULAH A. ALROWHANY;
ABDUL ALROWHANY, DBA THE CELL
PHONE STORE;
MOHAMMED ALROWHANY, DBA THE
CELL PHONE STORE; and Does 1-10,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 1:13-CV-01357-LJO-JLT
JOINT STIPULATION OF FACT
REGARDING DEFENDANTS’ FINANCIAL
WHEREWITHAL AND READILY
ACHIEVABLE BARRIER REMOVAL AND
[PROPOSED] ORDER THEREON
(Doc. 38)
JOINT STIPULATION
The following terms, phrases, and definitions will be applied in this stipulation and are
intended to conform to the usage given in the Americans with Disabilities Act Accessibility
Guidelines:
ADAAG: Americans with Disabilities Act Accessibility Guidelines found
at 28 C.F.R. Part 36.
ACCESSIBLE: Complying with the technical requirements of the ADAAG.
Case 1:13-cv-01357-LJO-JLT Document 39 Filed 04/07/15 Page 1 of 4
2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
SUBJECT PROPERTY: Strip mall located at or about 514 Finley Drive, Taft, California.
READILY ACHIEVABLE: Shall have the same definition as that found at 42 U.S.C. §
12181(9).
BARRIER: Any architectural or configuration element of the subject
property that does not comply with the technical provisions
found in the Americans With Disabilities Act Accessibility
Guidelines and/or Title 24 of the California Code of
Regulations, and which is identified in the Plaintiff’s complaint.
VAN ACCESSIBLE PARKING
SPACE: A striped and reserved handicap parking space that has a
separate access aisle measuring 96 inches in width.
PLAINTIFF DEBRA ANGLIN AND DEFENDANT HIFDHUULAH A. ALROWHANY,
BY AND THROUGH THEIR ATTORNEYS OF RECORD, HEREBY STIPULATE:
WHEREAS Plaintiff has propounded written discovery to assist him in determining the
ability of the Stipulating Defendants to undergo “readily achievable” barrier removal and to support
Plaintiff’s damages assessment; and
WHEREAS such discovery information is of a personal and confidential nature and,
therefore, the Stipulating Defendants have a legitimate concern about unnecessarily producing such
information;
The Plaintiff and the Stipulating Defendants enter into the following stipulation:
Plaintiff: Plaintiff will currently forbear from propounding any discovery that seeks information
concerning the financial status, ability, or wherewithal of the Stipulating Defendants. Plaintiff also
withdraws all discovery already propounded concerning this information.
Case 1:13-cv-01357-LJO-JLT Document 39 Filed 04/07/15 Page 2 of 4
3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Stipulating Defendants: The Stipulating Defendants hereby declare that in determining whether the
removal of a BARRIER is READILY ACHIEVABLE, factors such as the (1) Stipulating Defendant’s
financial resources; (2) the facility’s financial resources; (3) the “effect on expenses and resources”;
and (4) impact on finances, shall NOT be raised by STIPULATING DEFENDANTS as a defense as
to why the Stipulating Defendant cannot remedy and/or remove those alleged BARRIERS.
Furthermore, Defendants hereby stipulate that it is READILY ACHIEVABLE for the defendants to
provide (1) a VAN ACCESSIBLE parking space; (2) an ACCESSIBLE path of travel into the stores
at the SUBJECT PROPERTY; (3) an ACCESSIBLE path of travel to the Boost Mobil store the
SUBJECT PROPERTY.
NOTE: Stipulating Defendants are not stipulating (A) liability to the Plaintiff; (B) that the above
identified barrier removals are required by law; or (C) that they are subject to the ADA or related state
disability access laws.
NOTE: The parties understand that the Plaintiff reserves his right to seek financial information in
support of a claim for punitive damages. However, Plaintiff will forbear from seeking that information
until Plaintiff believes that further discovery information warrants the prosecution of a punitive
damages claim against the Stipulating Defendants. Even if Plaintiff reaches a decision that a punitive
damages claim should be prosecuted, Plaintiff will, nonetheless, wait until the end of the discovery
window to request such information so as to allow maximum opportunity for resolution of the case.
IT IS SO STIPULATED.
Dated: March 10, 2015 CENTER FOR DISABILITY ACCESS
By: /s/ Isabel Masanque
ISABEL MASANQUE
Attorney for Plaintiff
Case 1:13-cv-01357-LJO-JLT Document 39 Filed 04/07/15 Page 3 of 4
4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated: April 6, 2015 Lewis Brisbois Bisgaard & Smith LLP
By:/s/ Shane Singh
As authorized on 4/6/15 (original on file with counsel)
SHANE SINGH
Attorney for Defendants
ORDER
IT IS SO ORDERED.
Dated: April 7, 2015 /s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
Case 1:13-cv-01357-LJO-JLT Document 39 Filed 04/07/15 Page 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca5-09-10469/USCOURTS-ca5-09-10469-0/pdf.json | [
[
"United States of America",
"Appellee"
],
[
"Angel Zavala-Alonso",
"Appellant"
]
] | Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 09-10469
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANGEL ZAVALA-ALONSO,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of Texas
No. 3:08-CR-237-1
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Angel Zavala-Alonso pleaded guilty of illegal reentry. He unsuccessfully
objected to the presentence report (“PSR”), arguing that a 16-level enhancement
United States Court of Appeals
Fifth Circuit
F I L E D
March 9, 2010
Charles R. Fulbruge III
Clerk
Case: 09-10469 Document: 00511045641 Page: 1 Date Filed: 03/09/2010
No. 09-10469
2
under U.S.S.G. § 2L1.2(b)(1)(A)(i) was improperly applied because “there ha[d]
been no showing with competent evidence that he was convicted of an offense
that qualifies as a drug trafficking offense.”
Zavala-Alonso contends in his initial brief that the documents available
to the district court were inadequate to demonstrate that he received at least one
sentence under California Health and Safety Code § 11351 or § 11351.5, each of
which he admits states a drug trafficking offense. See United States v. PalaciosQuinonez, 431 F.3d 471, 474 (5th Cir. 2005). Zavala-Alonso argues that the
court erred in determining that the California abstract of judgment and the
criminal information are sufficiently reliable competent evidence.
In his reply brief, however, Zavala-Alonso concedes that he was deported
after three qualifying drug trafficking offenses, his convictions under §§ 11351
and 11351.5. For the first time in his reply brief, he argues “that the record was
inconsistent regarding which statutory offenses produced a sentence . . . in excess of 13 months,” and he describes, as the critical issue on appeal, “which
counts of conviction produced a qualifying sentence” to support the 16-level enhancement. If Zavala-Alonso had been deported following a drug trafficking offense for which he was sentenced to 13 months or less, he would have received
a 12-level rather than 16-level enhancement. § 2L1.2(b)(1)(B).
We do not entertain arguments made for the first time in a reply brief
where the same issue has not been raised by the appellee. See United States v.
Ramirez, 557 F.3d 200, 203 (5th Cir. 2009). We note, moreover, that no evidence
presented to the district court indicates that Zavala-Alonso received a sentence
of 13 months or less for his three drug trafficking offenses. The PSR reported
two five-year sentences, at least one of which was for a drug trafficking offense,
and the abstract of conviction reflects concurrent sentences of five, four, and
three years, the four- and three-year sentences being imposed for a qualifying
drug trafficking crime. The judgment is AFFIRMED.
Case: 09-10469 Document: 00511045641 Page: 2 Date Filed: 03/09/2010 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ared-4_16-cv-00744/USCOURTS-ared-4_16-cv-00744-2/pdf.json | [
[
"Faulkner County Sheriff Office",
"Defendant"
],
[
"Scott Allen Taylor",
"Plaintiff"
]
] | IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
SCOTT ALLEN TAYLOR, ADC #147779 PLAINTIFF
v. NO: 4:16CV00744 JLH
FAULKNER COUNTY SHERIFF OFFICE DEFENDANT
JUDGMENT
Pursuant to the order filed this date, judgment is entered dismissing this case without
prejudice; the relief sought is denied. The Court certifies that an in forma pauperis appeal is
considered frivolous and not in good faith.
DATED this 28th day of December, 2016.
__________________________________
UNITED STATES DISTRICT JUDGE
Case 4:16-cv-00744-JLH Document 8 Filed 12/28/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca11-14-10729/USCOURTS-ca11-14-10729-0/pdf.json | [
[
"Robinson Calixte",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | [DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-10729
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cr-20683-DLG-1
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
versus
ROBINSON CALIXTE,
Defendant – Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(January 30, 2015)
Before TJOFLAT, WILSON and BLACK, Circuit Judges.
PER CURIAM:
USCA11 Case: 14-10729 Date Filed: 01/30/2015 Page: 1 of 4
2
Robinson Calixte appeals his convictions for possession of 15 or more
unauthorized access devices with intent to defraud, in violation of 18 U.S.C. §
1029(a)(3), and aggravated identity theft, in violation of 18 U.S.C. § 1028A(a)(1).
Calixte raises two issues on appeal. First, he argues the district court erred in
denying his motion to suppress the evidence obtained from the initial search of one
document on his flash drive because the search exceeded the scope of his consent.
Second, he contends the district court erred in denying his motion to suppress
evidence obtained from a subsequent forensic search because the 11-month delay
between the seizure of his flash drive and the application for a warrant rendered
the search unreasonable. After careful review, we affirm.1
We conclude the initial search of the flash drive did not exceed the scope of
Calixte’s consent. The scope of a reasonable search is limited to “what a police
officer could reasonably interpret the consent to encompass.” United States v.
Strickland, 902 F.2d 937, 941 (11th Cir. 1990). Assuming arguendo the
conversation between Calixte and Detective George Festa limited the scope of the
search to looking for homework, Special Agent Katherine Litras’s search of the
most recently opened file did not exceed the scope of this consent. To confirm the
1
When reviewing a denial of a motion to suppress, we examine the district court’s
factual findings for clear error and its application of the law to those facts de novo. United States
v. Anderton, 136 F.3d 747, 749 (11th Cir. 1998). We construe the facts in the light most
favorable to the party that prevailed in the district court. United States v. Santa, 236 F.3d 662,
668 (11th Cir. 2000). We may affirm the denial of a motion to suppress on any ground
supported by the record. United States v. Caraballo, 595 F.3d 1214, 1222 (11th Cir. 2010).
USCA11 Case: 14-10729 Date Filed: 01/30/2015 Page: 2 of 4
3
flash drive contained homework, Litras needed to open at least one file, and
nothing in the record suggests the most recently opened file was an unreasonable
place to begin. Furthermore, Calixte was physically present for the search and
neither revoked his consent nor attempted to limit the search to specific files.
Under the totality of the circumstances, Litras’s search of the file was reasonable.
See United States v. Blake, 888 F.2d 795, 798 (11th Cir. 1989) (“[W]hether there
were any limitations placed on the consent given and whether the search
conformed to those limitations is to be determined by the totality of the
circumstances.”).
We also conclude the 11-month delay in obtaining a warrant did not render
unreasonable the Government’s subsequent search of Calixte’s flash drive. Calixte
argues our decision in United States v. Mitchell, 565 F.3d 1347 (11th Cir. 2009),
establishes the authorities’ delay between the seizure and search of the flash drive
was unreasonable. In Mitchell, we held the government’s 21-day delay in
obtaining a warrant was unreasonable. Id. at 1351-52. Mitchell, however, is
inapposite. The Fourth Amendment does not require a warrant in this case because
Calixte gave Litras consent to search the flash drive. See United States v. Stabile,
633 F.3d 219, 235 (3d Cir. 2011) (“Where a person consents to search and seizure,
no possessory interest has been infringed because valid consent, by definition,
requires voluntary tender of property.”).
USCA11 Case: 14-10729 Date Filed: 01/30/2015 Page: 3 of 4
4
For the foregoing reasons, the district court did not err in denying the motion
to suppress, and we affirm Calixte’s convictions.
AFFIRMED.
USCA11 Case: 14-10729 Date Filed: 01/30/2015 Page: 4 of 4 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-19-01485/USCOURTS-ca10-19-01485-0/pdf.json | [
[
"Joanne Delgado",
"Appellee"
],
[
"Cedric Greene",
"Appellant"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
CEDRIC GREENE,
Plaintiff - Appellant,
v.
JOANNE DELGADO,
Defendant - Appellee.
No. 19-1485
(D.C. No. 1:19-CV-03287-LTB)
_________________________________
ORDER
_________________________________
Before MATHESON, BACHARACH, and PHILLIPS, Circuit Judges.
_________________________________
This matter is before the court on the appellant’s Certified Response to the U.S.
Court of Appeals for the Tenth Circuit and Entry of Appearance (the “Response”). The
Response was filed to answer the question posed in our December 27, 2019 order to show
cause, which was whether this appeal should be dismissed as prohibited by the filing
restrictions stated in Greene v. Sprint Nextel Corporation, 750 F. App’x 661, 666-67
(10th Cir. Sept. 20, 2018). Upon consideration, we have determined that the issues
presented in this appeal are covered by the filing restrictions entered against Mr. Greene
and that this appeal should be dismissed.
Mr. Greene has been enjoined “from filing an appeal in this court that. . .argues or
asserts a federal district court or this court should waive subject-matter jurisdiction.”
Sprint Nextel, 750 F. App’x at 666-67. In his Motion for Leave to File a Civil Complaint
FILED
United States Court of Appeals
Tenth Circuit
January 16, 2020
Christopher M. Wolpert
Clerk of Court
Appellate Case: 19-1485 Document: 010110289993 Date Filed: 01/16/2020 Page: 1
in the District of Colorado that was filed as the initial document in the case below, Mr.
Greene asserts claims against a defendant who is not subject to the jurisdiction of, and
about events not having any material connection to, the State of Colorado. See Dist. Ct.
Case No. 19-CV-3287, Docket No. 1 (discussing “Federal Caseworker” located in and
events occurring in California). In the Response, Mr. Greene contends that that
jurisdiction is proper in the District of Colorado because the state where the “Federal
Official” is located is an “untrustworthy state” and because he learned about the federal
official’s alleged malfeasance while visiting Colorado. Neither of these arguments is
valid basis for the District of Colorado to waive the jurisdictional limitations on the
federal district courts.
In light of the foregoing, we have concluded that Mr. Greene’s appeal falls
squarely within the filing restrictions provided in Sprint Nextel. Therefore, this appeal is
dismissed. This dismissal is the appellant’s third in January 2020 based on the filing
restrictions, so we again caution Mr. Greene that the court may consider imposing
additional filing restrictions on his ability to litigate in this court if he persists in filing
cases outside the federal courts’ jurisdictional limitations. The mandate shall issue
forthwith.
Entered for the Court
CHRISTOPHER M. WOLPERT, Clerk
by: Lara Smith
Counsel to the Clerk
Appellate Case: 19-1485 Document: 010110289993 Date Filed: 01/16/2020 Page: 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_07-cv-00573/USCOURTS-caed-2_07-cv-00573-0/pdf.json | [
[
"Willie D. Pace",
"Petitioner"
],
[
"D.K. Sisto",
"Respondent"
]
] | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
1
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
WILLIE D. PACE,
Petitioner, No. CIV S-07-0573 DFL GGH P
vs.
D.K. SISTO, Warden,
Respondent. ORDER
/
Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has not, however, filed an in forma
pauperis affidavit or paid the required filing fee ($5.00). See 28 U.S.C. §§ 1914(a); 1915(a).
Petitioner will be provided the opportunity to either submit the appropriate affidavit in support of
a request to proceed in forma pauperis or submit the appropriate filing fee.
In accordance with the above, IT IS HEREBY ORDERED that:
1. Petitioner shall submit, within thirty days from the date of this order, an
affidavit in support of his request to proceed in forma pauperis or the appropriate filing fee;
petitioner's failure to comply with this order will result in the dismissal of this action; and
/////
/////
Case 2:07-cv-00573-RRB-GGH Document 3 Filed 04/25/07 Page 1 of 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
2
2. The Clerk of the Court is directed to send petitioner a copy of the in forma
pauperis form used by this district.
DATED: 4/25/07 /s/ Gregory G. Hollows
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE
GGH:bb
pace0573.101a
Case 2:07-cv-00573-RRB-GGH Document 3 Filed 04/25/07 Page 2 of 2 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-01291/USCOURTS-caed-2_16-cv-01291-0/pdf.json | [
[
"James Hudson",
"Plaintiff"
],
[
"Swift Transportation Co. of Arizona, LLC",
"Defendant"
]
] | S0519001/4831-0918-6870-1 No. 2:16-CV-01291-MCE-DB
ORDER GRANTING JOINT STIPULATION TO AMEND PRETRIAL SCHEDULING ORDER
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Derek H. Lim (Bar No. 209496)
Chad D. Greeson (Bar No. 251928)
ARCHER NORRIS
A Professional Law Corporation
2033 North Main Street, Suite 800
Walnut Creek, California 94596-3759
Telephone: 925.930.6600
Facsimile: 925.930.6620
[email protected]
[email protected]
Attorneys for Defendant
SWIFT TRANSPORTATION CO. OF ARIZONA,
LLC
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION
JAMES HUDSON,
Plaintiff,
v.
SWIFT TRANSPORTATION CO. OF
ARIZONA, LLC, and DOES 1 through 50,
inclusive,
Defendant.
Fed. Case No. 2:16-CV-01291-MCE-DB
[Honorable Morrison C. England, Jr.]
ORDER GRANTING JOINT
STIPULATION TO AMEND PRETRIAL
SCHEDULING ORDER
GOOD CAUSE APPEARING, IT IS HEREBY ORDERED that “all discovery, with the
exception of expert discovery, shall be completed no later than three hundred sixty-five (365)
days from the date of removal of this action to federal court.” All of other the dates are to remain
as set forth in the Court’s Initial Pretrial Scheduling Order.
IT IS SO ORDERED.
Dated: August 10, 2016
Case 2:16-cv-01291-MCE-DB Document 10 Filed 08/11/16 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca7-08-03226/USCOURTS-ca7-08-03226-0/pdf.json | [
[
"Bogdan Ganescu",
"Appellant"
],
[
"United States of America",
"Appellee"
]
] | In the
United States Court of Appeals
For the Seventh Circuit
Nos. 08-2378, 08-3226 & 08-3238
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
AIDA SALEM, BOGDAN GANESCU,
and GIANINA SIMON,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 06 CR 923—John W. Darrah, Judge.
ARGUED NOVEMBER 3, 2009—DECIDED MARCH 9, 2010
Before EASTERBROOK, Chief Judge, and WOOD and
TINDER, Circuit Judges.
TINDER, Circuit Judge. In these appeals we consider
the application of the relevant conduct guideline,
U.S.S.G. § 1B1.3(a)(1)(B), in a case of a jointly undertaken
criminal activity. Aida Salem pled guilty to one count of
wire fraud and was sentenced to 97 months’ imprisonment. Bogdan Ganescu and Gianina Simon pled guilty
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
2 Nos. 08-2378, 08-3226 & 08-3238
to several counts of wire fraud and two counts of receipt
of stolen funds. They were sentenced to 78 months and
52 months, respectively. The defendants appeal their
sentences, challenging the district court’s relevant
conduct findings. For the reasons that follow, we
remand the sentences for further findings concerning
the jointly undertaken criminal activity under U.S.S.G.
§ 1B1.3(a)(1)(B) and, if necessary, for further findings
regarding the amount of the loss and the number of
victims under U.S.S.G. § 2B1.1(b)(1) and (2).
I. Background
A superseding indictment charged that Aida Salem,
Bogdan Ganescu, Gianina Simon, eleven codefendants,
and others in the United States and abroad knowingly
devised and participated in a scheme to defraud. Beginning in approximately November 2003 through at least
August 2006, more than 2000 victims of the scheme
were tricked into believing that they were purchasing
items listed for sale on Internet sites and wired funds to
the defendants and other co-schemers in amounts in
excess of $6 million. The victims never received the items.
As part of the scheme, individuals located outside the
United States, principally in Romania (the “foreign coschemers”), posed as sellers of items and lured victims
through fraudulent advertisements on Internet sites,
typically eBay. When a victim agreed to purchase an
item, he or she was instructed to send payment by
wire transfer, typically through Western Union. The
foreign co-schemers believed that victims in the United
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 3
States would be more likely to transmit their money if
the foreign co-schemers posed as sellers in the United
States. Therefore, the foreign co-schemers developed a
network of individuals in the United States, including
all fourteen defendants and other co-schemers, who were
willing to repeatedly pick up the funds/fraud proceeds
from a Western Union agent. After retaining a portion
(typically 20% to 40%) of the fraud proceeds received,
the defendants and other co-schemers transmitted the
balance of the proceeds to Romania.
In order to reduce the risk of apprehension by law
enforcement, the co-schemers obtained and used false
identification documents when picking up the fraud
proceeds from a Western Union agent. This required
ongoing communication between the persons who managed the receipt of fraud proceeds in the United
States—schemers such as Adrian Fechete, Raimondoray
Cerna, and Gabriel Constantin—and the foreign coschemers. The co-schemers communicated their changing
aliases to the foreign co-schemers, and the foreign
co-schemers incorporated the alias names into their
Internet communications with potential victims, usually
as the “seller,” “seller’s agent,” or “eBay agent” of the
item offered for sale. Once someone agreed to purchase
an item, he or she was instructed to send the funds
via Western Union to the alias name provided by a defendant to the foreign co-schemers. The victim provided
funds via Western Union in payment for the item.
The foreign co-schemers gave the appropriate coschemer the information necessary to complete the
wire transfer that had been provided by the victim. Then
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
4 Nos. 08-2378, 08-3226 & 08-3238
the co-schemer presented himself or herself, using the
matching alias identification documents at a Western
Union, representing himself or herself as the authorized
payee for the wire transfer of funds and received the funds.
Aida Salem
Salem pled guilty pursuant to a written plea agreement to one count of wire fraud, 18 U.S.C. § 1343. The
agreement described the fraud scheme and stated that
Salem learned about the scheme from codefendant
Raimondoray Cerna in approximately November 2003
and participated in the scheme from then until approximately January 2006. Salem admitted that as part of the
scheme, he and his co-schemers took and received
money from the victims with no intent of ever giving
them the items they believed they were purchasing.
He admitted that he used alias identification documents
to present himself to Western Union agents and provided them with the information relayed from the
foreign co-schemers that enabled him to receive the victims’ funds.
Salem’s plea agreement stated that “[w]hile participating in the scheme, [Salem] shared a common source of
false identification documents with a number of his codefendants.” The agreement provided one example from
late March through late April 2004 involving Salem and
codefendants Cerna, Gabriel Constantin, Adrian Ianc,
Muszka Ladislau, and Radu Rizescu. Then it gave
another example for various occasions in 2005 involving
Salem, Ianc, Ladislau, Simon, and Ganescu. The agreeCase: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 5
ment stated that Salem also shared with his co-schemers
“information on currency exchanges . . . such as which
to avoid and which were favorable,” “used common
currency exchanges . . . to receive fraud proceeds, and
shared rides to currency exchanges when receiving victims’ wire transfers.” It gave several examples
involving Salem and Fechete, Mihai Panaitescu,
Constantin, and Ianc. It also stated that Salem and Cerna
were arrested together when officers discovered they
were in possession of counterfeit identification. The
agreement added that for several months Salem and Ianc
resided in the same apartment complex and that they
also “shared a common source of Western Union transaction information” and “occasionally traveled together . . .
when receiving fraud proceeds from Western Union
agents.”
Furthermore, Salem admitted in his plea agreement
that on some occasions, he and other co-schemers
provided “common false addresses and phone number[s]
when completing the Western Union . . . form[s].” The
agreement provided several examples involving Salem,
Ianc, Constantin, Cerna, Marian Alexandru, Fechete,
and Ioan Moloman. Cell phone records revealed that
during the time period that Salem participated in the
scheme, he was in frequent contact with co-schemers,
including Panaitescu, Fechete, Constantin, Moloman,
Ianc, and Cerna. Salem admitted that at Cerna’s direction, he and other co-schemers, including Panaitescu,
Moloman, Stefan Dumitru, Lucian Nanau, Alexandru,
and Mihail Hann, transmitted funds owed to the foreign
co-schemers. Salem further admitted that he personally
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
6 Nos. 08-2378, 08-3226 & 08-3238
received wire transfers of funds from victims of the
scheme in an amount in excess of $400,000. The
Presentence Investigation Report (“PSR”) indicated that
during the time of Salem’s participation in the
scheme, approximately 2100 victims lost more than
$5.3 million. Salem also admitted in his plea agreement
that he was aware that his codefendants such as
Fechete, Ianc, Constantin, Mihai Bledea, Moloman, Hann,
Alexandru, Panaitescu, Constantin Lucan, Dumitru, and
Nanau were also receiving wire transfers from the
scheme to defraud.
Based on this, the government’s position before sentencing was that Salem was responsible for between
$2.5 million and $7 million in losses and over 250 victims—numbers that would result in Guidelines enhancements under U.S.S.G. § 2B1.1(b). Salem, however, contended the loss was more than $200,000 but not more
than $400,000, and that the offense involved more than
50 but less than 250 victims. In his Objections to PSR
and Sentencing Memorandum, Salem acknowledged that
“he undertook and participated in criminal activity
with and as directed by co-defendant managers Cerna
and Ianc” and argued that the government failed to
prove that he “should be held responsible for the losses
caused by the other participants beyond Cerna and Ianc.”
And at the sentencing hearing, Salem’s counsel stated
that Salem was accepting responsibility not only for
his own actions but also for “the reasonably foreseeable
actions of co-participants in the scheme, specifically
individuals such as Mr. Cerna, Mr. [Ianc], the
gentlem[e]n who recruited my client, and also managed
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 7
The transcript reads “Young,” but we believe it should be
1
“Ianc,” based on the context, Salem’s sentencing memorandum, and subsequent comments by Salem’s counsel at the
hearing. In addition, we note that Salem acknowledged that he
was recruited, managed, and supervised by both Cerna and
Ianc.
The district court did not mention Bledea’s name at this 2
point, but it had just mentioned him as one of the codefendants
of whom Salem was aware was receiving wire transfers in
the scheme. With the laundry list of names of co-schemers,
this oversight is understandable.
and supervised him.” At the sentencing hearing on
1
May 22, 2008, the government conceded a total loss
of greater than $1 million but less than $2.5 million.
The district court found by a preponderance of the
evidence that:
Cerna, Fechete, Ianc, Constantin, Moloman, Hann,
Alexandru, Panaitescu, Lucan, Dumitru, and
Nanau participated in the scheme, and it was 2
reasonably foreseeable to [Salem] then that because of the known conduct or reasonably foreseeable conduct of these other persons to [him], that
over a thousand victims would suffer losses of
$1 million but less than $2.5 million.
The court found that under U.S.S.G. § 2B1.1(a)(1) Salem’s
base offense level was seven and added sixteen levels
based on the amount of the loss, U.S.S.G. § 2B1.1(b)(1)(I),
and added six levels based on the number of victims,
U.S.S.G. § 2B1.1(b)(2)(c). The resulting Guidelines range
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
8 Nos. 08-2378, 08-3226 & 08-3238
was 97 to 121 months. The court sentenced Salem to
97 months, at the bottom of the range, and ordered him
to pay $404,091 in restitution.
Bogdan Ganescu and Gianina Simon
On September 4, 2007, Ganescu and Simon pled guilty,
without plea agreements, to several wire fraud counts,
18 U.S.C. § 1343, and two counts of receipt of stolen
funds, 18 U.S.C. § 2315. In their plea declarations, Ganescu
and Simon admitted to participating in a scheme to
defraud users of Internet auction sites such as eBay, and
to obtaining money by means of materially false and
fraudulent pretenses. They admitted that not later than
August 2004, they learned about the scheme and how it
worked from codefendant Gabriel Constantin. They also
admitted that in order to participate in the scheme, they
obtained and used a series of alias identification documents that falsely identified them as the persons to
whom the victims should send their money and that
they ultimately received the victims’ funds from
Western Union agents.
The Government’s Version of the Offense (“Government’s Version”), which was attached to the defendants’
PSRs, indicated that photographs obtained during the
investigation of the scheme demonstrated Ganescu’s
and Simon’s close association with several codefendants,
including Constantin, Ianc, Bledea, and Rizescu. The
photos included pictures of Ganescu and Simon at
Rizescu’s staged wedding, which was part of a fraudulent
application for permanent United States residency. Also
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 9
according to the Government’s Version, phone records
showed frequent call activity between Ganescu’s and
Simon’s cell phones and those of Constantin, Ianc, and
Bledea. The Government’s Version stated that Simon
used the same attorney that Ianc and Bledea used following their arrests on charges arising out of the scheme
to defraud. On appeal, Ganescu and Simon do not
dispute the accuracy of these factual assertions, but
argue about what inferences may reasonably be drawn
from them.
Ganescu admitted in his plea declaration that between
approximately October 2004 and June 2005, he received
wire transfers of fraud proceeds of approximately
$174,000 from at least 90 victims of the scheme. (The
government later learned that his participation continued into December 2006 and that he received fraud
proceeds from approximately 129 victims.) Simon
admitted in her plea declaration that between approximately September 2004 and August 2005, she received
wire transfers of fraud proceeds of approximately
$63,000 from at least 29 victims. Ganescu and Simon also
admitted that they retained a portion of the fraud
proceeds for themselves and caused the remainder—
more than $126,000—to be transmitted to the foreign coschemers in Romania. Each admitted an awareness that
the other was participating in the scheme and receiving
fraud proceeds from additional victims. They also admitted to sharing common sources of false identification documents between themselves and with several
codefendants: Ianc, Salem, and an individual identified
as “SB.” Ganescu admitted to sharing common sources
with Bledea and Ladislau as well.
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
10 Nos. 08-2378, 08-3226 & 08-3238
According to the Government’s Version, during the
time that Ganescu and Simon participated in the scheme,
more than 2000 victims suffered losses in excess of $5.4
million. The government asserted that Ganescu received
wire transfers of fraud proceeds in amounts totaling
about $239,000 and that together Ganescu and Simon
received about $313,000 from approximately 163 victims.
The principal issue at Ganescu and Simon’s sentencing hearing was whether the conduct of other
codefendants was reasonably foreseeable to Ganescu and
Simon for purposes of the loss amount and number of
victims for which they should be held accountable as
relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). The
government argued that much of the conduct of others
involved in the scheme was foreseeable to Ganescu and
Simon based on their close relationship with significant
participants in the scheme such as Ianc and Constantin.
The government asserted that a conservative estimate
of the loss foreseeable to Ganescu and Simon would be
the losses caused during the time they participated in
the scheme and traceable to Ganescu, Simon, and the coschemers with whom they were most closely associated,
namely Constantin, Bledea, Ianc, “Individual EM,” and
Cristian Bentan. According to the government’s spreadsheet detailing Western Union transactions, the transactions received directly by these co-schemers totaled
$1,176,967.81 and represented losses to approximately
500 victims of the scheme.
The district court identified the crux of the matter as
whether the actions of co-schemers Ianc, Constantin,
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 11
3 The loss amount and number of victims was taken from
Government’s Exhibit 018. The exhibit attributes approximately $9800 of the total loss and four victims to the conduct
of codefendant Cristian Bentan. The district court did not
find that Bentan’s conduct was reasonably foreseeable to
either Ganescu or Simon. If the loss amount were adjusted
accordingly, a $9800 reduction in the loss and subtraction of
four victims would not affect the increase in offense levels
under § 2B1.1(b)(1)(I) (loss more than $1,000,000 but no more
than $2,500,000) and § 2B1.1(b)(2)(C) (more than 250 victims).
Bledea, and EM were reasonably foreseeable to Simon
and Ganescu. The court found by a preponderance of the
evidence that the conduct of Ianc, Constantin, Bledea, and
EM was reasonably foreseeable to Ganescu. It found
that the conduct of Ganescu, Ianc, Constantin, Bledea
and EM was reasonably foreseeable to Simon. These
findings led the court to find a loss amount of $1,176,967.81
and a total number of victims in excess of 250, with a
corresponding sixteen-level increase to Ganescu’s and
Simon’s base offense level under U.S.S.G. § 2B1.1(b)(1)(I)
and a six-level increase under § 2B1.1(b)(2)(C).3
Ganescu and Simon had an identical Guidelines range
of 78 to 97 months. The district court sentenced Ganescu
to a within-Guidelines sentence of 78 months and
ordered him to pay $229,000 in restitution. After considering the § 3553(a) factors, including Simon’s overall
culpability, and finding that she had been deterred and
recidivism was not a factor in her case, the court sentenced
Simon to a below-Guidelines sentence of 52 months. The
court also ordered her to pay $62,000 in restitution.
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
12 Nos. 08-2378, 08-3226 & 08-3238
II. Discussion
The defendants contend that the district court erred in
its relevant conduct findings. They argue that under
United States v. Soto-Piedra, 525 F.3d 527, 531 (7th Cir.),
cert. denied, 129 S. Ct. 261 (2008), the evidence must show
that a defendant assisted or agreed to promote a
coconspirator’s conduct for such conduct to be within
the scope of jointly undertaken activity under U.S.S.G.
§ 1B1.3(a)(1)(B). They claim that the evidence failed to
show that they assisted or agreed to promote conduct
of their co-schemers and that the enhancements based
on the amount of loss and number of victims were therefore unwarranted. Salem also argues that the acts of his coschemers were not acts in which he joined or which
he furthered. Finally, the defendants argue that the
district court erred because it neglected to make a
finding of jointly undertaken criminal activity before
addressing whether their codefendants’ conduct was
foreseeable to them.
Ganescu and Simon acknowledge that when a party
fails to raise an issue in the trial court, we generally
review for plain error. See United States v. Garrett, 528
F.3d 525, 527 (7th Cir. 2008). However, the government
asserts that in this case we review the district court’s
determinations of the amount of the loss and number
of victims for which the defendants should be held accountable for clear error. It therefore has waived its right
to rely on plain error review. See United States v. Murphy,
406 F.3d 857, 860 (7th Cir. 2005) (concluding that the
government “waived waiver” by asserting the plain
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 13
error standard applied); United States v. Cotnam, 88 F.3d
487, 498 n.12 (7th Cir. 1996) (noting that since defense
counsel failed to object at trial, the court would
normally review for plain error, but because the government did not argue for the plain error standard, it
waived the right to invoke that standard). Hence, we
review the district court’s relevant conduct determinations for clear error. United States v. Rollins, 544 F.3d
820, 838 (7th Cir. 2008). Under this standard, we will
uphold the district court’s findings “unless, after considering all of the evidence, we are left with a definite
and firm conviction” that a mistake has been made.
Id. (quotation omitted). We review the district court’s
application of the Guidelines de novo. Garrett, 528 F.3d
at 527.
As part of its determination of a defendant’s offense
level under the Guidelines, a court determines the base
offense level and applies appropriate specific offense
characteristics. U.S.S.G. § 1B1.1(b). Specific offense characteristics depend not only on the offense of conviction
but also on relevant conduct. United States v. Alldredge,
551 F.3d 645, 646 (7th Cir. 2008); U.S.S.G. § 1B1.3(a). In the
case of a jointly undertaken criminal activity, relevant
conduct is determined on the basis of “ ‘all reasonably
foreseeable acts and omissions of others in furtherance
of the jointly undertaken criminal activity.’ ” Soto-Piedra,
525 F.3d at 531 (quoting U.S.S.G. § 1B1.3(a)(1)(B)).
A criminal scheme “ ‘undertaken by the defendant in
concert with others’ ” is included within the definition of
a “jointly undertaken criminal activity.” Id. (quoting
U.S.S.G. 1B1.3(a)(1)(B)). Thus, a defendant may be held
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
14 Nos. 08-2378, 08-3226 & 08-3238
accountable for the conduct of others “if that conduct
was in furtherance of a jointly undertaken criminal
activity and reasonably foreseeable in connection with
that criminal activity.” United States v. Fouse, 578 F.3d
643, 653 (7th Cir. 2009).
In addressing a jointly undertaken criminal activity in
Soto-Piedra, we said that the “[a]ctions of coconspirators
that a particular defendant does not assist or agree to
promote are generally not within the scope of that defendant’s jointly undertaken activity.” 525 F.3d at 533 (citing
U.S.S.G. § 1B1.3 cmt. n.2). The defendants seize upon
this language, arguing that it heightened the standard
for determining the scope of a jointly undertaken
criminal activity. We do not read Soto-Piedra in this way.
Instead, the “assist or agree to promote” language is
simply another way of stating the requirement that the
conduct of others for which a defendant is accountable
must be in furtherance of the joint criminal activity that
the defendant in question undertook. This is another
way of saying that the mere foreseeability of another’s
conduct is not sufficient to bring that conduct within
the scope of a defendant’s jointly undertaken criminal
activity. In Soto-Piedra, the defendant objected to the
conclusion that he was responsible for 14 to 15 kilograms
of crack, which affected his base offense level. The defendant had not sold crack to anyone, so we said that in
order to determine his base offense level based on a
substantial amount of crack, the government had to
prove he had reached an agreement to sell powder
cocaine intending that it be converted into crack. Id. at
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 15
531. We said that the defendant agreed to supply his
coconspirator with an unknown grade of powder
cocaine, to be provided to an unknown customer with
an unknown intention. We used the “assist or agree to
promote” language in concluding that the government
offered no evidence to suggest “that converting the
powder cocaine to crack was within the scope of [the
defendant’s] contemplated undertaking.” Id. at 533.
The authorities Soto-Piedra cited for the “assist or agree
to promote” language bolster the conclusion that the
case did not impose a heightened standard. See United
States v. Bustamante, 493 F.3d 879, 887-88 (7th Cir. 2007)
(noting § 1B1.3’s requirement that relevant conduct be
“in furtherance of the jointly undertaken criminal activity” and concluding that the evidence was insufficient
to prove that the defendant furthered the conspiracy
alleged in the indictment); United States v. Melton, 131
F.3d 1400, 1405 (10th Cir. 1997) (indicating that reasonable foreseeability is not enough to establish liability
for coconspirators’ acts under § 1B1.3; such acts must
also be in furtherance of jointly undertaken criminal
activity); United States v. Studley, 47 F.3d 569, 576 (2d
Cir. 1995) (remanding where the record supported the
conclusion that the defendant’s agreement to participate
in the fraudulent scheme was limited to his own
fraudulent activity and he did nothing to further the
overall scheme); U.S.S.G. § 1B1.3 cmt. n.2 (illustration
(c)(1)). And this court has not understood Soto-Piedra as
altering the standard for the scope of jointly undertaken
criminal activity. See United States v. Dean, 574 F.3d 836,
844-45 (7th Cir. 2009) (quoting the “assist or agree to
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
16 Nos. 08-2378, 08-3226 & 08-3238
promote” language when stating the proposition that “a
defendant may be held liable only for those acts or omissions that were both made in furtherance of the conspiracy and foreseeable to the defendant”). Therefore, SotoPiedra did not impose a heightened standard for determining the scope of a jointly undertaken criminal activity.
So we consider the sufficiency of the district court’s
findings in this case.
In applying U.S.S.G. § 1B1.3(a)(1)(B), the district court
must make a preliminary determination of the scope of
the criminal activity the defendant agreed to jointly
undertake. United States v. Fox, 548 F.3d 523, 531-32 (7th
Cir. 2008); United States v. Thomas, 199 F.3d 950, 953
(7th Cir. 1999); U.S.S.G. § 1B1.3 cmt. n.2 (“In order to
determine the defendant’s accountability for the conduct
of others under subsection (a)(1)(B), the court must
first determine the scope of the criminal activity the
particular defendant agreed to jointly undertake (i.e., the
scope of the specific conduct and objectives embraced
by the defendant’s agreement).”). Then the court must
make a two-part determination of whether the conduct
of others was both in furtherance of that joint criminal
activity and reasonably foreseeable to the defendant
in connection with the joint criminal activity. Fox,
548 F.3d at 532; Thomas, 199 F.3d at 953; U.S.S.G.
§ 1B1.3(a)(1)(B). “[A]n absence of findings on key
elements of the [relevant conduct] analysis” cannot be
cured by a deferential clear error standard of review. Fox,
548 F.3d at 532; see also Dean, 574 F.3d at 846 (vacating
and remanding sentence for a specific finding as to the
reasonable foreseeability to the defendant of the
quantity of drugs).
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 17
In Fox, for example, two codefendants were convicted
of a crack cocaine conspiracy. One challenged the
drug quantity that the district court found as part of his
relevant conduct under U.S.S.G. § 1B1.3(a)(1)(B). He
argued that the court erred in focusing exclusively on
the foreseeability requirement of relevant conduct, ignoring its other requirements. We agreed, finding
several problems with the relevant conduct analysis. Fox,
548 F.3d at 531. First, the district court did not determine
the scope of the defendant’s jointly undertaken criminal
activity. Id. at 531-32. Second, although the district court
considered whether the codefendant’s possession of
crack cocaine was foreseeable to the defendant, it
did not consider whether that possession was foreseeable
in connection with the joint criminal activity. Id. We
therefore concluded that the district court’s relevant
conduct findings were insufficient and vacated and
remanded for resentencing. Id. at 533.
Here, the district court made findings as to the reasonable foreseeability of the co-schemers’ acts only; it made
no finding as to the scope of the jointly undertaken criminal activity. The government argues that, given the
record and circumstances of this case, the lack of an
express finding by the district court does not warrant
setting aside the finding that Salem, Ganescu, and Simon
are accountable for the conduct of certain of their coschemers that occurred during the time period in which
Salem, Ganescu, and Simon participated in the scheme.
The government asserts that it is clear from the record
that the district court considered the Government’s
Version and the defendants’ PSRs, which contained great
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
18 Nos. 08-2378, 08-3226 & 08-3238
detail about the nature of the criminal activity that
Salem, Ganescu, and Simon agreed to jointly undertake.
This case is quite different from the cases cited by the
government to support its argument. See United States
v. Wilson, 502 F.3d 718, 722-23 (7th Cir. 2007); United States
v. Acosta, 85 F.3d 275, 279-80 (7th Cir. 1996). In Acosta,
the defendant, who had been convicted of possession
of heroin with the intent to distribute, challenged the
district court’s determination that a series of cocaine
sales he had made to another individual were relevant
conduct. 85 F.3d at 277, 279. The district court did not
find that those cocaine sales were relevant conduct;
however, before sentencing the defendant, the court
expressly adopted the factual findings in the PSR. Facts
recited in the PSR provided the necessary connection
between the cocaine sales and the defendant’s offense
of conviction to treat the sales as relevant conduct under
§ 1B1.3(a)(2). Id. at 279-80. We stated that the court
should “explicitly state and support” its finding that
uncharged conduct had the necessary relationship to
the offense of conviction to support a relevant conduct finding. Id. at 280 (quotation omitted). However,
we added:
[W]here it is clear from the record that the district
court considered and adopted the facts recited in the
presentence report, as well as the government’s reasoning concerning the significance of those facts in
establishing the defendant’s responsibility for uncharged conduct, we have upheld the court’s decision
to treat the uncharged activities as relevant conduct
despite the lack of an express finding . . . .
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 19
Acosta and Wilson are also distinguishable because the 4
courts in those cases considered whether the defendant’s own
conduct was relevant conduct under U.S.S.G. § 1B1.3(a)(2).
Here, the district court considered whether the defendants
should be held accountable not only for their own acts but
also for the acts of others under § 1B1.3(a)(1)(B). Different
standards apply to these subsections of the Guideline.
Id. (citations omitted). Because it was clear that the court
considered the cocaine sales to be relevant conduct, we
upheld its implicit relevant conduct determination
despite the absence of an express finding that the sales
were part of the same course of conduct as the heroin
offense. Id.
Similarly, in Wilson the district court failed to make
an explicit finding that other drug transactions in which
the defendant had participated were part of the same
course of conduct or common scheme as the offense of
conviction. Yet we understood from the court’s specific
findings at sentencing that it clearly believed that the
defendant’s drug trafficking was a common scheme
and part of the same course of conduct as his offense of
conviction. Wilson, 502 F.3d at 723. We therefore held
that the court did not clearly err in finding that the defendant’s prior drug transactions constituted relevant conduct. Id. at 724.4
Here, the district court did not adopt the findings in
the PSRs at the sentencings. Thus, the judge’s oral explanation of the reasons for the sentences imposed falls
short of the requirement that “[t]he court, at the time of
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
20 Nos. 08-2378, 08-3226 & 08-3238
sentencing, shall state in open court the reasons for its
imposition of the particular sentence . . . .” 18 U.S.C.
§ 3553(c); see also United States v. Harris, 567 F.3d 846, 854-
55 (7th Cir.) (suggesting court’s explanation was insufficient where court merely said it considered the information in the presentence report, including the
Guideline computations and the sentencing factors, but
failed to state the reasons for its sentence), cert. denied, 130
S. Ct. 1032 (2009); United States v. Molina, 356 F.3d 269, 277
(2d Cir. 2004) (holding that district court did not satisfy
§ 3553(c)’s “open court” requirement with a statement
of reasons in a later written judgment where the court
made no specific factual findings and did not expressly
adopt the PSR at the sentencing hearing).
The district court did adopt the factual findings in the
defendants’ PSRs in its “Statement of Reasons” attachment
to the Judgment in a Criminal Case, AO Form 245B, see
h tt p :// w w w .u s c o u rt s . g o v /f o r m s /u s c f o rm s . c f m ?
StartRow=61 (last visited Feb. 19, 2010), but this was
inadequate for several reasons. In some circumstances,
the adoption of a PSR’s findings could constitute
sufficient factual findings. For example, the adoption of
such findings at a sentencing hearing can be sufficient.
See, e.g., Acosta, 85 F.3d at 279-80 (upholding district
court’s relevant conduct finding where at sentencing the
court adopted the facts recited in the presentence report
as well as the government’s argument about the significance of those facts). And a district court is authorized
and even encouraged to file a later written memorandum
explaining its reasoning for the sentence imposed, provided the memorandum does not change the ultimate
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 21
judgment. United States v. Burton, 543 F.3d 950, 953 (7th Cir.
2008); United States v. Duarte, 950 F.2d 1255, 1263 (7th Cir.
1991).
But in this case, the court’s adoption of the PSRs’ findings was only a pro forma checking of a box on a preprinted form. And the judge signed the “Statements of
Reasons” a few days after he imposed the sentences.
Although the adoption of a PSR’s findings in this
manner may suffice under a plain error standard of
review, it is inadequate when reviewed for clear error.
Compare United States v. Panaigua-Verdugo, 537 F.3d 722,
726-27 (7th Cir. 2008) (holding court did not plainly err
in finding that other drug transactions were relevant
conduct in absence of an explicit finding at sentencing
where court in its written statement of reasons adopted
the PSR and noted that the other acts were part of the
same conduct as the convicted offense), and United States
v. Arroyo, 406 F.3d 881, 889-90 (7th Cir. 2005) (finding
no plain error in court’s failure to make specific findings
connecting uncharged drug transactions with offense
of conviction where record could support the conclusion
that offenses were related), with United States v. Ortiz,
431 F.3d 1035, 1042-43 (7th Cir. 2005) (holding court
clearly erred when it failed to make specific findings
on whether additional cocaine involved relevant conduct), and United States v. Bacallao, 149 F.3d 717, 720-21
(7th Cir. 1998) (holding court clearly erred in not
making independent relevant conduct finding and
instead relying entirely on the presentence report which
failed to establish necessary relationship between offense
of conviction and other drug transactions). The clear
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
22 Nos. 08-2378, 08-3226 & 08-3238
error standard of review demands more of sentencing
courts in terms of factual findings. See Wilson, 502 F.3d
at 723 (relevant conduct finding not clearly erroneous
where court found at sentencing that defendant had
been regularly dealing cocaine and was part of an ongoing
circle of dealers).
Moreover, even if the court had adopted the findings
in the PSRs in this case at the time of sentencing, the
court’s factual findings would still be deficient on a key
element of the relevant conduct analysis: the scope of the
jointly undertaken criminal activity. If the court relies
entirely on the PSR to make a finding as to the scope of
the jointly undertaken criminal activity, the PSR must
define the scope of that activity. Cf. United States v. Singleton, 548 F.3d 589, 590-93 (7th Cir. 2008) (upholding
implicit relevant conduct finding under clear error
review where court adopted the PSR’s findings that
detailed the defendant’s regular history of drug sales
over a six-year span); Bacallao, 149 F.3d at 720-21 (finding
clear error where court failed to make independent relevant conduct finding and relied entirely on presentence
report that contained insufficient factual findings). Although the PSRs in this case contain a wealth of information, their focus on the foreseeability of the conduct
of others virtually ignored the scope of the joint criminal
activity undertaken by each of these defendants. As
stated earlier, a district court must first determine the
scope of the criminal activity the defendant agreed to
jointly undertake, and then determine whether the
conduct of others was in furtherance of, and reasonably
foreseeable to the defendant in connection with, that
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 23
activity. Fox, 548 F.3d at 531-32; Thomas, 199 F.3d at 953.
Neither the PSRs nor the judge’s statements at sentencing define the scope of each defendant’s jointly undertaken criminal activity with sufficient clarity and specificity. A district judge may draw reasonable inferences
from information in a PSR to make a finding as to the
scope of the joint criminal activity undertaken by a defendant. But unstated inferences do not provide an
adequate relevant conduct analysis so as to allow for
meaningful appellate review. See Harris, 567 F.3d at 853-
54 (“An appellate court’s review of a sentence is for
reasonableness, and the more explanation we have, the
better equipped we are to assess whether an imposed
sentence meets that standard.”).
The government argues that the district court’s findings
that a group of co-schemers participated in the scheme
and that their conduct was reasonably foreseeable to
Salem and thus attributable to him were sufficient
findings as to the scope of Salem’s agreement to
participate in the fraud scheme. Given the standard of
review—clear rather than plain error—we cannot
agree. The scope of the jointly undertaken criminal activity
“is not necessarily the same as the scope of the entire
[scheme].” U.S.S.G. § 1B1.3 cmt. n.2; see also Fox, 548 F.3d
at 531-32 & n.7; Soto-Piedra, 525 F.3d at 531-32. The
district court did not clearly define the scope of “the
scheme” in which that group of co-schemers participated.
The entire Internet fraud scheme was wide-ranging, with
international dimensions, and it occurred over the
course of several years and resulted in total losses to
victims of approximately $6 million. The superseding
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
24 Nos. 08-2378, 08-3226 & 08-3238
indictment alleged that the scheme involved not only
the foreign co-schemers and the fourteen defendants in
this case, but also “other co-schemers” who played a
role like that of the defendants. The district court did not
hold the defendants accountable for the full $6 million,
presumably based in part on a limitation of jointly undertaken criminal activity. The finding that co-schemers
participated in “the scheme” and that their conduct was
reasonably foreseeable to Salem does not equate with
a finding that Salem agreed to a joint undertaking that
embraced the entire fraud scheme. And it is unclear
whether the court’s reference to “the scheme” meant
the entire fraud scheme or some subset of that scheme.
The government seems to equate awareness with criminal accountability. Knowledge is not sufficient to
establish the scope of the jointly undertaken criminal
activity. “Even if the defendant was perfectly aware of
the breadth of the scheme, if he was not part of all of it,
his sentence could not be based on more than the part
to which he had agreed.” Thomas, 199 F.3d at 953. It does
not necessarily follow from the fact that a co-schemer’s
criminal activity was reasonably foreseeable to a
defendant that the defendant joined in that co-schemer’s
criminal activity.
We take this opportunity to remind the district courts
that even where, as here, the focus at sentencing is on the
reasonable foreseeability of the conduct of others, the
district court still must make the necessary preliminary
finding of the scope of the criminal activity that the
defendant agreed to jointly undertake. The district court
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 25
neglected to make that finding in this case. And if a
district court omits a finding on a key element during
the § 1B1.3(a)(1)(B) analysis, the effort of an appeal could
be avoided if counsel would bring such an omission to
the sentencing judge’s attention before the analysis is
completed.
Accordingly, on remand, the district court must first
determine the scope of the criminal activity that Salem,
Ganescu, and Simon agreed to jointly undertake. Then,
with respect to Salem, the court must determine whether
the acts of Fechete, Constantin, Moloman, Hann,
Alexandru, Panaitescu, Lucan, Dumitru, and Nanau
were in furtherance of that jointly undertaken criminal
activity. Salem has not challenged the district court’s
finding that these co-schemers’ acts were reasonably
foreseeable to him. So, if the district court finds
that the acts of these co-schemers were in furtherance
of Salem’s jointly undertaken criminal activity, then the
relevant conduct findings and Salem’s sentence shall
stand, provided appropriate findings are made with
respect to Bledea. Otherwise, the district court must reassess its relevant conduct findings and Salem’s sentence.
The government asserts that Salem waived any objection to being held accountable for the conduct of Cerna
and Ianc because Salem conceded in the district court
that he should be held responsible for their conduct.
Salem’s attorney stated at Salem’s sentencing hearing
that Salem was “accepting responsibility for all of the
actions that he personally took part in and also [for] . . . the
reasonably foreseeable actions of co-participants in the
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
26 Nos. 08-2378, 08-3226 & 08-3238
scheme, specifically individuals such as Mr. Cerna,
Mr. [Ianc]” When directly asked whether he conceded
that “reasonably foreseeable conduct of others would
reach to Mr. Cerna and Mr. Ianc,” Salem’s attorney said,
“Yes.” Salem cannot undo these concessions.
So, Salem argues this wasn’t waiver, but forfeiture,
claiming there was no strategic reason for his attorney
to concede that Salem could be held accountable for
Cerna’s and Ianc’s acts and the losses they caused. This
argument is not persuasive. In United States v. Garcia, 580
F.3d 528, 541 (7th Cir. 2009), cert. denied, No. 09-8459, 2010
WL 85929 (U.S. Feb. 22, 2010), we reiterated: “Waiver is the
intentional relinquishment of a known right, and it precludes appellate review altogether.” “Forfeiture . . . is the
failure to timely assert a right,” which is reviewed for plain
error. Id. We draw a distinction between waiver and
forfeiture by considering whether the defendant made
a strategic choice not to present an argument. Id. In Garcia
we found waiver where defense counsel did not merely
fail to object to the PSR’s drug quantity calculation, but
affirmatively stated that he knew the defendant could
be sentenced for drugs trafficked by the whole conspiracy and he was not challenging drug quantity for a
strategic reason. Id. at 542. This, we said, was “precisely
what the waiver doctrine contemplates.” Id.
Salem’s counsel did not merely fail to object to the
inclusion of Cerna’s and Ianc’s acts as relevant conduct.
Instead, his counsel specifically stated that Salem was
accepting responsibility for their actions. And Salem’s
decision to make such a concession appears to have been
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
Nos. 08-2378, 08-3226 & 08-3238 27
strategic. See, e.g., United States v. Rosenberg, 585 F.3d 355,
358 (7th Cir. 2009) (concluding that the defendant waived
any challenge to inclusion of certain acts as relevant
conduct where she chose not to object to the district court
for the strategic reason that she sought a reduction for
acceptance of responsibility). Salem was anticipating a
reduction in his offense level for acceptance of responsibility. Had he disputed his accountability for Cerna’s
and Ianc’s conduct, that reduction may have been in
jeopardy. Thus, Salem waived the right to challenge
the district court’s decision to hold him accountable for
the acts of Cerna and Ianc.
And after determining the scope of the criminal activity
jointly undertaken by Ganescu and Simon, the district
court must determine whether the acts of Ianc, Constantin,
Bledea, and EM (Emanuel Matula) were in furtherance of
Ganescu’s and Simon’s jointly undertaken criminal activity. Like Salem, Ganescu and Simon do not contest the
district court’s findings regarding the reasonable
foreseeability to them of the acts of these co-schemers.
Therefore, if the court finds that the acts of these coschemers were in furtherance of Ganescu’s and Simon’s
jointly undertaken criminal activity, then Ganescu’s and
Simon’s sentences shall stand. Otherwise, the district
court must reevaluate its relevant conduct findings and
their sentences, with one qualification. The qualification
is this: Ganescu conceded in his reply brief that he is liable
“for Simon’s conduct, Emanuel Matula’s conduct and
for whatever amounts were obtained from the currency
exchanges of which Ganescu advised his co-conspirators.”
The district court need not reevaluate Ganescu’s accountability for Simon’s and Matula’s conduct, but it is
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28
28 Nos. 08-2378, 08-3226 & 08-3238
unclear just what conduct is encompassed by the last
phrase.
III. Conclusion
For the foregoing reasons, we REMAND Salem’s,
Ganescu’s, and Simon’s sentences for further findings
concerning the jointly undertaken criminal activity
under U.S.S.G. § 1B1.3(a)(1)(B) and, if necessary, for
further findings regarding the amount of the loss and the
number of victims under U.S.S.G. § 2B1.1(b)(1) and (2).
3-9-10
Case: 08-3226 Document: 96 Filed: 03/09/2010 Pages: 28 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_05-cv-00247/USCOURTS-caed-1_05-cv-00247-1/pdf.json | [
[
"Thomas R. Bearden",
"Defendant"
],
[
"United States of America",
"Plaintiff"
]
] | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[proposed] Order Modifying Scheduling Conference
Order Pursuant to Stipulation 1
[proposed] ORDER MODIFYING
SCHEDULING CONFERENCE ORDER
PURSUANT TO STIPULATION
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
UNITED STATES OF AMERICA, ) Case No. 1:05-CV-00247-OWW-DLB
)
Plaintiff, )
)
v. )
)
THOMAS R. BEARDEN, )
)
Defendant. )
____________________________________)
Pursuant to the stipulation of the parties electronically filed herein on March 15, 2006,
and good cause having been shown, the pretrial deadlines set forth in the Scheduling Conference
Order filed June 3, 2005, shall be modified (extended) as follows:
Disclosure of experts and reports due: April 28, 2006
Disclosure of supplemental experts and reports due: May 15, 2006
Discovery cut-off: June 16, 2006
Non-dispositive law and motion cut-off date: to be filed by: June 26, 2006
to be heard by: July 28, 2006
Dispositive law and motion cut-off date: to be filed by: July 10, 2006
to be heard by: August 14, 2006
Final Pretrial Conference: September 25, 2006, at 11:00 a.m. (joint pretrial statement
due 5 court days before)
Trial: November 14, 2006, at 9:00 a.m.
Case 1:05-cv-00247-OWW -DLB Document 36 Filed 03/17/06 Page 1 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[proposed] Order Modifying Scheduling Conference
Order Pursuant to Stipulation 2
In all other respects, the June 3, 2005 Scheduling Conference Order shall remain in effect
except as otherwise already modified by the Court.
Case 1:05-cv-00247-OWW -DLB Document 36 Filed 03/17/06 Page 2 of 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
[proposed] Order Modifying Scheduling Conference
Order Pursuant to Stipulation
CERTIFICATE OF SERVICE
The undersigned hereby certifies that she is an employee in the office of the United States
Attorney for the Eastern District of California and is a person of such age and discretion as to be
competent to serve papers.
That on March 15, 2006, she served a copy of:
[proposed] ORDER MODIFYING SCHEDULING
CONFERENCE ORDER PURSUANT TO
STIPULATION
by placing said document(s) in postage paid envelope(s) addressed to the persons listed below,
which are the last known addressees, and deposited said envelope(s) in the United States mail in
Sacramento, California.
ADDRESSEE(S):
Thomas R. Bearden
P.O. Box 1172
Westport, WA 98595
/s/ Jocelyn M. Trujillo
(original signature retained by attorney)
_____________________________
JOCELYN M. TRUJILLO
Legal AssistantIT IS SO ORDERED.
Dated: March 16, 2006 /s/ Oliver W. Wanger
emm0d6 UNITED STATES DISTRICT JUDGE
Case 1:05-cv-00247-OWW -DLB Document 36 Filed 03/17/06 Page 3 of 3 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-15-02077/USCOURTS-ca10-15-02077-0/pdf.json | [
[
"Richard S. Currier",
"Appellant"
],
[
"Taos County Magistrate Court",
"Appellee"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
TAOS COUNTY MAGISTRATE
COURT,
Plaintiff - Appellee,
v.
RICHARD S. CURRIER,
Defendant - Appellant.
No. 15-2077
(D.C. No. 1:14-CR-04345-MCA-1)
(D.N.M.)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before KELLY, LUCERO, and McHUGH, Circuit Judges.
_________________________________
Richard Currier appeals following the district court’s remand of his criminal
case to state court. Exercising jurisdiction under 28 U.S.C. § 1447(d), we affirm.
I
Currier was charged in New Mexico state court with one count of resisting,
evading, or obstructing an officer; one count of disorderly conduct; and five counts of
assault. The charges stem from an incident at the Taos Visitor’s Center. After being
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
August 31, 2015
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 1
-2-
questioned about the presence of his service dog, Currier became upset and an
argument apparently ensued. Currier was subsequently arrested.
Currier removed his state criminal case to federal district court. The district
court observed that removal was inappropriate under 28 U.S.C. § 1443(1) because
that section applies only if a state proceeding would deny a removal petitioner
specific federal civil rights stated in terms of racial equality. Although Currier
claimed that his case implicated the Americans with Disabilities Act (“ADA”), he did
not allege a deprivation of racial equality. The district court remanded the case back
to state court. It also denied Currier’s motion to reconsider. Currier now appeals
those rulings.
II
As a general matter, “[a]n order remanding a case to the State court from which it
was removed is not reviewable on appeal or otherwise.” 28 U.S.C. § 1447(d). However,
the bar on appellate review of remand orders contains an exception for cases removed
pursuant to § 1443. § 1447(d). Section 1443(1) provides that a criminal prosecution may
be removed to federal court if the action is “[a]gainst any person who is denied or cannot
enforce in the courts of such State a right under any law providing for the equal civil
rights of citizens of the United States, or of all persons within the jurisdiction thereof.”
Id. Although Currier did not cite § 1443(1) in his Notice of Removal, he did allege that
the state disregarded his rights under federal disability statutes. Construing his pro se
filings liberally, see Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991), we agree
with the district court that Currier’s references to federal disability rights are
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 2
-3-
sufficient to raise § 1443(1) as a basis for removal. We accordingly possess jurisdiction
to review the district court’s remand order under § 1447(d). See Colorado v. Lopez, 919
F.2d 131, 132 (10th Cir. 1990) (reviewing remand order of action removed under §
1443).
We also possess jurisdiction to consider the district court’s denial of Currier’s
motion for reconsideration. Under 28 U.S.C. § 1455(a), criminal defendants must adhere
to Rule 11 of the Federal Rules of Civil Procedure in filing a Notice of Removal. Id.
Whether we apply civil or criminal rules, Currier’s timely motion to reconsider, which
was filed eight days after the remand order, tolled his notice-of-appeal deadline. See Fed.
R. App. P. 4(a)(4)(A) (civil); United States v. Randall, 666 F.3d 1238, 1242 (10th Cir.
2011) (criminal). And although he filed a notice of appeal before that motion was ruled
upon, he filed a timely supplemental notice designating both the remand order and the
order denying reconsideration as the subjects of this appeal.
III
Although the plain text of § 1443(1) could be read as providing removal to protect
equal rights for individuals with disabilities, the Supreme Court has firmly held
otherwise. The Court established a two part test for § 1443(1) removal petitions in
Johnson v. Mississippi, 421 U.S. 213 (1975). “First, it must appear that the right
allegedly denied the removal petitioner arises under a federal law providing for specific
civil rights stated in terms of racial equality.” Id. at 219 (quotation omitted). Second, it
must appear “that the removal petitioner is denied or cannot enforce the specified federal
rights in the courts of the State.” Id. (quotation omitted).
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 3
-4-
We agree with the district court that Currier’s claim fails the first prong of the
Johnson test. Currier did not allege violation of a federal law stated in terms of racial
equality. Rather, he claimed that the state refused to enforce his rights under the ADA.
“Claims that prosecution and conviction will violate rights under constitutional or
statutory provisions of general applicability or under statutes not protecting against racial
discrimination, will not suffice.” Id. Because the ADA protects against discrimination
due to disability, and not due to race, a denial of ADA rights does not support § 1443(1)
removal. See 42 U.S.C. § 12101(b) (purpose of the ADA is “elimination of
discrimination against individuals with disabilities”); §12101(a)(4) (distinguishing
disability discrimination from racial discrimination).
On appeal, Currier argues for the first time that his prosecution is driven by
racial bias against Caucasians. Because Currier did not raise this issue in his notice of
removal, it is waived. 28 U.S.C. § 1455(b)(2) (“A failure to state grounds that exist at the
time of the filing of the notice shall constitute a waiver of such grounds . . . .”). And in
any event, Currier’s belated allegation would be insufficient to trigger §1443(1). Under
the second prong of the Johnson test, “it [is] not enough to support removal to allege that
federal equal civil rights have been illegally and corruptly denied by state
administrative officials in advance of trial, that the charges against the defendant are
false, or that the defendant is unable to obtain a fair trial in a particular state court.”
Johnson, 421 U.S. at 222 (quotation omitted). Instead, a removal petitioner must show
that “it can be clearly predicted by reason of the operation of a pervasive and explicit
state or federal law that those rights will inevitably be denied by the very act of
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 4
-5-
bringing the defendant to trial in the state court.” City of Greenwood v. Peacock, 384
U.S. 808, 828 (1966). Because Currier’s conclusory allegations of racial bias do not
refer to an explicit state or federal law that would deny him civil rights in state court,
they are insufficient to support removal.
Finally, Currier alleges that the prosecution is driven by systematic harassment
and abuse of power by law enforcement. However, allegations that “the prosecution is
assertedly a sham, corrupt, or without evidentiary basis does not, standing alone, satisfy
the requirements of § 1443(1).” Johnson, 421 U.S. at 219.1
IV
AFFIRMED. Currier’s motion to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
1
Currier also cites § 1455 as a basis for removal. However, that statute merely
describes the procedural requirements for removing criminal cases; it does not
provide a substantive entitlement for removal. See City of North Las Vegas v. Davis,
No. 13-156, 2013 WL 2394930 at *2 (D. Nev. May 30, 2012) (unpublished).
As noted supra, Currier appeals both the denial of his motion for
reconsideration as well as the district court’s remand. Our analysis applies equally to
both orders.
Appellate Case: 15-2077 Document: 01019483079 Date Filed: 08/31/2015 Page: 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_13-cv-01404/USCOURTS-caed-2_13-cv-01404-5/pdf.json | [
[
"Bank of America, N.A.",
"Defendant"
],
[
"Carthel Dennis Boring",
"Plaintiff"
],
[
"Nationstar Mortgage, LLC",
"Defendant"
]
] | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CARTHEL DENNIS BORING, an
individual,
Plaintiff,
v.
NATIONSTAR MORTGAGE, LLC, a
limited liability company;
BANK OF AMERICA, N.A., a
national business
association; and DOES 1-50,
inclusive,
Defendants.
No. 2:13-CV-01404-GEB-CMK
ORDER DENYING VOLUNTARY
DISMISSAL WITH PREJUDICE
Plaintiff filed a joint stipulation voluntarily
dismissing Defendant Bank of America, N.A. under Federal Rule of
Civil Procedure (“Rule”) 41(a)(1)(A)(ii), which states “the
plaintiff may dismiss an action without a court order by filing a
stipulation of dismissal signed by all parties who have
appeared.” (emphasis added.) However, the filed stipulation is
ineffective since it was not signed by all parties.
Dated: July 29, 2015
Case 2:13-cv-01404-GEB-CMK Document 78 Filed 07/30/15 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_15-cv-00208/USCOURTS-caed-2_15-cv-00208-4/pdf.json | [
[
"Barton",
"Defendant"
],
[
"Richard Joseph Crane",
"Plaintiff"
],
[
"Davey",
"Defendant"
],
[
"Probst",
"Defendant"
],
[
"Robinette",
"Defendant"
],
[
"Rodriguez",
"Defendant"
],
[
"Weeks",
"Defendant"
]
] | 1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
RICHARD JOSEPH CRANE,
Plaintiff,
v.
RODRIGUEZ, et al.,
Defendants.
No. 2:15-cv-0208 TLN KJN P
ORDER AND FINDINGS AND
RECOMMENDATIONS
I. Introduction
Plaintiff is a state prisoner, proceeding without counsel and in forma pauperis. Plaintiff’s
civil rights action, filed pursuant to 42 U.S.C. § 1983, is proceeding on the second amended
complaint against defendants Davey, Rodriguez, Robinette, Weeks, Barton, Probst, and Madrigal,
correctional officers, and two parole commissioners, all located at High Desert State Prison
(“HDSP”). Plaintiff alleges that these defendants retaliated against him for exercising his rights
to access the courts and practice his religion, and failed to protect plaintiff, based on incidents that
occurred at HDSP between February 12, 2009, and March 8, 2013. On September 11, 2015,
plaintiff filed a notice of change of address indicating that he was transferred to the California
State Prison in Lancaster, California (“LAC”). (ECF No. 19.) Pending before the court is
plaintiff’s request for injunctive relief filed September 14, 2015. As set forth below, plaintiff’s
motion should be denied.
Case 2:15-cv-00208-TLN-CSK Document 22 Filed 09/22/15 Page 1 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
II. Standards
The party requesting preliminary injunctive relief must show that “he is likely to succeed
on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that
the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.
Natural Resources Defense Council, 555 U.S. 7, 20 (2008); Stormans, Inc. v. Selecky, 586 F.3d
1109, 1127 (9th Cir. 2009) (quoting Winter). The propriety of a request for injunctive relief
hinges on a significant threat of irreparable injury that must be imminent in nature. Caribbean
Marine Serv. Co. v. Baldridge, 844 F.2d 668, 674 (9th Cir. 1988).
Alternatively, under the so-called sliding scale approach, as long as the plaintiff
demonstrates the requisite likelihood of irreparable harm and can show that an injunction is in the
public interest, a preliminary injunction may issue so long as serious questions going to the merits
of the case are raised and the balance of hardships tips sharply in plaintiff’s favor. Alliance for
Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-36 (9th Cir. 2011) (concluding that the “serious
questions” version of the sliding scale test for preliminary injunctions remains viable after
Winter).
The principal purpose of preliminary injunctive relief is to preserve the court’s power to
render a meaningful decision after a trial on the merits. See 11A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure, § 2947 (2d ed. 2010). As noted above, in addition to
demonstrating that he will suffer irreparable harm if the court fails to grant the preliminary
injunction, plaintiff must show a “fair chance of success on the merits” of his claim. Sports
Form, Inc. v. United Press International, Inc., 686 F.2d 750, 754 (9th Cir. 1982) (internal citation
omitted). Implicit in this required showing is that the relief awarded is only temporary and there
will be a full hearing on the merits of the claims raised in the injunction when the action is
brought to trial. In cases brought by prisoners involving conditions of confinement, any
preliminary injunction “must be narrowly drawn, extend no further than necessary to correct the
harm the court finds requires preliminary relief, and be the least intrusive means necessary to
correct the harm.” 18 U.S.C. § 3626(a)(2).
////
Case 2:15-cv-00208-TLN-CSK Document 22 Filed 09/22/15 Page 2 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
III. Plaintiff’s Motion
In his motion for injunctive relief, signed August 30, 2015, plaintiff alleges the following:
Prison staff at RJD are “deliberately depriving him of his Eighth Amendment rights to
protection from violence, and are subjecting him to cruel and unusual punishment because of his
litigation in violation of the First Amendment.” (ECF No. 21 at 7.) Officer Cruz refused to
deliver plaintiff to an attorney visit on March 27, 2015. (ECF No. 21 at 4.) Officer Mendoza
wrote a false 128 (counseling chrono) against plaintiff claiming he was out of bounds, which he
claims will be used by the Parole Board to punish him. (ECF No. 21 at 9.) From March 27,
2015, to August of 2015, various correctional officers at RJD refused to provide plaintiff with
lower bunk cell housing. In July of 2015, plaintiff was placed on loss of privilege (“LOP”) status
without a CDCR 115 (rules violation report or “RVR”) or a hearing. Plaintiff claims that
defendants “and agents of CDCR [California Department of Corrections and Rehabilitation] are
clearly acting in a conspiracy to punish plaintiff without cause for his litigation against CDCR
Officials.” (ECF No. 21 at 9.)
Plaintiff supports his request for injunctive relief by including incidents that occurred
prior to plaintiff’s housing at RJD, such as his claims that while housed at Salinas Valley State
Prison (“SVSP”) in 2008, Officers Ambriz and Yee wrote and allegedly backdated a false RVR
for conduct conducive to violence (threats against staff) to support his placement in ad seg and in
retaliation for plaintiff suing them. (ECF No. 21 at 6, 43, 45-46.) Plaintiff also references claims
from the instant action: the parole commissioners relied on the allegedly false August 30, 2003
“Smoking in a State Building” CDC 128A (counseling chrono) (ECF No. 21 at 11), and
repeatedly referred to an allegedly false 2010 RVR for fighting1and a 2010 RVR for misuse of
state property (ECF No. 21 at 80), and the 2008 allegedly false RVR, in denying plaintiff parole
(ECF No. 21 at 6, 11-12). Plaintiff contends that the “current falsification of the LOP and 128A
for allegedly being out-of-bounds proves an ongoing pattern of retaliation with false allegations
by CDCR guards.” (ECF No. 21 at 12, 32.)
1
Plaintiff did not provide a copy of the Board’s transcript in which they allegedly referred to the
2010 RVR for fighting, and did not provide a copy of such RVR.
Case 2:15-cv-00208-TLN-CSK Document 22 Filed 09/22/15 Page 3 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4
IV. Discussion
No defendants are located at RJD, where plaintiff was housed at the time of the
underlying allegations. Thus, the pending motion seeks injunctive relief against individuals who
are not named as defendants. This court is unable to issue an order against individuals who are
not parties to a suit pending before it. See Zenith Radio Corp. v. Hazeltine Research, Inc., 395
U.S. 100, 112 (1969). If plaintiff wishes to challenge the actions of prison staff at RJD, he must
file an action in the Southern District of California.
In addition, plaintiff has now been transferred to LAC, so any threat of imminent physical
harm related to plaintiff’s inappropriate cell housing at RJD or imminent harm related to RJD
prison staff’s alleged retaliation is now moot. See Preiser v. Newkirk, 422 U.S. 395 (1975)
(inmate’s request for declaratory judgment rendered moot by his transfer to another prison).
When an inmate is transferred to another prison and there is no reasonable expectation or
demonstrated probability that he will again be subjected to the conditions from which he seeks
injunctive relief, his claim for injunctive relief should be dismissed as moot. See Dilley v. Gunn,
64 F.3d 1365, 1368-69 (9th Cir. 1995). The possibility that an inmate might be transferred back
to the prison where the injury occurred is too speculative to overcome mootness. Id.; see also
Wiggins v. Rushen, 760 F.2d 1009 (9th Cir. 1985).
Plaintiff’s vague claim that CDCR prison staff are engaged in a pattern and practice of
retaliating against plaintiff by issuing false charges, 128As, and RVRs, without more, is
insufficient to demonstrate that he would be subject to such alleged conditions at LAC. Plaintiff
attempts to connect the LOP and 128A issued in 2015 at RJD with a 128A that issued in 2003 at
Pleasant Valley State Prison (“PVSP”), and with allegedly false RVRs that issued in 2008 at
SVSP for conduct conducive to violence, and in 2010 for misuse of state property at HDSP.
These various charges issued over a wide span of years and thus are remote in time as well as
geography, involve different prison staff, and are unrelated in subject matter. Plaintiff sets forth
no factual allegations demonstrating any connection between the prison staff at RJD and those at
PVSP, SVSP or HDSP. Rather, plaintiff simply alleges that there is a “conspiracy” without
sufficient factual support. Plaintiff’s conclusory claims that all of these RVRs and the 128A were
Case 2:15-cv-00208-TLN-CSK Document 22 Filed 09/22/15 Page 4 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
false and issued in retaliation for plaintiff exercising his First Amendment rights, standing alone,
fail to demonstrate a pattern or practice. The undersigned finds plaintiff’s alleged conspiracy
claim too attenuated and vague to support an injunctive relief claim.2 If plaintiff challenges the
issuance of the LOP or 128A at RJD, he must file an action in the Southern District of California
after exhausting his administrative remedies.
For all of these reasons, plaintiff’s motion for injunctive relief should be denied.
V. Request for Extension of Time
On September 1, 2015, plaintiff signed a motion for sixty day extension of time to receive
his property, and to secure his change of address and legal property in light of his impending
transfer to LAC. (ECF No. 20 at 1.) However, plaintiff signed a change of address on September
3, 2015 (ECF No. 19). At the time of plaintiff’s filing, there were no pending court deadlines that
required a response. Thus, plaintiff’s motion for extension of time is denied without prejudice.
In an abundance of caution, plaintiff will be granted thirty days in which to file objections to
these findings and recommendations.
VI. Conclusion
Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for extension of time
(ECF No. 20) is denied without prejudice; and
IT IS RECOMMENDED that plaintiff’s request for injunctive relief (ECF No. 21) be
denied.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after
being served with these findings and recommendations, any party may file written objections with
the court and serve a copy on all parties. Such a document should be captioned “Objections to
Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be
filed and served within fourteen days after service of the objections. The parties are advised that
2
Plaintiff’s allegations concerning the March 27, 2015 attorney visit are unavailing because he
concedes that his attorney cancelled the appointment without plaintiff’s knowledge. (ECF No. 21
at 3:13-15.) Prison staff cannot be held liable for failing to deliver plaintiff to meet with an
attorney who was not there.
Case 2:15-cv-00208-TLN-CSK Document 22 Filed 09/22/15 Page 5 of 6
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
failure to file objections within the specified time may waive the right to appeal the District
Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
Dated: September 22, 2015
/cran0208.pi
Case 2:15-cv-00208-TLN-CSK Document 22 Filed 09/22/15 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca6-19-03151/USCOURTS-ca6-19-03151-0/pdf.json | [
[
"William P. Barr",
"Respondent"
],
[
"Ariel Luna-Romero",
"Petitioner"
]
] | RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 20a0043p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
ARIEL LUNA-ROMERO,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
┐
│
│
│
│
│
│
│
┘
No. 19-3151
On Petition for Review from the Board of Immigration Appeals;
No. A 205 486 033.
Decided and Filed: February 11, 2020
Before: BATCHELDER, LARSEN, and MURPHY, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Scott E. Bratton, MARGARET WONG & ASSOCIATES LLC, Cleveland, Ohio,
for Petitioner. Annette M. Wietecha, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________
OPINION
_________________
MURPHY, Circuit Judge. Ariel Luna-Romero, a citizen of Argentina, entered the United
States illegally. When the government sought to remove him, he applied for asylum, 8 U.S.C.
§ 1158(b), withholding of removal, id. § 1231(b)(3)(A), and protection under the Convention
Against Torture (“CAT”), 8 C.F.R. § 1208.16(c). The Board of Immigration Appeals dismissed
his appeal from the denial of these applications. We deny his petition for review.
>
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 1
No. 19-3151 Luna v. Barr Page 2
Luna asserts three well-known claims. Immigrants may seek asylum if they are
“refugees”: those who cannot return to their home country “because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). Immigrants may
also seek the withholding of their removal to a country if their “life or freedom would be
threatened in that country because of [their] race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1231(b)(3)(A). And they may seek relief
under the Convention Against Torture if they will be “tortured” in the country to which they will
be removed. 8 C.F.R. § 1208.16(c)(2).
Luna alleges that he would suffer harm in Argentina because of his race (he is
indigenous) and his political opinion (he has advocated for indigenous rights). To support this
claim at his immigration hearing, he testified about past abuses in Argentina. He noted, among
other things, that during the 1990s he became the spokesperson for an indigenous group and
organized about ten protests on its behalf. The police harassed him during these protests, beating
him up “half of the time” and detaining him “three or five times.” On one occasion, an officer
struck him with a police baton, resulting in eight stitches in his eyebrow. And, apart from the
protests, Luna testified that the police had detained him some “57 times” over the years.
An immigration judge denied Luna’s application on the ground that he had not testified
credibly, concluding that he had provided inconsistent and evasive answers. While conceding
that the immigration judge “may have over-emphasized” some of the “apparent discrepancies” in
Luna’s testimony, the Board of Immigration Appeals upheld the adverse credibility finding as
not clearly erroneous. The Board added that Luna’s other evidence could not “independently
establish” any of his three claims for relief.
In his petition for review, Luna asks us to grant him relief despite this adverse credibility
finding. His request faces a high bar. “An adverse credibility finding is usually fatal to an
applicant’s ability to prove entitlement to asylum, withholding of removal, or protection under
the Convention Against Torture.” Rubio-Mauricio v. Barr, 782 F. App’x 444, 446 (6th Cir.
2019). That is so for a combination of reasons.
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 2
No. 19-3151 Luna v. Barr Page 3
Start with the burden of proof: For asylum, “[t]he burden of proof is on the applicant to
establish that the applicant is a refugee,” 8 U.S.C. § 1158(b)(1)(B)(i), which requires at least a
“well-founded fear of persecution,” id. § 1101(a)(42)(A); INS v. Cardoza-Fonseca, 480 U.S.
421, 431 (1987). Applicants seeking withholding of removal or CAT relief likewise bear the
burden of proof. 8 U.S.C. §§ 1229a(c)(4)(A), 1231(b)(3)(C); 8 C.F.R. § 1208.16(c)(2). But they
must make an even more demanding showing of persecution or torture. See Cardoza-Fonseca,
480 U.S. at 423; 8 C.F.R. § 1208.16(b)(1)–(2), (c)(2).
Next consider the evidence that applicants use to meet this burden: In many cases, their
testimony is their primary or even sole evidence. Perlaska v. Holder, 361 F. App’x 655, 661 n.6
(6th Cir. 2010). When an immigration judge finds an applicant’s testimony not credible under
those circumstances, the claim will fail because the applicant has no evidence (or insufficient
evidence) apart from the discredited testimony. See, e.g., Rubio-Mauricio, 782 F. App’x at 446;
Masiko v. Holder, 562 F. App’x 469, 473 (6th Cir. 2014); Ngam v. Holder, 557 F. App’x 511,
513–15 (6th Cir. 2014); Yan Chen v. Holder, 423 F. App’x 557, 562 (6th Cir. 2011); El-Moussa
v. Holder, 569 F.3d 250, 256–57 (6th Cir. 2009). The law contemplates this result. The asylum
statute says that an applicant’s testimony alone can meet the applicant’s burden, “but only if the
applicant satisfies the trier of fact that the applicant’s testimony is credible, is persuasive, and
refers to specific facts sufficient to demonstrate that the applicant is a refugee.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). The withholding-of-removal statute incorporates that standard. Id.
§ 1231(b)(3)(C). And CAT regulations likewise note: “The testimony of the applicant,
if credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R.
§ 1208.16(c)(2) (emphasis added).
Lastly consider our standard of review: Courts must treat “findings of fact,” including
credibility findings, as “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Rubio-Mauricio, 782 F. App’x at 446.
Since 2005, moreover, the asylum statute has given immigration judges wide latitude to find
testimony not credible. Contrary to pre-2005 standards, an immigration judge may now base an
adverse credibility finding on an inconsistency, inaccuracy, or falsehood “without regard to
whether [the] inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 3
No. 19-3151 Luna v. Barr Page 4
claim[.]” 8 U.S.C. § 1158(b)(1)(B)(iii); El-Moussa, 569 F.3d at 256. So “even ancillary
inconsistencies” may “support adverse credibility determinations.” Sylusar v. Holder, 740 F.3d
1068, 1073 (6th Cir. 2014). These standards also apply to requests for withholding of removal or
for relief under the CAT. 8 U.S.C. §§ 1229a(c)(4)(C), 1231(b)(3)(C); El-Moussa, 569 F.3d at
256.
This case offers a textbook example why adverse credibility findings are “usually fatal.”
Rubio-Mauricio, 782 F. App’x at 446. Only Luna testified at his hearing. He presented little
other evidence, most significantly two letters from friends in Argentina and reports about the
treatment of indigenous people there. On appeal, Luna nowhere suggests that, without his own
testimony, this other evidence would suffice to establish the elements for any of his three claims.
So Luna’s request for judicial relief hinges on our overturning the adverse credibility finding.
Yet the standard of review prevents us from doing so. While not all of the inconsistencies found
by the immigration judge are “beyond debate,” El-Moussa, 569 F.3d at 255, the record does not
“compel[]” the conclusion that Luna was credible, 8 U.S.C. § 1252(b)(4)(B).
We see at least three valid evidentiary grounds for the Board’s decision to uphold the
credibility finding. First, the Board could reasonably find inadequate Luna’s explanation for
failing to initially disclose his criminal history. Luna’s original application said that he had
never been “arrested, charged, convicted, or sentenced for any crimes in the United States[.]” He
later corrected his application to reflect several arrests and traffic citations. Even then, his
amended list of crimes did not include a Tennessee arrest for violating a protective order
obtained by his fiancée. And when asked why he had not listed his arrests in his initial
application, Luna responded that “all I did, I paid for under the law. I’m in good standing with
the law. I paid for the things that I did.” Yet at the time of Luna’s hearing he had an outstanding
New York arrest warrant. The Board could find that Luna’s explanation—that he did not report
the arrests because he deemed himself in “good standing with the law”—showed that he might
shade the truth on other matters too. “Falsus in uno, falsus in omnibus—false in one, false in
all.” Masiko, 562 F. App’x at 473.
Second, the Board could reasonably find many of Luna’s answers “vague and evasive.”
To list a few examples: When asked why he feared that he would be imprisoned if he returned to
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 4
No. 19-3151 Luna v. Barr Page 5
Argentina, Luna responded: “Because now I’m 46 . . . years old. And I understand that to live—
it’s very important to be—to have equal rights. It’s something very important. And if I were to
return, nobody is going to take away from me that, indeed, we’re equal. We’re all equal.”
Similarly, Luna admitted that several members of his family lived in the United States and knew
about his problems in Argentina. When asked why they had not written letters for him, Luna
answered only that he was “not on speaking terms” with one of them. He did not explain why
the others could not write letters. Likewise, when referring to an incident in which Luna had
fought an Argentine police officer, Luna’s counsel asked him: “What were you charged with?”
Luna responded: “Because I locked the doors using my keys. I said, ‘Let’s talk.’” Luna’s many
non-answers support the Board’s decision that he intentionally gave vague and evasive
testimony.
Third, the Board could reasonably find that Luna “was not accurate and forthcoming”
about his whereabouts over the years. His application stated that he lived in Texas from 2000 to
2004. Yet he admitted at his hearing that he had lived in New York for a month in 2001. His
application stated that he had never “applied for or received any lawful status in any country
other than” Argentina. Yet he admitted at his hearing that he had received temporary residency
in Chile in 2010. His application required him to list the countries in which he had resided or
traveled after leaving Argentina. As corrected, his application reported that he had lived in Chile
from 2009 to 2011. Yet he said at his hearing that he was in Chile for “[j]ust a few months” in
2010. Luna also testified that he had lived in Mexico from 2011 to 2012 because it had taken
him “almost a year to get” to the United States. But his application nowhere mentions a yearlong stay in Mexico.
Luna’s contrary arguments do not change things. He begins by discussing some other
inconsistencies found by the immigration judge that we agree were questionable. The judge, for
example, noted a typographical error about Luna’s birthdate. The Board, however, disavowed
reliance “on inconsistencies that are not supported by the record.” And the Board identified
plenty of irregularities that undoubtedly are supported by the record. “[G]iven the other bases
underpinning the adverse credibility finding,” we need not decide whether some of the more
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 5
No. 19-3151 Luna v. Barr Page 6
questionable conclusions, “standing alone, would be sufficient to sustain” that finding.
Thayaparan v. Sessions, 688 F. App’x 359, 365 (6th Cir. 2017).
Luna also challenges the characterization of his testimony as evasive. He claims that he
was “providing context” in some of his longer windups, and that the immigration judge failed to
recognize “the complexity” involved. Such an explanation might be “plausible,” but a plausible
explanation is not “enough on appeal to overcome an adverse credibility determination.”
Nolasco-Gonzalez v. Barr, 769 F. App’x 318, 320–21 (6th Cir. 2019).
Luna next argues that the Board wrongly faulted him for correcting his application to
account for his criminal history. The Board did no such thing. It explained that the corrections
themselves did not “support[ ] a negative inference.” Instead, the Board faulted him for his
inadequate explanations for the initial omissions. That “lack of persuasive explanation” is
relevant. Lizhi Shi v. Sessions, 751 F. App’x 684, 690 (6th Cir. 2018). The Board could
conclude that Luna’s own view that he had “paid for all of the things that [he] did” is not a good
reason to give false responses on an asylum application.
As for his inconsistent testimony about his whereabouts over the years, Luna says the
discrepancies were minor and unrelated to his persecution in Argentina. Since 2005, however,
courts may no longer require that inconsistencies “bear on the heart of [an applicant’s] claim” to
support an adverse credibility finding. El-Moussa, 569 F.3d at 256.
Lastly, Luna argues that the Board ignored the other evidence that corroborated his story.
Not so. The Board, for example, did acknowledge the evidence about Argentina’s treatment of
indigenous people generally, but considered it insufficient to establish persecution against Luna
specifically. Luna also cites two letters from friends who described Luna’s experiences in
Argentina. These letters do complement his testimony to some extent. They do not, however,
compel the conclusion that Luna was credible, particularly in light of the lack of testimony from
sources such as family members here in the United States.
“Some of these inconsistencies, in isolation, may seem like small potatoes. What counts,
however, is that their cumulative effect is great.” Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir.
2007). The Board reasonably upheld the adverse credibility determination. That decision,
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 6
No. 19-3151 Luna v. Barr Page 7
combined with a lack of independent evidence, bars Luna from obtaining the three types of relief
that he seeks.
We deny the petition for review.
Case: 19-3151 Document: 25-2 Filed: 02/11/2020 Page: 7 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca10-14-05155/USCOURTS-ca10-14-05155-0/pdf.json | [
[
"David A. Abston",
"Petitioner"
]
] | UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
In re: DAVID A. ABSTON,
Petitioner.
No. 14-5155
(D.C. No. 4:09-CV-00643-JHP-PJC)
_________________________________
ORDER
_________________________________
This matter is before the court on David A. Abston’s Motion to Voluntarily
Dismiss Appeal. Upon consideration, the motion is granted and this matter is closed.
Entered for the Court
ELISABETH A. SHUMAKER, Clerk
by: Jane K. Castro
Counsel to the Clerk
FILED
United States Court of Appeals
Tenth Circuit
January 27, 2015
Elisabeth A. Shumaker
Clerk of Court
Appellate Case: 14-5155 Document: 01019376710 Date Filed: 01/27/2015 Page: 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-ca13-15-07096/USCOURTS-ca13-15-07096-0/pdf.json | [
[
"Robert A. McDonald",
"Appellee"
],
[
"Pamela Melvin",
"Appellant"
]
] | NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit ______________________
PAMELA MELVIN,
Claimant-Appellant
v.
ROBERT A. MCDONALD, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2015-7096
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 13-2986, Judge Robert N. Davis.
______________________
Decided: December 14, 2015
______________________
PAMELA MELVIN, Fayetteville, NC, pro se.
MARTIN M. TOMLINSON, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by SCOTT D. AUSTIN, ROBERT E. KIRSCHMAN,
JR., BENJAMIN C. MIZER; CHRISTINA LYNN GREGG, Y. KEN
Case: 15-7096 Document: 20-2 Page: 1 Filed: 12/14/2015
2 MELVIN v. MCDONALD
LEE, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.
______________________
Before PROST, Chief Judge, DYK, and CHEN, Circuit
Judges.
PER CURIAM
Pamela Melvin appeals from a decision of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) dismissing Ms. Melvin’s appeal in part as timebarred. We conclude that the decision of the Veterans
Court was in this respect erroneous as the appeal was not
time-barred. However, as Ms. Melvin argues, the Board
decision was non-final, and thus Ms. Melvin’s appeal was
premature. On this ground we affirm the dismissal of her
appeal in the Veterans Court.
BACKGROUND
In 2001, Ms. Melvin submitted to the VA a serviceconnected disability claim for post-traumatic stress disorder (PTSD). In a decision dated January 6, 2010, the
Board of Veterans Appeals (“the Board”) denied the claim.
The Board decision was initially mailed to an incorrect
address, but Ms. Melvin acknowledges receiving a copy on
March 6, 2012. By statute, Ms. Melvin had 120 days from
receipt of the decision to appeal, that is, until July 4,
2012. Within the 120-day appeal period, on April 13,
2012, Ms. Melvin submitted a filing with the Board that
the Board construed as two separate motions: (1) a motion
to vacate the Board decision based on alleged substantive
errors; and (2) a motion to vacate pursuant to 38 C.F.R.
§ 20.904(a) based on an alleged violation of Ms. Melvin’s
procedural due process rights. The filing of a motion to
vacate rendered the Board decision non-final, and thus
non-appealable.
Case: 15-7096 Document: 20-2 Page: 2 Filed: 12/14/2015
MELVIN v. MCDONALD 3
In an October 4, 2012, letter, the Board purported to
deny Ms. Melvin’s motion to vacate based on alleged
procedural due process violations. The letter informed
Ms. Melvin that it had construed her arguments based on
alleged substantive errors in the Board’s decision as a
CUE motion, which it was going to address separately. A
subsequent October 11, 2012, letter from the Board informed Ms. Melvin that the motion to vacate (construed
as a CUE motion) could not be considered until the Board
decision became final.
On October 11, 2013, Ms. Melvin filed a notice of appeal with the Veterans Court. The court held that because the Board never took action on the substantive
motion to vacate, the Board decision in that respect
remained non-final, and Ms. Melvin’s appeal based on
substantive challenges was unripe. The court therefore
dismissed the appeal on this ground. As for Ms. Melvin’s
procedural due process arguments, the Veterans Court
found that the Board had rejected them in its October 4,
2012, letter to her, and thus the appeal in this respect
was untimely, requiring dismissal of her appeal on this
ground.
Ms. Melvin appeals only the Veterans Court’s dismissal of her due process arguments. We have jurisdiction
under 38 U.S.C. § 7292. See Beasley v. Shinseki, 709 F.3d
1154, 1157 (Fed. Cir. 2013), cert. denied, 134 S. Ct. 679
(2013); Lamb v. Principi, 284 F.3d 1378, 1381–82 (Fed.
Cir. 2002). We review questions of law de novo. Smith v.
Brown, 35 F.3d 1516, 1517 (Fed. Cir. 1994). We may not
review factual determinations or applications of law to
fact. Conway v. Principi, 353 F.3d 1369, 1372 (Fed. Cir.
2004).
DISCUSSION
On appeal, the government commendably agrees that
the Veterans Court erred in treating Ms. Melvin as havCase: 15-7096 Document: 20-2 Page: 3 Filed: 12/14/2015
4 MELVIN v. MCDONALD
ing filed two separate motions and two appeals and in
dismissing her procedural appeal as untimely. The two
motions should have been treated as one single motion
arguing on two separate grounds. The filing of the motion
within 120 days of receipt of the Board decision rendered
that decision non-final until the motion was denied. See
Linville v. West, 165 F.3d 1382, 1385 (Fed. Cir. 1999);
Browne v. Principi, 16 Vet. App. 278, 283 (Vet. App.
2002). Because the substantive challenge (as opposed to
the procedural challenge) has not yet been resolved by the
Board, Ms. Melvin’s appeal was premature, as she argues.
Section 7266(a) of title 38 provides that a person must
file a notice of appeal with the Veterans Court within 120
days after receiving “a final decision of the Board.” The
Board’s October 4, 2012, letter was not a final decision
within the meaning of the statute. When multiple theories are raised with respect to a single claim, as here, the
Veterans Court has explained that “the 120-day requirement for filing a Notice of Appeal will not begin to run
until the Board has denied all theories in support of the
claim that it has identified for consideration.” Roebuck v.
Nicholson, 20 Vet. App. 307, 315–316 (Vet. App. 2006).
Here, both parties agree that Ms. Melvin has raised
only one claim: that she should receive benefits for PTSD.
That Ms. Melvin’s April 13, 2012, filing raised both procedural and substantive theories to challenge the Board
Decision does not change the number of underlying
claims. The Board has yet to deny Ms. Melvin’s substantive challenges. Accordingly, the 120-day requirement for
appealing Ms. Melvin’s claim did not begin to run on her
receipt of the October 4, 2012, letter, and the Veterans
Court erred in holding that her procedural challenge was
untimely.
Because the Veterans Court should have dismissed
Ms. Melvin’s appeal as premature, we affirm the dismisCase: 15-7096 Document: 20-2 Page: 4 Filed: 12/14/2015
MELVIN v. MCDONALD 5
sal of her appeal solely on that ground. Once the Board
addresses Ms. Melvin’s motion to vacate based on substantive arguments, which we assume that it will do
promptly, and the Board decision becomes final, Ms.
Melvin will have 120 days to appeal the Board decision
based on both procedural and substantive theories.
Finally, we reject Ms. Melvin’s argument for sanctions
with respect to the case before the Veterans Court.
Whether sanctions are appropriate is a factual matter
outside the jurisdiction of this court. El Malik v. McDonald, No. 2015-7060, 2015 WL 4080155, *4 (Fed. Cir. July
7, 2015) (unpublished).
AFFIRMED
Costs to appellant.
Case: 15-7096 Document: 20-2 Page: 5 Filed: 12/14/2015 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caDC-15-07071/USCOURTS-caDC-15-07071-0/pdf.json | [
[
"Embassy of Bangladesh",
"Appellee"
],
[
"Serajul Haque",
"Appellant"
]
] | United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 15-7071 September Term, 2015
1:15-cv-00943-UNA
Filed On: December 7, 2015
Serajul Haque,
Appellant
v.
Embassy of Bangladesh, in Washington, DC,
Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
BEFORE: Brown and Wilkins, Circuit Judges; Ginsburg, Senior Circuit Judge
J U D G M E N T
This appeal was considered on the record from the United States District Court
for the District of Columbia and on the brief filed by appellant. See Fed. R. App. P.
34(a)(2); D.C. Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order filed June 19, 2015,
be affirmed. The district court correctly determined appellant’s complaint failed to
comply with Federal Rule of Civil Procedure 8(a), which, among other things, requires a
complaint to contain a “short and plain statement of the claim showing that the pleader
is entitled to relief.” Fed. R. Civ. P. 8(a)(2); Ashcroft v. Iqbal, 556 U.S. 662, 677-78
(2009).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk
is directed to withhold issuance of the mandate herein until seven days after resolution
of any timely petition for rehearing or petition for rehearing en banc. See Fed. R. App.
P. 41(b); D.C. Cir. Rule 41.
Per Curiam
USCA Case #15-7071 Document #1587069 Filed: 12/07/2015 Page 1 of 1 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-almd-2_15-cv-00665/USCOURTS-almd-2_15-cv-00665-0/pdf.json | [
[
"Katrina Caver",
"Defendant"
],
[
"Sadaka Davis",
"Plaintiff"
]
] | IN THE DISTRICT COURT OF THE UNITED STATES
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
SADAKA DAVIS, )
)
Plaintiff, )
)
v. ) CIVIL ACTION NO. 2:15CV665-MHT
)
KATRINA CAVER, )
)
Defendants. )
ORDER and RECOMMENDATION OF THE MAGISTRATE JUDGE
By order entered on September 17, 2015, the District Judge has referred this case to the
undersigned for action or recommendation on all pretrial matters. (Doc. # 6). Plaintiff Sadaka Davis,
proceeding pro se, has filed a motion for leave to proceed in forma pauperis in this action (Doc. #
2). Upon consideration of the motion, it is
ORDERED that the motion is GRANTED.
However, upon review of the complaint, the court concludes that dismissal of plaintiff’s
claims pursuant to 28 U.S.C. § 1915(e)(2)(B) is appropriate. Thus, it is further 1
ORDERED that service of process is STAYED pending further order of the court.
The complaint and its attachments – along with the court’s record in other lawsuits that
plaintiff has commenced in this court – reveal that this action arises from an incident that occurred
on September 16, 2014, when William Roebuck (not a party in this action) attempted to repossess
plaintiff’s girlfriend’s car. On September 17, 2014, plaintiff swore out a complaint against Roebuck
The statute provides, in pertinent part: “[T]he court shall dismiss the case at any time if the 1
court determines that . . . the action or appeal– (i) is frivolous or malicious, (ii) fails to state a claim
on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune
from such relief.” 28 U.S.C. § 1915(e)(2)(B).
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 1 of 6
in the Clanton municipal court and, the next day, Roebuck swore out a complaint against the
plaintiff. Plaintiff was arrested on a warrant issued byClanton municipal court clerk Velma Tinsley
on a charge of harassment and, on October 28, 2014, he was tried and acquitted by the municipal
court judge. (Complaint and attachments; see also Doc. #13-1 in Civil Action No. 2:14cv1064-
MHT; Complaint and Doc. # 25-1 in Civil Action No. 2:14cv986-WKW).
The present lawsuit is the fifth that plaintiff has filed in this court arising from the
repossession incident and its immediate aftermath. Counting the lawsuit he filed in state court, this 2
is the third complaint that plaintiff has filed against defendant KatrinaCaver. In the previously-filed
lawsuits, plaintiff sued Caver for her actions as the municipal court magistrate in filing “only assault
3rd” charges against Roebuck instead of allowing plaintiff to “press all [of his] charges” against
Roebuck. (See Civil Action No. 2:14cv986-WKW, Docs. # 1, # 47-1 at p. 3, and # 61-1). In this 3
action, plaintiff sues Caver for her “actions of signing (Notorized)[sic] the unlawful paper
instrument” which “resulted in the violation of civil rights and procedures and deprived Sadaka
Davis [of] his (personal) Freedom. (Jailed).” (Complaint, ¶¶ 5, 6). Plaintiff alleges that this
deprivation of his civil rights occurred on September 18, 2014. (Id., ¶ 4). Plaintiff further asserts:
I Sadaka Davis was unlawfully arrested on by Daniel eric Smitherman without a
See Civil Action Nos. 2:14cv986-WKW (against the Clanton police department, Clanton 2
police officer Daniel Eric Smitherman, and Katrina Caver (for her acts as magistrate with regard to
the charges against Roebuck)); 2:14cv1001-MHT (against Roebuck); 2:14cv1064-MHT (against
municipal court judge Jackson); 2: 15cv664-MHT-TFM (against municipal court magistrate Velma
Tinsley). Plaintiff also sued the police department, Smitherman and Caver in state court. See Doc.
# 61-1 and # 61-3 in Civil Action No. 2:14cv986-WKW (Complaint and Order of Dismissal in Case
No. CV-2014-000048.00 in the Circuit Court of Chilton County).
The case filed previously in this court remains pending as to Officer Smitherman. The court 3
dismissed plaintiff’s claims against Caver on November 26, 2014, on the basis of judicial immunity.
(See Docs. ## 9, 16 in Civil Action No. 2:14cv986-WKW).
2
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 2 of 6
Legal warrant of arrest. Due to improper procedures of law KatrinaCaver (notarized
Velma tinsley) Signed in a Magistrate/Judge position on an unlawful arrest warrant
Leading/causing the arrest of Sadaka Davis.
(Complaint at Doc. # 1-1 (separate page styled “Claim + Relief”)(errors in original). Plaintiff alleges
that Caver “signed and produced this Document on her own behalf/reason” during discovery in his
lawsuit against Smitherman, and that Caver’s action resulted in the violation of plaintiff’s civil rights
and deprived him of his freedom. (Complaint, ¶ 5). Plaintiff attaches to his complaint the “unlawful
paper instrument” that bears Caver’s signature and gives rise to plaintiff’s claims against her.
(Complaint at Doc. # 1-2)(arrest warrant).
While Caver’s role in the alleged violation of plaintiff’s constitutional and statutory rights
is difficult to decipher from the allegations in the body of the complaint, but the arrest warrant
plaintiff has attached to the complaint makes clear that plaintiff now sues Caver because of her
conduct on November 12, 2014, in signing as “Municipal Court Clerk,” to certify as “true according
to Clanton Municipal Court records” a copy of the arrest warrant issued by Velma Tinsley. See
Doc. 1-2 (Caver’s signature in stamped certification); cf. Civil Action No. 2:15cv664-MHT,
Complaint at ¶ 5 (plaintiff’s lawsuit against Velma Tinsley for “signing a warrant of arrest in a
Judge/Magistrat[e] position on the paperinstrument resulting in the unlawful arrest of Sadaka Davis
resulting to Jail”); id. at Doc. # 1-1 (attaching to the complaint against Tinsley a duplicate of the
warrant attached to the present complaint, bearing Tinsley’s signature, dated September 18, 2014,
as “Judge/Magistrate/Clerk[,]” and Caver’s November 2014 certification)).
In short, plaintiff alleges that Caver violated his constitutional and statutoryrights and caused
him to be arrested unlawfully on September 18, 2014, by – nearly two months thereafter – certifying
a copy of the arrest warrant as a true copy of the municipal court’s record. For this allegedly
3
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 3 of 6
unlawful conduct, plaintiff seeks judgment against Caver for monetary damages in the amount of
$1,000,000.00. The court concludes that plaintiff has failed to allege a plausible claim for relief
against Caver and, accordingly, that this action is due to be dismissed. In assessing whether a
4
complaint states a claim for relief, the court does not consider “allegations ... that are merely legal
conclusions.” American Dental Ass’n v. Cigna Corp., 605 F.3d 1283, 1290 (11th Cir. 2010)(citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Instead, the court considers only the allegations of fact
to determine whether the complaint includes “either direct or inferential allegations respecting all
the material elements necessary to sustain a recovery under some viable legal theory.” Randall v.
Scott, 610 F.3d 701, 707 n. 2 (11th Cir. 2010)(internal quotation marks omitted); see Bell Atlantic
Corp v. Twombly, 550 U.S. 544, 555-56 (2007). The complaint must contain allegations of fact
adequate to “nudge[] the[] claim across the line from conceivable to plausible.” Id. at 570.
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to
relief.’” Iqbal, 556 U.S. at 679 (quoting Rule 8(a)(2))(second alteration in Iqbal).
The underlying basis for plaintiff’s claims is his contention that he was arrested pursuant to
an unlawful warrant. Caver did not issue the warrant; she merely certified a copy of it two months
thereafter. Plaintiff’s allegations of fact fail to suggest even the “mere possibility of misconduct” by
Caver in connection with her certification of the municipal court’s record – even assuming that
In assessing plaintiff’s complaint to determine whether it states a claim, the court may 4
consider the attachments to the complaint. Cf. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S.
308, 322 (2007)(in ruling on Rule 12(b)(6) motions to dismiss, courts “ordinarily examine ...
documents incorporated into the complaint by reference”); Thaeter v. Palm Beach County Sheriff’s
Office, 449 F.3d 1342, 1352 (11th Cir. 2006)(in assessing a complaint pursuant to Rule 12(b)(6), the
court considers the complaint and its attached exhibits).
4
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 4 of 6
Tinsley issued the arrest warrant unlawfully – nor do those factual allegations suggest any viable
legal theory under which plaintiff could be entitled to relief. Thus, plaintiff’s complaint fails to state
a claim for relief. Additionally, the complaint is frivolous because it lacks an arguable basis in fact:
Caver’s November 2014 certification of the Clanton municipal court’s record of the arrest warrant
cannot, as a matter of fact, have caused or contributed to the injury of which plaintiff complains –
i.e., the deprivation of his liberty in September 2014. See Neitzke v. Williams, 490 U.S. 319, 325
(1989)(“[A] complaint ... is frivolous where it lacks an arguable basis either in law or in fact.”).
Plaintiff cannot cure this chronological defect in his allegations by amendment.
CONCLUSION
For the foregoing reasons, it is the RECOMMENDATION of the Magistrate Judge that
plaintiff’s claims be DISMISSED with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).
The Clerk of the Court is ORDERED to file the Recommendation of the Magistrate Judge
and to serve a copy on the plaintiff. Plaintiff is DIRECTED to file any objections to this
Recommendation on or before October 7, 2015. Any objections filed must specifically identify the
factual findings and legal conclusions in the Magistrate Judge’s Recommendation to which the
plaintiff objects. Frivolous, conclusive or general objections will not be considered by the District
Court.
Failure to file written objections to the proposed findings and recommendations in the
Magistrate Judge’s report shall bar a party from a de novo determination by the District Court of
factual findings and legal issues covered in the report and shall “waive the right to challenge on
appeal the district court’s order based on unobjected-to factual and legal conclusions” except upon
grounds of plain error if necessary in the interests of justice. 11th Cir. R. 3-1; see Resolution Trust
5
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 5 of 6
Co. v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993); Henley v. Johnson, 885 F.2d
790, 794 (11th Cir. 1989).
DONE, this 23 day of September, 2015. rd
/s/ Susan Russ Walker
SUSAN RUSS WALKER
CHIEF UNITED STATES MAGISTRATE JUDGE
6
Case 2:15-cv-00665-MHT-SRW Document 7 Filed 09/23/15 Page 6 of 6 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-1_12-cv-01360/USCOURTS-caed-1_12-cv-01360-1/pdf.json | [
[
"Yvonne Hilton",
"Plaintiff"
],
[
"Twain Harte Community Services District",
"Defendant"
]
] | STIPULATION OF THE PARTIES AND ORDER - 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
JAMES K. WARD, ESQ. (SBN 117639)
DANIEL P. JAY, ESQ. (SBN 215860)
EVANS, WIECKOWSKI & WARD, LLP
745 University Avenue
Sacramento, CA 95825
Telephone: (916)923-1600
Facsimile: (916)923-1616
Attorneys for Defendant
TWAIN HARTE COMMUNITY SERVICES DISTRICT
PUBLIC ENTITY-FILING FEE WAIVED
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
YVONNE HILTON ,
Plaintiff,
vs.
TWAIN HARTE COMMUNITY
SERVICES DISTRICT, and DOES ONE
THROUGH TWENTY, Inclusive,
Defendants,
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. 1:12-CV-01360-LJO-SMS
STIPULATION AND DECLARATION;
ORDER RE DISCOVERY CUTOFF
IT IS HEREBY STIPULATED by Plaintiff, YVONNE HILTON, by and through her
attorneys, and Defendant, TWAIN HARTE COMMUNITY SERVICES DISTRICT, by and
through its attorneys, that the September 20, 2013 discovery cut-off date set forth in the Court’s
December 7, 2012 scheduling conference order be continued to November 20, 2013 in order to
allow the parties sufficient time to complete depositions in this matter. This stipulation is based
upon the following facts which the parties submit show good cause to continue the discovery
cut-off date:
Case 1:12-cv-01360-SMS Document 17 Filed 09/23/13 Page 1 of 5
STIPULATION OF THE PARTIES AND ORDER - 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1. That on December 7, 2012 the Court established a non-expert discovery cut-off
date of September 20, 2013.
2. Since the initiation of this case the parties have engaged in extensive written
discovery including exchanges of written special interrogatories and requests for production of
documents. As a result, it is submitted that the parties have been diligent in regard to discovery
in this matter.
3. That Plaintiff’s counsel’s office is located in Redwood City, California.
Defendant’s counsel’s office is located in Sacramento, California. The majority of witnesses in
this case (including the Plaintiff and percipient witnesses) are located in Twain Harte, California.
As a result, each deposition entails a significant amount of travel for both counsel and the
witnesses depending upon the location of the deposition. The parties have endeavored to take
depositions in Stockton, California which is a central location but the depositions in this matter
have entailed a significant amount of logistical wrangling.
4. The Plaintiff’s deposition was started on July 16, 2013 in Sacramento, California.
However, the Plaintiff’s deposition was not completed and counsel for the parties agreed to
finish the Plaintiff’s deposition on another date due to defense counsel’s inability to arrange for
childcare in the evening.
5. Mr. Scot Moody’s deposition (noticed by the Plaintiff) was started on July 24,
2013. However, Mr. Moody’s deposition was not completed on that date due to the witnesses’
inability to stay at the deposition into the evening. As a result, counsel for the parties agreed to
continue his deposition to a mutually agreeable date. Mr. Moody is an important witness to this
case because he is Defendant’s former general manager and made the decision to terminate
Plaintiff’s employment.
Case 1:12-cv-01360-SMS Document 17 Filed 09/23/13 Page 2 of 5
STIPULATION OF THE PARTIES AND ORDER - 3
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6. The Plaintiff has noticed the deposition of Dennis Timoney for September 25,
2013. The parties agreed to a date outside the September 20, 2013 discovery cutoff in order to
accommodate Mr. Timoney’s (and his attorney’s) schedule and availability. Mr. Timoney is not
available for his deposition any earlier. Mr. Timoney is a chief risk officer for Special District
Risk Management Authority which is the Defendant’s Joint Powers Authority for insurance
purposes. Mr. Timoney investigated certain aspects of Plaintiff’s claim of gender discrimination
prior to the initiation of this lawsuit. Given Mr. Timoney’s importance to the case, the parties
agreed to take his deposition outside the discovery cut-off in order to accommodate Mr.
Timoney’s schedule.
7. The parties have not completed the above-referenced depositions due to the press
of business of counsel and witness availability. Furthermore, Plaintiff’s counsel has just
informed defense counsel that Plaintiff’s counsel is about to undergo a major surgery which
could complicate the process of completing the above-described depositions.
8. Richard Koss, co-counsel for Plaintiff, must undergo major surgery on October 2,
2013. He has been away from his office for the past several weeks due to testing related to the
upcoming surgery and will be unavailable for the next several weeks.
Based upon the foregoing, the parties submit that good cause exists to continue the
discovery cutoff to November 20, 2013 because the above-described witnesses are crucial to
both parties’ preparation of their case; because an amendment to the scheduling order will cause
no prejudice to either party since both parties have agreed to the continuance; and because the
adjustment of the discovery cutoff will not affect the other dates set by this Court and the trial
date will not need to be continued.
Case 1:12-cv-01360-SMS Document 17 Filed 09/23/13 Page 3 of 5
STIPULATION OF THE PARTIES AND ORDER - 4
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Thus, the parties to this case have stipulated to continue the discovery cut-off of
September 20, 2013 to November 20, 2013.
IT IS SO STIPULATED.
Dated: September 20, 2013 EVANS, WIECKOWSKI & WARD, LLP
/s/ Daniel Jay
___________________________________
JAMES K. WARD
DANIEL JAY
Attorneys for Defendant TWAIN HARTE
COMMUNITY SERVICES DISTRICT
Dated: September 20, 2013 LAW OFFICES OF RICHARD N. KOSS
/s/ Richard N. Koss
___________________________________
RICHARD N. KOSS
Attorney for Plaintiff YVONNE HILTON
DECLARATION OF DANIEL JAY
I, Daniel Jay, do hereby declare and say the following:
1. I am one of the attorneys of record for Defendant in the above-entitled action. I
have prepared this Declaration as evidence in support of the parties’ stipulation and request to
this Court to continue the discovery cutoff date to November 20, 2013. The facts stated in the
stipulation set forth above are true and correct and based upon my personal knowledge.
I declare under the penalty of perjury under the laws of the United States of America that
the facts stated above in the stipulation of the parties is true and correct. This Declaration was
executed on September 20, 2013 in Sacramento, California.
/s/ Daniel Jay
_____________________________
Case 1:12-cv-01360-SMS Document 17 Filed 09/23/13 Page 4 of 5
STIPULATION OF THE PARTIES AND ORDER - 5
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
DECLARATION OF RICHARD KOSS
I, Richard Koss, do hereby declare and say the following:
1. I am one of the attorneys of record for Plaintiff in the above-entitled action. I
have prepared this Declaration as evidence in support of the parties’ stipulation and request to
this Court to continue the discovery cutoff date to November 20, 2013. The facts stated in the
stipulation set forth above are true and correct and based upon my personal knowledge.
2. On September 9, 2013, I was diagnosed with a malignant tumor in my kidney.
Since that time, I have spent many hours in doctors’ offices and undergoing testing to prepare for
my surgery on October 2. I have been told that I will be unavailable for work until at least the
middle of November. My co-counsel, Rand Stephens, will have to undertake our workload by
himself during my absence.
I declare under the penalty of perjury under the laws of the United States of America that
the facts stated above in the stipulation of the parties is true and correct. This Declaration was
executed on September 20, 2013 in Redwood City, California.
/s/ Richard Koss
_____________________________
ORDER
Based upon the stipulation of the parties and good cause appearing, the Court orders that
the discovery cutoff of September 20, 2013 is hereby moved to November 20, 2013.
IT IS SO ORDERED.
Dated: September 23, 2013 /s/ SANDRA M. SNYDER
UNITED STATES MAGISTRATE JUDGE
Case 1:12-cv-01360-SMS Document 17 Filed 09/23/13 Page 5 of 5 |
s3://data.kl3m.ai/documents/govinfo/USCOURTS/USCOURTS-caed-2_16-cv-00180/USCOURTS-caed-2_16-cv-00180-0/pdf.json | [
[
"Commissioner of Social Security",
"Defendant"
],
[
"Nannette Ann Tosh-Robb",
"Plaintiff"
]
] | Stip. and Prop. Order to Extend; 2:16-cv-00180-TLN-CMK 1
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
BENJAMIN B. WAGNER
United States Attorney
DEBORAH LEE STACHEL
Regional Chief Counsel, Region IX
Social Security Administration
HEATHER M. MOSS, DCBN 995773
Special Assistant United States Attorney
160 Spear Street, Suite 800
San Francisco, CA 94105
Phone: 415-977-8826
Fax: 415-744-0134
Email: [email protected]
Attorneys for Defendant
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
SACRAMENTO DIVISION
NANNETTE ANN TOSH-ROBB,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
)
Case No.: 2:16-cv-00180-TLN-CMK
STIPULATION AND ORDER
FOR AN EXTENSION OF TIME
Defendant CAROLYN W. COLVIN, Acting Commissioner of Social Security, through
her counsel of record, hereby moves the Court to extend the time from August 31, 2016, to
September 30, 2016, for Defendant to file her opposition, and to extend the remaining case
deadlines accordingly.
There is good cause for extending the case deadlines because Counsel has an unusually
robust caseload, which includes over 30 active U.S. District Court cases in various stages of
briefing, as well as employment litigation and legal opinion assignments. Additional time is
needed to responsibly respond to Plaintiff’s contentions. Counsel apologizes to the Court for any
Case 2:16-cv-00180-TLN-CMK Document 14 Filed 08/31/16 Page 1 of 2
Stip. and Prop. Order to Extend; 2:16-cv-00180-TLN-CMK 2
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
inconvenience that this may cause and assures all parties that she has taken every action to
minimize it.
Respectfully submitted,
Dated: August 23, 2016 BENJAMIN B. WAGNER
United States Attorney
DEBORAH LEE STACHEL
Regional Chief Counsel, Region IX
Social Security Administration
By /s/ Heather M. Moss
HEATHER M. MOSS
Special Assistant U.S. Attorney
Attorneys for Defendant
Date: August 23, 2016 SHELLIE LOTT
Cerney Kreuze & Lott, LLP
/s/ Shellie Lott*
SHELLIE LOTT
[*By email authorization]
Attorney for Plaintiff
ORDER
APPROVED AND SO ORDERED:
Dated: August 30, 2016
Case 2:16-cv-00180-TLN-CMK Document 14 Filed 08/31/16 Page 2 of 2 |
End of preview. Expand
in Data Studio
README.md exists but content is empty.
- Downloads last month
- 27
Size of downloaded dataset files:
808 MB
Size of the auto-converted Parquet files:
808 MB
Number of rows:
127,022