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2,807,343
| 11,780,823
|
2006-03-28
|
United States District Court for the Middle District of Alabama
|
United States v. Terry
|
United States v. Terry, 424 F. Supp. 2d 1292 (2006)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
the defendant used ot possessed any firearm ... in connection with another felony offense.
|
Section 2K2.1 of the Guidelines covers “unlawful receipt, possession, or transportation of firearms” and “prohibited transactions involving firearms. Subsection (b)(5) provides for a four-point enhancement on the base-level offense if “the defendant used ot possessed any firearm... in connection with another felony offense.
|
3,761,937
| 11,780,823
|
2007-02-14
|
United States Court of Appeals for the Third Circuit
|
United States v. Navarro
|
United States v. Navarro, 476 F.3d 188 (2007)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_4
|
in connection with another felony offense.
|
He admitted that he had been driving the Jeep during the pursuit and that the handgun and drugs found at the scene belonged to him. He also confessed to another crime, previously unknown to the officers. Navarro informed the police that he had obtained the gun in 2002 through a drug exchange. He had given an unknown person “three rocks” of crack and had received the gun in return. According to Navarro, he wanted the gun only for emergencies, and usually kept it buried in the ground. He had retrieved the gun the day before the pursuit with the intention of getting rid of it.
Navarro was initially charged by state authorities with two counts of possession of a controlled substance, but these charges were subsequently dismissed in favor of federal prosecution. A federal indictment, filed in the District Court for the Eastern District of Pennsylvania, charged Navarro with one count of possession of a firearm by a convicted felon, see 18 U.S.C. § 922(g), and two counts of simple possession of controlled substances (cocaine and marijuana), see 21 U.S.C. § 844(a). He was not, however, charged with possession of crack or possession with intent to distribute.
Navarro entered an “open” plea of guilty to the indictment, and therefore there was no plea agreement. He admitted during a plea colloquy that he had possessed both the firearm and the controlled substances found at the scene of the crash. He also acknowledged that he had given a statement to officers following his arrest, but he denied telling them how he had obtained the gun or admitting that he had engaged in a drug transaction.
A pre-sentence report recommended that Navarro’s sentencing range be enhanced by four levels under section 2K2.1(b)(5) of the Guidelines, because the firearm had been possessed “
|
3,761,937
| 11,780,823
|
2007-02-14
|
United States Court of Appeals for the Third Circuit
|
United States v. Navarro
|
United States v. Navarro, 476 F.3d 188 (2007)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_7
|
was created in response to a concern about the increased risk of violence when firearms are used or possessed during the commission of another felony
|
See, e.g., United States v. Loney, 219 F.3d 281, 285-86 (3d Cir.2000); cf. United States v. Regans, 125 F.3d 685, 686 (8th Cir.1997) (“[A] firearm is a ‘tool of the trade’ for drug dealers.... ”).
To ensure that the final sentence reflects the defendant’s culpability for these other offenses, the Guidelines provide for an increase in the base sentencing range when the firearm is possessed in connection with “another felony offense. See Loney, 219 F.3d at 287-88; see also United States v. McDonald 165 F.3d 1032, 1037 (6th Cir.1999) (explaining that section 2K2.1(b)(5) “
|
3,761,937
| 11,780,823
|
2007-02-14
|
United States Court of Appeals for the Third Circuit
|
United States v. Navarro
|
United States v. Navarro, 476 F.3d 188 (2007)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_4
|
in connection with another felony offense,
|
In United States v. Loney, we held that the enhancement should apply when possession of the firearm “faeilitat[es], or ha[s] the potential of facilitating,” the other offense. See id. at 287 (quoting Smith, 508 U.S. at 238, 113 S.Ct. 2050). The enhancement was properly applied in Lo-ney because the defendant had possessed a loaded firearm for protection during a drug transaction, demonstrating that the presence of the firearm facilitated the deal. Id. at 288.
Under this standard, there can be no doubt that Navarro’s possession of the firearm during the drug transaction facilitated the offense. Navarro dispensed the drugs only so that he could secure the firearm in return; in other words, the drug distribution would not have occurred if Navarro had not possessed the firearm. The reasoning of Smith, adopted in Loney, is directly applicable here: the possession of a firearm facilitates a drug transaction when that firearm serves as an item of trade. See Smith, 508 U.S. at 238, 113 S.Ct. 2050. The enhancement under section 2K2.1(b)(5) is thus applicable. See Loney, 219 F.3d at 287; see also United States v. Garnett, 243 F.3d 824, 829 (4th Cir.2001) (holding that “trading a firearm for drugs” can support an enhancement under section 2K2.1) (citation omitted).
III. Conclusion
The enhancement of section 2K2.1(b)(5) is properly applied when the defendant obtains a prohibited firearm through a drug trade. The District Court in this case properly found that, by exchanging drugs for the firearm, the defendant had possessed the firearm “
|
4,077,347
| 11,780,823
|
2008-05-21
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Randolph
|
United States v. Randolph, 279 F. App'x 259 (2008)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
used or possessed any firearm or ammunition in connection with another felony offense.
|
Although the precise location of Davis’s arrest is in dispute, Davis possessed cocaine base instead of mere “cocaine” as the search warrant stated, and Davis was arrested for trespass, suggesting officers knew her, these minor inconsistencies do not call into question Davis’s statements to police describing where she obtained the drugs, Randolph’s name, and the exact location of where the drugs and guns would be found. As the district court pointed out, Davis was facing criminal charges so she had great incentive to provide accurate information in order to better her position. Because probable cause existed for the search warrant, we conclude the district court did not err in denying Randolph’s motion to suppress the firearms.
Next, Randolph argues that the district court erred by not holding a Franks hearing to determine the reliability of the evidence in the affidavit upon which the warrant was based. Randolph did not move for a Franks hearing in the district court; thus, the court had no reason to order such a hearing. The district court found the information provided by police in the affidavit to be truthful. The statement that Davis was found with cocaine on her person instead of “crack” cocaine does not negate her statement that she received drugs from the Defendant. Randolph fails to demonstrate why a Franks hearing was warranted, and we conclude the district court did not err when it did not convene such a hearing on its own initiative.
Randolph next contends that the district court erred when it applied U.S.S.G. § 2K2.1 (b)(6) to enhance his sentence. Section § 2K2.1 (b)(6) provides for a four-level enhancement if a defendant “
|
4,077,347
| 11,780,823
|
2008-05-21
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Randolph
|
United States v. Randolph, 279 F. App'x 259 (2008)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_4
|
in connection with another felony offense.
|
” United States v. Blount, 337 F.3d 404, 406 (4th Cir.2003) (citing United States v. McDonald, 165 F.3d 1032, 1037 (6th Cir.1999)).
Following United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), a sentencing court continues to make factual findings concerning sentencing factors by a preponderance of the evidence. United States v. Morris, 429 F.3d 65, 72 (4th Cir.2005), cert. denied, — U.S. -, 127 S.Ct. 121, 166 L.Ed.2d 91 (2006). A sentencing court may consider any evidence at sentencing that “has sufficient indicia of reliability.”
To apply an enhancement pursuant to § 2K2.1 (b)(6), a district court must find both (1) that a firearm was used and (2) that such use was “
|
11,455,147
| 11,780,823
|
2000-02-17
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Waldon
|
United States v. Waldon, 206 F.3d 597 (2000)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_3
|
[i]f the defendant wilfully obstructed or impeded ... the administration of justice during the investigation, prosecution, or sentencing of the instant offense.
|
Because defendants failed to show prejudice, we find defendants’ contention that the district court abused its discretion in denying their motions for mistrial meritless.
Moreno, 933 F.2d at 368 (some citations omitted).
Critically, in Moreno, we- cited with approval United States v. Pina, 844 F.2d 1 (1st Cir.1988). In Pina, the First Circuit Court of Appeals undertook the following analysis:
only three of the jurors saw the defendant in shackles and the exposure was very brief. Each of the three jurors was individually questioned by the judge and each insisted that the encounter would have no effect on their capacity to remain unbiased. They were also instructed not to discuss the matter with anyone. Under these circumstances, the exposure was not “so inherently prejudicial” as to deny the defendant a fair trial.
Id. at 8.
In this case, only one juror actually saw Waldon in shackles, and that juror men tioned it contemporaneously to only one other juror; the two jurors spoke about it with no one else. The event occurred outside of the courtroom as part of a routine security measure, the district court properly queried both jurors regarding any potential prejudice to Waldon, and the two jurors assured the district court that their view of Waldon in handcuffs and shackles made no difference whatsoever in their decision. Under these circumstances, Waldon cannot carry his burden of showing actual prejudice. The district court did not abuse its discretion when it denied Waldon’s motion for mistrial.
D. Obstruction of Justice Under U.S.S.G. § 3C1.1. Sentencing Guideline § 3C1.1 provides that a defendant’s offense level should be increased two levels “[i]f the defendant wilfully obstructed or impeded... the administration of justice during the investigation, prosecution, or sentencing of the instant offense.
|
932,454
| 11,780,823
|
2002-07-17
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Villapando
|
United States v. Villapando, 40 F. App'x 928 (2002)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_2
|
Once there has been a finding of obstruction of justice, the court must apply the enhancement.
|
He was transported to Memphis, where he later pleaded guilty to the first count of the indictment, pursuant to a plea agreement. At the ensuing sentencing hearing, Villapando testified that he was carrying the weapon recovered during the sting operation for personal protection in the high crime neighborhood that he worked in, rather than for use in the drug deal. He elaborated that he had been seriously injured in the course of a robbery of his garage in 1994, and that he had seen his assailant drive by the shop more than once and feared for his own safety. The defendant further stated that he had failed to appear in court on his initial arraignment date because his lawyer in Texas had informed him that he would need to pay legal fees before appearing in court. He testified that because he did not have the money to pay fees, he did not appear. However, defense counsel did not challenge the pre-sentence report’s recommendation that the defendant’s sentence be enhanced for obstruction of justice.
At the completion of the hearing, the district judge sentenced the defendant to 97 months of incarceration, to be followed by four years of supervised release. This sentence included a two-level enhancement for obstruction of justice and a two-level enhancement for the possession of a loaded firearm during the drug transaction. Villapando was denied the acceptance of responsibility reduction requested by the defense.
DISCUSSION
A. Obstruction of Justice Enhancement
In reviewing an enhancement under § 3C1.1 of the United States Sentencing Guidelines, we review factual findings for clear error and the legal determination of whether the facts equate with obstruction of justice de novo. “
|
932,644
| 11,780,823
|
2002-03-01
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Pearson
|
United States v. Pearson, 40 F. App'x 887 (2002)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_3
|
the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant case.
|
” We have no reason to find the district court’s determination that Pearson was not a “minor participant” clearly erroneous.
B.
The second issue is whether the district court properly enhanced Pearson’s sentence by two levels for obstruction of justice. We find the enhancement proper.
In reviewing a two-level enhancement of a sentence for obstruction of justice under section 3C1.1, first we review the district court’s findings of fact under the clearly erroneous standard. United States v. McDonald, 165 F.3d 1032, 1034 (6th Cir.1999). Then, we review de novo whether the facts constitute an obstruction of justice. Id. If we find that the facts constitute an obstruction of justice, then the sentence must be enhanced. Id.
The first question is whether the district court erroneously determined that Pearson threatened witnesses. It did not. Again, Pearson simply denies that he threatened witnesses. The district court found the countervailing evidence to prove otherwise. Pearson offers us no reason to find the district court’s factual findings clearly erroneous.
The next question is whether Pearson’s threats to eye witnesses constitutes an obstruction of justice. The Sentencing Guidelines mandates a two-level enhancement if “
|
1,747,486
| 11,780,823
|
2000-05-02
|
United States Court of Appeals for the Seventh Circuit
|
United States v. Szakacs
|
United States v. Szakacs, 212 F.3d 344 (2000)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
the defendant used -or possessed any firearm or ammunition in connection with another .felony offense,
|
The conspiracy included seven men who had two trucks and burglary tools, along with access to shopping carts and carrying bags. According to their own testimony, they planned to steal enough guns so that they could keep two each and sell some others with the ultimate intention of arming the members of their street gang. Fetla’s manager, Brian Lobody, testified that the store contained more than 1,000 guns, including hundreds of handguns that could be carried easily to the trucks. Most telling, in his statement following arrest, Szakacs told federal agents:
[W]e were supposed to... back the van up [to, the loading docking] you know, turn the lights off,... open up the back door and just start loading. You know how they have the big cases of the handguns?... We are supposed to carry those out. and ■ put them into the van. And we were suppose to load all that... whatever bullets we can get, clips we can get, shotguns, rifles, we are supposed to grab everything that we could.
To qualify for the six-level enhancement, the seven defendants needed to carry only an armload of guns each, yet their plan was to grab everything that they could lay their hands on and load up the trucks. This is more than the evidence needed to establish with reasonable certainty that the conspiracy involved fifty or more firearms. The district court’s enhancement in this regard is correct.
B. The Stolen Firearms
The defendants’ sentences also were enhanced four levels under § 2K2.1 because “the defendant used -or possessed any firearm or ammunition in connection with another.felony offense,” the other felony offense being the state law crime of conspiracy to commit burglary.
|
1,747,486
| 11,780,823
|
2000-05-02
|
United States Court of Appeals for the Seventh Circuit
|
United States v. Szakacs
|
United States v. Szakacs, 212 F.3d 344 (2000)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_10
|
‘another felony offense’ and ‘another offense’ refer to offenses other than explosive or firearms possession or trafficking offenses.
|
That provision states, “
|
1,747,486
| 11,780,823
|
2000-05-02
|
United States Court of Appeals for the Seventh Circuit
|
United States v. Szakacs
|
United States v. Szakacs, 212 F.3d 344 (2000)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_11
|
would thus be contrary to the guideline’s underlying purpose.
|
Id. at 402. See also McDonald, 165 F.3d at 1037 (holding that an enhancement for stealing firearms during the burglary of a pawn shop would constitute double counting and “
|
1,747,486
| 11,780,823
|
2000-05-02
|
United States Court of Appeals for the Seventh Circuit
|
United States v. Szakacs
|
United States v. Szakacs, 212 F.3d 344 (2000)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_0
|
a finding of a separation of time between the offense of conviction and the other felony offense, or a distinction of conduct between that occurring in the offense of conviction and the other felony offense.
|
The court held that state law crimes that occur contemporaneously to federal weapons crimes could support enhancements under § 2K2.1(b)(5) if there was “
|
1,753,197
| 11,780,823
|
1999-12-22
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Shafer
|
United States v. Shafer, 199 F.3d 826 (1999)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_12
|
a district court’s determination of whether the facts constitute an obstruction of justice [for purposes of the Sentencing Guidelines] is a mixed question of law and fact that is reviewed de novo.
|
”). See, e.g., United States v. McDonald, 165 F.3d 1032, 1034 (6th Cir.1999) (stating that “
|
1,307,853
| 11,780,823
|
2001-08-16
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Partridge
|
United States v. Partridge, 17 F. App'x 274 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_3
|
the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense ... increase the offense by 2 levels.
|
In concluding that Partridge trafficked in 6 to 7 kilos of cocaine, the district court made the following findings: 1) that from February 1, 1997 until September 30, 1997, Partridge and Peterson would split a kilo of cocaine at least once a month for a total of at least 8 kilos of cocaine but, to “err on the side of caution,” it would not include this cocaine in its final calculation; 2) Rice testified that she received from 2.5 to 3 kilos from Partridge, meaning that, based upon their established practice of splitting a whole kilo of cocaine, a total of 5 to 6 kilos of cocaine were distributed between Rice and Partridge; and 3) Rice purchased 6 more ounces of cocaine from Partridge at a later sale, where she observed him in possession of the rest of the kilo. In estimating total drug quantity, the court did not include the kilo of cocaine that Partridge was attempting to buy at the time of his arrest in June 1998. The district court did not err by sentencing Partridge pursuant to USSG 2Dl.l(a)(3)(4), which is the applicable sentencing provision where at least 5 but less than 15 kilos of cocaine are involved.
c. Base Offense Level Adjustments
Finally, Partridge argues that the district court erred in the adjustments to his base offense level. He argues that he i) should not have received an upward adjustment for obstruction of justice; ii) should have received a reduction for acceptance of responsibility; and iii) was eligible for the “safety valve” provision. Each of these arguments is meritless.
i. Obstruction of Justice
In reviewing a district court’s application of USSG § 3C1.1, this court applies a three-step approach. See United States v. McDonald, 165 F.3d 1032, 1034 (6th Cir.1999). First, findings of fact are reviewed under a clearly erroneous standard. See id. Second, the determination of whether the facts constitute an obstruction of justice, a mixed question of law and fact, is reviewed de novo. See id. The guideline states that if “the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense... increase the offense by 2 levels.
|
364,542
| 11,780,823
|
2001-12-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Graham
|
United States v. Graham, 28 F. App'x 349 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_8
|
best articulated as a three-step process of review.
|
The existence of Graham’s fingerprints on the uncut sheets of paper containing photocopied dollar bills also established his involvement in the manufacture of the counterfeit. Finally, Agent Mixon’s testimony regarding Holt and Morris also clearly demonstrated that Graham was the printer of the counterfeit. The district court did not err in concluding that Graham printed the counterfeit bills and that the value of all the counterfeit produced by Graham should be included in the specific offense characteristic of his offense of conviction — possession of counterfeit Federal Reserve Notes. The possession of the counterfeit was made possible by its manufacture and was clearly part of a common scheme.
The amount of counterfeit produced by Graham presents a more difficult question. The district court determined that Graham produced $93,000.00 in counterfeit currency. This figure is comprised of $12,000.00 seized from Holt, $31,000.00 recovered later by the Secret Service, and $50,000.00 that Graham and Derico Houston attempted to sell to another individual. Graham’s strongest argument is that the information regarding the attempted sale of the $50,000.00 of counterfeit came solely from Bertrel Holt, a witness that even the district court found incredible. In response to this argument, however, the district court found that certain aspects of Holt’s testimony, including the fact that Graham was the printer, was credible. The district court further found that the information that Agent Mixon elicited from Holt in a non-adversarial environment was trustworthy. The district court did not commit clear error in its findings of fact.
C. Obstruction of Justice
At sentencing the district court concluded that Graham had obstructed justice arid therefore enhanced his offense level pursuant to U.S.S.G. § 3C1.1.
The standard of review to be utilized when evaluating a district court’s application of U.S.S.G. § 3C1.1 is “
|
364,542
| 11,780,823
|
2001-12-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Graham
|
United States v. Graham, 28 F. App'x 349 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_12
|
a district court’s determination of whether the facts constitute an obstruction of justice is a mixed question of law and fact that is reviewed de novo.
|
United States v. McDonald, 165 F.3d 1032, 1034 (6th Cir.1999). First, the court’s factual findings in relation to guidelines determinations are reviewed under a clearly erroneous standard. Second, “a district court’s determination of whether the facts constitute an obstruction of justice is a mixed question of law and fact that is reviewed de novo.
|
364,542
| 11,780,823
|
2001-12-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Graham
|
United States v. Graham, 28 F. App'x 349 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_9
|
once there has been a finding of obstruction of justice, the court must apply the enhancement .... Because the enhancement language of the guideline is mandatory rather than discretionary, such enhancement is reviewed under the de novo standard.
|
Third, “once there has been a finding of obstruction of justice, the court must apply the enhancement....
|
9,394,733
| 11,780,823
|
2002-02-01
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Georgia
|
United States v. Georgia, 279 F.3d 384 (2002)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_12
|
[A] district court’s determination of whether the facts constitute an obstruction of justice [under United States Sentencing Guidelines § 3C1.1] is a mixed question of law and fact that is reviewed de novo.
|
”); see United States v. McDonald, 165 F.3d 1032, 1034 (6th Cir.1999) (“
|
659,425
| 11,780,823
|
2001-07-02
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Carlton
|
United States v. Carlton, 13 F. App'x 119 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_4
|
in connection with another felony offense
|
OPINION
NIEMEYER, Circuit Judge. For the first time on appeal, he challenges his sentence, contending that the district court erred in enhancing his offense level on the ground that he possessed firearms “
|
659,425
| 11,780,823
|
2001-07-02
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Carlton
|
United States v. Carlton, 13 F. App'x 119 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_4
|
in connection with another felony offense,
|
For the first time on appeal, he challenges his sentence, contending that the district court erred in enhancing his offense level on the ground that he possessed firearms “in connection with another felony offense” — namely, his larceny of the same firearms — under U.S.S.G. § 2K2.1(b)(5). Finding no plain error, we affirm.
I
On October 15, 1999, Lieutenant Jim Mecum, an officer in the Forsyth County (North Carolina) Sheriffs Department, was off-duty and working on a house near his own residence when he spotted Carlton carrying firearms and other items out of Mecum’s residence. Mecum jumped into his pickup truck, drove to his house, and rammed Carlton’s vehicle as he attempted to escape. Carlton then fled on foot. He was apprehended minutes later by other Forsyth County deputies, who found several items in Carlton’s possession, including a.45 caliber pistol,.270 caliber rifle, and.30-30 caliber rifle, which Carlton admitted stealing from Mecum. Thereafter, Carlton pled guilty to possession of stolen firearms, in violation of 18 U.S.C. §§ 922(j). That recommendation was based in part upon the attribution of a four-level offense level enhancement under U.S.S.G. § 2K2.1(b)(5) for possession of a firearm “
|
659,425
| 11,780,823
|
2001-07-02
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Carlton
|
United States v. Carlton, 13 F. App'x 119 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_4
|
in connection with another felony offense
|
That recommendation was based in part upon the attribution of a four-level offense level enhancement under U.S.S.G. § 2K2.1(b)(5) for possession of a firearm “in connection with another felony offense,” which was either a State-law felony breaking and entering or larceny offense relating to the theft of Mecum’s weapons. Carlton made no objection to the presentence report, and the district court, adopting the findings in that report, sentenced him to 108 months imprisonment.
II
Carlton’s principal argument on appeal is that the district court erred when it enhanced his offense level for possession of the stolen firearms “
|
659,425
| 11,780,823
|
2001-07-02
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Carlton
|
United States v. Carlton, 13 F. App'x 119 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_4
|
in connection with another felony offense,
|
In this case, Carlton contends that the district court committed plain error in determining that he possessed a firearm “
|
659,425
| 11,780,823
|
2001-07-02
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Carlton
|
United States v. Carlton, 13 F. App'x 119 (2001)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_0
|
a finding of a separation of time between the offense of conviction and the other felony offense, or a distinction of conduct between that occurring in the offense of conviction and the other felony offens.e.
|
Concededly, we do not know the district court’s precise findings on this point (other than the general finding that the firearms were used in connection with the larceny and breaking and entering), but this is so only because Carlton did not raise this objection before the district court. Be cause he failed to do so, Rule 52(b) requires that he show not that the sentencing court’s calculation might have been problematic, but rather that it was error and the error is plain. And in light of the precedent from our sister circuit and the lack of a clear statement from us on the subject, see United States v. Neal, 101 F.3d 993, 998 (4th Cir.1996) (noting that other circuit cases may be relevant to the determination whether an error is plain), we cannot say that any error in the district court’s determination that Carlton possessed the stolen firearms “in connection with” the larceny is sufficiently plain to justify reversal.
The second prong of Carlton’s attack focuses on the language that follows the “in-connection-with” language in § 2K2.1(b)(5) — i.e., “another felony offense.” He points to a Sixth Circuit decision in which the defendant, after stealing firearms from a pawn shop, was convicted of transporting those stolen weapons, in violation of 18 U.S.C. § 922(i), and being a convicted felon in possession of the firearms, in violation of 18 U.S.C. § 922(g)(1). See United States v. Sanders, 162 F.3d 396, 397-98 (6th Cir.1998). The government requested the four-level enhancement under U.S.S.G. § 2K2.1(b)(5) on the basis that the defendant had possessed the firearms in connection with the State-law burglary of the firearms. The Sixth Circuit rejected that request, reasoning that because the guideline contemplates the possession of the firearm in connection with another felony offense, it implicitly requires “
|
9,106,422
| 11,780,823
|
2003-07-24
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Blount
|
United States v. Blount, 337 F.3d 404 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
pos sess[ing][a] firearm or ammunition in connection with another felony offense,
|
Affirmed by published opinion. Chief Judge WILKINS wrote the opinion, in which Judge TRAXLER and Judge GREGORY joined. The Government contends that the district court erred at sentencing by refusing to impose a four-level enhancement for “
|
9,106,422
| 11,780,823
|
2003-07-24
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Blount
|
United States v. Blount, 337 F.3d 404 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_7
|
was created in response to a concern about the increased risk of violence when firearms are used or possessed during the commission of another felony
|
” See United States v. McDonald, 165 F.3d 1032, 1037 (6th Cir.1999) (stating that § 2K2.1(b)(5) “
|
9,106,422
| 11,780,823
|
2003-07-24
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Blount
|
United States v. Blount, 337 F.3d 404 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_0
|
a separation of time between the offense of conviction and the [enhancement] offense, or a distinction of conduct between that occurring in the offense of conviction and the [enhancement] offense,
|
See Webster’s Third New Int’l Dictionary 89 (1981) (defining “another” to mean “an additional one of the same kind: one more”); cf. United States v. Cutler, 36 F.3d 406, 408 (4th Cir.1994) (defining “another,” as used in this context, to mean “ ‘additional, one more’ ” (quoting The American Heritage Dictionary, Second College Edition (1982))). Thus, if a sentencing court must look to the elements of the enhancement offense, as Note 7 requires, it should also consider the elements of the offense of conviction.
We recognize that this focus on the elements does not compel us to apply Blockburger. But the Blockburger test was formulated for resolving the very issue before us — namely, whether conduct by the defendant should be regarded as constituting a single offense or multiple distinct offenses. Moreover, because the Blockburger test requires only minimal separation between the enhancement offense and the offense of conviction, it does not unduly curtail application of § 2K2.1(b)(5). We therefore believe that Blockburger provides the appropriate standard for determining whether a proffered enhancement offense qualifies as “another felony offense.”
2.
Five other courts of appeals have considered the validity of § 2K2.1(b)(5) enhancements in cases similar to this one. Two of these courts approved the imposition of such enhancements without articulating a general test for determining when a proffered enhancement offense qualifies as “another felony offense.” See United States v. English, 329 F.3d 615, 617-18 (8th Cir.2003); Armstead, 114 F.3d at 512-13. Three other courts overturned the defendants’ § 2K2.1(b)(5) enhancements on the ground that there was insufficient separation between the enhancement offense and the offense of conviction.
The Third, Sixth, and Seventh Circuits rejected the Blockburger test, see Szakacs, 212 F.3d at 351-52, adopting instead a rule requiring “
|
9,106,422
| 11,780,823
|
2003-07-24
|
United States Court of Appeals for the Fourth Circuit
|
United States v. Blount
|
United States v. Blount, 337 F.3d 404 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_4
|
in connection with another felony offense.
|
The Government bears the burden of proving that the defendant possessed a firearm “
|
9,088,588
| 11,780,823
|
2003-10-01
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Burke
|
United States v. Burke, 345 F.3d 416 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
[i]f the defendant used or possessed any firearm or ammunition in connection with another felony offense[J
|
Given that Burke was physically present at the hearing, and it was only the judge who was in any sense “absent,” Burke’s Fifth Amendment right to be present was not violated. On this constitutional ground, as in the other constitutional arguments Burke asserts, the district court committed no error, let alone plain error.
II. The USSG § 2K2.1(b)(5) Enhancement for Use of A Firearm in Connection With Another Felony Offense
We review for clear error the district court’s factual findings, and accord “due deference” to the district court’s determination that the USSG § 2K2.1(b)(5) enhancement applies. Section 2K2.1(b)(5) instructs a court to increase a defendant’s felony offense by four levels “
|
9,088,588
| 11,780,823
|
2003-10-01
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Burke
|
United States v. Burke, 345 F.3d 416 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_7
|
was created in response to a concern about the increased risk of violence when firearms are used or possessed during the commission of another felony.
|
The section “
|
9,088,588
| 11,780,823
|
2003-10-01
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Burke
|
United States v. Burke, 345 F.3d 416 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
the defendant ... possessed any firearm or ammunition in connection with another felony offense,
|
” (quoting 18 U.S.C. § 924(c)(1))). Though the Supreme Court has curtailed the theory in relation to § 924(c)(1) by holding that the term “use” in § 924(c)(1) means “active employment” and not merely possession, see Bailey v. United States, 516 U.S. 137, 150, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), the theory is still applicable in § 2K2.1(b)(5) cases because the latter provision contains the additional word “possessed.” See United States v. Covert, 117 F.3d 940, 947-48 (6th Cir.1997) (holding that the theory continues to apply under § 2K2.1(b)(5) post-Bui-ley).
A difficulty in applying the theory in the present case is that it normally comes into play where drugs are involved, and there were no drugs here. Burke argues that this difficulty means that the theory is inoperative, and the enhancement was therefore improper. In our opinion, however, the more sensible course is to forgo any reliance on the theory in this case and adhere to the text of § 2K2.1(b)(5), simply asking whether the government met its burden of showing that “the defendant... possessed any firearm or ammunition in connection with another felony offense,” and remembering that possession can be actual or constructive.
|
9,088,588
| 11,780,823
|
2003-10-01
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Burke
|
United States v. Burke, 345 F.3d 416 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_3
|
[i]f the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration of justice during the investigation, prosecution, or sentencing of the instant offense, increase the offense level by 2 levels.
|
Further, in the present case the theory has only introduced confusion, inciting the parties to argue about the meaning and extension of the theory, and diverting attention from the real question, whether § 2K2.1(b)(5) itself has been satisfied.
Based on the above-noted evidence relied upon by the district court, we find that the court did not clearly err in concluding that Burke’s possession of the various firearms in his house was connected with his VIN-flipping operation. Unlike where drugs are involved, there is no widely acknowledged consensus that VIN-flipping is a dangerous activity that frequently involves guns. Nevertheless, the guns and the VIN paraphernalia were found in close proximity, the illegal operation could have been protected by guns {e.g., to fend off disgruntled car buyers, to deter thieves, and to defend the operation from the police), and overall there was sufficient evidence for the district court reasonably to conclude that the guns and the operation were connected.
III. The USSG § 3C1.1 Enhancement for Obstruction of Justice
We also uphold the district court’s sentencing enhancement for obstruction of justice, based on Burke’s having told Jimmy to move a car so that the police would not find evidence of VIN-flipping. Insofar as the district court made factual determinations in finding that the USSG § 3C1.1 enhancement applied to Burke, we review for clear error. See United States v. Jackson-Randolph, 282 F.3d 369, 390 (6th Cir.2002). Insofar as the court’s interpretation of the Guidelines was purely legal, we review de novo. See United States v. Canestraro, 282 F.3d 427, 431 (6th Cir.2002). It provided that “
|
9,088,588
| 11,780,823
|
2003-10-01
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Burke
|
United States v. Burke, 345 F.3d 416 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_3
|
during the investigation, prosecution, and sentencing of the instant offense[.]
|
Rather, Koeberlein merely reaffirmed something that we had established pri- or to Horry, and that we reaffirmed in Nesbitt: that "related conduct” must be conduct that occurred "
|
9,099,544
| 11,780,823
|
2003-08-25
|
United States Court of Appeals for the Sixth Circuit
|
United States v. King
|
United States v. King, 341 F.3d 503 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
if the defendant used or possessed any firearm or ammunition in connection with another felony offense ... increase [the sentence] by four levels.
|
” Koeberlein, 161 F.3d at 949. Finally, the court reviews de novo the district court’s legal conclusions regarding the application of the Sentencing Guidelines. United States v. Humphrey, 279 F.3d 372, 379 (6th Cir.2002). DISCUSSION
United States Sentencing Guideline § 2K2.1(b)(5) provides that “if the defendant used or possessed any firearm or ammunition in connection with another felony offense... increase [the sentence] by four levels.
|
9,099,544
| 11,780,823
|
2003-08-25
|
United States Court of Appeals for the Sixth Circuit
|
United States v. King
|
United States v. King, 341 F.3d 503 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_0
|
a separation of time between the offense of conviction and the other felony offense, [and] a distinction of conduct between that occurring in the offense of conviction and the other felony offense.
|
Id. at 401. This Court found that the enhancement under § 2K2.1(b)(5) was improperly applied by the district court because there was no separation of time or distinction in conduct between the offense that led to the conviction and the conduct considered for the enhancement.
In this case, unlike Sanders, there is “
|
9,099,544
| 11,780,823
|
2003-08-25
|
United States Court of Appeals for the Sixth Circuit
|
United States v. King
|
United States v. King, 341 F.3d 503 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_10
|
'another felony offense' ... refer[s] to offenses other than ... firearms possession or trafficking offenses.
|
Assuming Appellant committed a felonious assault when he pointed his firearm at the victim, does the sentencing enhancement for "us[ing] or possessing] any firearm or ammunition in connection with another felony offense,” U.S.S.G. § 2K2.1(b)(5), apply where Appellant is convicted for being a Felon in Possession of a Firearm? Thus, the district court's legal determination will be reviewed de novo. The court also based its decision on the language of Application Note 18, which states, " 'another felony offense'... refer[s] to offenses other than... firearms possession or trafficking offenses.
|
9,099,544
| 11,780,823
|
2003-08-25
|
United States Court of Appeals for the Sixth Circuit
|
United States v. King
|
United States v. King, 341 F.3d 503 (2003)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_7
|
is a sentencing enhancement provision that was created in response to a concern about the increased risk of violence when firearms are used or possessed during the commission of another felony.
|
United States v. Parker, 234 F.3d 1270, 2000 WL 1647922, *2 (6th Cir. Oct. 23, 2000); see also United States v. McDonald, 165 F.3d 1032, 1037 (6th Cir.1999) (Section 2K2.1(b)(5) "
|
6,047,572
| 11,780,823
|
2008-05-22
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Bullock
|
United States v. Bullock, 526 F.3d 312 (2008)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_7
|
was created in response to a concern about the increased risk of violence when firearms are used or possessed during the commission of another felony
|
Def. Br. at 9. However, Bullock’s argument fails to recognize that, by adopting the PSR’s recommendation, the district court was applying the § 2K2.1(b)(6) enhancement not because of the mere theoretical possibility that the firearm would be used in some unspecified crime in the future, but rather because of the very real likelihood that Bullock’s possession of the Norinko, SKS Model, 39 caliber rifle facilitated Bullock’s threats to “get rid of’ several public officials, including a United States Congressman.
Moreover, in the multiple times that we have considered the application of the § 2K2.1(b)(6) enhancement, we have never found it to allow for double counting, and we do not do so today. Section 2K2.1(b)(6) does not advise district judges to punish defendants more severely simply because they have engaged in conduct— unlawful possession of a firearm — which is already prohibited by federal law. See United States v. Burke, 345 F.3d 416, 427 (6th Cir.2003) (noting that § 2K2.1(b)(6) “
|
6,047,572
| 11,780,823
|
2008-05-22
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Bullock
|
United States v. Bullock, 526 F.3d 312 (2008)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
the defendant possessed or used a gun in connection with
|
While the particular independent felony need not be charged, see id. at 580 n. 2 (citing United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997); United States v. Corrado, 227 F.3d 528, 542 (6th Cir.2000)); U.S.S.G. § 2K2.1, comment, (n.14), the felony must be specifically identifiable in order for the government to demonstrate that “
|
6,047,572
| 11,780,823
|
2008-05-22
|
United States Court of Appeals for the Sixth Circuit
|
United States v. Bullock
|
United States v. Bullock, 526 F.3d 312 (2008)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_1
|
possessed any firearm or ammunition in connection with another felony offense.
|
United States v. Carter, 355 F.3d 920, 925 (6th Cir.2004) (quoting United States v. Sanders, 162 F.3d 396, 404 (6th Cir.1998)); accord Burns, 498 F.3d at 580. By enhancing a defendant’s recommended punishment when the government has made such a showing, § 2K2.1(b)(6) does not double count the defendant’s unlawful possession of a firearm, but rather reasonably accounts for the increased danger created by the specific circumstances surrounding the defendant’s unlawful conduct.
Accordingly, we clarify today that any argument claiming that § 2K2.1(b)(6) permits a sentencing judge to impermissibly double count the defendant’s unlawful conduct cannot prevail under our jurisprudence. Furthermore, on de novo review of the record in this case, we find that the district court did not err in applying the § 2K2.1(b)(6) enhancement to increase Bullock’s base offense level as part of its calculation of the advisory Guidelines range.
Section 2K2.1(b)(6) only applies if the defendant “
|
5,704,327
| 11,780,823
|
2007-08-09
|
United States Court of Appeals for the Fifth Circuit
|
United States v. Wright
|
United States v. Wright, 496 F.3d 371 (2007)
|
1999-01-21
|
United States Court of Appeals for the Sixth Circuit
|
United States v. McDonald
|
United States v. McDonald, 165 F.3d 1032 (1999)
|
11780823_13
|
a formal arrest or restraint on freedom of movement of the degree associated with formal arrest.
|
On appeal, Williams argued that although he had technically been arrested when he fled, he was not “truly in custody” at that time because he escaped during the “arrest episode,” noting that most § 3C1.1 enhancements were levied for escape long after arrest, after the defendants were clearly in “custody.” The court rejected this reach for a “gray area” between 5(d) and 4(e) because “custody” and “arrest” are “well-settled” as separate legal concepts, hence a defendant who escapes from “custody,” even if he does so during the “arrest episode,” has obstructed justice. In other words, the court reconciled 5(d) and 4(e) by holding that “custody” is the key question—once a defendant is in “custody,” he is no longer “avoiding or fleeing from arrest” if he escapes. This court in Huerta explicitly rejected the reasoning of the Second and Seventh Circuits, which focused on whether the defendant’s conduct was deliberate or spontaneous. Consequently, the parties and the court below used the wrong standard, as the parties recognize on appeal. We ask only whether Wright was in custody when he fled.
This court recently defined “custody” under § 3C1.1 as the Miranda standard of “custody.” In United States v. Brown, deputies responded to a domestic violence call. They picked up the victim and drove her to her boyfriend’s trailer. On the way, they learned the boyfriend’s name and discovered he had a warrant for his arrest. The court, quoting a Supreme Court case defining “custody” for Miranda purposes, framed the question as whether there was “
|
11,578,824
| 11,773,147
|
1999-09-17
|
United States Court of Appeals for the Sixth Circuit
|
Integrated Health Services of Michigan, at Riverbend, Inc. v. National Labor Relations Board
|
Integrated Health Services of Michigan, at Riverbend, Inc. v. National Labor Relations Board, 191 F.3d 703 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_1
|
require[d] the use of independent judgment,
|
However, we have already spoken directly to the issue whether this type of conduct is sufficient in the nursing context to show supervisory status:
It is perfectly obvious that the kind of judgment exercised by registered nurses in directing... nurse’s aides in the care of patients occupying skilled and intermediate care beds in a nursing home is not “merely routine.” Similarly, in Health Care & Retirement Corp., 987 F.2d at 1261, we held that responsibility for assigning work to nursing assistants and approving breaks and lunches “
|
11,578,824
| 11,773,147
|
1999-09-17
|
United States Court of Appeals for the Sixth Circuit
|
Integrated Health Services of Michigan, at Riverbend, Inc. v. National Labor Relations Board
|
Integrated Health Services of Michigan, at Riverbend, Inc. v. National Labor Relations Board, 191 F.3d 703 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_6
|
promote, discharge, discipline, assign, [or] responsibly direct employees, or recommend such action
|
Id. at 371. In earlier cases, the Board has contended that the nurses were not supervisors because their duties were performed not in the employer’s interest, but in the interest of patient care. We rejected that contention in Health Care and Retirement Corp., and the Supreme Court agreed, explaining:
The Board has created a false dichotomy — between acts taken in connection with patient care and acts taken in the'interest of the employer.... Since patient care is a nursing home’s business, it follows that attending to the needs of patients, who are the employer’s customers, is in the employer’s interest.
NLRB v. Health Care and Retirement Corp., 511 US. 571, 114 S.Ct. 1778, 128 L.Ed.2d 586. In our judgment, the Board has altered its reasoning only slightly in this case, relying on the same false dichotomy, in contending that a nurse’s supervi sory acts are merely routine and do not involve independent judgment where the acts are informed by the nurse’s training and experience as a nurse.
On similar facts, in Beacon Light, 825 F.2d at 1079-80, we stated:
Contrary to the assertions of the Board, nurses with this kind of responsibility are not disqualified from being supervisors simply because their duties largely involve “mere patient care”. Patient care (or “mere patient care,” in the Board’s phraseology) is the business of a nursing home. Upon our reading of the statute, we think that the law means exactly what it says, that individuals who “
|
11,580,878
| 11,773,147
|
1999-07-22
|
United States Court of Appeals for the First Circuit
|
National Labor Relations Board v. Hilliard Development Corp.
|
National Labor Relations Board v. Hilliard Development Corp., 187 F.3d 133 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer,
|
LYNCH, Circuit Judge.
The National Labor Relations Board petitions to enforce its order against Hillard Development Corporation, doing business as Provident Nursing Home. The Board found that Provident violated §§ 8(a)(5) and (1) of the National Labor Relations Act, 29 U.S.C. § 158(a)(5), (1), by refusing to bargain with the Union as a representative of a bargaining unit that includes thirteen district and charge nurses. Provident argues that its refusal to bargain was not an unfair labor practice because the district and charge nurses are supervisors, as that term is defined in § 2(11) of the Act, 29 U.S.C. § 152(11), and the nurses as such are precluded from participating in collective bargaining. See 29 U.S.C. § 152(3),(11).
Whether mid-level care providers such as Provident’s district and charge nurses are supervisors under § 2(11) is a significant legal issue that has divided the circuits. It is also an issue of some societal significance, affecting increasing numbers of people who will need nursing home care as the post World War II baby boomer generation ages. The issue is significant in part because labor costs in the healthcare industry comprise a large portion of overall costs (estimated to be roughly 60% of hospital costs). The issue is important both to management, concerned with economic viability, and to employees, concerned about job security and workplace rights.
Historically, the NLRB itself has proven unsympathetic to employers’ arguments that such nurses may not be unionized. Under the Board’s “patient care” test, nurses were not considered to be exercising authority “
|
11,580,878
| 11,773,147
|
1999-07-22
|
United States Court of Appeals for the First Circuit
|
National Labor Relations Board v. Hilliard Development Corp.
|
National Labor Relations Board v. Hilliard Development Corp., 187 F.3d 133 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the exercise of professional judgment incidental to the treatment of patients.
|
Under the Board’s “patient care” test, nurses were not considered to be exercising authority “in the interest of the employer,” as required under the definition of supervisor in § 2(H), if they directed less-skilled employees only “
|
11,580,878
| 11,773,147
|
1999-07-22
|
United States Court of Appeals for the First Circuit
|
National Labor Relations Board v. Hilliard Development Corp.
|
National Labor Relations Board v. Hilliard Development Corp., 187 F.3d 133 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer,
|
IV. Analysis
A. ■ The § 2(11) Test
The NLRA at § 2(11) defines as a supervisor:
[A]ny individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such actions, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
29 U.S.C. § 152(11). This definition is disjunctive: any one of the listed aspects of authority may signify supervisory status, as long as the exercise of that authority involves the use of independent judgment. See Telemundo de Puerto Rico, 113 F.3d at 273. The Board has set forth a three-part test to interpret this statutory definition: (1) whether the individual has the authority to perform any one of the twelve defined duties, (2) whether exercising that authority requires the use of independent judgment, and (3) whether the employee exercises the supervisory authority in the interest of his or her employer. See Health Care & Retirement Corp., 511 U.S. at 574, 114 S.Ct. 1778. The Board’s Interpretation of “Independent Judgment”
The Court in Health Care & Retirement Corp. rejected the Board’s “patient care” analysis of the phrase “
|
11,580,878
| 11,773,147
|
1999-07-22
|
United States Court of Appeals for the First Circuit
|
National Labor Relations Board v. Hilliard Development Corp.
|
National Labor Relations Board v. Hilliard Development Corp., 187 F.3d 133 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_2
|
widespread speculation that the Board's decisions on this subject are based ... on a 'policy bias'
|
See NLRB v. Attleboro Assocs., Ltd., 176 F.3d 154, 163-64 (3d Cir.1999) (rejecting Board's finding that charge nurses are not supervisors and finding that nurses perform four of the supervisory duties enumerated in § 2(11)); Beverly Enterprises, Virginia, Inc. v. NLRB, 165 F.3d 290, 297-99 (4th Cir.1999) (en banc) (denying enforcement of a bargaining order because nurses independently assign and direct nursing aides and discipline or effectively recommend discipline); Passavant Retirement & Health Ctr. v. NLRB, 149 F.3d 243, 247-49 (3d Cir.1998) (finding nurses to be supervisors because they have independent authority to discipline and to adjust grievances); Mid-America Care Found. v. NLRB, 148 F.3d 638, 641 (6th Cir.1998) (finding nurses to be supervisors because they independently assign work, assign overtime, and evaluate employees).
Other circuits, in contrast, have enforced Board conclusions that mid-level nurses are not supervisors.
6
.See, e.g., Beverly Enterprises, Virginia, 165 F.3d at 296 (noting "widespread speculation that the Board's decisions on this subject are based... on a 'policy bias' ”); Caremore, Inc. v. NLRB, 129 F.3d 365, 371 (6th Cir.1997) (criticizing the NLRB for its "position... that supervisory status is almost never to be accorded nurses whose supervisory authority is exercised over less-skilled professionals in the interest of patient care”); Spentonbush/Red Star Cos. v. NLRB, 106 F.3d 484, 492 (2d Cir.1997) ("[T]he Board's biased mishandling of cases involving supervisors increasingly has called into question our obeisance to the Board’s decisions in this area.").
|
11,580,878
| 11,773,147
|
1999-07-22
|
United States Court of Appeals for the First Circuit
|
National Labor Relations Board v. Hilliard Development Corp.
|
National Labor Relations Board v. Hilliard Development Corp., 187 F.3d 133 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_0
|
position ... that supervisory status is almost never to be accorded nurses whose supervisory authority is exercised over less-skilled professionals in the interest of patient care
|
6
.See, e.g., Beverly Enterprises, Virginia, 165 F.3d at 296 (noting "widespread speculation that the Board's decisions on this subject are based... on a 'policy bias' ”); Caremore, Inc. v. NLRB, 129 F.3d 365, 371 (6th Cir.1997) (criticizing the NLRB for its "position... that supervisory status is almost never to be accorded nurses whose supervisory authority is exercised over less-skilled professionals in the interest of patient care”); Spentonbush/Red Star Cos. v. NLRB, 106 F.3d 484, 492 (2d Cir.1997) ("[T]he Board's biased mishandling of cases involving supervisors increasingly has called into question our obeisance to the Board’s decisions in this area.").
|
12,173,940
| 11,773,147
|
2016-11-01
|
United States Court of Appeals for the Fourth Circuit
|
Palmetto Prince George Operating, LLC v. National Labor Relations Board
|
Palmetto Prince George Operating, LLC v. National Labor Relations Board, 841 F.3d 211 (2016)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_4
|
by and large without any guidelines or established criteria
|
Kentucky River, 532 U.S. at 713, 121 S.Ct. 1861 (quoting the Board’s brief). See, e.g., Beverly Enterprises, Virginia, Inc. v. NLRB, 165 F.3d 290, 298 (4th Cir. 1999) (en banc) (holding that nurses were supervisors because they exercised,§ 152(11) authorities “
|
12,173,940
| 11,773,147
|
2016-11-01
|
United States Court of Appeals for the Fourth Circuit
|
Palmetto Prince George Operating, LLC v. National Labor Relations Board
|
Palmetto Prince George Operating, LLC v. National Labor Relations Board, 841 F.3d 211 (2016)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_3
|
provides no list of criteria by which assignments, direction of nursing assistants, or emergency dismissals are to be made.
|
Given these facts, the Board reasonably concluded that the Nurses do not exercise independent judgment when directing CNAs.
IV.
The record offers abundant evidence supporting the Board’s finding that Palmetto failed to establish that the Nurses use independent judgment in disciplining and directing the work of CNAs. Accordingly, we must deny Palmetto’s petition for review and grant the Board’s cross-petition for enforcement of its order.
PETITION FOR REVIEW DENIED; CROSS-PETITION FOR ENFORCEMENT GRANTED
1
. RNs and LPNs share the same duties, with the exception that LPNs cannot sign assessments or administer small doses of intravenous medications. These differences do not bear on the question of whether they are supervisors.
2
. In Oakwood, the Board also adopted a new interpretation of the term “responsibly to direct.” Oakwood, 348 NLRB at 690-92. Here, we need not address the extent to which this new interpretation displaces our prior cases.
3
. In addition to predating Kentucky River and Oakwood, in Beverly the Board conceded that the employer "
|
11,608,099
| 11,773,147
|
1999-04-30
|
United States Court of Appeals for the Third Circuit
|
National Labor Relations Board v. Attleboro Associates, Ltd.
|
National Labor Relations Board v. Attleboro Associates, Ltd., 176 F.3d 154 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_7
|
[pjatient care is the business of a nursing home, and it follows that attending to the needs of the nursing home patients, who are the employer’s customers, is in the interest of the employer.
|
The issue before the Supreme Court in Health Care was whether the Board’s interpretation of section 2(11) that a “nurse’s supervisory activity is not exercised in the interest of the employer if it is incidental to the treatment of patients” was rational and consistent with the NLRA. 511 U.S. at 576, 114 S.Ct. at 1781-82. The Court held that it was not. It reasoned that “
|
11,608,099
| 11,773,147
|
1999-04-30
|
United States Court of Appeals for the Third Circuit
|
National Labor Relations Board v. Attleboro Associates, Ltd.
|
National Labor Relations Board v. Attleboro Associates, Ltd., 176 F.3d 154 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer
|
Significantly, for our purposes, the.Court said the following with respect to the Board’s argument that it should not read “
|
11,608,099
| 11,773,147
|
1999-04-30
|
United States Court of Appeals for the Third Circuit
|
National Labor Relations Board v. Attleboro Associates, Ltd.
|
National Labor Relations Board v. Attleboro Associates, Ltd., 176 F.3d 154 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer
|
While Health Cave concerned the Board’s interpretation of the “
|
11,608,099
| 11,773,147
|
1999-04-30
|
United States Court of Appeals for the Third Circuit
|
National Labor Relations Board v. Attleboro Associates, Ltd.
|
National Labor Relations Board v. Attleboro Associates, Ltd., 176 F.3d 154 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_9
|
when an employer grants to an employee the authority to use judgment in the management or evaluation of other employees, that judgment is independent judgment under the NLRA, not the exercise of professional expertise.
|
Yeshiva, 444 U.S. at 681-82, 100 S.Ct. at 862. Consequently, it is impossible to comprehend how a nurse’s status as a professional employee negates her status as a supervisor. Yet, this is the reading of the NLRA that the Board would have us apply to balance the tension caused by the NLRA’s exclusion of supervisors and inclusion of professionals in the collective bargaining process.
While we recognize that in some situations a professional employee may be exercising the “discretion and judgment” of section 2(12)’s definition of a professional and therefore not be exercising “independent judgment” according to section 2(11), that is not the situation here. As the Court of Appeals for the Fourth Circuit noted in Beverly Enterprises, Va., 165 F.3d 290, “
|
11,608,099
| 11,773,147
|
1999-04-30
|
United States Court of Appeals for the Third Circuit
|
National Labor Relations Board v. Attleboro Associates, Ltd.
|
National Labor Relations Board v. Attleboro Associates, Ltd., 176 F.3d 154 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer.
|
Both staff RNs and charge nurses evaluate one another, intervene in problem situations, and make entries on the end-of-shift report. In addition, the charge nurse on a particular shift may be a staff RN on another shift.
Id. (citations omitted). The court also found that Providence’s charge nurses had “little” involvement in actually directing the staff RNs in their duties. Id.
Here, however, the LPN charge nurses are not “one of the gang” with the CNAs. Conversely, they possess and exercise the authority to assign and direct CNAs within their unit and are responsible to Attleboro for ensuring that CNAs are completing their duties effectively and residents are receiving the proper care.
IV. CONCLUSION
For the foregoing reasons, we find that Attleboro’s LPN charge nurses, using independent judgment, exercise the authority to recommend discipline, adjust grievances, and assign and direct CNAs. Under these circumstances, we hold that the LPN charge nurses are supervisors according to the terms of section 2(11), and accordingly we will grant Attleboro’s Petition for Review, reverse the Board’s Order, and deny the Board’s Petition to Enforce.
1
. Section 2(11) of the NLRA defines a "supervisor” as
any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.
29 U.S.C. § 152(11). In light of Health Care, the NLRB does not suggest that Attleboro's LPN charge nurses do not act "
|
11,587,128
| 11,773,147
|
1999-03-03
|
United States Court of Appeals for the Seventh Circuit
|
National Labor Relations Board v. GranCare, Inc.
|
National Labor Relations Board v. GranCare, Inc., 170 F.3d 662 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer
|
” Res-Care, 705 F.2d at 1466.
In interpreting § 2(11) the Board considers three questions, and each must be answered affirmatively if an employee is to be deemed a supervisor. First, does the employee have authority to engage in 1 of 12 listed activities? Third, does the employee hold the authority “
|
11,587,128
| 11,773,147
|
1999-03-03
|
United States Court of Appeals for the Seventh Circuit
|
National Labor Relations Board v. GranCare, Inc.
|
National Labor Relations Board v. GranCare, Inc., 170 F.3d 662 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer,
|
” The Court rejected the Board’s position as a “strained interpretation” of the phrase “
|
11,587,128
| 11,773,147
|
1999-03-03
|
United States Court of Appeals for the Seventh Circuit
|
National Labor Relations Board v. GranCare, Inc.
|
National Labor Relations Board v. GranCare, Inc., 170 F.3d 662 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer.
|
The Court rejected the Board’s position as a “strained interpretation” of the phrase “in the interest of the employer,” id. at 583, 114 S.Ct. 1778, and concluded that the four LPNs at issue — who were grouped with five to seven “staff nurses,” including RNs — exercised their authority “
|
11,587,128
| 11,773,147
|
1999-03-03
|
United States Court of Appeals for the Seventh Circuit
|
National Labor Relations Board v. GranCare, Inc.
|
National Labor Relations Board v. GranCare, Inc., 170 F.3d 662 (1999)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_2
|
based not on the three-pronged test of the Act but on a ‘policy bias.’
|
” Because the Board sought to affirm its finding of nonsupervisory status only on the basis of its interpretation of that phrase, the LPNs in HCR were held to be supervisors under the NLRA.
The HCR decision prompted the Board to send our case (and others around the country) back for reconsideration. The Regional Director reopened proceedings and allowed additional evidence. He then issued a second decision reaffirming his conclusion that Gran-Care’s LPNs are not supervisors, this time holding that they did not exercise independent judgment in their assignment, direction, and discipline of the CNAs. The Board embraced the Director’s second view of the ease. GranCare disagreed and refused to bargain with the certified union, which caused the NLRB to petition for enforcement of its order that it do so. The Fourth Circuit recently observed that the Board’s decision to change its point of emphasis seems to be “based not on the three-pronged test of the Act but on a ‘policy bias.
|
9,960,143
| 11,773,147
|
2000-06-06
|
United States Court of Appeals for the Second Circuit
|
Schnurmacher Nursing Home v. National Labor Relations Board
|
Schnurmacher Nursing Home v. National Labor Relations Board, 214 F.3d 260 (2000)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer
|
Section 2(11) of the LMRA defines “supervisor” as:
any individual having authority, in the interest of the employer* to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. To determine whether an employee is a supervisor under this section, three questions must be addressed: (i) does the employee have the authority to exercise at least one of the twelve listed powers?; (ii) if so, does the employee exercise a listed power using “independent judgment”?; and (iii) does the employee exercise the power “
|
9,960,143
| 11,773,147
|
2000-06-06
|
United States Court of Appeals for the Second Circuit
|
Schnurmacher Nursing Home v. National Labor Relations Board
|
Schnurmacher Nursing Home v. National Labor Relations Board, 214 F.3d 260 (2000)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_8
|
in the interest of the employer
|
See NLRB v. Health Care & Retirement Corp. of Am., 511 U.S. 571, 573-74, 114 S.Ct. 1778, 128 L.Ed.2d 586 (1994) (hereinafter HCR). Each question must be answered in the affirmative if we are to deem the employee a supervisor under Section 2(11).
Because HCR held that a nurse’s authority to direct less-skilled employees is exercised “
|
9,960,143
| 11,773,147
|
2000-06-06
|
United States Court of Appeals for the Second Circuit
|
Schnurmacher Nursing Home v. National Labor Relations Board
|
Schnurmacher Nursing Home v. National Labor Relations Board, 214 F.3d 260 (2000)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_6
|
of a merely routine or clerical nature.
|
“Assign”
SNH argues that the undisputed and exercised — on a daily basis — authority of the CNs to assign CNAs to patients and to dictate the break times of each CNA on the floor establishes the CNs’ supervisory status. But the ARD’s finding that the exercise of this authority is merely routine and does not therefore require the “independent judgment” necessary to establish supervisory status is supported by substantial evidence.
CNAs are usually assigned to particular patients on a permanent basis, and it is generally unnecessary for CNs to do more than refer to prior practice in making assignments at the beginning of each shift. Moreover, when substitute CNAs are involved, they are usually assigned to the absent CNA’s patients. In these circumstances, we cannot overturn the ARD’s determination that the assignment power does not call for the exercise of independent judgment necessary to confer supervisory status, but is “
|
9,960,143
| 11,773,147
|
2000-06-06
|
United States Court of Appeals for the Second Circuit
|
Schnurmacher Nursing Home v. National Labor Relations Board
|
Schnurmacher Nursing Home v. National Labor Relations Board, 214 F.3d 260 (2000)
|
1999-01-19
|
United States Court of Appeals for the Fourth Circuit
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board
|
Beverly Enterprises, Virginia, Inc. v. National Labor Relations Board, 165 F.3d 290 (1999)
|
11773147_5
|
[i]t strains credulity to imagine that ... no judgments other than routine and clerical judgments are made [by the charge nurses] to keep the home operating
|
See Spentonbush, 106 F.3d at 491 (overturning Board finding that tugboat captains were supervisors; “we are at a loss to understand how the grave responsibility for preventing [the mishandling of millions of gallons of gasoline] can be swept aside by the Board as routine and clerical”); Beverly. Enters., Va., Inc. v. NLRB, 165 F.3d 290, 298 (4th Cir.1999) (en banc) (holding charge nurses in Virginia nursing home were statutory supervisors; “[i]t strains credulity to imagine that... no judgments other than routine and clerical judgments are made [by the charge nurses] to keep the home operating”).
|
11,576,946
| 11,776,370
|
1999-08-24
|
United States Court of Appeals for the Seventh Circuit
|
Shields v. Local 705, International Brotherhood of Teamsters Pension Plan
|
Shields v. Local 705, International Brotherhood of Teamsters Pension Plan, 188 F.3d 895 (1999)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_4
|
a broader application of estop-pel principles might pose a risk to plans that rely on actuarial soundness.
|
We have since acknowledged that this limitation stemmed from a concern that “
|
11,576,946
| 11,776,370
|
1999-08-24
|
United States Court of Appeals for the Seventh Circuit
|
Shields v. Local 705, International Brotherhood of Teamsters Pension Plan
|
Shields v. Local 705, International Brotherhood of Teamsters Pension Plan, 188 F.3d 895 (1999)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_23
|
The cause of action has four elements: (1) a knowing misrepresentation; (2) made in writing; (3) with reasonable reliance on that misrepresentation by the plaintiff; (4) to her detriment.
|
In the case of an unfunded welfare plan, there is no particular fund which is depleted by paying benefits. Thus there is no need for concern about the Plan’s actuarial soundness.
One scholar, noting the trend toward allowing use of estoppel in ERISA cases, has noted that where estoppel is disallowed, the pension plan involved is ordinarily a multi-employer plan. S. Bruce, Pension Claims: Rights and Obligations 404 (1988). The reason for reluctance in such cases is the fact that the plan has multiple fiduciaries with control over a common fund. To allow one employer to bind the fund to pay benefits outside the strict terms of the Plan would be to make all the employers pay for one employer’s misrepresentations, and to the extent that such payments damage the actuarial soundness of the Plan, it hurts all the employees as well. It could even encourage employers to make intentional misrepresentations so as to bind the Plan to make improper payments in favor of their own employees.
Black, 900 F.2d at 115.
4
. We have, since Black, allowed the use of estoppel in a different context in an ERISA case. In Miller v. Taylor Insulation Co., 39 F.3d 755, 758-59 (7th Cir.1994), we applied estoppel principles to enforce an employer’s written assurance that a particular employee would be a participant in the ERISA benefit plan. See id.
5
. Mr. Shields contends on appeal that the district court’s factual finding concerning the threat to actuarial soundness was simply not supported by the evidence. However, because we conclude that the plaintiff has not established the elements of an estoppel claim, we need not review this determination.
6
. See, e.g., Coker, 165 F.3d at 585 ("
|
11,566,599
| 11,776,370
|
1999-06-16
|
United States District Court for the Western District of New York
|
Fitch v. Chase Manhattan Bank, N.A.
|
Fitch v. Chase Manhattan Bank, N.A., 64 F. Supp. 2d 212 (1999)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_5
|
However, arguments that negligent misrepresentations ‘estop’ sponsors or administrators from enforcing the plans’ written terms have been singularly unsuccessful.
|
After receiving actual notice and conclusive proof that the VRP formula was flawed, Defendants compounded their breach of duty by intentionally and fraudulently covering up their mistakes while allowing Plaintiffs to continue to rely on false information in order to meet Chase’s corporate goal of $55 million savings annually.
(Plaintiffs’ Memorandum of Law [# 43], p. 2). Throughout the plaintiffs’ papers, they allege that the defendants intentionally provided them with false estimates, in order to trick as many employees as possible into taking early retirement, thereby saving Chase money that it otherwise would have had to pay in salaries. However, the Court finds that the plaintiffs have not come forward with evidentiary proof in admissible form to support these claims. Instead, the evidence in the record clearly shows that the incorrect estimates were the result of an honest mistake on the part of Buck Consulting, that went unnoticed by Chase. It is undisputed that Chase included two of the plaintiffs’ names on the list of benefit samples to be tested, and that, but for the actions of McBride and McEachen, the error would have been caught. Also, as far as the Court is aware, the error affected only 61 of the 2,200 employees who were eligible for the VRP. Moreover, the error only effected former employees of Lincoln First, whose benefit formula was calculated differently than most other Chase employees. Finally, Chase discovered the error, gave the plaintiffs corrected figures, and gave them the option of revoking their acceptance of the VRP. Accordingly, the plaintiffs’ theory that this was an intentional cost-saving measure by Chase seems absurd. “
|
624,347
| 11,776,370
|
1999-07-30
|
United States District Court for the Western District of Wisconsin
|
Stang v. Clifton Gunderson Health Care Plan
|
Stang v. Clifton Gunderson Health Care Plan, 71 F. Supp. 2d 926 (1999)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_21
|
A claim will not lie for every false statement reasonably and detrimentally relied upon by an unwitting plaintiff.
|
The three November notices each stated that the act would become effective for the plan as of January 1, 1998 and that defendant was offering a special enrollment effective January 1, 1998. Plaintiff argues that because the act, when effective, would prevent medical underwriting with regard to coverage for Evan, enrollment effective January 1, 1998 could not be subject to medical underwriting if the act was also effective for the plan as of January 1, 1998.
Plaintiff cites no support for his proposition that the November notices changed the start date of the plan year to January 1st from February 1st. Rather, plaintiff asserts this is the only logical conclusion one could draw from the notices because they state that the act will become effective for the plan as of January 1, and under its own terms the Act becomes effective for plans on the first day of the first plan year following June 30, 1997. Although this is a logical conclusion one could draw from the notices, doing so does not effect an alteration of the substantive provisions of the plan or its Summary Plan Description. Plaintiff cites no law or fact to support his assertion that defendant actually changed the start date of the plan year from January 1st to February 1st by the wording of its November notices.
Plaintiffs stronger argument is that even if the notices did not actually change the plan year, they misrepresented that the act would apply to the plan beginning on January 1 (thereby preventing medical underwriting for enrollment effective on that date) and that he relied reasonably on that misrepresentation to his detriment.
“
|
11,085,572
| 11,776,370
|
2001-07-18
|
United States Court of Appeals for the Seventh Circuit
|
Bock v. Computer Associates International, Inc.
|
Bock v. Computer Associates International, Inc., 257 F.3d 700 (2001)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_23
|
(1) a knowing misrepresentation; (2) made in writing; (3) with reasonable reliance on that misrepresentation ... (4) to [the plaintiffs] detriment.
|
However, Platinum correctly points out that ERISA estoppel claims require a plaintiff to show “(1) a knowing misrepresentation; (2) made in writing; (3) with reasonable reliance on that misrepresentation... (4) to [the plaintiffs] detriment.
|
11,143,657
| 11,776,370
|
2000-12-28
|
United States District Court for the Northern District of Illinois
|
Vallone v. CNA Financial Corp.
|
Vallone v. CNA Financial Corp., 128 F. Supp. 2d 1131 (2000)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_7
|
has recognized a form of estoppel as a matter of federal common law in at least some ERISA cases.
|
This theory is based on the VSRP documents as well as on oral statements made to early retirees.
The Seventh Circuit has acknowledged that a bilateral contract claim concerning ERISA welfare benefits is a valid cause of action. See Frahm, 137 F.3d at 957-58. As the court held in Frahm, however, a plaintiff cannot recover on such a theory if its bilateral contract with the employer did not, in fact, “lock in” the welfare benefits at issue. Id. at 958 (affirming lower court’s holding that plaintiffs’ contractual claim to permanent benefits must fail where the plan documents reserve the employer’s right to terminate benefits at any time). Far from locking in permanent benefits, many of the VSRP documents either contain a reservation of rights clause or refer participants to plan documents that did (Exhs. 7, 9, 12, 14; Def. Stmt. ¶¶ 30-35). Moreover, none of the VSRP documents express a clear commitment to providing a permanent health care allowance. See Sprague, 133 F.3d at 400. In these circumstances, evidence of oral statements is not relevant. See Frahm, 137 F.3d at 958; Sprague, 133 F.3d at 402-03. In In re Unisys, 58 F.3d at 906-07, the Third Circuit rejected a bilateral contract claim brought by early retirees because, as here, the early retirement program’s offering materials referred participants to plan documents which, in turn, contained reservation of rights clauses. In Sprague, 133 F.3d at 402-03, the Sixth Circuit reached the same conclusion with regard to a bilateral contract claim under a set of facts that was more favorable to plaintiffs than are those presented here. Therefore, we grant summary judgment in favor of CNA with respect to count IV.
III. The Seventh Circuit “
|
11,143,657
| 11,776,370
|
2000-12-28
|
United States District Court for the Northern District of Illinois
|
Vallone v. CNA Financial Corp.
|
Vallone v. CNA Financial Corp., 128 F. Supp. 2d 1131 (2000)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_13
|
could not have reasonably relied on the mailings from TWA in light of her easy access to convenient ways of ascertaining the true facts about her medical coverage
|
”); Sprague, 133 F.3d at 403-04; In re Unisys, 58 F.3d at 907-08; see also Coker, 165 F.3d at 586 (holding that plaintiff “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_23
|
(1) knowing misrepresentation; (2) made in writing; (3) with reasonable rebanee on that misrepresentation by the plaintiff; (4) to [his] detriment.
|
Curcio v. John Hancock Mut. Life Ins. Co., 33 F.3d 226, 235 (3d Cir.1994). The court will consider whether Brant has generated genuine issues of material fact under either theory.
i. In its consideration of an “estoppel” claim founded on alleged misrepresentation by a plan fiduciary, the Seventh Circuit Court of Appeals explained that such a claim has the following elements: “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_21
|
[a] claim will not be for every false statement reasonably and detrimen-taby relied upon by an unwitting plaintiff.
|
However, the court also explained that such “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_5
|
[Arguments that negligent misrepresentations ‘estop’ sponsors or administrators from enforcing the plans’ written terms have been singularly unsuccessful.
|
Rather, as the Seventh Circuit Court of Appeals has explained,
“
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_15
|
[t]o the extent that the common law will sometimes hold parties to the terms of a misleading representation for no reason other than the circumstance that such a misleading representation was made, such is not the common law of ERISA in this Circuit.
|
[Decatur Mem’l Hosp. v. Connecticut Gen. Life Ins. Co., 990 F.2d 925, 926-27 (7th Cir.1993);] Thus, “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_13
|
in light of her easy access to convenient ways of ascertaining the true facts about her medical coverage.
|
In Coker, the court rejected the plaintiffs estoppel claim based on misrepresentation, affirming the district court’s summary judgment ruling, because, even assuming the plaintiff detrimentally relied on written representations from her spouse’s former employer that she had insurance coverage, based on insurance cards received in the mail more than a year after her spouse’s employment ceased, that reliance was not “reasonable,” “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_19
|
it defies common sense to think that a company for which one was not presently working, that was not paying a current wage or salary, and that had (as of then) made no promise of reinstatement, would continue indefinitely to afford health coverage for the spouse of a former employee,
|
The court also held that any reliance on supposed representations of coverage, under the circumstances, was “too farfetched to believe,” because “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_11
|
because there was no hint that [the employer] intentionally set out to mislead her or anyone else.
|
The court also held that any reliance on supposed representations of coverage, under the circumstances, was “too farfetched to believe,” because “it defies common sense to think that a company for which one was not presently working, that was not paying a current wage or salary, and that had (as of then) made no promise of reinstatement, would continue indefinitely to afford health coverage for the spouse of a former employee,” and because the insurer had made specific disclaimers of any judgment about eligibility or coverage when it provided prior certification of the plaintiffs hospitalizations. The court also rejected the claim, “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_14
|
[a]t worst, [the employer] was guilty of bureaucratic sloppiness when it did not delete the [plaintiffs] from the rolls of active health plan participants after 12 months had elapsed and instead sent them new prescription and insurance benefit cards.
|
Rather, the court found that, “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_23
|
reasonable reliance on that misrepresentation by the plaintiff’ and that the reliance was “to [his] detriment
|
Curcio, 33 F.3d at 237; and compare Coker, 165 F.3d at 585 (stating as two separate elements “
|
9,425,233
| 11,776,370
|
2002-04-08
|
United States District Court for the Northern District of Iowa
|
Brant v. Principal Life & Disability Insurance
|
Brant v. Principal Life & Disability Insurance, 195 F. Supp. 2d 1100 (2002)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_13
|
easy access to convenient ways of ascertaining the true facts
|
Curcio, 33 F.3d at 237. Here, a reasonable reading of the record is that Brant gave up the opportunity to convert his group life insurance to an individual insurance policy, as suggested in the August 10, 1995, letter from Principal Life, because he believed that ASE had made a different representation about coverage without contributions in the April 17, 1995, letter. Thus, there are genuine issues of material fact as to whether Brant rebed to his detriment on the April 17, 1995, letter. The Coker decision suggests that rebanee is not “reasonable” if the plaintiff had “
|
9,454,908
| 11,776,370
|
2001-12-20
|
United States District Court for the Northern District of Illinois
|
Dabertin v. HCR Manor Care, Inc.
|
Dabertin v. HCR Manor Care, Inc., 177 F. Supp. 2d 829 (2001)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_23
|
(1) a knowing misrepresentation; (2) made in writing; (3) with reasonable reliance on that misrepresentation by the plaintiff; (4) to [his] detriment.
|
The record demonstrates that the Committee members understood that they had a duty to act in the best interests of all Plan participants:
Q. What did you understand your general responsibilities [as a Committee member] to be?
A. Well, I understood that my general responsibility as a member of the Committee was to the participants in the Plan.
Ormond Dep. at 75:21-76:10; see also O’Brien Dep. at 58:17-59:7 (same). Therefore, because the record demonstrates that the Committee members knew that they had a duty to act in the interests of all beneficiaries, the court finds Plaintiffs argument unavailing. Moreover, Plaintiff has offered no evidence to support her claim.
F. Defendants Are Not Estopped From Claiming That The Committee Is The Plan Administrator.
Plaintiff argues that Defendants are estopped from claiming that the Committee was the Plan Administrator. Pl.’s Mem. at 12. Plaintiff claims that her attorney, Mr. Denis, asked Mr. Bixler if there was a Plan Administrator and Mr. Bixler stated in writing that there was no Plan Administrator.
Under ERISA, estoppel consists of “
|
2,187,846
| 11,776,370
|
2004-07-29
|
United States Court of Appeals for the Seventh Circuit
|
Bradley v. Alton & Southern Railway Co.
|
Bradley v. Alton & Southern Railway Co., 106 F. App'x 499 (2004)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_2
|
growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions.
|
” To effect that goal, the RLA provides for mandatory arbitration of all disputes “
|
8,927,579
| 11,776,370
|
2005-09-06
|
United States Court of Appeals for the Seventh Circuit
|
Hess v. Reg-Ellen Machine Tool Corp.
|
Hess v. Reg-Ellen Machine Tool Corp., 423 F.3d 653 (2005)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_7
|
matter of federal common law in at least some ERISA cases
|
The Hesses claim that Lewellen was the plan administrator at that time and that they relied on his interpretation of section 4.12(i) to their detriment — specifically, they claim that if they had known that Turner would refuse their request to diversify, they would have requested a rollover or a distribution under other plan provisions.
The district court rejected the estoppel claim because the Hesses had failed to present it to the administrative committee. Additionally, the district court noted that it was doubtful whether an oral promise could form the basis of an estoppel claim under ERISA and pointed out that any reliance on Lewellen’s promises would not be “reasonable” since the meaning of section 4.12(f) was disputed.
In their opening brief, the Hesses take issue with the court’s observations about whether an oral promise can support an estoppel claim and whether their reliance on Lewellen’s assurances was reasonable. They ignore, however, the district court’s primary ground for rejecting the estoppel claim — their failure to make it to the appeal committee. This omission dooms their estoppel claim. See Senese v. Chicago Area I.B. of T. Pension Fund, 237 F.3d 819, 823 (7th Cir.2001) (appellant’s failure to challenge independent, alternate ground offered by district court results in waiver of challenge to alternate ground and affirmance on that basis). See Firestone, 489 U.S. at 110-11, 109 S.Ct. 948 (articulating requirement that courts develop a body of federal common law of rights and obligations under ERISA-regulated plans); Coker v. Trans World Airlines, Inc., 165 F.3d 579, 585 (7th Cir.1999) (recognizing estoppel as a “
|
8,931,057
| 11,776,370
|
2005-08-26
|
United States Court of Appeals for the Seventh Circuit
|
Brosted v. Unum Life Insurance Co. of America
|
Brosted v. Unum Life Insurance Co. of America, 421 F.3d 459 (2005)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_5
|
[arguments that negligent misrepresentations ‘estop’ sponsors or administrators from enforcing the plans’ written terms have been singularly unsuccessful
|
”
Brosted counters by arguing that even if he were disabled for purposes of the Plan, there was still a factual dispute as to whether he could still do his job at Dreis-ilker with a reasonable accommodation. However, even if true, Brosted’s claim still fails because to prevail on an equitable estoppel claim, among other things, Brost-ed must establish a knowing misrepresentation by the defendant. See also Decatur Memorial Hosp. v. Connecticut Gen. Life Ins. Co., 990 F.2d 925, 926-27 (7th Cir.1993) (stating that “
|
5,603,821
| 11,776,370
|
2007-10-15
|
United States District Court for the Northern District of Illinois
|
Jacobs v. Xerox Corp. Long Term Disability Income Plan
|
Jacobs v. Xerox Corp. Long Term Disability Income Plan, 520 F. Supp. 2d 1022 (2007)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_12
|
have held that the estoppel doctrine does not override the rule forbidding oral modifications to an ERISA plan.
|
(D.E. 74 at 3-4.) Because Ms. Glaser did not subsequently send Mr. Faraci the plan documents, Ms. Glaser’s statement to Mr. Faraci will be treated for present purposes as a putative misrepresentation sufficient for the first element of estoppel.
However — and the Court will discuss this further — the Court does not find that the evidence shows that Ms. Glaser misrepresented that she was the Plan Administrator, or, as was described by Judge Posner in Jones, that she told Mr. Faraci to “forget about” the plan administrator and to “direct all his document requests” to her. See id., 16 F.3d at 144. Mr. Faraci remembers very little of the March 18, 2002 Conversations — his testimony at the hearing was drawn from his subsequent letters. (Tr. at 15.) Mr. Faraci’s letters of March 26, April 10, and May 8, 2002 do not in any way indicate or even suggest that Ms. Glaser told Mr. Faraci that she was the Plan Administrator or that he should only correspond with her regarding the Plan documents. (Pl.Exs.35.) Moreover, Mr. Faraci specifically testified that he did not remember Ms. Glaser stating that she represented the Plan Administrator. (Tr. at 30.) Therefore, the Court concludes that the only potential misrepresentation at issue was that Ms. Glaser would forward along the Plan documents. See, e.g., Coker v. Trans World Airlines, Inc., 165 F.3d 579, 585 (7th Cir. 1999) (reviewing the law governing estoppel claims under ERISA and collecting a number of cases that “
|
5,603,821
| 11,776,370
|
2007-10-15
|
United States District Court for the Northern District of Illinois
|
Jacobs v. Xerox Corp. Long Term Disability Income Plan
|
Jacobs v. Xerox Corp. Long Term Disability Income Plan, 520 F. Supp. 2d 1022 (2007)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_15
|
[t]o the extent that the common law will sometimes hold parties to the terms of a misleading representation for no reason other than the circumstance that such a misleading representation was made, such is not the common law of ERISA in this Circuit.
|
(“Bock does not prevail on an estoppel theory because there was no showing of detrimental reliance”); Gallegos, 210 F.3d at 811 (rejecting plaintiffs ERISA estoppel argument, where the plaintiff “ha[d] not demonstrated that she relied on UNUM’s [the insurer’s] representations to her detriment.... ”); see generally Thomason v. Aetna Life Ins. Co., 9 F.3d 645, 649 (7th Cir.1993) (discussing the application of waiver and estoppel in ERISA cases and stating that “
|
6,049,348
| 11,776,370
|
2012-01-31
|
United States Court of Appeals for the Fifth Circuit
|
Ballew v. Continental Airlines, Inc.
|
Ballew v. Continental Airlines, Inc., 668 F.3d 777 (2012)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_10
|
The distinguishing feature of [a minor dispute] is that the dispute may be conclusively resolved by interpreting the existing agreement.
|
Mitchell v. Cont’l Airlines, Inc., 481 F.3d 225, 230-31 (5th Cir.2007) (citing Consol. Rail Corp. v. Ry. Labor Execs.’Ass’n, 491 U.S. 299, 302-03, 109 S.Ct. 2477, 105 L.Ed.2d 250 (1989)); see also 45 U.S.C. § 184 (requiring air carriers and unions to establish arbitral boards for the resolution of “disputes between an employee or group of employees and a carrier or carriers by air growing out of grievances, or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions... ”). At the crux of the issue here, the RLA requires minor disputes that cannot be settled through internal grievance procedures to be resolved through a mandatory, exclusive, and comprehensive resolution process before a claims adjustment board established by the employees’ union and the employer through the CBA.
“
|
6,049,348
| 11,776,370
|
2012-01-31
|
United States Court of Appeals for the Fifth Circuit
|
Ballew v. Continental Airlines, Inc.
|
Ballew v. Continental Airlines, Inc., 668 F.3d 777 (2012)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_8
|
Nothing in this title shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States ... or any rule or regulation issued under any such law.
|
Id. at 320-21 (citing Hawaiian Airlines, 512 U.S. at 258, 114 S.Ct. 2239). Judge Elrod agreed that the particular dispute was not arbitrable, but she employed a different rationale. Id. at 325 (Elrod, J., concurring). She determined that the dispute was minor but that the RLA allows parties to exclude some minor disputes from arbitration. Id.
The issue presented here is slightly different: whether parties to a CBA can choose to include disputes within the RLA’s dispute resolution process, yet evade the exclusivity of RLA arbitration by expressly providing for judicial review of System Board decisions. We conclude that they cannot.
Retirees contend that their pension plan, and its concomitant integration into the CBA, provides for ERISA relief after an adverse decision by the Retirement Board. Indeed, the CBA’s terms provide as much, clearly contemplating the ability of a claimant to sue under ERISA § 502. 29 U.S.C. § 1144(d) (“Nothing in this title shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States... or any rule or regulation issued under any such law.
|
6,049,348
| 11,776,370
|
2012-01-31
|
United States Court of Appeals for the Fifth Circuit
|
Ballew v. Continental Airlines, Inc.
|
Ballew v. Continental Airlines, Inc., 668 F.3d 777 (2012)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_0
|
preemption is not the applicable doctrine under these circumstances, since the question whether one federal law takes precedence over another does not implicate the Supremacy Clause.
|
Id. (internal quotes omitted). In fact, this circuit generally only considers three possible grounds for judicial review of an arbitral decision: (1) whether the Board failed to comply with the RLA's requirements; (2) whether the Board failed to confine itself to matters within the scope of its jurisdiction; and (3) whether the Board’s decision was the result of fraud or corruption. See, e.g., Mitchell, 481 F.3d at 231 (citing Cont’l Airlines, Inc. v. Int’l Bhd. of Teamsters, 391 F.3d 613, 617 (5th Cir.2004)). We have, however, considered a fourth line of review grounded in redressing violation of a party’s due process rights. See, e.g., id. (citing Bhd. of Locomotive Eng’rs v. St. Louis Sw. Ry. Co., 757 F.2d 656, 661 (5th Cir. 1985)). Retirees do not suggest that their claim falls under this narrow scope of judicial review and we thus assess only whether their pension claim is a "minor” dispute subject to exclusive and final System Board resolution.
4
. CareFlite was decided by a quorum with Judges Dennis and Elrod agreeing on the judgment but not the rationale.
5
. Lest there be any confusion, Bonin makes clear that Systems Boards and Plan Administrators are distinct entities; the former instituted by the RLA and the latter by ERISA. Although the parties sometimes refer to RLA preemption of ERISA claims, "
|
3,687,277
| 11,776,370
|
2009-12-21
|
United States District Court for the Northern District of Illinois
|
Hughes v. United Air Lines, Inc.
|
Hughes v. United Air Lines, Inc., 675 F. Supp. 2d 907 (2009)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_2
|
grow out of grievances or out of the interpretation or application of agreements covering rates of pay, rules, or working conditions,
|
In contrast, “minor disputes” are ones that “
|
3,687,277
| 11,776,370
|
2009-12-21
|
United States District Court for the Northern District of Illinois
|
Hughes v. United Air Lines, Inc.
|
Hughes v. United Air Lines, Inc., 675 F. Supp. 2d 907 (2009)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_22
|
courts should characterize a dispute as minor if it is even ‘arguably justified’ that the dispute turns on the application of the CBA.
|
The Seventh Circuit has also instructed that “
|
3,776,449
| 11,776,370
|
2012-02-15
|
United States District Court for the Northern District of Illinois
|
Mugnai v. Kirk Corp.
|
Mugnai v. Kirk Corp., 843 F. Supp. 2d 858 (2012)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_23
|
(1) a knowing misrepresentation; (2) made in writing; (3) reasonable reliance on that misrepresentation by the plaintiff; and (4) that the reliance was to the plaintiffs detriment.
|
Street v. Ingalls Mem’l Hosp., No. 06-2963, 2007 WL 844619, at *6 (N.D.Ill. Mar. 15, 2007) (rejecting plaintiffs argument that Knudson and Sereboff v. Mid Atlantic Med. Servs., Inc., 547 U.S. 356, 126 S.Ct. 1869, 164 L.Ed.2d 612 (2006), do not apply to cases in which a beneficiary brings forth a breach of fiduciary duty claim pursuant to Section 502(a)(3)).
B. Group B Plaintiffs’ promissory estoppel claims against the Trustees
In Count I of their cross claims, Group B Plaintiffs bring a promissory estoppel claim pursuant to Section 502(a)(3) against the Trustees. To prevail on an estoppel claim under ERISA, regardless of whether it is construed as “estoppel,” “equitable estoppel,” or “promissory estoppel,” the Seventh Circuit requires that a plaintiff demonstrate extreme circumstances and show: “
|
3,776,449
| 11,776,370
|
2012-02-15
|
United States District Court for the Northern District of Illinois
|
Mugnai v. Kirk Corp.
|
Mugnai v. Kirk Corp., 843 F. Supp. 2d 858 (2012)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_16
|
have not employed a consistent nomenclature when speaking of the estoppel-based cause of action that [it] recognized in the ERISA context
|
Pearson v. Voith Paper Rolls, Inc., 656 F.3d 504, 509 (7th Cir.2011); see also Coker v. Trans World Airlines, Inc., 165 F.3d 579, 585 (7th Cir.1999) (noting that the Seventh Circuit’s cases “
|
3,776,449
| 11,776,370
|
2012-02-15
|
United States District Court for the Northern District of Illinois
|
Mugnai v. Kirk Corp.
|
Mugnai v. Kirk Corp., 843 F. Supp. 2d 858 (2012)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_7
|
recognized a form of estoppel as a matter of federal common law in at least some ERISA cases.
|
Regarding Defendants’ first argument, the Seventh Circuit has “
|
3,776,449
| 11,776,370
|
2012-02-15
|
United States District Court for the Northern District of Illinois
|
Mugnai v. Kirk Corp.
|
Mugnai v. Kirk Corp., 843 F. Supp. 2d 858 (2012)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_9
|
a concern for the actuarial soundness of the ERISA plan.
|
The Seventh Circuit then noted that the reason courts were ordinarily reluctant to apply estoppel principles to ERISA cases was “
|
3,776,449
| 11,776,370
|
2012-02-15
|
United States District Court for the Northern District of Illinois
|
Mugnai v. Kirk Corp.
|
Mugnai v. Kirk Corp., 843 F. Supp. 2d 858 (2012)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_4
|
claims for benefits under unfunded single-employer welfare benefit plans[.]
|
Noting that “[t]here are two types of ERISA plans: pension plans, which are funded and have strict vesting and accrual requirements; and welfare plans... which have no such requirements.. [and for which] there is no need for concern about the Plan’s actuarial soundness[,]” the Seventh Circuit then held that estoppel principles were applicable to “
|
3,639,747
| 11,776,370
|
2008-02-22
|
United States Court of Appeals for the Eighth Circuit
|
Hastings v. Wilson
|
Hastings v. Wilson, 516 F.3d 1055 (2008)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_2
|
disputes ... growing out of ... the interpretation or application of [collective bargaining] agreements concerning rates of pay, rules, or working conditions.
|
Kohl v. Casson, 5 F.3d 1141, 1148 (8th Cir.1993) (stating the standard of review regarding an appeal from the grant of a Rule 12(b)(6) motion); Osborn v. United States, 918 F.2d 724, 729 n. 6 (8th Cir.1990) (finding that “the non-moving party receives the same protections [for facial attacks under 12(b)(1) ] as it would defending against a motion brought under Rule 12(b)(6)”).
A. The IAM Plan
Congress expanded the RLA to the airline industry to promote stability in labor-management relations between carriers by air and their employees. 45 U.S.C. §§ 151a, 181, 184; Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994). To accomplish this goal, the RLA requires parties to arbitrate all “minor disputes” before an adjustment board, which Congress authorized to settle labor-management disputes regarding collective bargaining agreements in the airline industry. Minor disputes involve “disputes... growing out of... the interpretation or application of [collective bargaining] agreements concerning rates of pay, rules, or working conditions.
|
3,639,747
| 11,776,370
|
2008-02-22
|
United States Court of Appeals for the Eighth Circuit
|
Hastings v. Wilson
|
Hastings v. Wilson, 516 F.3d 1055 (2008)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_2
|
disputes ... growing out of ... the interpretation or application of agreements concerning rates of pay, rules, or working conditions
|
Id. (citing Bhd. of Locomotive Eng’rs v. Louisville & Nashville R.R., 373 U.S. 33, 39, 83 S.Ct. 1059, 10 L.Ed.2d 172 (1963)).
Hastings and Karpiuk assert that Congress did not intend the RLA’s mandatory arbitration scheme to apply to ERISA claims. However, this court has held that the RLA’s arbitration requirement applies to ERISA claims if the pension plan is (1) itself a collective bargaining agreement or (2) maintained pursuant to a collective bargaining agreement. Id. Hastings and Kar-piuk do not dispute that the IAM Equity Agreement, the IAM Trust Agreement and the merger agreement constitute collective bargaining agreements and that the IAM Plan was maintained pursuant to them. Therefore, the RLA’s arbitration requirement can apply to these ERISA claims. See id. at 972-73 (holding that “disputes... growing out of... the interpretation or application of agreements concerning rates of pay, rules, or working conditions” constitute minor disputes within the exclusive jurisdiction of the RLA’s arbitration board).
|
3,639,747
| 11,776,370
|
2008-02-22
|
United States Court of Appeals for the Eighth Circuit
|
Hastings v. Wilson
|
Hastings v. Wilson, 516 F.3d 1055 (2008)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_0
|
[p]re-emption is not the applicable doctrine under these circumstances, since the question whether one federal law takes precedence over another does not implicate the Supremacy Clause.
|
Fallick v. Nationwide Mut. Ins. Co., 162 F.3d 410, 422 (6th Cir.1998); accord Forbush v. J.C. Penney Co., 994 F.2d 1101, 1105-06 (5th Cir.1993). Our circuit has not adopted this rule, and we need not decide whether to adopt such a rule at this time. Because the district court does not have subject matter jurisdiction over the breach of fiduciary duty claims involving the IAM Plan, Hastings and Karpiuk cannot rely on those claims to establish standing for similar causes of action brought on behalf of the Pilot Plan participants and beneficiaries. As a result, Hastings and Karpiuk must have standing to pursue their breach of fiduciary duty claims involving the Pilot Plan and cannot rely on Fallick and Forbush to obtain such standing. See Hall v. Lhaco, Inc., 140 F.3d 1190, 1196 (8th Cir.1998) (holding that an individual who lacks standing to pursue a claim under one ERISA benefit plan cannot obtain standing over that same plan through a class action lawsuit). Because Hastings and Karpiuk were not participants, beneficiaries or fiduciaries of the Pilot Plan, the district court correctly held that Hastings and Karpiuk lacked standing to bring claims on behalf of the Pilot Plan participants and beneficiaries.
III. CONCLUSION
Because we conclude that the district court did not err in granting the motions to dismiss, we affirm.
1
. The Honorable Richard H. Kyle, United States District Judge for the District of Minnesota. Although the district court stated that the RLA preempted the ERISA claims, "
|
4,224,428
| 11,776,370
|
2013-04-22
|
United States District Court for the Northern District of Illinois
|
Schatzel v. Central States Southeast & Southwest Areas Pension Fund
|
Schatzel v. Central States Southeast & Southwest Areas Pension Fund, 941 F. Supp. 2d 999 (2013)
|
1999-01-15
|
United States Court of Appeals for the Seventh Circuit
|
Coker v. Trans World Airlines, Inc.
|
Coker v. Trans World Airlines, Inc., 165 F.3d 579 (1999)
|
11776370_23
|
(1) a knowing misrepresentation; (2) made in writing; (3) with reasonable reliance on that misrepresentation by the plaintiff; (4) to [his] detriment.
|
Article IV of the plan sets out the relevant criteria that a participant must meet to be eligible for the eight types of benefits that may be paid as partial pensions. Under the clear language of the plan, Schatzel did not satisfy the criteria for any of them. In particular, he did not satisfy the criteria for an “early retirement pension” as the Central States plan defines it. This provision permits a participant who is under fifty years old at the time he stops working in covered service to receive a pension only if he has at least thirty years of service credit. It is undisputed that Schatzel did not satisfy this requirement.
In assessing Schatzel’s claim, the trustees identified the relevant provisions of the plan that barred his claim and explained to him the reasons that they were denying the claim. For this and the other reasons just described, the Court concludes that no reasonable fact finder could conclude that the trustees’ decision to deny his claim was arbitrary or capricious. See Hess v. Reg-Ellen Mach. Tool Corp., 423 F.3d 653, 658 (7th Cir.2005) (court should not set aside denial of benefits if based on any reasonable interpretation of a plan).
Schatzel alternatively argues that even if the trustees’ decision was not arbitrary and capricious, the trustees are estopped from denying him a pension because Central States’s July 14, 1989 affidavit of service was a promise to him that he had earned 4 3/12 service years that would go toward a reciprocal pension with Western Pennsylvania. Schatzel contends that he relied on that representation to his detriment and that Central State reasonably could have expected its representation in the affidavit to induce Schatzel’s actions.
Under federal common law, an ERISA plaintiff seeking to invoke promissory or equitable estoppel against a defendant must show: “
|
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