Appendix — Johnson v. United States

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00-847 oct 2-200

No. ngFic’ QE Idk GRENS

IN THE

Supreme Court of the United States

WILLIAM H.JOHNSON, and

LINDA L.JOHNSON,

Petitioners,

Vv.

UNITED STATES OF AMERICA

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

- For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

Separate Appendix

William H. and Linda L.Johnson

5158 East Ponce de Leon Ave.

Apartment T

Stone Mountain , Georgia 30083

Telephone: 404/299-7430

7 > ated

App. 63

CONSTITUTION

OF THE

UNITED STATES OF AMERICA

AMENDMENT 5

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentation or

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in

actual service in time of Was or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself; nor be deprived of life, liberty, or property,

without due process of law; nor shall private

property be taken for public use, without just

compensation. (emphasis added)

S U.S.C. Section 301. Departmental regulations

The head of an Executive department or military

department may prescribe regulations for the

government of his department, the conduct of its

employees, the distribution and performance of its

business, and the custody, use, and preservation of its

records, papers, and property. This section does not

authorize withholding from the public or limiting the

availability of records to the public.

App. 64

5 U.S.C. Section 552 (A) (4) (B)

On complaint, the district court of the United States in

the district in which the complainant resides, or has

his principal place of business, or in which the agency

- records are situated. or in the District of Columbia,

has jurisdiction to enjoin the agency from withholding

agency records and to order the production of any

agency records improperly withheld from the

complainant. In such a case the court shall determine

the matter de novo, and may examine the contents of

such records in camera to determine whether such

records or any part thereof shall be withheld under

any of the exemptions set forth in subsection (b) of

this section, and the burden is on the agency to

sustain its action.

18 U.S.C. Section 241. Conspiracy against rights

If two or more persons conspire to injure, oppress,

threaten, or intimidate any inhabitant of any State,

Ternitory, or District in the free exercise or enjoyment

of any might or privilege secured to him by the

Constitution or laws of the United States, or because

of his having so exercised the same: or if two or more

persons go in disguise on the highway, or on the

premises of another, with intent to prevent or hinder

his free exercise or enjoyment of any right or privilege

so secured - -

They shall be fined not more than $10,000 or

imprisoned not more than ten years, or both: and if

death results, they shall be subject to imprisonment

for any term of years or for life.

App. 65

18 U.S.C. Section 2071. Concealment, removal, or

mutilation generally

(a) Whoever willfully and unlawfully conceals,

removes, mutilates, obliterates, or destroys, or

attempts to do so, or, with i.tent to do so takes and

carries away any record, proceeding, map, book,

paper, document, or other thing, filed or deposited

with any clerk or officer of any court of the United

States, or in public office, or with any judicial or public

officer of the United States, shall be fined not more

than $2,000 or imprisoned not more than three years,

or both.

.(b) Whoever, having the custody of any such record,

proceeding, map, book, document, paper, or other

thing, willfully and unlawfully conceals, removes,

mutilates, obliterates, falsifies, or destroys the same,

shall be fined not more than $2,000 or imprisoned not

more than three years, or both; and shall forfeit his

office and be disqualified from holding any office under

the United States.

26 U.S.C. Section 6212 Notice of deficiency.

(a) Im general. If the Secretary determines that there

is a deficiency in respect of any tax imposed by

subtitle A or B or chapter 41, 42, 43 or 44, he is

authorized to send notice of such deficiency tu the

taxpayer by certified mail or registered mail.

.(b) (2) Joint income tax return. In the case of a

joint income tax return filed by husband and wife,

such notice of deficiency may be a single notice, except

that if the Secretary has been notified by either spouse

App. 66

that separate residences have been established, then,

in heu of the single joint notice, a duplicate original of

the joint notice shall be sent by certified mail or

registered mail to each spouse at his last known

address.

26 U.S.C. Section 6213. Restrictions applicable to

deficiencies; petition to Tax Court.

(a) Time for filing petition and restriction on

assessment. In part, within 90 days after the notice of

deficiency authorized in section 6212 is mailed, the

taxpayer may file a petition with the Tax Court for

redetermination of the deficiency. Except as otherwise

provided in section 6851, 6852, or 6861 no

assessment of a deficiency in respect of any tax

imposed by subutle A or B, chapter 41, 42, 43, or 44

and no levy or proceeding in court for its collection

shall be made, begun, or prosecuted until such notice

has been mailed to the taxpayer, nor until the

expiration of such 90-day period, nor if a petition has

been filed with the Tax Court, until the decision of the

Tax Court has become final.

26 U.S.C. Section 6501. Limitations on assessment

and collection.

.(a) General rule- Except as otherwise provided in this

section, the amount of any tax imposed by this title

shall be assessed within 3 years after the return was

filed, etc.

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App. 67

26 U.S.C. Section 7422 Civil actions for refund.

.(a) No suit prior to filing claim for refund. No suit

or proceeding shall be maintained in any court for the

recovery of any internal revenue tax alleged to have

been erroneously or illegally assessed or collected, or

of any penalty claimed to have been collected without

authority, or any sum alleged to have been excessive

or in any manner wrongfully collected, until a claim for

refund or credit has been filed with the Secretary,

according to the provisions of law in regard, and the

regulations of the Secretary established in pursuance

thereof.

26 U.S.C. Section 7433 Civil damages for certain

unauthorized collection actions.

(a) In general. If, in connection with any collection of

Federal tax with respect to a taxpayer, any officer or

employee of the Internal Revenue Service recklessly or

intentionally disregards any provision of this title, or

any regulation promulgated under this title, such

taxpayer may bring a civil action for damages against

the United States in a district court of the United

States. Except as provided in section 7432, such civil

action shall be the exclusive remedy for recovering

damages resulting from such actions.

.(d) Limitations. (1) Requirement that

administrative remedies be exhausted. A judgment

for damages shall not be awarded under subsection (b)

unless the court determines that the plaintiff has

exhausted the administrative remedies available to

such plaintiff within the Internal Revenue Service.

App. 68

(2) Mitigation of damages. The amount of damages

awarded under subsection (b)(1) shall be reduced by

the amount of such damages which could have

reasonable been mitigated by the plaintiff.

(3) Period for bringing action. Notwithstanding any

other provision of law, an action to enforce liability

created under this section may be brought without

regard to the amount in controversy and brought only

within 2 years after the date the nght of action

accrues.

Title 28

Judicial Administration

Chapter I - DEPARTMENT OF JUSTICE

Part 50 - STATEMENTS OF Policy

Order No. 530-73

Policies With Regard to the Defense of Civil

Actions Under the Freedom Of Information Act and

the Functions of the Freedom of Information

Committee

Under and by virtue of the authority vested in me

by section 509 of Title 28 of the United States Code,

Part SO of Title 28 of the Code of Federal Regulations

is amended by adding at the end thereof the following

new section:

Section 50.9 Policies with regard to the defense of

civil actions under the Freedom of Information Act and

the functions of the Freedom of Information

Committee.

App. 69

(a) No civil action against a federal agency under the

Freedom of Information Act, 5 U.S.C. 552, shall be

defended by the Civil Division, the Tax Division or any

other part of the Department of Justice unless the

Department’s Freedom of Information Committee has

been consulted by the agency, This does not preclude

the defense of a premature suit, brought before the

agency's final denial of the materials at issue, provided

that the agency as promptly as possible upon the filing

of the suit brings the matter before the Committee.

.(b) The Freedom of information Committee referred

to in this section is the committee of lawyers in the

Office of Legal Counsel and in the Civil Division which

was first established December 8, 1969. The functions

and current membership of the Committee are noted

in a memorandum from the Attorney General to the

heads of all agencies issued at the time of the adoption

of this section.

c) The Committee is instructed to make every

possible effort to advance the objective of the fullest

responsible disclosure. to this end, in connection with

its consultations with agencies that propose to issue

final denials under the Act, the committee shall , in

addition to advising the agency with respect to the

legal issues, invite the attention of the agency to the

range of public policies reflected in the Act, including

the central policy of the fullest responsible disclosure.

The Committee may also request assistance and make

studies and recommendations to carry out the intent

of this paragraph.

Dated: July 11, 1973.

Elliot L. Richardson,

Attorney General.

[FR Doc.73-14649 Filed 7-17-73; 8:45 am]

App. 70

28 U.S.C. Section 144. Bias or prejudice of judge

Whenever a party to any proceeding in a district court

makes and files a timely and sufficient affidavit that

the judge before whom the matter is pending has a

personal bias or prejudice either against him or in

favor of any adverse party, such judge shall proceed

no further therein, but another judge shall be assigned

to hear such proceeding.

The affidavit shall state the facts and the reasons for

the belief that bias or prejudice exists, and shall be

filed not less than ten days before the beginning of the

term [session] at which the proceeding is to be heard,

or good cause shall be shown for failure to file it within

such time. A party may file only one such affidavit in

any case. It shall be accompanied by a certificate of

counse! of record stating that it is made in good faith.

28 U.S.C. Section 455. Disqualification of justice,

judge, or magistrate

(a) Any justice, judge, or magistrate of the United

States shall disqualify himself in any proceeding in

which his impartiality might be reasonably be

questioned.

28 U.S.C. Section 1346. United states as defendant

.(a) The district courts shall have original jurisdiction,

concurrent with the United States Claims Court, of:

é

:

.

App. 71

(1) Any civil action against the United States for the

recovery of any internal- revenue tax alleged to have

been erroneously or illegally assessed or collected, or

any penalty claimed to have been collected without

authority or any sum to have been excessive or in any

manner wrongfully collected under the _ internal-

revenue laws;

26 C.F.R. Section 301.7433-1 Civil cause of action

for certain unauthorized collection actions.

g) Period of limitations - (1) Time for filing. A civil

action under paragraph (a) of this section must be

brought in federal district court within 2 years after

the date the cause of action accrues.

.(2) Right of action accrues. A cause of action under

paragraph (a) of this section accrues when the

taxpayer has had a reasonable opportunity to discover

all essential elements of a possible cause of action.

26 C.F.R. Section 601.105 THIRTY - day letters -

In an unagreed case, the district director sends to

the taxpayer a preliminary or “30-day letter” if any one

of the last three determinations is made (except full

allowance of a claim in respect of any tax). The 30-day

letter is a form letter which states the determination

proposed to be made. It is accompanied by a copy of

the examiner’s report explaining the basis of the

Of the proposed determination.

App. 72

taxpayer that if the taxpayer concurs in the

recommendation, he or she indicate agreement by

executing and returning a waiver or acceptance. The

preliminary letter also inforras the taxpayer of appeal

rights available if he or she disagrees with the

proposed determination. ‘i the taxpayer does not

respond to the letter within 30 days, a statutory notice

of deficiency will be issued or other appropriate action

taken, such as the issuance of a notice of adjustment,

the derial of a claim in income, profits, estate, and gift

tax cases, or an appropriate adjustment of the tax

liability or denial of a claim in excise and employment

tax cases.

26 C.F.R. Section 601.106. Appeals functions.

.(f)(1) Rule I. An exaction by the U.S. Government,

which is not based upon law, statutory or otherwise, is

a taking of property without due process of law, in

violation of the Fifth Amendment to the USS.

Constitution. Accordingly, an Appeals representative

in his or her conclusions of fact or application of the

law, shall hew to the law and the recognized standards

of legal construction. It shall be his or her duty to

determine the correct amount of the tax, with strict

impartiality as between the taxpayer and the

Government, and without favoritism or discrimination

as between taxpayers.

iii itiaiaiiiaiiaiueaiadi

App. 73

26 C.F.R. Section 601.702

.(b)(1) The IRS is required under 5 U.S.C. Section

952(a)(2) to make available for public inspection and

copying

__ (iti) sts administrative staff manuals that affect a

member ot the public.

.(b)(3) Public reading rooms

Each regional office of the IRS will provide a reading

room or reading area where the matters described in

paragraph (b)(1)(I) through (iii) of this section which

are required by such paragraph to be made available

for public inspection will be made available to the

public for inspection and copying.

.(b)(3)(iv) | Copies of the requested material may also

be mailed to such person by such office upon request.

If requested reading room material is not readily

available for inspection at the office where the request

is made, then the request will be referred by such

office to one of the reading rooms of the IRS.

.(e)(1) The IRS will make reasonable described

records available to a person making a request for

records which conforms in every respect with the rules

and procedures set forth in this subpart. This

paragraph applies only to records in being which are

in the possession or control of the IRS.

-(c)(2)(1) The request for such record will immediately

be transferred to the appropriate constituent unit and

the requester notified to that effect. Where the request

is for a record which is determined not to be in the

possession or control of any constituent unit of the

Dept. of the Treasury, the requester will be advised

and the request will be returned to the requester.

.(c)(3)(ixx) However, every effort will be made to

comply with the requests as written.

App. 74

26 C.F.R. Section 601.702 cont.

.(c)(4)(i)(A) The requester shall be afforded an

opportunity to refine his request. Such opportunity

may, where desirable, involve a conference with

knowledgeable IRS personnel.

.(c)(4)(i)(A) The reasonable description requirement

will not be used by officers or employees of the IRS as

a device for improper withholding records from the

public.

.(c)(4)(i)(B) |The IRS will make every reasonable effort

to comply fully with all requests for access to records

subject only to any applicable exemption.

.(c)(7)(i) The initial determination will be made and

notification thereof mailed within 10 days after the

date of receipt of the request.

.(c)(7) Denial of request.

(iii) | The person making the request will be notified

by mail and advise the person making the request of

the right to appeal to the Commissioner.

.(c)(8) Administrative appeal.

The Commissioner or his/her’ delegate will

acknowledge receipt of the appeal and advise the

requester of the date of receipt and when a response is

due in accordance with this paragraph.

.(c)(12) Preservation of records.

Under no circumstances shall records be destroyed

while they are the subject of a pending:request, appeal

or lawsuit under 5 U.S.C. Section 552. Re: Title 44

U.S.C.

App. 75

Section 1(15)59.26 Destruction of records.

.(a) Income Tax Returns by Individuals

.(b) Description of records and disposition

authorizations

.(¢) These records include the Forms 1040 series, with

related schedules, correspondence, audit reports,

workpapers and other documents attached to the

return or considered a part of the administrative file,

regardless of whether the documents are physically

with the return or maintained in an attachment file.

(d)(2) Returns in penalty file. Returns on which a

penalty of 50% or more has been assessed and cases

for which Criminal Investigation Division has

requested longer retention.

. (e)(2)(a) RETIRE to the federal Records Center July 1

through September 30 following the year in which

returns were numbered in penalty or supplemental

series.

-(f)(2)(b) DESTROY six years and nine months after

the end of the calendar year in which case closed.

Section 3(15)(185)0

IRP Substitute for Returns (SFR) Program, 103 pages

Section 3(15)(185)(12).1 Notice Issuance Criteria

(1) Statutory Notice of Deficiency procedures will be

employed when:

-(a) a response to Letter 1862 (C) is not received within

45(60) days (75 days for APO /FOP addresses and

those addresses outside the U.S.);

App. 76

.(b) an undelivered response that cannot be reissued

to a new address after using procedures in

3(15)(185)(10).2;

c) a remailed (undelivered that obtains a new

address) Letter 1862 (C) package which is not

ress onded to within 45(60) davs (75 days for APO/FPO

addresses and those addresses outside the U.S.);

(d) a remailed (undelivered) Letter 1862(C) package

is returned as being undeliverable to a new address

and all addresses found have been tried;

.(e) other correspondence issued in an attempt to

resolve missing data, etc., according to instructions in

3(15)(185)(10) is not responded to within 45 days (60

days for APO/FPO addresses and those outside the

U.S.).

(2) Statutory Notices of Deficiency will only be issued

when the

(entire line of print redacted)

according to instructions above.

3(15)(185)(13).4 Undelivered Statutory Notices

.(1) When a Statutory Notice of Deficiency is returned

by the Post Office as undeliverable, first check IDRS to

see if a change of address has occurred due to the

posting of a subsequent year’s tax return or other

activity.

(2) If a mew address is found, prepare a new

Statutory Notice of Deficiency, using the new address

following the instructions in 3(15)(185)(12).2 and

3(15)(185)(12).3 above.

(a) When remailing a statutory notice to a new

address, the address used must be noted in the case

file.

.(b) Place the original undelivered statutory notice in

the case file.

_

rs SEAN

App. 77

(3) If a new address is not found by (1) above, check

the case file to see if any other address (which has not

been used already) exists. Follow undeliverable

instructions in 3(15)(185)(10).2 above whenever

possible (i.e., the Letter 1862(C) was not responded to

nor returned undeliverable).

(a) If a new address is found, prepare a new statutory

notice. Follow 3(15)(185)(12).2 and 3(15)(185)(12).3

Instructions.

.(b) If a new address is found, the assessment will be

made after the Statutory Notice of Deficiency suspense

period has expired.

.(4) Whenever a new notice is issued, make sure to

update the IDRS control base. Also note the case file.

Section 4243.2 Undeliverable Mail

(1) When Examination employees issue notices or

letters concerning examinations to addresses that are

no longer valid, no one benefits. The taxpayer is not

being treated fairly, and in many cases the

undeliverable mail may generate an _ uncollectible

account or an audit reconsideration.

(2) Each time correspondence is_ returned

undeliverable a determination as to the taxpayer's

correct address is to be made.

(3) Research for the correct address will consider

inhouse address information before requesting outside

locator services. Documentation of the research is

required and Form 8572 is available for this

documentation.

(4) Rev. Proc. 90-18 provides that the taxpayer’s

address for mailing a notice of deficiency is the last

known address. Etc.

App. 78

Disclosure of Official Information Handbook

Page 1272-151

Section (13)34 Making Transfers

.(1) Cases will be transferred to the office of proper

jurisdiction whenever the request contains some

indication that access to records located elsewhere is

desired or when research suggests that records could

be located in another office.

(2) A Disclosure Officer’s independent knowledge of

IRS institutional practices may also indicate that,

although no responsive records within his or her

office, there are responsive records in another office. In

such a case, the request will be transferred to that

office.

ADP and IDRS Information 1987, Document 6209

Document 6209 is provided as a handy reference

guide only. More detailed and current information can

be found in the appropriate Internal Revenue Manuals

or ADP Handbooks. Limited resources and book

format make on-going maintenance of this document

prohibitive.

Providing Document 6209 in bound format is the

most economical method for accommodating our

needs. The initial cost of changing from bound book to

loose-leaf would be prohibitive. Additionally, the costs

incurred in subsequent years would also be greater

than in bound format.

Document 6209 contains material of a sensitive

mature and therefore requires maximum

safeguards. (continued on next page)

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App. 79

Document 6209, continued. ( 390 pages )

In addition, security dictates that copies of the

Document 6209 carried by Revenue Officers and

others should not come apart easily as potential loss

would compromise “ Official Use Only” material.

App. 80

OCHOA v. HERNANDEZ, (1913), 230 U.S. at 139:

Even if the commanding officer in territory occupied by

military forces of the United States has all legislative

power as to such territory possessed by Congress, he

is still subject, as Congress is, to the provisions of the

Fifth Amendment and cannot by militay vurders

deprive persons of their property without due process

of law.

To shorten the period for acquisition of title by

prescription and give the order a retroactive effect so

that the period has elapsed at the time the order is

made without giving those who have interests in the

property an opportunity to be heard and saving no

existing rights, amounts to taking property without

due process of law.

Ochoa, at 161: Without the guaranty of “due

process” the nght of private property cannot be said to

exist, in the sense in which it is known to our laws.

The principle, known to the common law before Magna

Charta, was embodied in that chapter (Coke, 2 Inst.

45, 50), and has been recognized since the Revolution

as among the safest foundations of our institutions.

Whatever else may be uncertain about the definition of

the term “due process of law,” all authorities agree

that it inhibits the taking of one man’s property and

giving it to another, contrary to settled usages and

modes of procedure, and without notice or an

opportunity for a hearing.

Garfield v. United States, (1908) 211 U.S. 249, at

262: In the extended discussion which has been upon

the meaning and extent of constitutional protection

against action without due process of law, it has

always been recognized that one has acquired rights

by an administrative or judicial proceeding cannot be

deprived of them without notice and an opportunity to

be heard.

The right to be heard before property is taken or

App. 81

rights or privileges withdrawn, which have been

previously legally awarded, is the essence of due

process of law. It is unnecessary to recite the decisions

in which this principal has been repeatedly recognized.

It is enough to say that its binding obligation has

never been questioned in this Court.

Brandt v. Hickel, 427 F.2d 53 (1970( at 54: Due

process clause requires that notice must be

reasonably calculated to inform parties of

administrative proceedings which may directly and

adversely affect their legally protected interests.

Mathews v. Eldridge, 424 U.S. 319, at 333: This

Court consistently has held that some form of hearing

is required before an individual is finally deprived of a

property interest. The “right to be heard before being

condemned to suffer grievous loss of any kind, even

though it may not involve the stigma and hardships of

a criminal conviction, is a principal basic to our

society.” The fundamental requirement of due process

is the opportunity to be heard “at a meaningful time

and in a meaningful manner.” (citations omitted)

Bolling v. Sharpe, 347 U.S. 497 (1854): Though the

Fifth Amendment does not contain an equal protection

clause, as does the Fourteenth Amendment which

applies only to the States, the concepts of equal

protection and due process are not mutually exclusive.

P. 499. But the concepts of equal protection and due

process, both stemming from our American ideal of

fairness, are not mutually exclusive. The “equal

protection of the laws” is a more explicit safeguard of

prohibited unfairness than “due process of law,” and,

therefore, we do not imply that the two are always

interchangeable phrases. But, as this Court has

recognized, discrimination may be so unjustifiable as

to be violative of due process.

Although the Court has not assumed to define

“liberty” with any great precision, that term is not

App. 82

confined to mere freedom from bodily restraint. Liberty

under law extends to the full range of conduct which

the individual is free to pursue, and it cannot be

restricted except for a proper governmental objective.

Dent v. West Virginia, 129 U.S. 114, at 120: “The

third absolute right inherent in every Englishman is

that of property, which consists in the free use,

enjoyment and disposal of all his acquisitions without

any control or diminution save only by the law of the

land.”

From these authorities the conclusion is inevitable

that the terms life, liberty and property, as used in the

Constitution, were intended to comprehend every

right known to the law, which might in any manner

become the object of state oppression, and that a

man’s estate in his profession and the right to the

enjoyment of his acquired reputation are as certainly

included in the meaning of these terms as his lands

and chattels.

Dent, at 121: It is undoubtedly the right of every

citizen of the United States to follow any lawful calling,

business, or profession he choose, subject only to

such restrictions as are imposed upon all persons of

like age, sex and condition. This night may in many

respects be considered as a distinguishing feature of

our republican institutions. Here all vocations are

open to every one on like conditions. All may be

pursued as sources of livelihood, some requiring years

of study and great learning for their successful

prosecution. The interest, or, as it is sometimes

termed, the estate acquired in them, that is, the right

to continue their prosecutation, is often of great value

to the possessors, and cannot be arbitrarily taken

from them , any more than their real or personal

property can be thus taken.

U.S. v. Price, 383 U.S. 787, 800: The language of

Section 241 is plain and unlimited. As we have

saeeeeereerteacieite iii

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A a See Be calla te Oe Sly ey ile

App. 83

discussed, its language embraces all of the rights and

privileges secured to citizens by all of the Constitution

and all of the laws of the United States. Price, at 801:

We think that the history leaves no doubt that, if we

are to give Section 241 the scope that its origins

dictate, we must accord it a sweep as broad as its

language.

U.S. v. McDermott, 918 F.2d 319 at 325: As stated

in Uruted States v. Guest, 383 U.S. 745, decided on the

same day as Price, “when Section 24] speaks of ‘any

right or privilege secured by the Constitution or laws

of the United States,’ it means precisely that.” 383

U.S. at 753.

Walker v. U.S.,93 F.2d 383: The gist of the crime of

conspiracy to injure citizens in the exercise of a right

or privilege secured to them by Federal Constitution or

laws is the unlawful conspiracy (Cr. Code, Section 19,

18 U.S.C.A. Section 51., Walker, at 385: In

prosecution for conspiracy, much discretion is vested

in triai court with reference to admissibility of evidence

of circumstances, and ruling of trial court will

ordinarily be sustained if testimony which is admitted

tends in some degree to establish ultimate fact, or

makes evidence intelligible (Cr. Code, Section 19, 18

U.S.C.A.. Section 51.

U.S. v. Purvis, 580 F.2d 853, at 854: Government

must prove specific intent to deprive a citizen of

constitutional rights to sustain a conviction under

Statute imposing criminal sanctions for conspiring

against citizens. “Conspiracy” incorporates willfulness

and specific intent, and intent to accomplish an object

cannot be alleged more clearly than stating that

Parties conspired to accomplish it.

Luteran v. U.S., 93 F.2d 395,: Where proof of a

conspiracy has been established, a relatively slight

amount of evidence connecting accused therein is

sufficient to sustain conviction. Participation in

App. 84

formation of conspiracy is not essential to culpability,

if after it is formed, accused aid or abetted it with

understanding of its purpose. Evidence of conspiracy

must disclose something further than participation in

offense which is object of conspiracy at some stage of

its execution, for there must be proof of an unlawful

agreement, either express or implied. Where accused

aided conspirators, knowing, in a general way, their

purpose to brake the law, jury may infer that accused

entered into express or implied agreement with them.

Wilkins v. U.S., 376 F.2d 552, at 553: In civil nghts

conspiracy indictment, not only must specific intent to

interfere with federal mght be alleged but it must be

proven by evidence beyond reasonable doubt.

U.S. v. Morado, 454 F,2d 167: Statute prohibiting

conspiracy against rights of citizens does not require

that any overt act at all be shown.

U.S. v. Robinson, 503 F.2d 208: It is not necessary

that all or more than one of the conspirators

participate in a particular overt act of the conspiracy.

U.S. v. Skillman, 922 F.2d 1370: Once conspiracy is

established, defendant must only have connection to

link him with conspiracy; this slight connection may

be demonstrated by proof of defendant’s willful

participation in illegal objective with intent to further

some purpose of conspiracy.

U.S. v. Ellis, 595 F.2d 154, at 155: Proof of

conspiracy may rest on indirect or circumstantial

evidence; existence of conspiracy may be inferred from

evidence of related facts and circumstance from which

it appears, as a reasonable and logical inference, that

the activities of the participants in the criminal

venture could not have been carried on except as the

result of a preconceived scheme or common

understanding.; Ellis at 162: An act done in open

defiance or reckless disregard of the Constitutional

requirement which has been made specific and

App. 85

definite, may be found to have been willfully within the

meaning of the statute.

U.S. v. Redwine, 715 F.2d 315: Government need

not establish that there existed formal agreement to

conspire: circumstantial evidence and reasonable

inferences drawn _theref.om concerning the

relationship of the parties, their overt acts, and totality

of their conduct may serve as proof.

U.S. v. Callahan, 659 F.Supp. 80, at 84: Proof of

violation of Section 241 requires a showing of an

agreement with the specific intent to interfere with

exercise of a federal right, and at least one Overt act

taken to accomplish the intent of the conspiracy.

(citations omitted)

U.S. v. Anderson, 481 F.2d 685, at 697: An

unlawful conspiracy is presumed to continue until its

objective or purpose is achieved. (citations omitted)

U.S. v. Guillette, 547 F.2d 743, at 744: Defendant

need not be a member of the conspiracy from its

inception but may join later and incur liability for the

conspiracy’s unlawful act committed both before and

after his adoption of the conspiracy.

Cartello v. U.S., 93 F.2d 412, at 415: A conspiracy

is the gist of the offense, and that conspiracy must be

proven beyond a reasonable doubt, either by direct or

circumstantial evidence, or both. “But in conspiracy

cases, the unlawful combination, confederacy, and

agreement between two or more persons, that is, the

conspiracy itself, is the gist of the action, and is the

corpus delicti charged. It is, therefore, primarily

essential to establish the existence of a confederation

Or agreement between two or more persons before a

conviction for conspiracy to commit an offense against

the United States can be sustained.”

Devoe v. U.S., 103 F.2d 584, at 585: In conspiracy

Prosecution, trial court had discretion to admit

evidence which even remotely tended to establish the

App. 86 -

conspiracy charged.

U.S. v. Guzzino, 810 F.2d 687, at 688: Verdict

based on circumstantial evidence must not rest solely

on piling of inference upon inference, but neither

should reviewing court view each bit of evidence in

isolstion Common sense is no substitute for evidence,

but common sense should be used by jury to evaluate

what reasonable may be inferred from circumstantial

evidence. Guzzino, at 696: Direct evidence, however,

although it may be considered more reliable, is by no

means the only evidence from which a jury may find

the necessary knowledge and intent. It has long been

established that “ the verdict of a jury must be

sustained if there is substantial evidence, taking the

view most favorable to the government, to support it.”

The “substantial evidence” necessary to prove a

criminal conspiracy need not be proved by direct

evidence as the common conspiratonal purpose and

plan may be inferred from “a development and a

collection of the circumstances.” It is indeed a “rare

case” where there is direct evidence to show the

requisite knowledge and intent of coconspirators.

(citations omitted)

Armstrong v. Manzo, 380 U.S. 545, at 549: We

granted certiorari. 379 U.S. 816. The questions before

us are whether failure to notify the petitioner of the

pendency of the adoption proceedings deprived him of

due process of law so as to render the adoption decree

constitutionally invalid, and, if so, whether the

subsequent hearing on the petitioner’s motion to set

aside the decree served to cure its constitutional

invalidity.

In disposing of the first issue, there is no occasion

to linger long. It is clear that failure to give the

petitioner notice of the pending adoption proceedings

violated the most rudimentary demands of due process

of law. “Many controversies have raged about the

aT Te |

App. 87

cryptic and abstract words of the Due Process Clause

but there can be no doubt that at a minimum they

require that deprivation of life, liberty or property by

adjudication be preceded by notice and opportunity for

hearing appropriate to the nature of the case.”

Mullane v.Central Hanover Tr. Co., 339 U.S. 306, 213.

“An elementary and fundamental requirement of due

process in any process in any proceeding which is to

be accorded -finality is notice reasonably calculated,

under all the circumstances, to appraise interested

parties of the pendency of the action and afford them

an opportunity to present their objections. (citations

omitted) Questions frequently arise as to adequacy of

a particular form of notice in a Particular case.

(citations omitted) But as to the basic requirement of

notice itself there can be no doubt, where, as here, the

result of the judicial proceeding was permanently to

deprive a legitimate parent of all that parenthood

implies. (citations omitted) The Texas Court of Civil

Appeals implisitly recognized this constitutional rule,

but held, in accord with its understanding of the Texas

precedents, that whatever constitutional infirmity

resulted from the failure to give the petitioner notice

had been cured by the hearing subsequently afforded

to him upon his motion to set aside the decree. We

cannot agree.

Had the petitioner been given the timely notice

which the Constitution requires, the Manzos, as the

moving parties, would have had the burden of proving

their case as against whatever defenses the petitioner

might have interposed. (citations omitted) It would

have been incumbent upon them to show not only that

Salvatore Manzo met all the requisites of an adoptive

parent under Texas law, but also to prove why the

petitioner’s consent to the adoption was not required.

Had neither side offered any evidence, those who

initiated the adoption proceedings could not have

App. 88

prevailed.

Instead, the petitioner was faced on his first

appearance in the courtroom with the task of

overcoming an adverse decree entered by one judge,

based upon a finding of nonsupport made by another

judge. As the record show’s, there was placed upon the

petitioner the burden of affirmatively showing that he

had contributed to the support of his daughter to the

limit of his financial ability over the period involved.

The burden thus placed upon the petitioner were real,

not purely theoretical. For “it is plain that where the

burden of proof lies may be decisive of the outcome.”

(citations omitted) Yet these burdens would not have

been imposed upon him had he been given timely

notice in accord with the Constitution.

A fundamental requirement of due process is “the

opportunity to be heard.”

Grannis v. Ordean, 234 U.S. 385, 394. It is an

opportunity which must be granted at a meaningful

time and in a meaningful manner.

Sniadach v. Family Finance Corp., 395 U.S. 337, at

339: We have dealt over and over again with the

question of what constitutes “the nght to be heard”

(Schoeder v. New York, 391 U.S. 208, 212) within the

meaning of procedural due process. See Mullane uv.

Central Hanover Trust Co., 339 U.S. 306, 314. In the

latter case we said that the nght to be heard “has little

reality or worth unless one is informed that the matter

is pending and can choose for himself whether to

appear or default, acquiesce or contest.” 339 U.S. at

314. In the context of this case the question is whether

the interim freezing of the wages without a chance to

be heard violates procedural due process.

A procedural rule that may satisfy due process for

attachments in general, See McKay v. McInnes, 279

U.S. 820, does not necessarily satisfy procedural due

process in every case.-The fact that a procedure would

App. 89

pass muster under a feudal regime does not mean it

gives necessary protection to all property in its modern

forms. We deal here with wages ~ a specialized type of

property presenting distinct problems in our economic

system. We turn then to the nature of that property

and problems of procedural due process. Sniadach at

343, Apart from special situations, some of which are

referred to in this Court’s opinion. See ante, at 339, |

think that due process is afforded only by the kinds of

“notice” and “hearing” which are aimed at establishing

the validity, or at least the probable validity, of the

underlying claim against the alleged debtor before he

can be deprived of his Property or its unrestricted use.

I think this is the thrust of the past cases in this

Court. (citations omitted)

Sniadach at 350, This view is consistent with that

expressed by Mr. Justice Frankfurter in Rochin v.

Calif: that due process was to be determined by “Those

canons of decency and fairness which express the

notions of justice of English-speaking peoples ....”

Goldberg uv. Kelly, 397 U.S. 254, 3. A pre-

termination evidentiary hearing is necessary to provide

the welfare recipient with procedural due process. Pp.

264, 266-271. (a) Such hearing need not take the form

of a judicial or quasi-judicial trial, but the recipient

must be provided with timely and adequate notice

detailing the reasons for termination, and an effective

Opportunity to defend by confronting adverse

witnesses and by Presenting his arguments and

but should state the reasons for his determination and

indicate the evidence he relies on. P.27]. (d) The

decision maker must be impartial and although prior

involvement in some aspects of the case will not

necessarily bar a welfare Official from acting as

App. 90

maker, he should not have participated in making the

determination under review. P. 271. Goldberg at 262.

The extent to which procedural due process must be

afforded the recipient is influenced by the extent to

which he may be “condemned to suffer grievous loss,”

Joint Anti-Fascist Refugee Committee v. Mcsrath, 341

U.S. 123, 168 (1951) (Frankfurter, J. concurring), and

depends upon whether the recipient’s interest in

avoiding that loss outweighs the governmental interest

in summary adjudication. Accordingly, as we said in

Cafeteria & Restaurant Workers Union v. McElroy, 367

U.S. 886, 895 (1961), “consideration of what

procedures due process may require under any given

set of circumstances must begin with a determination

of the precise nature of the government function

involved as well as of the private interest that has been

affected by governmental action.” See also Hannah uv.

Larche, 363 U.S. 420, 440, 442 (1960).

Boddie v. Conn., 401 U.S. 254, at 377, that absent

a countervailing state interest of overriding

significance, persons forced to settle their claims of

right and duty through the judicial process must be

given a meaningful opportunity to be heard. Early in

our jurisprudence, this Court voiced the doctrine that

“[W]herever one is assailed in his person or his

property, there he may defend,” Windsor v. McVeigh,

93 U.S. 274, 277 (1876). See Baldwin v. Hale, 1 Wall.

223 (1864); Hovey v. Elliott, 167 U.S. 409 (1897). The

theme that “due process of law signifies a right to be

heard in one’s defense,” Hovey v. Elliott, supra, at 417,

has continually recurred in the years since Bladwin,

Windsor, and Hovey. Although “[mjany controversies

have raged about the criptic and abstract words of the

Due Process Clause,” as Mr, Justice Jackson wrote for

the Court in Mullane v. Central Hanover Tr. Co., 339

U.S. 306 (1950), “there can be no doubt that at a

minimum they require that deprivation of life, liberty

App. 91

or property by adjudication be preceded by notice and

opportunity for hearing appropriate to the nature of

the case,” Jd., at 313.

Due process does not, of course, require that the

defendant in every civil case actually have a hearing

on the merits. A State, can, for example, enter a

default judgment against a defendant who, after

adequate notice, fails to make a timely appearance,

see Windsor, supra, at 278, or who, without justifiable

excuse, violates a procedural rule requiring the

production of evidence necessary for orderly

adjudication, Hammond Packing Co. v. Arkansas, 212

U.S. 322, 351 (1909). What the Constitution does

require is “an opportunity ... granted at a meaningful

time and in a meaningful manner,” Armstrong ov.

Manzo, 380 U.S. 545, 552 (1965) (emphasis added),

“for [a] hearing appropriate to the nature of the case,”

Mullane v. Central Hanover Tr. Co., supra, at 313. The

formality and procedural requisites for the hearing can

vary, depending upon the importance of the interests

involved and the nature of the subsequent

proceedings. That the hearing required by due process

is subject to waiver, and is not fixed in form does not”

affect its root requirement that an individual be given

an opportunity for a hearing before he is deprived of

any significant property interest, except for

extraordinary situations where some valid

governmental interest is at stake that justifies

postponing the hearing until after the event. In short,

“within the limits of practicability,” id., at 318, a State

must afford to all individuals a meaningful opportunity

to be heard if it is to fulfill the promise of the Due

Process Clause.

Bell v. Burson, 402 U.S. 535, at 541, The hearing

required by the Due Process Clause must be

“meaningful,” Armstrong v. Manzo, 380 U.S. 545, 552

(1965), and “appropriate to the nature of the case.”

App. 92

Mullane v. Central Hanover Bank & Trust Co., supra, at

313. It is a proposition which hardly seems to need

explication that a hearing which excludes

consideration of an element essential to the decision

whether licenses of the nature here involved shall be

suspended does not meet this standard.

While “[mjany controversies have raged about ...

the Due Process Clause,” tbid., it is fundamental that

except in emergency situations (anda this is not one)

due process requires that when a State seeks to

terminate an interest such as that here involved, it

must afford “notice and opportunity for hearing

appropriate to the nature of the case” before the

termination becomes effective. (citations omitted)

Fuentes v. Shevin, 407 U.S. 67, 1. The Florida and

Pennsylvania replevin provisions are invalid under the

Fourteenth Amendment since they work a deprivation

_of property without due process of law by denying the

right to a prior opportunity to be heard before chattels

are taken from the possessor. Pp. 80-93. Fuentes, at

80. For more than a century the central meaning of

procedural due process has been clear: “Parties whose

rights are to be affected are entitled to be heard; and

in order that they may enjoy that right they must first

be notified-"—Baldwin_v.Hale, 1 Wall. 223, 233. See _

Windsor v. McVeigh, 93 U.S. 274: Hovey uv. Elliot, 167

U.S. 409: Grannis v. Ordean, 234 U.S. 385. It is

equally fundamental that the right to notice and

opportunity to be heard “must be granted at a

meaningful time and in a meaningful manner.”

Armstrong v. Manzo, 380 U.S. 545, 552.

The primary question in the present cases is

whether these state statute are constitutionally

defective in failing to provide for hearings “at a

meaningful time.”

Parratt v. Taylor, 451 U.S. 527, at 537, In some

cases this Court has held that due process requires a

Bek eas 3 Keenan)

App. 93

predeprivation hearing before the State interferes with

any liberty or property interest enjoyed by its citizens.

In most of these cases, however, the deprivation of

property was pursuant to some established state

procedure and “process” could be offered before any

actual deprivation took place. For example, in Mullane

v. Central Hanover Trust Co., 339 U.S. 306 (1950), the

Court struck down on due process grounds a New

York statute that allowed a trust company, when it

sought a judicial settlement of its trust accounts, to

give notice by publication to all beneficiaries even if

the whereabouts of the beneficiaries were known. The

Court held that personal notice in such situations was

required and stated that “when notice is a person’s

due, process which is a mere gesture is not due

process,” Id., at 315. More recently, in Bell v. Burson,

402 U.S. 535 (1971), we reviewed a state statute which

provided for the taking of the driver’s license and

registration of an uninsured motorist who had been

involved in an accident. We recognized that a driver’s

license is often involved in the livelihood of a person

and as such could not be summarily taken without a

prior hearing. In Fuentes v. Shevin, 407 U.S. 67

(1972), we struck down the Florida prejudgment

replevin statute which allowed secured creditors to

obtain writs in ex parte proceedings. We held that due

process required a prior hearing before the State

authorized its agents to seize property in a debtor’s

possession. See also Boddie v. Connecticut, 401 U.S.

371 (1971); Goldberg v. Kelley, 397 U.S. 254 (i970)

and Sniadach v. Family Finance Corp., 395 U.S. 337

(1969). In all these cases, deprivations of property

were authorized by an established state procedure and

due process was held to require predeprivation notice

and hearing in order to serve as a check on the

possibility that a wrongful deprivation would occur.

Commissioner v. Sunnen, 333 U.S. 591, at 597, It is

App. 94 .

first necessary to understand something of the

recognized meaning and scope of res judicata, a

doctrine judicial in origin. The general rule of res

judicata applies to repetitious suits involving the same

cause of action. It rests upon considerations of

economy of judicial time and public policy favoring

establishment of certainty in legal relations. The rule

provides that when a court of competent jurisdiction

has entered a final judgment on the merits of a cause

of action, thé parties to the suit and their privies are

thereafter bound “not only as to every matter which

was offered and received to sustain or defeat the claim

or demand, but as to any other admissible matter

which might have been offered for that purpose.”

Cromwell v. County of Sac, 94 U.S. 351, 352. The

judgment puts an end to the cause of action, which

cannot again be brought into litigation between the

parties upon any ground whatever, absent fraud or

some other factor invalidating the judgment. See Von

Moschzisker, “Res Judicata,” 38 Yale LJ. 299;

Restatement of the Laws of Judgment, Sections 47,

48.

But where the second action between the same

parties is upon a different cause or demand, the

principal of res judicata is applied much more

narrowly. In this situation, the judgment in the prior

action operates as an estopple, not as to matters

which might have been litigated and determined, but

“only as to those matters in issue or points

controverted, upon the determination of which the

finding or verdict was rendered.” Cromwell v. County of

Sac, supra, 353. And see Russell v. Place, 94 U.S. 606;

Southern Pacific R. Co. v. U.S., 168 U.S. 1, 48; Mercoid

Corp. v. Mid-Continent Co., 320 U.S. 661, 671. Since

the cause of action involved in the second proceeding

is not swallowed by the judgment in the prior suit, the

parties are free to litigate points which were not at

a Oe ee, eae ee ee aye

App. 95

issue in the first proceeding, even though such points

might have been tendered and decided at that time.

But matters which were actually litigated and

determined in the first proceeding cannot later be

reliigated. Once a party has fought out a matter in

liigation with the party, he cannot later renew ihe

duel. In this sense, res judicata is usually and more

accurately referred to as estopple by judgment, or

collateral estopple. See Restatement of the Law of

Judgment, Sections 68, 69, 70; Scott, “Collateral

Estopple by Judgment,” 56 Harv. L. Rev. 1.

These same concepts are applicable in the federal

income tax field. Income taxes are levied on an annual

basis. Each year is the origin of a new liability and of a

separate cause of action. Thus if a claim of liability or

non-liability relating to a particular tax year is

litigated, a judgment on the merits is res judicata as ©

to any subsequent proceeding involving the same

claim and the same tax year. But if later proceeding is

concerned with a similar or unlike claim relation to a

different tax year, the prior judgment act as a

collateral estopple only to matters in the second

proceeding which were actually presented and

determined in the first suit.

United States v. International Building Co., 345 U.S.

902, (a) In a subsequent action between the same

parties on a different claim, a judgment is conclusive

only as to the point or question actually litigated and

determined in the original action, not as to what might

have been litigated and determined. Pp. 504-505. (b)

The decisions entered by the Tax Court for the years

1933, 1938 and 1939 were only pro forma acceptance

by the Tax Court of an agreement between the parties

to settle their controversy for reasons undisclosed. P.

S05.

The governing principle is stated in Cromwell v.

County of Sac, 94 U.S. 351, 352-353. A judgment is an

App. 96

absolute bar to a subsequent action on the same

claim.

“But where the second action between the same

parties is upon a different claim or demand, the

judgment in the prior action operates as an estopple

onl as to matters in issue or points controverted,

upon the determination of which the finding or verdict

was rendered . In all cases, therefore, where it is

sought to apply the estopple of a judgment rendered

upon one cause of action to matters arising in a suit

upon a different cause of action, the inquiry must

always be as to the point or question actually litigated

and determined in the original action, not what might

have been thus litigated and determined. Only upon

such matters is the judgment conclusive in another

action.” (citations omitted) Estopple by judgment, or

collateral estopple as it is often called, is applicable in

the federal income tax field. Tait v. western Md. R. Co.,

supra, at 624; Commissioner v. Sunnen, supra, at 598.

We conclude that the decisions entered by the Tax

Court for the years 1933, 1938 and 1939 were only a

pro forma acceptance by the Tax Court of an

agreement between the parties to _ settle their

controversy for reasons undisclosed. There is no

showing either in the record or by extrinsic evidence

(See Russell v. Place, 94 U.S. 606, 608) that the issues

raised by the pleadings were submitted to the Tax

Court for determination or determined by the court.

They may or may not have been agreed upon by the

parties.

Dziura v. U.S., 168 F.3d 581 (1* Cir. 1999) at 582,

The Internal Revenue Code specifically provides that if

the IRS, in the course of a tax collection effort,

recklessly or intentionally disregards any provision of

[the code],” the affected taxpayer(s) “may bring a civil

action for damages against the United States in a

district court of the United States.” Id. Section 7433(a).

App. 97

The rub is that all actions filed under 26 U.S.C.

Section 7433(a) “may be brought only within 2 years

after the date the right of action accrues.” 26 U.S.C.

Section 7433(d)(3). Dziura at 583, The implementing

regulations suggest that this general rule also applies

to cases under section 7433(a). See 26 C.F.R. Sec:ion

301.7433-1(g)(2) (stipulating that a cause of action

brought under 7433(a) “accrues when the taxpayer

has had a reasonable Opportunity to discover all

essential elements of a possible cause of action”). n.3

n.3 We do not foreclose the possibility that an

unusual set of circumstances might arise in which a

continuing violation theory would allow a taxpayer to

assert that he could not have discovered the essential

elements of his section 7433(a) claim until more than

two years following the date of the initial wrong. See,

e.g. Hurt v. U.S., 914 F.Supp. 1346, 1355-56 & n.6

(S.D.W.Va. 1996). The instant case falls within the

general rule, however, not within the longodds

exception to it.

Hurt v. U.S., 914 F.Supp. 1346 (S.D.W.Va. 1996), at

1355,

While there is authority to the contrary, several

courts have concluded Section 2401(b) may be tolled

in instances where the United States engaged in

tortious conduct. See, e.g., Wehrman v. U.S., 830 F.2d

1480 (8% Cir. 1987); Page v. U.S., 729 F.2d 818, 821-

22 (D.C.Cir. 1984) (stating “It is well-settled that

‘{w]hen a tort involves continuing injury, the cause of

action accures, and the limitation period begins to

run, at the time the tortious conduct ceases.’ Since

usually no single incident in a continuous chain of

tortious activity can ‘fairly or realistically be identified

as the cause of significant harm,’ it seems proper to

regard the cumulative effect of the conduct as

actionable.”); Gross v. U.S., 676 F.2d 295, 300 (8% Cir.

1982) (stating ‘Where the tortious conduct is a

App. 98

continuing nature, the Kubrick rule does not apply.

Under the circumstances of this case, the focus should

be on when the last tortious act occurred.”). Hurt at

1356,

[17] Mr. Hurt alleges a continuing pattern of

tortious harassment over the course of many years

that has not abated to this day. His reliance on the

continuing tort exception is particularly apropos

because each individual audit and retaliatory action

taken in isolation cannot “fairly or realistically be

identified as the cause of significant harm|.]” Page,

729 F.2d at 822. Rather, it is the “cumulative effect” of

the harassment that is significant for litigation

purposes. Id. The Court thus concludes Mr. Hurt is

entitled to rely upon the continuing tort exception to

Section 2401(b). Accordingly, his claim has not yet

accrued under, much less been extinguished by,

Section 2401(b). Defendants’ argument to the contrary

is without merit. n.6

n.6 The same is true under the limitations

provisions for Section 7433. Section 7433(d)(3)

provides as follows:

Notwithstanding any other provision of law, an

action to enforce liability created under this section

may be brought ... only within 2 years after the date

the mght of action accrues. Id. Congress clearly

intended a portion of the substantive law surrounding

Section 2401(b) to be used in interpretation and

application of Section 7433(d)(3). See, e.g.,

H.R.Conf.Rep. No. 1104, 100% Cong., 2d Sess. 228 n.1

(1988), reprinted in 1988 U.S.C.C.A.N. 5048, 5288 n.

1. (stating “The conferees intend that the general

accural rule applied under the Tort Claims Act (28

U.S.C. sec. 2401(b) be applied to actions under this

provision; the nght of action does not accrue until a

claimant has had a reasonable opportunity to discover

all essential elements of a possible cause of action ...”).

App. 99

The Court thus concludes the continuing tort

exception under Section 2401(b) would apply with

equal force to the limitation period contained in

Section 7433 (d)93).

Gross v. U.S., 676 F.2d 295 (8t Cir. 1982), at 296,

Statute of limitations on farmer’s claim under Federal

Tort Claims Act for intentional infliction of emotional

distress arising out of county agricultural stabilization

and conservation service committee conduct in

denying him participation in feed grain program

commenced to run not on date that farmer knew or

should of known of his injury but on date of last

tortious act, since committee’s actions may have

constituted continuing tort. 28 U.S.C.A. Section

240 1(b).

Wehrman v. U.S., 830 F.2d 1480 (8 Cir. 1987)

When tort claim against United States accrues is

question of federal law requiring determination of

when plaintiff actually knew, or in exercise of

reasonable diligence should have known, cause and

existence of injury. 28 U.S.C.A. Sections 1346 et seq.,

2401, 2401(b).

3. Limitation of Actions

Government’s fraudulent concealment of material

facts prevents running of statutory period governing

Claim under Federal Tort Claims Act until plaintiff

discovers, or by reasonable diligence could discover,

basis of claim. 28 U.S.C.A. Sections 1346 et seq.,

2401, 2401(b), 2671 et seq.

5. Limitation of Actions

Under “continuing treatment doctrine,” patient’s

cause of action does not accrue until tortious

continuing treatment ends, even if patient is aware of

facts constituting negligence before that time.

Wehrman v. U.S., at 1481, In this appeal from a grant

of summary judgment, the plaintiff, Floyd L.

Wehrman, asserts that his claim for damages arising

App. 100

out of alleged malpractice by the Veterans

Administration hospital is not barred bv the two-year

limitation period set forth in 28 U.S.C. Section

2401(b), because the allegedly tortious continuing

treatment did not end until some time within two

ye urs prior to his complaint. Because we disagree with

the district court’s determination that the “continuous

treatment” doctrine is inapplicable in this case, we will

vacate the district court’s order and remand the case

for further proceedings.

Page v. U.S., 729 F.2d 818 (D.C. Cir., 1984), at 821,

[4] It is well-settled that “[w]hen a tort involves

continuing injury, the cause of action accrues, and the

limitation period begins to run, at the time the tortious

conduct ceases. Since usually no single incident in a

~ continuous chain of tortious activity can “fairly or

realistically be identified as the cause of significant

harm,” it seems proper to regard the cumulative effect

of the conduct as actionable. Moreover, since “one

should not be allowed to acquire a nght to continue

the tortious conduct, it follows logically that statutes

of limitation should not run prior to its cessation.

Snook v. Trust Co. of Georgia Bank of Savannah,

N.A., 859 F.2d 865 (11 Cir. 1988) Snook at 866,

2. Federal Civil Procedure

If documents or other discovery sought would be

relevant to the issues presented by motion for

summary judgment, opposing party should be allowed

opportunity to utilize discovery process to gain access

to requested materials.

3. Federal Civil Procedure

Generally, summary juds ‘ent is inappropriate when

party opposing motion ...s been unable to obtain |

responses to his discovery requests. |

4. Federal Civil Procedure

Party opposing motion for summary judgment need

not file affidavit pursuant to Rule 56(f) in order to

Te eM TN TR

App. 101

invoke protection of rule; interests of justice

sometimes requires district court to postpone its

ruling on motion for summary judgment even though

technical requirements of rule have not been. met.

Fed.Rules Civ.Proc. Rule 56(f), 28 U.S.C.A.

S. Federal Civil Procedure

Trial court improperly entered summary judgment in

favor of trust company and trustees in action brought

by trust beneficiers without first ruling on beneficiers’

motion to compel discovery; many documents

requested by beneficiaries were relevant to issues

raised by motion for summary judgment and many of

the requested documents were discoverable. Snook at

869, The defendants filed a general objection to all of

plaintiffs’ requests for discovery and, as noted above,

the plaintiffs filed a motion to compel production of the

documents requested. The district court never ruled

on the motion. The plaintiffs argue that their inability

to obtain the documents requested makes the granting

of summary judgment improper.

In reviewing a district court’s grant of summary

judgment, this court’s review is “plenary and is to be

conducted utilizing the same legal standards as those

imposed upon the district court.” WSB-TV v. Lee, 842

F.2d 1266, 1269 (11% Cir. 1988). The Supreme Court

has recently addressed the standards for granting

motions for summary judgment. In Celotex Corp. v.

Catrett, the Court addressed the burden to be placed

on the nonmoving party as follows: In our view, the

plain language of Rule 96(c) mandates the entry of

summary judgment, after adequate time for

discovery and upon motion, against a party who fails

to make a showing sufficient to establish the exastence

of an element essential to that Party’s case, and on

which that party will bear the burden of proof at trial.

477 U.S. 317, 322, 106 S.Ct. 2548, 2552-53, 91

L.Ed.2d 265, 273 (1986) (emphasis added).

App. 102

This court has recently considered the application

of Celotex, and other recent Supreme Court cases, to

cases in which the nonmoving party has not had an

adequate opportunity to conduct discovery. In WSB-TV

v. Lee, we reviewed the Supreme Court’s decision in

Celotex, in Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 106 S.Ct. 2505, 91 L.Ed2d 202 (1986), and in

Matsushita Electric Industrial Co. v. Zenith Radio Corp.,

475 U.S. 547, 106 S.Ct. 1348, 89 L.Ed/ed 538 (1986).

We concluded that the common denominator of the

the three cases is “summary judgment may only be

decided upon an adequate record.” 842 F.2d at 1268,

Because the plaintiffs in WSB-TV had been afforded no

opportunity for discovery, we held that consideration

of the defendant’s motion for summary judgment was

erroneous.

[1-3] This court has often noted that summary

judgment should not be granted until the party

opposing the motion has had an adequate opportunity

for discovery. E.g., Littlejohn v. Shell Oil Co., 483 F.2d

1140, 1145 (5 Cir. 1973) (en banc), cert. denied, 414

U.S. 1116, 94 S.Ct. 849, 38 L.Ed.2d 743 (noting the

high fatality rate of summary dispositions at a time

before the facts have been fully developed); Alabama

Farm Bureau Mutual Casualty Co. v. Amencan Fidelity

Life Insurance Co., 606 F.2d 602, 609 (5 Cir. 1979),

cert. denied, 449 U.S. 820, 101 S.Ct. 77, 66 L.Ed.2d

(“Summary Judgement’ should _ not, _ therefore,

ordinarily be granted before discovery has been

completed.”); Murrell v. Bennett, 615 F.2d 306, 310 (5

Cir. 1980) Citing Alabama Farm Bureau. The party

opposing a motion for summary judgment has a nght

to challenge the affidavits and other factual materials

submitted in support of the motion by conducting

sufficient discovery so as to erable him to determine

whether he can furnish opposing affidavits. Parnsh v.

Board of Commissioners of the Alabama State Bar,

App.103

933 F.2d 942, 948 (5t Cir. 1976). If documents or

other discovery sought would be relevant to the issues

presented by the motion for summary judgment, the

opposing party should be allowed the Opportunity to

utilize the discovery process to gain access to the

requesie. materials. Id. Generally summary judgment

is inappropriate when the Party opposing the motion

has been unable to obtain responses to his discovery

requests. Cowan v. J.C.Penney Co.Inc., 790 F.2d 1529,

1532 (11% Cir. 1986).

The issue of inadequate discovery was called to the

district court’s attention by the parties in their briefs

addressed to the motion to compel. In their response

to the plaintiffs’ motion to compel, defendants asserted

that a ruling in their favor on the pending motion to

dismiss or for summary judgment would render moot

any discovery issue. Plaintiffs responded to this

assertion by reminding the district court that “motions

for summary judgment are premature and should not

be granted until the party opposing such motion is

permitted to make discovery essential to his case.”

Therefore, the district court should have been aware of

the plaintiffs’ contention that they had not been able

to obtain, through discovery, evidence essential to

their opposition to the motion for summary judgment.

The discovery requested was Clearly relevant to

pending motion for Summary judgment, both as to the

securities fraud and RICO counts.

[4] In this Circuit, a Party Opposing a motion for

summary judgment need not file an affidavit pursuant

to Rule 56(f) of the Federal Rules of Civil Procedure in

order to invoke the protection of that Rule. In

Littlejohn, the court “[ojut of an abundance of caution

and to prevent a possible injustice,” held that an

affidavit was not required to invoke the protection of

Rule S6(f). 483 F.2d at 1146. The court concluded that

“the written representation by [plaintiff's] lawyer, an

App. 104

Officer of the court, it is the spirit of Rule 56(f) under

the circumstances. Form is not to be exalted over fair

procedures.” Id. Requiring the party opposing a motion

for summary judgment to explicitly and unequivocally

invoke the protection of Rule 56(f) through the means

of an affidavit would provide certainty to district

courts. However, the law of this Circuit recognizes that

the interests of justice will sometimes require a district

court to postpone its ruling on a motion for summary

judgment even through the technical requirements of

Rule 56(f) have not been met

[5] In Cowan, this court held that the

nonmovant’s “failure to file a motion under

Fed.R.Civ.P. 56(f) to foreclose entry of summary

judgment [did] not invalidate her claim that the entry

of that judgment was error.” 790 F.2d at 1532.

However, the party opposing the motion for summary

judgment bears the burden of calling to the district

court’s attention any outstanding discovery. Id. At

1530. In Cowen, the court concluded that the

nonmovant properly appraised the district court of the

outstanding discovery requests.

[W]je find that prior to the entry of summary

judgment she had properly brought to the district

court’s attention that the discovery response from

World Shoe Corp. was still outstanding. The record

clearly indicates that Cowen sought an order to

compel World Shoe’s response which was granted by

the district court on Nov. 8, 1984. Id. At 1532.

In the case at hand, plaintiffs’ filed a motion to

compel, which was briefed extensively. The motion

sought to compel the production of documents

relevant to the pending motion for summary judgment.

Therefore, plaintiffs properly directed the district

court’s attention to the fact that their discovery

requests were still outstanding. The district court

:

App. 105

should have ruled on the motion to compel prior to

entering summary judgment for the defendants. Its

failure to rule on the motion to compel circumvented

the policy underlying discovery in cases in which a

summary judgment motion is filed.

[T]he whole purpose of discovery in a case in which

a motion for summary judgment is filed is to give the

opposing party an opportunity to discover as many

facts as are available and he considers essential to

enable him to determine whether he can honestly file

opposing affidavits. Parrish, 533 F.2d at 948. By failing

to rule on the motion to compel, the district court

deprived the plaintiffs’ of their right to utilize the

discovery process to discover the facts necessary to

justify their opposition to the motion. It is clear that

many of the documents requested are relevant to the

issues raised by the defendants’ motion for summary

judgment. It is also clear that many of the requested

documents are discoverable. Accordingly, the entry of

Summary judgment and dismissal of the pendent state

law claims was improper and must be reversed. On

remand the district court should consider the

plaintiffs’ motion to compel in light of the rules

governing discovery and should order the requested

documents produced as appropriate. Once there is an

adequate record, the district court may again consider

the defendant’s motion for summary judgment.

WSB-TV v. Lee, 842 F.2d 1266 (11% Cir. 1988) at

1267,

1. Federal Courts

Grant of summary judgment before plaintiffs had

been afforded opportunity for discovery was reversible

error. WSB-TV at 1269, Our review of the district

court's grant of summary judgment is plenary and is

to be conducted utilizing the same legal standards as

those imposed upon the district court. Merchantile

Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838,

App. 106

841, (11% Cir. 1985). Summary judgment is

appropriate only “if the pleadings, depositions,

answers to interrogatories , and admissions on file,

together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the

m*“ving party is entitled to a judgment as a matter of

law.” Fed.R.Civ.P. 56(c)

Three recent Supreme Court cases vacating

appellate reversals oh district court orders granting

summary judgment illuminate both the utility and the

limitations of summary procedure. Celotex Corp. v.

Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265

(1986); Anderson v. Liberty Lobby, Inc. 477 U.S. 242,

106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita

Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.

574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Their

common denominator is the Court’s caveat that

summary judgment may only be decided upon an

adequate record.

In Anderson, the Court held that Rule 56(e)

provides that, “when a properly supported motion for

summary judgment is made, the adverse party ‘must

set forth specific facts showing that there is a genuine

issue for trial.’ 106 S.Ct. at 2511.

The Court underscored that:

This requirement in turn is qualified by Rule 56(f)’s

provision that summary judgment be refused where

the nonmoving party has not had the opportunity to

discover information that is essential to his opposition.

In our analysis here, we assume that both parties have

had ample opportunity for discovery.

Id. At n.5.

In Celotex, the Court held that “Rule 56(c mandates

the entry of summary judgment ... against a party who

fails to make a showing sufficient to establish the

existence of an element essential to that party’s case,

and on which that party will bear the burden of proof

App. 107

at trial” but only “after adequate time foe discovery.”

106 S.Ct. at 2552-53. In concluding that the district

court had properly granted summary judgment, the

Court noted that “(t]he parties had conducted

discovery, and no serious claim can be made that

respondent was in any sense frailroaded’ b, a

premature motion for summary judgment.” 106 S.Ct.

at 2554. Recognizing that premature motions present

a problem, the Court concluded that the problem: can

be adequately dealt with under Rule 56(f}, which

allows a summary judgment motion to be denied, or

the hearing on the motion to be continued, if the

nonmoving party has not had an opportunity to make

full discovery. 106 S.Ct. at 2554-55.

In Matsushita, 106 S.Ct. at 1352, the Court

considered it significant that the parties had

conducted “several years of detailed discovery.”

[1] In the case sub judice plaintiffs had been afforded

no opportunity for discovery. Under circumstances

outlined above, consideration of defendant’s motion for

summary judgment in this six- month old case was

erroneous. Parrish v. Board of Commissioners, 533

F.2d 942, 951 (5 Cir. 1976) (trial court did not allow

relevant discovery; summary judgment was reversed).

[2] Moreover, with gaze too foreshortened upon

physical encounter on November 6, 1968, the court

did not discuss and apparently failed to consider

conflicting inferences, reasonable to be drawn from all

of the affidavits on file, as to the motivation of the

sheriff's conduct on that occasion.

In determining whether the party who moves for

summary judgment has met his burden of establishing

that there is no genuine issue as to any material fact

and that he is entitled to judgment as a matter of law,

the evidence and inferences drawn from the evidence

are viewed in light most favorable to the nonmoving

party, and all reasonable doubts are resolved in his

ee

App. 108

favor. Mercantile Bank, supra, 750 F.2d at 841. In

deciding whether an inference is reasonable, the court

must “cull the universe of possible inferences from the

facts established by weighing each other against the

abstract standard of reasonableness.” Southway

Theatres, Inc. v. Georgia Theatre Co., 672 F2d 485, 493

(5% Cir.Unit B 1982). The opposing party’s inferences

need not be more probable than those inferences in

favor of the movant to create a factual dispute, so long

as they reasonably may be drawn from the facts. Id at

~ 495. When more than one inference “easonably can be

drawn, it is for the tner of fact to determine the proper

one. Id.

After a careful review of the record, we are

persuaded that a reasonable inference to be drawn

from affidavits submitted by plaintiffs is that the

November 6% incident was but one episode in the

ongoing effort of defendant to thwart or impede

plaintiffs in gathering and reporting news relating to

rumors of the sheriffs use of inmate labor on his

private property, an interference with plaintiffs’ first

amendment nghts which would violate 42 Section

1983. Thus, the entry of summary judgment was

interdicted and requires reversal.

REVERSED and REMANDED.

Cowan v. J.C. Penney Co., Inc. 790 F.2d 1529 (11%

Cir. 1986)

1. Federal Civil Procedure

Party opposing motion for summary judgment

bears responsibility for bringing to trial court’s

attention any outstanding discovery in the cause.

Fed.R,Civ.P. Rule 56(f), 28 U.S.C.A.

2. Federal Civil Procedure

In slip and full case alleging defective condition of

shoe and negligence of store owner due to unsafe

condition of store premises, there were genuine issues

App. 109

of material fact as to fitness of shoe, slippery condition

of floor and raised condition of metal strip, precluding

summary judgment. Fed.R.Civ.P. 56(c), 28 U.S.C.A.;

Ala. Code 1975, Section 7-2-314(2)(c).

.3. Federal Civil Procedure

Prior to entry of summary judgment against her,

plaintiff had properly brought to the district court’s

attention that discovery response from defendant was

outstanding, and her failure to file motion to foreclose

entry of summary judgment did not invalidate her

claim that entry of judgment was error. Fed.R.Civ.P.

Rule 56(f), 28 U.S.C.A. Cowen at 1530.

On appeal, Cowen challenges the grant of summary

judgment as inappropriate on two grounds. First, she

claims that there was a genuine issue as to a material

fact in dispute upon which summary judgment cannot

be based. Second, she claims that summary judgment

at this time is precluded because her interrogatories to

appellees are still outstanding, in spite of a district

court order compelling response.

Appellees argue that the district court was correct

in granting their motions for summary judgment

because there was no genuine issue as to a material

fact in dispute and they were therefore entitled to

summary judgment as a matter of law. They assert

that the outstanding discovery request does not

preclude summary judgment because Cowen did not

make an adequate showing under Fed.R.Civ.P. 56(f) to

delay entry of summary judgment.

When reviewing a district court order granting

summary judgment, this court applies the same legal

standard as does the district court. Thrasher v. State

Farm Fire & Casualty Co., 734 F.2d 637, 638 (11 Cir.

1984). Under Fed.R.Civ.P. 56(c) summary judgment

“shall be rendered forthwith if the pleadings,

depositions, answers to_ interrogatories, and

admissions on file, together with the affidavits, if any,

App. 110

show that there is no genuine issue as to any material

fact and that the moving party is entitled to a

judgment as a matter of law.” The court must view the

evidence in the light most favorable to the party

opposing the motion. Adickes v. S.H. Kress & Co., 398

U.S. 144, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

[1] The moving party bears the burden of

demonstrating the absence of a dispute as to any

material fact and of showing that he or she is entitled

to judgment as a matter of law. Id, Combs v. King, 764

F.2d 818, 827 (11 Cir. 1985). Once a motion for

summary judgment has been made and supported as

required, however, the opposing party “may not rest

upon the mere allegations or denials of his pleading,

but his response, by affidavits or as otherwise

provided in the rule, must set forth specific facts

showing that there is a genuine issue for tnial.”

Fed.R.Civ.P. 56(e). If the opposing party has difficulty

in obtaining affidavits or discovery, he or she may seek

a continuance under Fed.R.Civ/P. 56(f). The opposing

party bears the responsibility of bringing to the trial

court’s attention any outstanding discovery in the

cause.

The record on appeal in the instant case reflects

the following discovery efforts and pleadings, Cowen at

1531,

Following World Shoe Corp.’s summary judgment

motion, Cowan filed a motion for a order compelling

World Shoe Corp. to answer interrogatories

propounded by plaintiff, which was granted Nov. 8. On

Nov. 14, Cowan propounded a second set of

interrogatories and requests for production on

defendants. No response to these discovery requests

were ever received. After the court notified the parties

on Nov. 21 that the two motions for summary

judgment were going to be taken under advisement on

Dec. 5, Cowen filed an affidavit on Dec. 4, 1985,

we ew OL ee

)

App. 111

repeating her statements that the heel cap had come

off her shoe, that the metal Strip was part of the cause

of her fall, and that the floor had been slippery. etc.

On the basis of the record, the district court

granted the defendant’s motions for summary

judgment an Apr. 12, 1985. Cowen filed a motion for

reconsideration on April 19, 1985, etc. The district

court denied the motion for reconsideration on May

29, 1985.

[2] We find that the district court erred in granting

summary judgment. The affidavits, deposition, and

responses to discovery indicate that there were

genuine disputes as to material facts. Etc. Cowan at

1532,

[3] | Cowan’s failure to file a motion under

Fed.R.Civ.P. 56(f) to foreclose entry of summary

judgment does not invalidate her claim that the entry

of that judgment was error. The purpose of Rule 56/(f)

is to allow parties Opposing summary judgment an

opportunity to obtain additional time or to be excused.

from obtaining unavailable affidavits or other

discovery. Cowan, however, had already filed answers

to interrogatories, a deposition, and an affidavit as to

the disputed facts, etc. We have held that, generally,

summary judgment is premature when the moving

party has not answered the opponent’s interrogatories.

Murrell v. Bennett, 615 F.2d 306, 310 (S* Cir. 1980)

We find that especially true in this case where Cowen

propounded interrogatories to World Shoe Corp. which

request information that is critical to the issues in

dispute.

We find that summary judgment was improper as a

matter of law on the record of this case, We therefore

REMAND the case to the district court for trial on the

merits.

Murrell v. Bennett, 615 F.2d 306 (S* Cir. 1980) at 310,

App. 112

[3] Appellees also assert that Murrell did not meet his

burden of rebutting their showing by supplying

affidavits or other material evidence. see Adickes uv.

S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26

L.Ed.2d 142 (1970); Garcia v. Amencan Marine Corp.,

432 F.2d 6 (5% Cir. 1970).

The absence of documents for Murrell is the very

injustice of this case. Indigent prisoners are hampered

in their access to the proof necessary to ward off

summary judgment. Murrell had no opportunity to

provide this information because his unschooled

attempts at requesting discovery were nipped in the

bud only thirty-two days after the complaint was filed.

This court noted in Alabama Farm that summary

judgment normally should not be granted before

discovery is completed. 606 f.2d at 609. Murrell’s

discovery was never allowed to begin, etc. Although his

documents may be inartful, the thrust of his requests

was clear: he wanted the chance to show that material

disputes did exist.

Summary judgment is a valuable jeadicied tool.

Because its consequences are so severe, however, we

must always guard against premature truncation of

ligitimate lawsuits merely because of unskilled

presentations. The district court’s judgment is

REVERSED.

Alabama Farm Bureau Casualty Co., Inc., v.

American Fidelity Life Insurance Company, etc. et al.,

606 F.2d 602 (5 Cir. 1979) at 603,

(4) Federal Civil Procedure

Burden is on party seeking summary judgment to

show that there is no genuine issue of material fact.

(5) Federal Civil Procedure

In considering a summary judgment motion, the

inferences most favorable to the party opposing the

motion will be drawn, as such inferences may create

disputes regarding the basic facts or regarding facts to

App. 113

to be inferred from such facts.

(6) Federal Civil Procedure

Summary Judgment should not ordinarily be granted

before discovery has been completed, especially in a

stockholder’s derivative action.

(7) Federal Civil Procedure

Summary judgment may be inappropriate, even

though basic facts are undisputed, if the ultimate facts

in question are to be inferred from them, and the

parties disagree regarding the permissible inferences

that can be drawn from the basic facts.

(8) Federal Civil Procedure

Where a jury is called for, litigants are entitled to have

the jury choose between conflicting inferences from

basic facts, however, where the judge is a trier of fact

he may be in a position, for summary judgment

purposes, to draw inferences without resort to the

expense of trial, unless there is an issue of witness’

credibility.

Alabama at 607,

Alabama Farm made a number of attempts to

exercise its discovery rights, but they were largely

resisted by the defendants, and the district court did

not order full discovery. For example, the defendants

were served with interrogatories in January, 1975, but

only one interrogatory was answered, and that was

only after the district court had ordered a response.

In January, 1975, Alabama Farm also sought the

protection of minute books of AMFI’s Executive

Committee, Finance Committee and Boara of

Directors. These books were never produced, even

through Alabama Farm offered to examine them at any

location specified by the defendants so as not to

disrupt AMFI’s operations. The district court never

heard or ruled on two motions Alabama Farm filed

seeking to compel production of these records.

Alabama at 609,

App. 114

[4,5] The burden is on the party seeking summary

judgment to show that there is no genuine issue of

material fact. The “party opposing the motion is to be

given the benefit of all reasonable doubt determining

whether a genuine factual issue exists." Kellerman v.

Askew , 541 F.2d 1089, 1092 (5% Cir. 1976). In

considering a summary judgment motion, the

inferences most favorable to the party opposing the

motion will be drawn. Boazman v. Economics Lab., Inc.,

537 F.2d 210, 214, (5% Cir. 1976) Such inferences

may create disputes regarding basic facts or regarding

facts to be inferred from such facts.

[6] “In applying the basic principles the factor of

access to proof must, however, be seriously considered

in ruling on a defendant’s motion for summary

judgment, particularly in [a stockholder’s derivative

action] where plaintiffs proof must come mainly from

sources largely within the control of the defendants

and from the mouths of the alleged wrongdoers.” 6

Moore’s Federal Practice Section 56.17[60] at 56-1065

(1976 ed.)(footnotes omitted). Summary judgment

should not, therefore, ordinarily be granted before

discovery has been completed. (citations omitted) “’

Cases in which the underlying issue is one of

motivation, intent, or some other subjective fact are

particularly inappropriate for summary judgment, as

are those in which the issues turn on the credibility of

the affients.’ (citations omitted)

[7,8] Summary judgment may be improper, even

though the basic facts are undisputed, if the ultimate

facts in question are to be inferred from them, and the

parties disagree regarding the permissible inferences

that can be drawn from the basic facts. Winter v.

Highlands, 569 F.2d 297, 299, (5% Cir. 1978) “[The

choice between permissible inferences is for the trier of

_ facts.’ “ Nunez v. Superior Oil Co., 572 F.2d 1119,

1124, quotimg, Walker v. U.S. Gypsum., 363 U.S. 805,

App. 115

80 S.Ct. 1240, 4 L.Ed.2d 1148. Where a jury is called

for, litigan.s are entitled to have the jury choose

between conflicting inferences from basic facts. Nunez,

supra, 572 F.2d at 1124. However, where the judge is

the trier of fact, as was the case here, he may be in a

position to draw inferences without resort io the

expense of trial, unless there is an issue of witness

credibility. See id. at 1124-25.

Alabama at 617,

Although Alabama Farm’s suit is premised, at this

point, on unproved inferences from circumstantial

evidence, it states a cause of action and involves

disputed issues of fact; therefore, under Federal Rules

of Civil Procedure, Alabama Farm has a right to

further discovery. See Subin v. Goldsmith, supra, 224

F.2d at 761.

Parrish v. Board of Com’rs of Alabama State Bar.

933 F.2d 942 (5% Cir. 1976) at 943,

[2] Federal Civil Procedure —

Trial court in class action by blacks alleging racial

discrimination by Boards of Commissioners and Bar

Examiners of Alabama Bar Association in their policies

and practices governing admission to bar erred in

entering summary judgment against plaintiffs without

requiring production of examination papers and

graders''motes requested by plaintiffs as part of their

pretrial discovery. 28 U.S.C.A. Sections 2201, 2201;

42 U.S.C.A. Sections 1981-1983; Fed.R.Civ.P. Rule

56(f), 28 U.S.C.A.

Parrish at 946,

IV. PROPRIETY OF SUMMARY JUDGMENT.

With these preliminary considerations aside, we

come to the appellants’ principal argument: that

Summary judgment in this case was inappropriate,

because the trial court did not allow complete

discovery. Appellants also argue that there were

material issues of fact that the appellees were not

App. 116

entitled to summary judgment on the law, but their

main contention is that summary judgement was

precluded as a matter of law because there were

outstanding motions to compel interrogatories and

that without this information they were unable to

prenare adequately their affidavits in opposition to the

motion for summary judgment.

(A) Adequacy of Discovery

[2] The appellees moved for summary judgment on

April 12, 1973, and on April 20, the court held a

hearing to consider the motion. The court asked

counsel for the appellants pointedly what further

discovery they needed in order to “present by affidavit

facts essential to justify your opposition” to the motion

for summary judgment. Counsel for the appellants

replied that they needed answers from the Chairman

of the Board of Examiners to interrogatories and the

transcripts of depositions taken of two of the bar

examiners. After agreeing that it would reserve these

items, the trial court then asked counsel for the

appellants: “Now, what other discovery are you

seeking?” Counsel replied: “Well, in light of our

discussion this morning we also would need to inspect

the minutes [of the state bar association] again. We

have a motion for production of documents. We will

need to see the files of persons who have applied to

take the bar examination.”

In the four months intervening between this

hearing and the issuance of the order granting

summary judgment, the appellants accomplished all of

the discovery they had requested at the hearing—with

one exception: the appellees failed to produce the

“documents” mentioned by the counsel for the

appellants, which consisted of all answer sheets and

all grading notes made by the examiners for the Feb.,

1973, bar examination. Appellants filed a motion to

compel production of these documents on May 28, but

App. 117

the trial court never ruled on the motion.

Parrish at 948,

It is horn-book law that a trial court may not grant

a motion for summary judgment unless “the basic

facts are undisputed and that there is no dispute

between the parties as to any factual inferences :hat

may be drawn from such facts ...” Sinderman v. Perry,

430 F.2d 939 (5% Cir. 1970), affd, 408 U.S. 593, 93

S.Ct. 2694, 33 L.Ed.2d 570, and that “all inferences to

be drawn from the underlying facts must be viewed in

the light most favorable to the party opposing the

motion for summary judgment.” Time, Inc, v. Ragano,

427 F.2d 219 (5t Cir. 1970).

Parrish at 951,

We conclude that the trial court erred in entering

summary judgment without having first required the

defendants to make available for inspection as

requested by the plaintiffs the examination papers and

graders’ notes, if any, for the year 1973.

The judgment of the trial court is REVERSED and

REMANDED for further proceedings not inconsistent

with this opinion.

Celotex Corp. v. Catrett, 106 S.Ct. 2548 (1986)

(1) Federal Civil Procedure -

Entry of summary judgment is mandated, after

adequate time for discovery and upon motion, against

a party who fails to make a showing sufficient to

establish that existence of an element essential to that

party’s case and on which that party will bear the

burden of proof at trial, Fed.R.Civ.P. Rule 56(c), 28

U.S.C.A.

(2) Federal Civil Procedure

Party seeking summary judgment always bears the

initial responsibility of informing the district court of

the basis for its motion and identifying those portions

of the pleadings, depositions, answers to

interrogatories , and admissions on file, together with

App. 118

affidavits, if any, which it believes demonstrate che

absence of a genuine issue of material fact.

Fed.R.Civ.P.. Rule 56(c), 28 U.S.C.A.

(7) Federal Civil Procedure

Nonmoving party need not produce evidence in a form

that would be admissible at trial in order to avoid

summary judgment. Fed.R.Civ.P. Rule 56(e), 28 U.S.C.

Celotex at 2552,

“[T}h[e] standard [for granting summary judgment]

mirrors the standards for a directed verdict under

Federal Rule of Civil Procedure 50(a) ...” Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505,

2511, 91 L.Ed.2d 202 (1986)

[3-5] Of course, a party seeking summary judgment

always bears the initial responsibility of informing the

district court of the basis for its motion, identifying

those portions of “ the pleadings, depositions, answers

to interrogatories, and admissions on file, together

with the affidavits, if any, “which it believes

demonstrate the absence of a genuine issue of

material fact.

[7] We do not mean that the nonmoving party must

produce evidence in a form that would be admissible

at tral in order to avoid summary judgment.

Obviously, Rule 56 does not require the nonmoving

party to depose her own witnesses. Rule 56(e) permits

a proper summary judgment motion to be opposed by

any of the kinds of evidentiary materials listed in Rule

56(c), except the mere pleadings themselves, and it is

from this list that one would normally expect the

nonmoving party to make the showing to which we

have referred.

Celotex at 2554,

Respondent commenced this action on Sept. 1980,

and petitioner’s motion was filed in September 1981.

The parties had conducted discovery, and no serious

claim can be made that respondent was in any sense

App. 119

“railroaded” by a premature motion for summary

judgment. Any potential problem with such premature

motions can be adequately dealt with under Rule 56(f),

n.6 ;

n.6 Rule 56(f) provides:

“Should it appear from the affidavits of a party

opposing the motion that he cannot for reasons stated

present by affidavit facts essential to justify his

opposition, the court may refuse application for

judgment or may order a continuance to permit

affidavits to be obtained or depositions to be taken or

discovery to be had or may make such order as is

just.”

which allows a summary judgment motion to be

denied, or the hearing on the motion to be continued,

if the nonmoving party has not had an opportunity to

make full discovery.

Celotex at 2555,

Rule 56 must be construed with due regard not only

for the rights of persons asserting claims and defenses

that are adequately based in fact to have those claims

and defenses tried to a jury, but also for the rights of

persons opposing such claims and defenses to

demonstrate in the manner provided by the Rule, prior

to trial, that the claims and defenses have no factual

basis.

The judgment of the Court of Appeals is accordingly

reversed, and tie case remanded for further

proceedings consistent with this opinion.

Matsushita Elec. Industrial Co. v. Zenith Radio Corp.,

475 U.S. 574 (S.Ct. 1986), at 582,

We granted certiorari to determine (I) whether the

Court of Appeals applied the proper standards in

evaluating the district court’s decision to grant

petitioner’s motion for summary judgment.

Matsushita at 585,

The issues in this case thus become whether

App. 120

respondents adduced sufficient evidence in support of

their theory to survive summary judgment. We

therefore examine the principles that govern summary

judgment determination.

To survive petitioners’ motion for summary

- judgment, n.10 respondents must establist. that there

is a genuine issue of material fact as to whether

petitioners entered into an illegal conspiracy that

caused respondents to suffer a cognizable injury.

Fed.R.Civ.P. Rule 56(e); n.11 First National Bank of

Arazonia v. Cities Service Co., 391 U.S. 253, 288-89

(1968)

n.10 Respondents argued before the district court

that petitioners had failed to carry their initial burden

under Fed.R.Civ.Proc. Rule 56(c) of demonstrating the

absence of a genuine issue of material fact, See

Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

n.l1l Rule 56(e) provides, in relevant part:

“When a motion for summary judgment is made and

supported as provided in this rule, an adverse party

may not rest upon the mere allegations or denials of

his pleadings, but his response, by affidavit or

otherwise provided in this rule, must set forth specific

facts showing there is a genuine issue for trial. If he

does not respond, summary judgment, if appropriate,

shall be entered against him.”

Second, the issue of fact must be “genuine.”

Fed.R.Civ.P. 56 (c). When the moving party has carried

its burden under Rule 56(c), (n.12 See n. 10, supra.)

its opponent must do more than simply show that

there is some metaphysical doubt as to the material

facts. See deLuca v. Atlantic Refining Co., 176 F.2d

421, 423 (CA2 1949) (L. Hand, J.), cert. denied, 338

U.S. 943 (1950); 10A C. Wright, A. Miller, & M. Kane,

Federal Practice and Procedure Section 2727 (1983);

Clark, Special Problems in Drafting and Interpreting

Procedural Codes and Rules, 3 Vand. L. Rev. 493,

App. 121

504-505 (1950). Cf. Sartor v. Arkansas Natural Gas

Corp., 321 U.S. 620, 627 (1944). In language of the

Rule, the nonmoving party must come forward with

“specific facts showing that there is a genuine issue

for trial.” Fed.R.Civ.P. 56(e) (emphasis added) See also

Advisory Committee Note to 1963 Amendment of

Fed.R.Civ.P. 56(e), 28 U.S.C.App., p. 626 (purpose of

summary judgment is to “pierce the pleadings and to

assess the proof in order to see whether there is a

genuine need for trial”). Where the record taken as a

whole could not lead a rational trier of fact to find for

the nonmovirig party, there is no “genuine issue for

trial.” Cities Service, supra, at 289.

Matsushita at 587.

Respondents correctly note that “[ojn summary

-Judgment the inferences to be drawn from the

underlying facts ... must be viewed in the light most

favorable to the party opposing the motion.” U.S. v.

Diebold, Inc., 369 U.S. 654, 655 (1962)

Matsushita at 600.

In a similar vein, the Court summarizes Monsanto Co.

v.Spray-Rite Service Corp., supra, as holding that

“courts should not permit factfinders to infer

conspiracies when such inferences are implausible ...”

Ante, at 593. Such language suggests that a judge

hearing a defendant’s motion for summary judgment

in an antitrust case should go beyond the traditional

summary judgment inquiry and decide for himself

whether the weight of the evidence favors the plaintiff.

Cities Service and Monsanto do not stand for any such .

proposition. Each of those cases simply held that a

particular piece of evidence standing alone was

insufficiently probative to justify sending a case to the

jury. These holdings in no way undermine the doctrine

that all evidence must be construed in the light most

favorable to the party opposing summary judgment.

Adickes v. S.H. Kress & Co., 398 U.S. 144 (S.Ct. 1970)

App. 122

(1) The district court on the basis of the record

erred in granting summary judgment on the

conspiracy count. Pp. 149-161.

.(a) The involvement of a policeman, a state official,

whether or not his actions were lawful or authorized,

in the alleged conspiracy would plainly provide the

State action needed to show a direct violation of

petitioner’s Fourteenth Amendmen: sights entitling her

to relief under Section 1983, and private persons

involved in such a conspiracy are acting “under color”

of law and can be liable under Section 1983. Pp. 150-

152.

.(b) Respondent did not carry out its burden, as

the party moving for summary judgment, of showing

the absence of a genuine issue as to any material fact,

as it did not foreclose the possibility that there was a

policeman in the store while the petitioner was

awaiting service (from which the jury could infer an

understanding between the officer and an employee of

respondent that petitioner not be served), and its

failure to meet that burden requires reversal. Pp. 153-

159.

.(c) Because respondent failed to meet its initial

burden as the party moving for summary judgment,

petitioner was not required to come forward with

suitable opposing affidavits under Fed.R.Civ.P. 56(e).

Pp. 159-161.

Adickes at 148,

As explained in Part I, because the respondent

failed to show the absence of any disputed material

fact, we think the district court erred in granting

summary judgment.

Adickes at 153,

We now proceed to consider whether the district

court erred in granting summary judgment on the

conspiracy count. In granting respondent’s motion, the

district court simply stated that there was “no

App. 123

evidence in the complaint or in the affidavits and other

papers from which ‘Teasonably-minded person’ might

draw an inference of conspiracy,” 252 F.Supp., at 144,

affd, 409 F.2d, at 126-127. Our own scrutiny of the

factual allegations of petitioner’s complaint, as well as

the material found in the affidavits and depositions

presented by Kress to the district court, however,

convinces us that summary judgment was improper

here, for we think respondent failed to carry its burden

of showing the absence of any genuine issue of fact.

Adickes at 157,

We think that on the basis of the record, it was

error to grant summary judgment.

Adickes at 158,

Because “[o]Jn summary judgment the inferences to

be drawn from the underlying facts contained in [the

moving parties] materials must be viewed in the light

most favorable to the party opposing the motion,” U.S.

v. Diebold, Inc., 369 U.S. 654, 655 (1962), we think

respondent’s failure to show there was no policeman

in the store requires reversal.

Pointing to Rule 56(e), as amended in 1963,

respondent argues that it was incumbent on petitioner

to come forward with an affidavit properly asserting

the presence of the policeman in the store, if she were

to rely on the fact to avoid summary judgment.

Respondent notes in this regard that none of the

materials upon which petitioners relied met the

requirements of Rule 56/e).

This argument does not withstand scrutiny,

however, for both the commentary on and background

of the 1963 amendment conclusively show that it was

not intended to modify the burden of the moving party

under Rule 56(c) to show initially the absence of a

genuine issue concerning any material fact. The

Advisory Committee note on the amendment states

App. 124

that the changes were not designed to “affect the

ordinary standards applicable to the summary

judgment.” And, in a comment directed specifically to

a contention like respondent’s, the Committee stated

that “[w]here the evidentiary matter in support of the

motion does not establish the absence of a genuine

issue, summary judgment must be deniéd even if

opposing evidentiary matter is presented.” Because

respondent did not meet its initial burden of

establishing the absence of a policeman in the store,

petitioner here was required to come forward with

suitable opposing affidavits.

Combs v. King, 764 F.2d 818 (11 Cir. 1985) at

819,

.7. Federal Civil Procedure

Party seeking summary judgment bears exacting

burden of showing both there is no actual dispute as

to any material fact and that moving party is entitled

to judgment as a matter of law.

.C. Summary Judgment Combs at 827.

7] “ On appeal from summary judgment the record

must be viewed in the light most favorable to the party

opposing the motion.” Benton-Volvo-Metaririe, Inc. v.

Volvo Southwest, Inc., 479 F.2d 135, 138 (5 Cir.

1973). The party seeking summary judgment bears the

exacting burden of showing both that there is no

actual dispute as to any material fact and that the

moving party is entitled to judgment as a matter of

law. Id.

In this case, the Trustees’ burden in responding to

the summary judgment motion was to offer significant

probative evidence that tended to support its

complaint. Pan Islamic Trade Corp. v. Exxon, 632 F.2d

539, 554 (5 Cir. 1980), cert. denied, 454 U.S. 927,

102 S.Ct. 427, 70 L.Ed.2d 236 (1981).

.[8) The trustees met their burden when they

produced the affidavits of two of Mrs. King’s

App. 125

employees and of the certified public accountant.

These affidavits raised genuine questions about the

accuracy of Mrs. King’s records and the number of

hours worked by her employees.

Given the ambiguities in the record, the conflicting

versions regarding the number of hours worked by

Mrs. King’s employees, and the competing factual

inferences that arose, it is clear that Mrs. King should

not have obtained a summary judgment. She failed to

carry the burden of demonstrating that there is no

actual dispute as to the material facts in the case.

Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90

S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970).

For reasons stated above, we hold that the district

court erred in granting summary judgment.

Ill. CONCLUSION

The district court erred when it found that Mrs.

King did not have a duty to maintain records and did

not have the burden of proving the actual numbers of

hours worked in the absence of clear records. The

court also erred in granting summary judgment. For

these reasons we REVERSE and REMAND to the

district court for further consideration in light of this

opinion.

“REVERSED and REMANDED.

Mercantile Bank & Trust v. Fidelity & Deposit Co., 750

F.2d *38 (11th Cir. 1985)

.1. Federal Courts

Court of Appeals must independently review

district court’s order granting summary judgment and

determine whether any genuine issue of material fact

exists. Fed.R.Civ.P. Rule 56(c), 28 U.S.C.A.

.2. Federal Courts

When Court of Appeals examines a decision granting

or denying summary judgment, it applies same legal

standards that control district court’s determination.

Fed.R.Civ.P. Rule 56(c), 28 U.S.C.A. :

App. 126

.3. Federal Civil Procedure

A party seeking summary judgment bears burden

of demonstrating that no genuine dispute exists as to

any material fact in case. Fed.R.Civ.P. Rule 56(c), 28

U.S.C.A.

.4. Federal Court«

In determining whether a movant has met burden

on motion for summary judgment of demonstrating

that no genuine dispute exists as to any material fact,

Court of Appeals reviews evidence and all factual

inferences therefrom in light most favorable to party

opposing motion, with reasonable doubts about facts

resolved in favor of nonmovant. Fed.R.Civ.P. Rule

56(c),U.S.C.A. .

.55. Federal Civil Procedure

If reasonable minds might differ on inferences

arising from undisputed facts, then a court should

deny summary judgment.

Mercantile at 841,

Issue

The sole issue on appeal is whether the district

court erred in granting the government’s motion for

summary judgment.

Discussion

[1,2] Appellant, Mercantile Bank and Trust

Company, Ltd., contends that the district court erred

in its determination that no genuine issue of material

fact exists as to the ownership of the collateral deposit

funds interpleaded in this action. We must

independently review the district court’s order granting

summary judgment and determine whether any

genuine issue of material fact exists. Fed.R.Civ.P.

56(c); Morrison v. Washington County, Alabama, 700

F.2d 678 (11% Cir. 1983). When we examine a decision

granting or denying summary judgment, we apply the

same legal standards that-control the district court’s

determination. Environmental Defense Fund v. Marsh,

App. 127

651 F.2d 983, 991 (5% Cir. 1981).

.[3-S} A party seeking summary judgment bears the

burden of demonstrating that no genuine dispute

exists as to any material fact in the case. Adickes v.

S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598,

1608, 26 L.Ed.2d 142 (1970); Clemons v. Dougherty

County, Georgia, 684 F.2d 1365 (11 Cir. 1982). In

determining whether a movant has met this burden,

we review the evidence and all factual inferences

therefrom in light most favorable to the party opposing

the motion. Adickes, 398 U.S. at 157, 90 S.Ct. at

1608. All reasonable doubts about the facts are

resolved in favor of the non-mavant. Casey Enterprises

v. Am. Hardware Mutual Insurance Co., 655 F.2d 598,

602 (S* Cir. 1981). If reasonable minds might differ on

the inferences arising from undisputed facts, then a

court should deny summary judgment. Impossible

Electronics Techniques, Inc. v.Wackenhut Protective

System, Inc., 669 F.2d 1026, 1031 (5% Cir. Unit B

1982); Croley v. Matson Navigation Co., 434 F.2d 73,

75 (5% Cir. 1970).

Mercantile at 844,

Summary judgment is a useful device, however, if it

is not used with caution, it inevitably leads to drastic

results. See Murrell v. Bennett, 615 F.2d 306, 309 (5th

Cir. 1980) Mercantile’s burden in responding to the

summary judgment motion was to offer significant

probative evidence that tended to support its

complaint. See Pan-Islamic Trade Corp. v. Exxon, 632

F.2d 539, 554 (St Cir. 1980), cert. denied, 454 U.S.

927, 102 S.Ct. 427, 70 L.Ed.2d 236 (1981) Mercantile

met its burden. Because this case should have been

remanded to the district court for further development

of the record, I must dissent.

Thrasher v. State Farm Fire & Cas., Co., 734 F.2d 637

(11% Cir. 1984)

App. 128

.1. Federal Courts

Order granting summary judgment must be

independently reviewed by the Court of Appeals.

.2. Federal Courts

In reviewing grant of summary judgment, question

is whether any genuine issue of material fact exists.

Fed.R.Civ.P. 56(c). 28 U.S.C.A.

.3. Federal Courts

When examining decision granting or denying

summary judgment, Court of Appeals applies same

legal standards as those that control district court in

determining whether summary judgment is

appropriate. Fed.R.Cic.P. 56(c}) 28 U.S.C.A.

.4. Federal Civil Procedure

Party seeking summary judgment bears burden of

demonstrating that no genuine dispute exists as to

any material fact in case; when determining whether

movant met its burden, courts should review evidence

and all factual inferences therefrom in light most

favorable to party opposing motion. Fed.R,Civ.P.

56(c),28 U.S.C.A.

.5. Federal Civil Procedure

In reviewing motion for summary judgment, all

reasonable doubts about facts should be resolved in

favor of nonmovant, and if reasonable minds might

differ on inferences arising from undisputed facts,

then court should deny summary judgment.

Fed.R.Civ.P. 560, 28 U.S.C.A.

Thresher at 638,

Issue

The sole issue before us is whether the district

court’s order granting summary judgment in favor of

State Farm was properly entered.

Discussion

.[1-3] An order granting summary judgment must

be independently reviewed by this Court. Morrison v.

Washington County, Alabama,700 F.2d 678 (11% Cir.

App. 129

1983). In reviewing the grant of summary judgment,

the question is whether any genuine issue of material

fact exists. Fed.R.Civ.P. 56(c). When examining a

decision granting or denying summary judgment, this

court applies the same legal standard as those that

control the district court in’ determining whether

summary judgment is appropriate. Enviromental

Defense Fund v. Marsh, 651 F.2d 983, 991 (5t Cir.

198i).

.[4] The party seeking summary judgment bears the

burden of demonstrating that no genuine issue exists

as to any material fact in the case. Adickes v. S.H.

Kress and Co., 398 U.S. 144, 157, 90 S.Ct. 1598,

1608, 26 L.Ed.2d 142 (1970); Clemonds v. Dougherty

County, Georgia, 684 F.2d 1365 (11% Cir. 1982). We,

therefore,- must determine whether appellee, State

Farm, has met its burden.

When determining whether the movant has met its

burden, courts should review the evidence and all

factual inferences therefrom in a light most favorable

to the party opposing the motion. Adlickes, 398 U.S. at

157, 90 S.Ct. at 1608; Impossible Electronics

Techniques, Inc v. Wackenhit Protective. System, Inc.,

669 F.2d 1026 (5% Cir. Unit B 1982).

[5] | Moreover, all reasonable doubts about the facts

should be resolved in favor of the nonmovant. Casey

Enterprises v. Am. Hardware Mutual Insurance Co.,

655 F.2d 598, 602 (St Cir. 1981). If reasonable minds

differ on the inferences arising from undisputed

Facts, then a court should deny summary judgment.

Impossible Electronics Techniques, Inc., 669 F.2d at

1031; Croley v. Navigation Co., 434 F.2d 73, 75 (5th

Cir. 1970).

United States v. Diebold, 369 U.S. 654 (S.Ct. 1962) at

655, On summary judgment the inferences to be

drawn from the underlying facts contained in such

materials must be viewed in the light most favorable

App. 130

to the party opposing the motion. A study of the record

in this light leads us to believe that inferences contrary

to those drawn by the court might be permissible, the

materials before the district court having raised a

genuine issue as to ultimate facts material to the rule

of International Shoe Co. v. Federal Trade Comm,n., it

was improper for the district court to decide the

applicability of the rule on a motion for summary

judgment. Fed.R.Civ.P., 56(c). Reversed and

remanded.

Haines v. Kerner et al, 404 U.S. 519 (S.Ct. 1971)

Prisoner’s pro se complaint seeking to recovery

damages for claimed physical injuries and deprivation

of rights in imposing disciplinary confinement should

not have been dismissed without affording his the

opportunity to present evidence on his claims. 427

F.2d 71, reversed and remanded.

Haines at 520,

We granted certiorari and appointed counsel to

represent petitioner. The only issue before us is

petitioner’s contention that the district court erred in

dismissing his pro se complaint without allowing him

to present evidence on his claims.

Whatever may be the limits on the scope of inquiry

of courts into the internal administration of prisons,

allegations such as those asserted by petitioner,

however inartfully pleaded, are sufficient to call for the

opportunity to offer supporting evidence. We cannot

say with assurance that under the allegations of the

pro se complaint, which we hold to less stringent

standards than formal pleadings drafted by lawyers, it

appears “beyond doubt that the plaintiff can prove no

set of facts in support of his claim which would entitle

him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46

(1957). See Dioquardi v. Durning, 139 F.2d 774 (CA2

1944).

Accordingly, although we intimate no view

7

iii a i

App. 131

on the merits of petitioner’s allegations, we conclude

that he is entitled to an opportunity to offer proof. The

judgment is reversed and the case is remanded for

further proceedings consistent herewith. |

Reversed and remanded.

Jackson v. Reese, 608 F.2d 159 (5 Cir. 1979)

.1. Federal Civil Procedure

_ Courts are required to liberally construe pro se

complaints, and thus state prisoner’s civil rights

complaint against State Parole Board should not have

been dismissed unless it appeared that he could prove

no set of facts which would entitle him to relief.

.2. Constitutional Law

Since state prisoner had not shown a deprivation of

a constitutionally protected interest, in that denial of

parole did not amount to loss of liberty in the due

process context, federal court, in prisoner’s civil rights

action against State Parole Board, did not need to

address whether the board’s procedures comported

with due process. 42 U.S.C.A. Section 1983; U.S.C.A.

Const. Amend. 14.

.[1) The issue presented in this action is whether

appellant set fourth specific facts that would, if

proved, warrant the relief he sought. It is axiomatic

that courts are required to liberally construe pro se

complaints. Haines v. Kerner, 404 U.S. 519, 92 S.Ct.

994, 30 L.Ec.2d 652 (5% Cir. 1972) Appellant’s

complaint should not have been dismissed unless it

appeared that he could prove no set of facts which

would entitle him to relief. Conley v. Gibsom, 355 U.S.

41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1958); accord Johnson

v. Wells, 566 F.2d 1016 (5% Cir. 1978). We hold that

the district court properly dismissed appellant’s

complaint.

[2] The threshold question under Section 1983 is

whether the complainant has been deprived of a

cognizable liberty or property interest. The Supreme

App. 132

Court has held tiiat the denial of parole, as

distinguished from the revocation of parole, does not

amount to a loss of liberty in the due process context.

(citations omitted) Since appellant has not shown a

deprivation of a constitutionally protected interest, this

Court need not address whether the Georgia Parole

Board’s procedures comport with due process, Id. At

1053.

Recusal statute, 28 U.S.C. Section 455(a) and (b),

requires mandatory disqualification of judge in any

proceeding in which his impartiality might be

reasonable be questioned or where he has personal

bias or prejudice concerning party. United States uv.

Brown, 539 F.2d 467 (5% Cir. 1976), citing In re

Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625;

Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444;

Offutt v. United States, 348 U.S. 11, 14, 75 S.Ct. 11,

13. Congress’ purpose in amending 28 U.S.C. Section

455 was to reconcile 1972 Code of Judicial Conduct

with federal statute and to eliminate dual standards,

statutory and ethical, couched in uncertain language

that had effect of forcing judge to decide either legal or

ethical issue at his peril, and to overrule concept that

close cases involving disqualification should be

resolved on ground that judge had “duty to sit.”_ SCA

Services, Inc. v. Morgan, 557 F.2d 110 (7% Cir. 1977).

Purpose of enactment of amendments to 28 U.S.C.

Section 455 was to adopt categorical rule that would

be self-enforcing. McCuin v. Texas Power & Light Co.,

714 F.2d 1255, (5 Cir. Tex. 1983), quoting McCuin at

1265, Other ethical precept’s also limit the lawyer’s

conduct, Canon 9 of the Code of Professional

Responsibility provides: “A Lawyer Should Avoid Even

the Appearance of Professional Impropriety.”; 28

U.S.C. Section 144 expressly conditions relief upon

filing of timely and legally sufficient affidavit; no such

App. 133

procedural requirement is contained in 28 U.S.C.

Section 455, which is directed to judge, is self-

enforcing and places judge sitting on case under duty

to recuse himself if he is aware of ground for recusal

under Section 455; thus Section 455 modifies Section

144 in «equiring judge to go beyond Section 144

affidavit and to consider merits of motion pursuant to

Section 455. United States v. Silba, 624 F.2d 864 (9th

Cir. 1980). a

Even if affidavit filed under 28 U.S.C. Section 144

is inadequate, district judge has independent duty to

recuse himself under 28 U.S.C. Section 455(a) which

is self-executing provision specifying no particular

procedure that party must -follow; instead, Section

455(a) sets forth mandatory guideline which federal

judge must observe sua sponte. Roberts v. Bailer, 625

F.2d 125 (6% Cir. 1980). 28 U.S.C. Section 455(a) is

broader than 28 U.S.C. Section 144, and applies to

any judge and includes proceeding in which his

impartiality might be reasonably questioned; Congress

enacted revision to 28 U.S.C. Section 455(a) in order to

substitute objective test of reasonableness for

subjective test of former 28 U.S.C. Section 455, and

under broader standard of revised 28 U.S.C. Section

455(a), disqualification is appropriate not only where

there is actual or apparent bias or prejudice but also

when circumstances are such that judge’s impartiality

might be reasonably questioned; grounds for

disqualification in 28 U.S.C. Section 144 - personal

bias or prejudice either against or in favor of any

adverse party — are included in 28 U.S.C. Section 455;

28 U.S.C. Section 455(a) allows greater flexibility in

determining whether disqualification is warranted in

particular situation, United States v. Ritter, 540 F.2d

459 (10t» Cir. 1976). In determining whether judge

should recuse under 28 U.S.C. Section 455(a), issue is

not whether judge isimpartial in fact, but rather

eS

App. 134

whether reasonable man might question impartiality

under all circumstances. United States v. Gigax, 605

_F.2d 507 (10% Cir. 1979).

Goal of U.S.C. Section 455(a) is to foster

appearance of impartiality, and any question of judge’s

unpartiality threatens purity of judicial process; since

statute focuses on appearance of impartiality, as

opposed to existence in fact of bias or prejudice, judge

faced with this potential ground for disqualification

ought to consider how his participation in given case

looks to average man on street.

If trial judge was required to disqualify himself

under 28 U.S.C. Section 455, but did not, Court of

Appeals must reverse judgment and order new trial

before different judge. Potashnick v. Port City Constr.

Co., ( 5% Cir. 1980), citing Mullane v. Central Hanover

Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652

(1950); Powell v. Alabama, 287 U.S. 45, 68, 53 S.Ct.

55,; On appellate review, “abuse of sound judicial

discretion” test obtains. Davis v. Board of School

Comrs., 517 F.2d 1044; This court, in its opinion,

United States v. Alabama, 828 F.2d 1532, 1539-41

(11% Cir. 1987) -

.2. Legal Standard

“The guarantee to the defendant of a totally fair and

impartial tribunal, and the protection of the integrity

and dignity of the judicial process from any hint or

appearance of bias is the palladium of our judicial

system.” N.20 To ensure that the courts remain above

reproach, the Congress passed statutory provisions

governing the disqualification of federal judges. The

relevant statutes are 28 U.S.C. Sections 144 and 455.

N.21 These two statutes control appellants’ claim that

the lower court erred in failing to disqualify Judge

Clemon from presiding over this case. N.22

Alabama at 1540, [3]

App. 135

Section 455(a) requires a judge to disqualify himself

when “his impartiality might be reasonably be

questioned.” Thus under Section 455(a) an actual

demonstrated prejudice need not exist in order for a

judge to recuse himself: “disqualification should follow

if the reasonable man, were he to know all the

circumstances, would harbor doubts about the judge’s

impartiality.” Congress expressly intended the

amended Section 455 to promote public confidence in

the impartiality of the courts by eliminating even the

appearance of impropriety, n.30

United States v. Meester, 762 F.2d 867, 884 (11% Cir.

1985)

Thus a motion for disqualification may not

ordinarily be based on the judge’s rulings in the same

case. United States v. Phillips, 664 F.2d at 1002-03:

Phillips, 637 F.2d at 1020. An exception to the general

rule that bias must stem from an extrajudicial source

exists where “such pervasive and prejudice is shown

by otherwise judicial conduct as would constitute bias

against -a party.” Davis v. Board of School

Commissioners, 517 F.2d 1044, 1051 (5% Cir. 1975)

Potashnick, at 1111, [3]

Clearly, the goal of the judicial disqualification

Statute is to foster the appearance of impartiality.

Cf.E. Thode, Reporter’s Notes to Code of Judicial

Conduct 60-61 (1973). This overriding concern with

appearances, which also prevades the Code of Judicial

Conduct and the ABA Code of Professional

Responsibility, stems from the recognized need for an

unimpeachable judicial system in which the public

has unwavering confidence. As this court has noted,

“the protection of the integrity and dignity of the

r

: App. 136

judicial process from any hint or appearance of bias is

the palladium of our judicial system.” U.S. v. Columbia

Broadcasting System, Inc., 497 F.2d 107, 109 (5% Cir.

1974). n.8 Any question of a judge’s impartiality

threatens the purity of.the judicial process and its

ins*itutions.

[4] Because 28 U.S.C. Section 455(a) focuses on the

appearance of impartiality, as opposed to the existence

in fact of any bias or prejudice; a judge faced with a

potential ground for disqualification ought to consider

how his participation in a given case looks to the

average person on the street. Use of the word “might”

in the statute was intended to indicate that

disqualification should follow if the reasonable man,

were he to know all the circumstances, would harbor

doubts about the judge’s impartiality. Note,

Disqualification of Judges and Justices in the Federal

Courts. 86 Harv.L.Rev. 736, 745 (1973)