# Appendix — Johnson v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2001
- **Citation:** 531 U.S. 1079

## Text

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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.

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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

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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 wheth

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_1396%3A2. Public record. Not legal advice.