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Richlin Security Service Co. v. Chertoff, 128 S.Ct. 2007, 170 L.Ed.2d 960 (U.S. 06/02/2008)

[1] SUPREME COURT OF THE UNITED STATES


[2] No. 06-1717


[3] 128 S.Ct. 2007, 170 L.Ed.2d 960, 2008 Daily Journal D.A.R. 8004, 76 USLW 4360, 08 Cal. Daily Op. Serv. 6601

[4] June 2, 2008


[5] RICHLIN SECURITY SERVICE COMPANY, PETITIONER
v.
MICHAEL CHERTOFF, SECRETARY OF HOMELAND SECURITY


[6] SYLLABUS BY THE COURT


[7] OCTOBER TERM, 2007


[8] Argued March 19, 2008


[9] After prevailing against the Government on a claim originating in the Department of Transportation's Board of Contract Appeals, petitioner (Richlin) filed an application with the Board for reimbursement of attorney's fees, expenses, and costs, pursuant to the Equal Access to Justice Act (EAJA). The Board concluded, inter alia, that Richlin was not entitled to recover paralegal fees at the rates at which it was billed by its law firm, holding that EAJA limited such recovery to the attorney's cost, which was lower than the billed rate. In affirming, the Federal Circuit concluded that the term "fees," for which EAJA authorizes recovery at "prevailing market rates," embraces only the fees of attorneys, experts, and agents.


[10] Held: A prevailing party that satisfies EAJA's other requirements may recover its paralegal fees from the Government at prevailing market rates. Pp. 4-18.


[11] (a) EAJA permits a prevailing party to recover "fees and other expenses incurred by that party in connection with" administrative proceedings, 5 U. S. C. §504(a)(1), including "the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project ... , and reasonable attorney or agent fees," and bases the amount of such fees on "prevailing market rates," §504(b)(1)(A). Because Richlin "incurred" "fees" for paralegal services in connection with its action before the Board, a straightforward reading of the statute demonstrates that Richlin was entitled to recover fees for the paralegal services it purchased at the market rate for such services. The Government's contrary reading -- that expenditures for paralegal services are "other expenses" recoverable only at "reasonable cost" -- is unpersuasive. Section 504(b)(1)(A) does not clearly distinguish between the rates at which "fees" and "other expenses" are reimbursed. Even if the statutory text supported the Government's dichotomy, it would hardly follow that amounts billed for paralegal services should be classified as "expenses" rather than as "fees." Paralegals are surely more analogous to attorneys, experts, and agents than to studies, analyses, reports, tests, and projects. Even if the Court agreed that EAJA limited paralegal fees to "reasonable cost," it would not follow that the cost should be measured from the perspective of the party's attorney rather than the client. By providing that an agency shall award a prevailing party "fees and other expenses ... incurred by that party" (emphasis added), §504(a)(1) leaves no doubt that Congress intended the "reasonable cost" of §504(b)(1)(A)'s items to be calculated from the litigant's perspective. It is unlikely that Congress, without even mentioning paralegals, intended to make an exception of them by calculating their cost from their employer's perspective. It seems more plausible that Congress intended all "fees and other expenses" to be recoverable at the litigant's "reasonable cost," subject to the proviso that "reasonable cost" would be deemed to be "prevailing market rates" when such rates could be determined. Pp. 4-8.


[12] (b) To the extent that some ambiguity subsists in the statutory text, this Court need look no further to resolve it than Missouri v. Jenkins, 491 U. S. 274, where the Court addressed a similar question with respect to the Civil Rights Attorney's Fees Awards Act of 1976 -- which provides that a court "may allow the prevailing party ... a reasonable attorney's fee as part of the costs," 42 U. S. C. §1988 -- finding it "self-evident" that "attorney's fee" embraced the fees of paralegals as well as attorneys, 491 U. S., at 285. EAJA, like §1988, entitles certain parties to recover "reasonable attorney ... fees," §504(b)(1)(A), and makes no mention of the paralegals, "secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client," 491 U. S., at 285. Thus, EAJA, like §1988, must be interpreted as using the term "attorney ... fees" to reach fees for paralegal services as well as compensation for the attorney's personal labor, making "self-evident" that Congress intended that term to embrace paralegal fees. Since §504 generally provides for recovery of attorney's fees at "prevailing market rates," it follows that paralegal fees must also be recoverable at those rates. The Government's contention that Jenkins found paralegal fees recoverable as "attorney's fee[s]" because §1988 authorized no other recoverable "expenses" finds no support in Jenkins itself, which turned not on extratextual policy goals, but on the "self-evident" proposition that "attorney's fee[s]" had historically included paralegal fees. Indeed, this Court rejected the Government's interpretation of Jenkins in West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, concluding that a petitioner seeking expert witness fees under §1988 could not rely on Jenkins for the proposition that §1988's "broad remedial purposes" allowed recovery of fees not expressly authorized by statute. Pp. 8-11.


[13] (c) Even assuming that some residual ambiguity in the statutory text justified resorting to extratextual authorities, the legislative history cited by the Government does not address the question presented and policy considerations actually counsel in favor of Richlin's interpretation. Pp. 11-18.


[14] 472 F. 3d 1370, reversed and remanded.


[15] Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined, in which Scalia, J., joined except as to Part III-A, and in which Thomas, J., joined except as to Parts II-B and III.


[16] On Writ Of Certiorari To The United States Court Of Appeals For The Federal Circuit Court Below: 472 F. 3d 1370


[17] Brian Wolfman argued the cause for petitioner. With him on the briefs was Scott L. Nelson.


[18] Anthony A. Yang argued the cause for respondent. With him on the brief were Solicitor General Clement, Acting Assistant Attorney General Bucholtz, Deputy Solicitor General Garre, Michael Jay Singer, and Michael E. Robinson.


[19] Amy Howe, Kevin K. Russell, Thomas C. Goldstein, Pamela S. Karlan, and Jeffrey L. Fisher filed a brief for the National Association of Legal Assistants et al. as amici curiae urging reversal.


[20] The opinion of the court was delivered by: Justice Alito*fn1


[21] Opinion of the Court


[22] 553 U. S. ____ (2008)


[23] The question presented in this case is whether the Equal Access to Justice Act (EAJA), 5 U. S. C. §504(a)(l) (2006 ed.) and 28 U. S. C. §2412(d)(1)(A) (2000 ed.), allows a prevailing party in a case brought by or against the Government to recover fees for paralegal services at the market rate for such services or only at their cost to the party's attorney. The United States Court of Appeals for the Federal Circuit limited recovery to the attorney's cost. 472 F. 3d 1370 (2006). We reverse.


[24] I.


[25] Petitioner Richlin Security Service Co. (Richlin) is a small California proprietorship. In the early 1990's, it was engaged by the former Immigration and Naturalization Service (INS) to provide guard services for detainees at Los Angeles International Airport. Through mutual mistake, the parties' two contracts misclassified Richlin's employees under the Service Contract Act of 1965, 41 U. S. C. §351 et seq. The Department of Labor discovered the misclassification and ordered Richlin to pay its employees back wages. Richlin responded by filing a claim against the Government with the Department of Transportation's Board of Contract Appeals (Board). The claim sought reformation of the two contracts in order to force the Government to make additional payments necessary to cover Richlin's liability under the Service Contract Act. Richlin prevailed after extensive litigation, and the Board entered an award in its favor.


[26] Richlin then filed an application with the Board for reimbursement of its attorney's fees, expenses, and costs pursuant to EAJA. Under EAJA, "[a]n agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust." 5 U. S. C. §504(a)(1). In addition to its other fees and expenses, Richlin sought $45,141.10 for 523.8 hours of paralegal work on its contract claim and $6,760 for 68.2 hours of paralegal work on the EAJA application itself.


[27] The Board granted Richlin's application in part. Richlin Security Service Co. v. Department of Justice, Nos. WRO-06-90, WRO-03-91, 2005 WL 1635099 (June 30, 2005), App. to Pet. for Cert. 25a. It found that Richlin met §504(b)(1)(B)'s eligibility requirements, see id., at 30a, and that the Government's position had not been "substantially justified" within the meaning of §504(a)(1), id., at 32a. It concluded, however, that Richlin was not entitled to recover its paralegal fees at the rates (ranging from $50 per hour to $95 per hour) at which Richlin was billed by its law firm.*fn2 See id., at 39a. The Board held that EAJA limited recovery of paralegal fees to "the cost to the firm rather than ... the billed rate." Ibid. Richlin had not submitted any evidence regarding the cost of the paralegal services to its law firm, see ibid., but the Board found that "$35 per hour is a reasonable cost to the firm[,] having taken judicial notice of paralegal salaries in the Washington D. C. area as reflected on the internet." Id., at 42a-43a.


[28] A divided panel of the Federal Circuit affirmed. 472 F. 3d 1370. The court construed the term "fees," for which EAJA authorizes recovery at "prevailing market rates," §504(b)(1)(A), as embracing only the fees of attorneys, experts, and agents.*fn3 See id., at 1374. The court declined to follow the contrary decision of the Eleventh Circuit in Jean v. Nelson, 863 F. 2d 759 (1988), aff'd sub nom. Commissioner v. Jean, 496 U. S. 154 (1990). It also distinguished this Court's decisions in Missouri v. Jenkins, 491 U. S. 274 (1989), and West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83 (1991), reasoning that those cases involved a different fee-shifting statute with different " `goals and objectives.' " 472 F. 3d, at 1375-1377, 1379 (discussing the Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. §1988). The court instead found support for its interpretation in EAJA's legislative history, see 472 F. 3d, at 1381 (citing S. Rep. No. 98-586 (1984) (hereinafter S. Rep.)), and in considerations of public policy, see 472 F. 3d, at 1380-1381.


[29] Judge Plager dissented. He believed that the authorities distinguished by the majority (particularly this Court's decisions in Jenkins and Casey) were indistinguishable. He also identified "sound policy reasons for ... adopting the Supreme Court's take of the case, even if we thought we had a choice." 472 F. 3d, at 1383.


[30] Richlin petitioned for rehearing, pointing out that the approach taken by the Eleventh Circuit in Jean had been followed by several other Circuits. See 482 F. 3d 1358, 1359 (CAFed. 2007) (citing Role Models Am., Inc. v. Brownlee, 353 F. 3d 962, 974 (CADC 2004); Hyatt v. Barnhart, 315 F. 3d 239, 255 (CA4 2002); and Miller v. Alamo, 983 F. 2d 856, 862 (CA8 1993)). The panel denied rehearing over Judge Plager's dissent, and the full court denied rehearing en banc. See App. to Pet. for Cert. 57a.


[31] We granted certiorari. 551 U. S. ___ (2007).


[32] II.


[33] A.


[34] EAJA permits an eligible prevailing party to recover "fees and other expenses incurred by that party in connection with" a proceeding before an administrative agency. 5 U. S. C. §504(a)(1). EAJA defines "fees and other expenses" as follows:


[35] " `[F]ees and other expenses' includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party's case, and reasonable attorney or agent fees (The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved, and (ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.)" §504(b)(1)(A).*fn4


[36] In this case, Richlin "incurred" "fees" for paralegal services in connection with its contract action before the Board. Since §504(b)(1)(A) awards fees at "prevailing market rates," a straightforward reading of the statute leads to the conclusion that Richlin was entitled to recover fees for the paralegal services it purchased at the market rate for such services.


[37] The Government resists this reading by distinguishing "fees" from "other expenses." The Government concedes that "fees" are reimbursable at "prevailing market rates," but it insists that "other expenses" (including expenses for "any study, analysis, engineering report, test, or project") are reimbursable only at their "reasonable cost." And in the Government's view, outlays for paralegal services are better characterized as "other expenses" than as "fees." The Government observes that the second sentence of §504(b)(1)(A), which explains how to calculate awards for "fees," refers to attorneys, agents, and expert witnesses, without mentioning paralegals. From this omission, the Government infers that Congress intended to treat expenditures for paralegal services not as "fees" but as "other expenses," recoverable at "reasonable cost."


[38] We find the Government's fractured interpretation of the statute unpersuasive. Contrary to the Government's contention, §504(b)(1)(A) does not clearly distinguish between the rates at which "fees" and "other expenses" are reimbursed. Although the statute does refer to the "reasonable cost" of "any study, analysis, engineering report, test, or project," Congress may reasonably have believed that market rates would not exist for work product of that kind. At one point, Congress even appears to use the terms "expenses" and "fees" interchangeably: The first clause of §504(b)(1)(A) refers to the "reasonable expenses of expert witnesses," while the parenthetical characterizes expert compensation as "fees." There is no indication that Congress, in using the term "expenses" in one place and "fees" in the other, was referring to two different components of expert remuneration.


[39] Even if the dichotomy that the Government draws between "fees" and "other expenses" were supported by the statutory text, it would hardly follow that amounts billed for paralegal services should be classified as "expenses" rather than as "fees." The Government concludes that the omission of paralegal fees from §504(b)(1)(A)'s parenthetical (which generally authorizes reimbursement at "prevailing market rates") implies that the recovery of paralegal fees is limited to cost. But one could just as easily conclude that the omission of paralegal fees from the litany of "any study, analysis, engineering report, test, or project" (all of which are recoverable at "reasonable cost") implies that paralegal fees are recoverable at market rates. Surely paralegals are more analogous to attorneys, experts, and agents than to studies, analyses, reports, tests, and projects. Even the Government's brief, which incants the term "paralegal expenses," e.g., Brief for Respondent 4, 5, 6, 7, 8, 9, 10, 11, 12, slips up once and refers to them as "fees," see id., at 35 ("As the court of appeals explained, treating paralegal fees as attorney fees could `distort the normal allocation of work and result in a less efficient performance of legal services' under the EAJA ...").


[40] But even if we agreed that EAJA limited a prevailing party's recovery for paralegal fees to "reasonable cost," it certainly would not follow that the cost should be measured from the perspective of the party's attorney.*fn5 To the contrary, it would be anomalous to measure cost from the perspective of the attorney rather than the client. We do not understand the Government to contend, for example, that the "reasonable cost" of an "engineering report" or "analysis" should be calculated from the perspective of the firm that employs the engineer or analyst. Such an interpretation would be tough to square with the statutory language. Section 504(a)(1) provides that an agency shall award to a prevailing party "fees and other expenses incurred by that party." See also §504(b)(1)(A) (emphasis added). That language leaves no doubt that Congress intended the "reasonable cost" of the specified items in §504(b)(1)(A) to be calculated from the perspective of the litigant. That being the case, we find it hard to believe that Congress, without even mentioning paralegals, intended to make an exception of them by calculating their cost from the perspective of their employer rather than the litigant. It seems more plausible that Congress intended all "fees and other expenses" to be recoverable at the litigant's "reasonable cost," subject to the proviso that "reasonable cost" would be deemed to be "prevailing market rates" when such rates could be determined.*fn6


[41] B.


[42] To the extent that some ambiguity subsists in the statutory text, we need not look far to resolve it, for we have already addressed a similar question with respect to another fee-shifting statute. In Missouri v. Jenkins, 491 U. S. 274 (1989), we considered whether litigants could recover paralegal fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U. S. C. §1988. Section 1988 provides that "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." We concluded that the term "attorney's fee" in §1988 "cannot have been meant to compensate only work performed personally by members of the bar." 491 U. S., at 285. Although separate billing for paralegals had become "increasingly widespread," id., at 286 (internal quotation marks omitted), attorney's fees had traditionally subsumed both the attorney's personal labor and the labor of paralegals and other individuals who contributed to the attorney's work product, see id., at 285. We were so confident that Congress had given the term "attorney's fees" this traditional gloss that we declared it "self-evident" that the term embraced the fees of paralegals as well as attorneys. Ibid.


[43] We think Jenkins substantially answers the question before us. EAJA, like §1988, entitles certain parties to recover "reasonable attorney ... fees." 5 U. S. C. §504(b)(1)(A). EAJA, like §1988, makes no mention of the paralegals, "secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills her client." Jenkins, supra, at 285. And we think EAJA, like §1988, must be interpreted as using the term "attorney ... fees" to reach fees for paralegal services as well as compensation for the attorney's personal labor. The Government does not contend that the meaning of the term "attorney's fees" changed so much between §1988's enactment in 1976 and EAJA's enactment in 1980 that the term's meaning in one statute must be different from its meaning in the other. Under the reasoning of Jenkins, we take it as "self-evident" that when Congress instructed agencies to award "attorney ... fees" to certain parties prevailing against the Government, that term was intended to embrace paralegal fees as well. Since §504 generally provides for recovery of attorney's fees at "prevailing market rates," it follows that fees for paralegal services must be recoverable at prevailing market rates as well.


[44] The Government contends that our decision in Jenkins was driven by considerations arising from the different context in which the term "attorney's fee" was used in §1988. At the time Jenkins was decided, §1988 provided for the recovery of attorney's fees without reference to any other recoverable "expenses." The Government insists that Jenkins found paralegal fees recoverable under the guise of "attorney's fee[s]" because otherwise paralegal fees would not be recoverable at all. Since EAJA expressly permits recovery (albeit at "cost") for items other than attorney, agent, and expert witness fees, the Government sees no reason to give EAJA the broad construction that Jenkins gave §1988.


[45] The Government's rationale for distinguishing Jenkins finds no support either in our opinion there or in our subsequent decisions. Our opinion in Jenkins expressed no apprehension at the possibility that a contrary decision would leave the claimant emptyhanded. This omission is unsurprising, since our decision in Jenkins did not rest on the conviction that recovery at market rates was better than nothing. Our decision rested instead on the proposition -- a proposition we took as "self-evident" -- that the term "attorney's fee" had historically included fees for paralegal services.


[46] Indeed, the Government's interpretation of Jenkins was rejected by this Court just two years after Jenkins was handed down. In West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, the petitioner sought to recover expert witness fees from the Commonwealth of Pennsylvania pursuant to §1988. The petitioner looked to Jenkins for the proposition that the "broad remedial purposes" of §1988 allowed the recovery of fees not expressly authorized by statute. The Court rejected that interpretation of Jenkins:


[47] "The issue [in Jenkins] was not, as [petitioner] contends, whether we would permit our perception of the `policy' of the statute to overcome its `plain language.' It was not remotely plain in Jenkins that the phrase `attorney's fee' did not include charges for law clerk and paralegal services. Such services, like the services of `secretaries, messengers, librarians, janitors, and others whose labor contributes to the work product,' had traditionally been included in calculation of the lawyers' hourly rates. Only recently had there arisen `the increasingly widespread custom of separately billing for [such] services.' By contrast, there has never been, to our knowledge, a practice of including the cost of expert services within attorneys' hourly rates. There was also no record in Jenkins -- as there is a lengthy record here -- of statutory usage that recognizes a distinction between the charges at issue and attorney's fees." Casey, supra, at 99 (quoting 491 U. S., at 285-286) (some internal quotation marks and citations omitted).*fn7


[48] Our analysis of Jenkins in Casey refutes the Government's claim that Jenkins had to stretch the law to fit hard facts. As Casey shows, our decision in Jenkins turned not on extratextual policy goals but on the traditional meaning of the term "attorney's fees."


[49] III.


[50] The Government parries this textual and doctrinal analysis with legislative history and public policy. We are not persuaded by either. The legislative history cited by the Government does not address the question presented, and policy considerations actually counsel in favor of Richlin's interpretation.


[51] A.


[52] The Government contends first that a 1984 Senate Report accompanying the bill that reenacted EAJA*fn8 unequivocally expressed congressional intent that paralegal fees should be recovered only " `at cost.' " Brief for Respondent 29 (quoting S. Rep., at 15; emphasis in original). It next contends that the Report tacitly endorsed the same result by approving model rules of the Administrative Conference of the United States and a pre-EAJA Sixth Circuit decision, both of which had adopted schemes of reimbursement at attorney cost. See Brief for Respondent 29. We are not persuaded. In our view, the legislative history does not even address the question presented, much less answer it in the Government's favor.*fn9


[53] The Senate Report accompanying the 1984 bill remarked that "[e]xamples of the type of expenses that should ordinarily be compensable [under EAJA] include paralegal time (billed at cost)." S. Rep., at 15. The Government concludes from this stray remark that Congress intended to limit recovery of paralegal fees to attorney cost. But as we observed earlier, the word "cost" could just as easily (and more sensibly) refer to the client's cost rather than the attorney's cost. Under the former interpretation, the Senate Report simply indicates that a prevailing party who satisfies EAJA's other requirements should generally be able to "bil[l]" the Government for any reasonable amount the party paid for paralegal services. Since the litigant's out-of-pocket cost for paralegal services would normally be equal to the "prevailing market rat[e]" for such services, 5 U. S. C. §504(b)(1)(A), the Senate Report could easily support Richlin's interpretation.


[54] Moreover, even if the Government's interpretation of the word "cost" is correct, that interpretation would not be inconsistent with our decision today. "Nothing in [EAJA] requires that the work of paralegals invariably be billed separately. If it is the practice in the relevant market not to do so, or to bill the work of paralegals only at cost, that is all that [EAJA] requires." Jenkins, supra, at 288 (construing 42 U. S. C. §1988). We thus recognize the possibility, as we did in Jenkins, that the attorney's cost for paralegal services will supply the relevant metric for calculating the client's recovery. Whether that metric is appropriate depends on market practice. The Senate Report, even under the Government's contestable interpretation, is not inconsistent with that conclusion. On the contrary, the Report implies that courts should look to market practice in setting EAJA awards. See S. Rep., at 15 ("The Act should not be read ... to permit reimbursement for items ordinarily included in office overhead, nor for any other expenses not reasonable in amount, necessary for the conduct of the litigation, and customarily chargeable to clients" (emphasis added)). Beyond that vague guidance, the Report does not address the critical question in this case: whether EAJA limits recovery of paralegal fees to attorney cost regardless of market practice. As such, the Report does not persuade us of the soundness of the Government's interpretation of the statute.


[55] The Government's reliance on the Sixth Circuit's decision in Northcross v. Board of Ed. of the Memphis City Schools, 611 F. 2d 624 (1979), founders for the same reason. The Government contends that Northcross approved of reimbursement at attorney cost under 42 U. S. C. §1988 and that the 1984 Senate Report, by endorsing Northcross, tacitly approved of the same result for EAJA. See Brief for Respondent 30 (citing Northcross, supra, at 639). The problem again is that Northcross did not decide whether a litigant's recovery for paralegal services would be limited to his attorney's cost even in a market where litigants were customarily billed at "prevailing market rates." Although the Sixth Circuit seems to have been aware that paralegal services could be billed to clients at market rates, some language in its opinion suggests that the court assumed that attorneys billed their clients only for the out-of-pocket cost of paralegal services.*fn10 Since Northcross does not clearly address the question presented, its endorsement in the Senate Report means little.


[56] Finally, the model rules cited in the Senate Report may actually support Richlin's position. The implementing release for the rules describes the Administrative Conference's approach to paralegal costs as follows:


[57] "Commenters also took varying positions on whether paralegal costs should be chargeable as expenses. We do not believe the rules should discourage the use of paralegals, which can be an important cost-saving measure. On the other hand, lawyers' practices with respect to charging for paralegal time, as with respect to other expenses such as duplicating, telephone charges and the like, vary according to locality, field of practice, and individual custom. We have decided not to designate specific items as compensable expenses. Instead, we will adopt a suggestion of the Treasury Department and revise the model rule to provide that expenses may be charged as a separate item if they are ordinarily so charged to the attorney's clients." Administrative Conference of the U. S., Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32905 (1981).


[58] To the extent that this passage addresses the question presented at all, it seems to take the same approach that the Court took in Jenkins and that we adopt today: it allows the recovery of paralegal fees according to "the practice in the relevant market." 491 U. S., at 288. But we think the fairest interpretation of the implementing release is that it does not address how awards for paralegal fees should be calculated. Instead, it addresses the anterior question whether courts may award paralegal fees under EAJA at all. See, e.g., 46 Fed. Reg. 32905 (responding to comments urging that the model rules "identify particular expenses of attorneys and witnesses that are compensable"). Like the other legislative authorities cited by the Government, the model rules fail to persuade us of the soundness of the Government's interpretation because they fail to clearly address the question presented.


[59] B.


[60] We find the Government's policy rationale for recovery at attorney cost likewise unpersuasive. The Government argues that market-based recovery would distort litigant incentives because EAJA would cap paralegal and attorney's fees at the same rate. See 5 U. S. C. §504(b)(1)(A) ("[A]attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee"). The Government observes that paralegal rates are lower than rates for attorneys operating in the same market. If EAJA reimbursed both attorney time and paralegal time at market rates, then the cap would clip more off the top of the attorney's rates than the paralegal's rates. According to the Government, a market-based scheme would encourage litigants to shift an inefficient amount of attorney work to paralegals, since paralegal fees could be recovered at a greater percentage of their full market value.


[61] The problem with this argument, as Richlin points out, is that it proves too much. The same reasoning would imply that agent fees should not be recoverable at market rates.*fn11 If market-based recovery of paralegal time resulted in excessive reliance on paralegals, then market-based recovery of agent time should result in excessive reliance on agents. The same reasoning would also imply that fees for junior attorneys (who generally bill at lower rates than senior attorneys) should not be recoverable at market rates. Cf. Jenkins, supra, at 287 ("If the fees are consistent with market rates and practices, the `windfall' argument has no more force with regard to paralegals than it does for associates"). Yet despite the possibility that market-based recovery of attorney and agent fees would distort litigant incentives, §504 unambiguously authorizes awards of "reasonable attorney or agent fees ... [at] prevailing market rates." 5 U. S. C. §504(b)(1)(A). The Government offers no persuasive reason why Congress would have treated paralegal fees any differently. The Government's policy rationale thus founders on the text of the statute, which shows that Congress was untroubled by the very distortion the Government seeks to prevent.


[62] We also question the practical feasibility of the Government's interpretation of the statute. The Board in this case relied on the Internet for data on paralegal salaries in the District of Columbia, but the Government fails to explain why a law firm's cost should be limited to salary. The benefits and perks with which a firm compensates its staff come out of the bottom line no less than salary. The Government has offered no solution to this accounting problem, and we do not believe that solutions are readily to be found. Market practice provides by far the more transparent basis for calculating a prevailing party's recovery under EAJA. It strains credulity that Congress would have abandoned this predictable, workable framework for the uncertain and complex accounting requirements that a cost-based rule would inflict on litigants, their attorneys, administrative agencies, and the courts.


[63] IV.


[64] Confronted with the flaws in its interpretation of the statute, the Government seeks shelter in a canon of construction. According to the Government, any right to recover paralegal fees under EAJA must be read narrowly in light of the statutory canon requiring strict construction of waivers of sovereign immunity. We disagree.


[65] The sovereign immunity canon is just that -- a canon of construction. It is a tool for interpreting the law, and we have never held that it displaces the other traditional tools of statutory construction. Indeed, the cases on which the Government relies all used other tools of construction in tandem with the sovereign immunity canon. See Ardestani v. INS, 502 U. S. 129, 137 (1991) (relying on the canon as "reinforce[ment]" for the independent "conclusion that any ambiguities in the legislative history are insufficient to undercut the ordinary understanding of the statutory language"); Ruckelshaus v. Sierra Club, 463 U. S. 680, 682, 685-686 (1983) (relying on the canon in tandem with "historic principles of fee-shifting in this and other countries" to define the scope of a fee-shifting statute); Department of Energy v. Ohio, 503 U. S. 607, 626-627 (1992) (resorting to the canon only after a close reading of the statutory provision had left the Court "with an unanswered question and an unresolved tension between closely related statutory provisions"); see also Smith v. United States, 507 U. S. 197, 201-203 (1993) (invoking the sovereign immunity canon only after observing that the claimant's argument was "undermine[d]" by the "commonsense meaning" of the statutory language). In this case, traditional tools of statutory construction and considerations of stare decisis compel the conclusion that paralegal fees are recoverable as attorney's fees at their "prevailing market rates." 5 U. S. C. §504(b)(1)(A). There is no need for us to resort to the sovereign immunity canon because there is no ambiguity left for us to construe.


[66] V.


[67] For these reasons, we hold that a prevailing party that satisfies EAJA's other requirements may recover its paralegal fees from the Government at prevailing market rates. The Board's contrary decision was error, and the Federal Circuit erred in affirming that decision. The judgment of the Federal Circuit is reversed, and this case is remanded for further proceedings consistent with this opinion.


[68] It is so ordered.



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Opinion Footnotes

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[69] *fn1 Justice Scalia joins this opinion except as to Part III-A, and Justice Thomas joins this opinion except as to Parts II-B and III.


[70] *fn2 Richlin was actually billed for paralegal services at rates as high as $135 per hour, but it amended its application to cap the fees at $95 per hour. See App. to Pet. for Cert. 39a; Brief for Petitioner 9; Brief for Respondent 4, n. 2.


[71] *fn3 Some agencies allow non-attorney representatives, known as "agents," to assist parties with the presentation of their cases. See n. 10, infra. Richlin has never claimed that a paralegal may qualify as an "agent" within the meaning of §504(b)(1)(A).


[72] *fn4 Virtually identical fee-shifting provisions apply to actions by or against the Government in federal court. See 28 U. S. C. §§2412(a)(1), (d)(2)(A). The question presented addresses both §§504 and 2412, but the Federal Circuit's decision resolved only petitioner's §504 application, and the Government avers (without challenge from Richlin) that §2412 "is not at issue in this case." Brief for Respondent 2, n. 1. We assume without deciding that the reasoning of our opinion would extend equally to §§504 and 2412. We confine our discussion to §504.


[73] *fn5 The Government contends that the question presented does not fairly include the question whether the cost of paralegal services should be calculated from the perspective of the litigant rather than the litigant's attorney. We disagree. The question presented in Richlin's petition for certiorari was whether "a prevailing party [may] be awarded attorney fees for paralegal services at the market rate for such services, ... [or at] cost only." Pet. for Cert. i. A decision limiting reimbursement to "cost only" would simply beg the question of how that cost should be measured. Since the question presented cannot genuinely be answered without addressing the subsidiary question, we have no difficulty concluding that the latter question is "fairly included" within the former. See this Court's Rule 14.1(a).


[74] *fn6 It is worth recalling that the Board calculated Richlin's award based on an Internet survey of paralegal salaries in the District of Columbia. Presumably the salaries the Board identified represented the market rate for paralegal compensation. The limited award that the Government wants affirmed was thus based, ironically enough, on the "prevailing market rates" for paralegal services. The fact that paralegal salaries respond to market forces no less than the fees that clients pay suggests to us that this case has more to do with determining whose expenditures get reimbursed (the attorney's or the client's) than with determining how expenditures are calculated (at cost or at market). Since EAJA authorizes the recovery of fees and other expenses "incurred by [the] party," §504(a)(1), rather than the party's attorney, the answer to the former question is plain.


[75] *fn7 Following our decision in Casey, Congress amended §1988 to allow parties to recover "expert fees as part of the attorney's fees." Civil Rights Act of 1991, §113(a), 105 Stat. 1079 (codified at 42 U. S. C. §1988(c)).


[76] *fn8 The version of EAJA first enacted in 1980 had a sunset provision effective October 1, 1984. See §§203(c), 204(c), 94 Stat. 2327, 2329. Congress revived EAJA without the sunset provision (but with certain other amendments) in 1985. See Act of Aug. 5, 1985, §§1-2, 6, 99 Stat. 183-186; see also n. 8, infra; see generally Scarborough v. Principi, 541 U. S. 401, 406-407 (2004) (summarizing EAJA's legislative history).


[77] *fn9 Richlin makes a threshold challenge to the legitimacy of the 1984 Senate Report as legislative history, observing that the bill it accompanied was vetoed by the President before being enacted by a subsequent Congress. See Brief for Petitioner 27 ("To the extent that legislative history serves as legitimate evidence of congressional intent, it does so only because it is presumed to have been ratified by Congress and the President when the relevant legislation was enacted" (citing Siegel, The Use of Legislative History in a System of Separated Powers, 53 Vand. L. Rev. 1457, 1522 (2000); and Sullivan v. Finkelstein, 496 U. S. 617, 631-632 (1990) (Scalia, J., concurring in part))). But see Melkonyan v. Sullivan, 501 U. S. 89, 96 (1991) (relying on the same Report to interpret EAJA's 1985 amendments). Because the legislative history is a wash in this case, we need not decide precisely how much weight it deserves in our analysis.


[78] *fn10 Compare Northcross, 611 F. 2d, at 638 ("[A] scale of fees as is used by most law firms is appropriate to use in making fee awards pursuant to Section 1988. The use of broad categories, differentiating between paralegal services, in-office services by experienced attorneys and trial service, would result in a fair and equitable fee") with id., at 639 ("The authority granted in section 1988 to award a reasonable attorney's fee included the authority to award those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services. Reasonable photocopying, paralegal expenses, and travel and telephone costs are thus recoverable pursuant to the statutory authority of §1988" (internal quotation marks omitted)).


[79] *fn11 " `An "agent fee" may be awarded for the services of a non-attorney where an agency permits such agents to represent parties who come before it.' " Brief for Respondent at 11, n. 4 (quoting H. R. Rep. No. 96-1418, p. 14 (1980)); see also n. 2, supra. Since federal courts generally do not permit non-attorneys to practice before them, the portion of EAJA governing awards for parties to federal litigation makes no provision for agent fees. Compare 28 U. S. C. §2412(d)(2)(A) with 5 U. S. C. §504(b)(1)(A).

[U] Young v. Beard, No. 07-1670 (3d Cir. 07/08/2008)

[1] UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


[2] No. 07-1670


[3]

[4] July 8, 2008


[5] RICHARD GLENN YOUNG, APPELLANT
v.
JEFFREY BEARD, COMMISSIONER DEPARTMENT OF CORRECTIONS ("DOC"); DONALD VAUGHN, SUPERINTENDENT STATE CORRECTIONAL INSTITUTE AT GRATERFORD ("SCIG"); BESSIE WILLIAMS, GRIEVANCE OFFICIALS ("DOC"); ROBERT BITNER; TSHANNA C. KYLER, DOC CORRECTIONAL OFFICERS; SCOTT BOWMAN; DELANEY HUMPHREY; RAYMOND KNAUER; CHARLIE JUDGE; RANDOLPH TAYLOR; DAVID DIGUGLIELMO; JOHN MURRAY; THOMAS STACHELEK, UNIT MANAGER ("SCIG"); SHARON BURKS; MARY CANINO; LESLIE HATCHER; JEFF KERRIN; RONALD VERSHINSKI, APPELLEES


[6] Appeal from the United States District Court for the Eastern District of Pennsylvania. (D.C. No. 04-cv-02211) District Judge: Honorable Paul S. Diamond.


[7] Stephen D. Brown Jennings F. Durand (Argued) Dechert 2929 Arch Street 18th Floor, Cira Centre Philadelphia, PA 19104 Counsel for Appellant


[8] Thomas W. Corbett, Jr., Attorney General Claudia M. Tesoro, Senior Deputy Attorney General (Argued) Calvin R. Koons, Senior Deputy Attorney General John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section Office of Attorney General of Pennsylvania 21 South 12th Street, 3rd Floor Philadelphia, PA 19107 Counsel for Appellees


[9] The opinion of the court was delivered by: Restani, Judge.


[10] NOT PRECEDENTIAL


[11] Argued: May 8, 2008


[12] Before: BARRY and STAPLETON, Circuit Judges, and RESTANI*fn1, Judge.


[13] OPINION OF THE COURT


[14] Appellant Richard Glenn Young ("Young") appeals from a judgment of the District Court in favor of the defendants, finding that the limitations placed on prisoners' ability to perform in independent music groups did not violate his right of freedom of expression and his rights under the Establishment Clause of the First Amendment. We will affirm.


[15] PROCEDURAL AND FACTUAL BACKGROUND


[16] Young, an inmate serving a life sentence at the Pennsylvania State Correctional Institution at Graterford ("Graterford"), participated in the prison's recreational independent band program*fn2 and was a member of an independent inmate band that, in 2002, was featured in a VH-1 documentary entitled "Music Behind Bars."


[17] After severe public criticism following the broadcast, Graterford suspended its music program to review whether changes were necessary. On October 21, 2002, Pennsylvania Department of Corrections ("DOC") Secretary Beard appointed a committee of DOC personnel to evaluate prison music programs. The committee's minutes and policy proposal indicated that recreational music groups in some form should continue to be permitted. Secretary Beard testified that based on what he learned during the committee's investigation and by talking to the deputies and the superintendent, he concluded that the independent band program was not properly administered or supervised and undermined prison security.


[18] After partially restoring the music program in November 2002 and instituting a new music policy in August 2003, a final revised policy was issued in December 2003, which is still in effect. In addition to individual music-playing, which is allowed under various conditions in cells, the policy allows for instrumental musical performances at religious services,*fn3 an annual talent show, and special events as approved by the facility manager. The new policy provides that any inmate may apply to perform in the talent show. To perform at a special event, inmates must be nominated by an inmate organization and may receive up to five supervised rehearsals of several hours apiece. The independent inmate bands as they existed in 2002, however, are no longer permitted under the revised policy.


[19] Since the former independent inmate band program was eliminated, Young has not participated in the Graterford music program, except that he and several of his former bandmates participated in the 2005 talent show. Young is not a member of an inmate organization and has not participated in any special events, is not part of a religious band, and does not wish to play the type of music played by the allowed institutional music groups.


[20] Young filed a civil action pursuant to 42 U.S.C. § 1983 on June 25, 2004, and a third amended complaint on August 11, 2006, alleging that the elimination of the prior inmate independent band program violated his right to freedom of expression and his rights under the Establishment Clause and Equal Protection Clause of the First Amendment. On August 23, 2006, the District Court granted the defendants' motion for summary judgment on the Equal Protection claim. After Young's October 27, 2006, Stipulation of Dismissal, all claims were dismissed, except those seeking injunctive relief against Secretary Beard and DOC Superintendent DiGuglielmo. On January 31, 2007, following a bench trial, the District Court entered judgment for the defendants on the remaining claims.


[21] JURISDICTION AND STANDARD OF REVIEW


[22] This Court has jurisdiction under 28 U.S.C. § 1291. We review the District Court's factual findings for clear error and its legal conclusions de novo. United States v. Weaver, 267 F.3d 231, 235 (3d Cir. 2001).


[23] DISCUSSION


[24] I. Freedom of Expression


[25] "[I]mprisonment does not automatically deprive a prisoner of certain important constitutional protections, including those of the First Amendment," but inmates' rights may be more restricted than those of non-inmates, as long as the prison regulations that do so are "'reasonably related' to legitimate penological interests, and are not an 'exaggerated response' to such objectives." Beard v. Banks, 548 U.S. 521, 126 S.Ct. 2572, 2577--78 (2006) (quoting Turner v. Safley, 482 U.S. 78, 87 (1987) (internal quotations omitted)). Once a plaintiff has demonstrated that a constitutionally protected interest is at stake, Turner v. Safley sets out a four factor test to determine the reasonableness of the regulation. Turner, 482 U.S. at 89--90. The Turner test requires that:


[26] First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it, and this connection must not be so remote as to render the policy arbitrary or irrational. Second, a court must consider whether inmates retain alternative means of exercising the circumscribed right. Third, a court must take into account the costs that accommodating the right would impose on other inmates, guards, and prison resources generally. And fourth, a court must consider whether there are alternatives to the regulation that fully accommodate[ ] the prisoner's rights at de minimis cost to valid penological interests.


[27] DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) (internal quotations and citation omitted). Substantial deference must be given to prison administrators' judgment. Overton v. Bazzetta, 539 U.S. 126, 132 (2003). While plaintiffs bear the overall burden of persuasion, id., prison administrators are required to demonstrate a rational connection between the policy and the alleged interest, which "'must amount [ ] to more than a conclusory assertion.'" Jones v. Brown, 461 F.3d 353, 360 (3d Cir. 2006) (quoting Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir. 2002) (internal quotations omitted)). The First Amendment's right to freedom of expression includes musical expression, and band performances are protected as a form of expressive entertainment. Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989); see also Tacynec v. City of Philadelphia, 687 F.2d 793, 796 (3d Cir. 1982). The District Court determined, and the parties do not dispute, that this controlling authority demonstrated that "Young has a First Amendment right to express himself through music, either individually or with a band." (J.A. 23.)


[28] On the other hand, the enhancement of prison security and proper allocation of resources are legitimate government interests. See Overton, 539 U.S. at 133 (internal prison security is "perhaps the most legitimate of penological goals"); see also Jones, 461 F.3d at 361 (prison administrators have a legitimate interest in institutional security). Here, the record establishes that there is a rational connection between the elimination of the prior independent band program and institutional security because the poor supervision of the program itself created an unsafe inmate environment. Prison administrators did more than make a "conclusory assertion" that the program was a risk to prison security; rather, they went through the standard review process for evaluating a policy. A committee was first created to evaluate the music program and the committee's recommendations were submitted along with a revised draft policy for consideration to the Executive Deputy Secretary. The draft policy, with any recommended edits, was then further submitted for review to the director of the Bureau of Policy and Standards and then submitted for final approval to Secretary Beard.


[29] The District Court correctly determined that the initial reason for suspending the music program was irrelevant, because although Secretary Beard "initially suspended the performance of music at Graterford in reaction to the VH-1 controversy, he subsequently made changes to the Independent Band Program because Mr. Beard believed that the program . . . was not safe." (J.A. 14.) Specifically, concerns centered on band leaders being placed in charge of other inmates and the manner in which the three-floor arrangement was supervised. The District Court found that "virtually every weekday, up to sixty inmates practiced simultaneously throughout the auditorium area" and that "the multi-floor, multi-room layout of the rehearsal area made it impossible . . . to directly supervise the dozens of rehearsing inmates more often than once every twenty or thirty minutes." (Id. at 9.) Due to these concerns, the District Court emphasized Secretary Beard's right to be proactive, rather then merely reactive in his supervisory role, finding that "[t]he Constitution did not require [Secretary Beard] to wait for a tragedy to occur before he could limit inmate rehearsals to those that the prison could directly supervise." (Id. at 25.)


[30] Several viable alternatives still exist for inmates to exercise their free expression rights. Graterford's current music program and its pre-2002 music program "are, in most respects, the same," because inmates can still take music classes, be part of an institutional band, perform at the talent show and at special events, and play music individually in their cells. (Id. at 24--25.) The only significant change is the reduction in rehearsal time that independent bands can enjoy. Reinstating the independent band program as it previously existed would also have a serious effect on guards, inmates, and prison resources. It would significantly undermine safety due to the lack of resources available for proper supervision, as this was part of the reason for discontinuing independent bands, and there is no indication in the record that these resources are now available. Finally, although plaintiff has proposed certain arguably less restrictive alternatives to the music policy Graterford ultimately imposed, Turner adopted its deferential standard of review for "questions of 'prisoners rights'" precisely because it recognized that prison administrators must be accorded a degree of flexibility to address the "complex and intractable" problems that arise in our prisons. See Turner, 482 U.S. at 84--89. It is for this reason that prison officials are required to adopt only a reasonable response to the governmental interest asserted, not the best or least restrictive response. For the reasons set forth above, we find that the Graterford music program is a reasonable response to the security concerns defendant has identified.


[31] Accordingly, the District Court did not err in finding that the restriction of independent bands in Graterford's music program satisfied the Turner test and that Young's First Amendment right of freedom of expression was not violated.


[32] II. The Establishment Clause


[33] The Establishment Clause of the First Amendment provides that "Congress shall make no law respecting an establishment of religion." U.S. Const. amend. I. The Supreme Court has articulated various tests for analyzing Establishment Clause claims. It has traditionally applied a test termed the "Lemon" test, under which "the challenged action is unconstitutional if (1) it lacks a secular purpose, (2) its primary effect either advances or inhibits religion, or (3) it fosters an excessive entanglement of government with religion." Modrovich v. Allegheny County, 385 F.3d 397, 401 (3d Cir. 2004).


[34] More recently, the Court has also applied an "endorsement" inquiry for certain Establishment Clause claims. "The relevant question under the endorsement test is 'whether a reasonable observer familiar with the history and context of the display would perceive the display as a government endorsement of religion.'" Borden v. Sch. Dist. of Twp. of E. Brunswick, 523 F.3d 153, 175 (3d Cir. 2008) (quoting Modrovich, 385 F.3d at 401). Thus, when the government "affirmatively supports religion on preferential terms," its actions violate the Establishment Clause under the endorsement test. Tenafly Eruv Ass'n v. Borough of Tenafly, 309 F.3d 144, 175 (3d Cir. 2002) (citation omitted).


[35] We have explained that the "endorsement" test is applicable "[i]n cases involving state participation in a religious activity." Borden, 523 F.3d at 175 (citation omitted); see also Freethought Soc'y of Greater Phila. v. Chester County, 334 F.3d 247, 258 (3d Cir. 2003). The Court also emphasizes that "[t]he touchstone for [its Establishment Clause] analysis is the principle that the 'First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion.'" McCreary County v. ACLU of Ky., 545 U.S. 844, 860 (2005) (citations omitted).


[36] Young claims that the new prison music policy violates the Establishment Clause because, while the prior independent band program was removed, religious bands are still permitted. The notion of governmental neutrality is an important guide, but it is not a rigid rule. Id. at 874. The Supreme Court has long recognized that "there is room for play in the joints" between the First Amendment's two clauses concerning religion: "the government may . . . accommodate religious practices . . . without violating the Establishment Clause," but "[a]t some point, accommodation may devolve into 'an unlawful fostering of religion.'" Cutter v. Wilkinson, 544 U.S. 709, 713--14 (2005) (citations omitted) .


[37] Graterford's music programs have not crossed the threshold into "unlawful fostering." Viewed through the prism of the Lemon test, the religious music program has a valid purpose, because the Free Exercise Clause requires the government to make reasonable religious accommodation for its prisoners, Hudson v. Palmer, 468 U.S. 517, 523--24 (1984), and "it is a permissible legislative purpose to alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions." Corp. of the Presiding Bishop v. Amos, 483 U.S. 327, 335 (1987). We find nothing in the record remotely suggesting that the changes to the secular music program had a purpose of promoting religion. And, although the religious and non-religious programs are not precisely the same, we do not believe that the primary effect of the prison's music policies will be to advance religion. The religious music program is entirely optional, and the prison still offers several options for musical expression, both religious and non-religious. The District Court found that the prison's revision to the secular music program has not caused inmates to seek to join the religious program.


[38] Further, the continued allowance of religious bands has not communicated either an endorsement or a disapproval of any religion because musical expression is not limited to religious contexts. We do not believe a "reasonable observer" could interpret Graterford's music programs as an endorsement of religion.


[39] Accordingly, the District Court did not err in concluding that Graterford's music program does not violate the Establishment Clause.


[40] CONCLUSION


[41] For the foregoing reasons, we will AFFIRM the judgment of the District Court.


[42] Please kindly file the foregoing Opinion.


[43] Jane A. Restani Judge



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Opinion Footnotes

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[44] *fn1 Honorable Jane A. Restani, Chief Judge of the United States Court of International Trade, sitting by designation.


[45] *fn2 Independent bands practiced multiple times per week and were required to give at least three performances per year. In 2002, there were approximately ten independent bands at Graterford with three to twelve members apiece that practiced in the multi-level, multi-room auditorium area. Each band had an inmate leader responsible for organizing the group, obtaining the music, and scheduling rehearsals and performances. A staff member made periodic rounds during practices to supervise the inmates and a correctional officer was posted outside to check inmates as they came in.


[46] *fn3 Graterford has six religious bands open to inmates who are members of the congregation and they are allowed two hours per week to rehearse for upcoming services in the small conference room in the chapel. A chaplain is directly responsible for supervising inmates and a corrections officer usually remains outside the door and can observe inside the room through a window in the door.

Consent decree is available in the briefbank.

Butler v. Curry, No. 07-56204 (9th Cir. 06/09/2008)

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


[2] No. 07-56204


[3]


[4] June 9, 2008


[5] FRANK BUTLER, PETITIONER-APPELLEE,
v.
BEN CURRY, RESPONDENT-APPELLANT.


[6] Appeal from the United States District Court for the Central District of California Honorable James V. Selna, District Judge, Presiding D.C. No. CV-06-07576-JVS(RNB).


[7] Counsel


[8] Davina T. Chen, Deputy Federal Public Defender, Los Angeles, California, for the petitioner.


[9] William H. Shin, Deputy Attorney General, Los Angeles, California, for the respondent.


[10] The opinion of the court was delivered by: Berzon, Circuit Judge


[11] FOR PUBLICATION


[12] Argued and Submitted February 4, 2008 -- Pasadena, California


[13] Before: Cynthia Holcomb Hall, Susan P. Graber, Marsha S. Berzon, Circuit Judges.


[14] OPINION


[15] Frank Butler alleged in his petition for writ of habeas corpus that his Sixth Amendment rights were violated when the California state trial court imposed an "upper term" sentence based on two aggravating factors not proved to a jury beyond a reasonable doubt. The district court, relying on Cunningham v. California, 127 S.Ct. 856 (2007), agreed, and granted the writ. The State contends that Cunningham, which struck down California's determinate sentencing law ("DSL"), announced a "new rule" that cannot be applied on collateral review. In the alternative, the State maintains that the requirements for habeas relief under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") have not been met, and that, even if they were, there was no constitutional violation.


[16] We conclude that the result in Cunningham was clearly dictated by the Supreme Court's Sixth Amendment case law, in particular by Blakely v. Washington, 542 U.S. 296 (2004), decided before Butler's conviction became final. The state court decision in Butler's case was contrary to this clearly established law. Further, Butler's constitutional rights were violated when the statutory maximum for his crime was increased on the basis of facts found by a judge by a preponderance of the evidence, rather than admitted or found by a jury beyond a reasonable doubt. We cannot, however, determine whether this violation was harmless in the absence of further factfinding about what evidence was presented to the state trial court judge in support of the allegation that Butler was on probation at the time of his crime. For that reason, we remand to the district court for an evidentiary hearing.


[17] I. Background


[18] A. Trial


[19] Frank Butler was tried in California state court for an assault on his former wife, Daria Butler. At trial, the Butlers provided conflicting accounts of the assault. The judge's finding with regard to one of the aggravating factors turned, to some degree, on whose story was believed.


[20] 1. Daria Testified


[21] She and Butler married in 1989 and had two children together, Barbara and Laquan, prior to their divorce in 1993. Her fights with Butler had been physical in the past, and she had hit him on more than one occasion. Daria had obtained at least three restraining orders against Butler, and she and Butler had repeatedly ended their relationship. In the summer of 2000, they reconciled once again, and Daria drove to St. Louis to pick up Butler and bring him back to California. Several months after Butler's return to California, Daria and Butler separated once more, and Daria obtained a restraining order against Butler, still in place at the time of the June 28, 2001 incident. The Butlers reconciled yet again in January or February of 2001 and were living together, with their two children, at the time of the assault.


[22] In 1977, Daria was in an abusive relationship with a different boyfriend. She obtained a gun and asked her boyfriend to meet her in an alley, where she shot and seriously injured him. At that time, she "didn't have any knowledge of shelters or restraining orders or anything."


[23] On the evening of June 28, 2001, Daria and Butler had a dispute about a letter she had received from another ex-husband asking for help. Butler left the room; Daria "could tell that he was kind of getting upset." Later in the evening, Daria tried to talk with Butler in their bedroom, but he left the room, slamming the door behind him. Daria decided to sleep in the downstairs office, but soon after she had gotten into bed downstairs, Butler entered the office and began yelling at her about her ex-husband. He then turned and left the room.


[24] Soon thereafter, Daria decided to return to the bedroom, and Butler followed her there, "cursing and screaming" at her. Daria retrieved Butler's suitcase from the bedroom closet; as she turned and placed it on the bed, she felt a blow to the back of her head and "the blows kept coming." At some point during the attack, Daria realized that she was being hit with an iron. The attack left "blood spattered all across the room for several feet on the walls, the door," and the fan.


[25] Daria began screaming for her children. Laquan testified that when he responded to his mother's screams, he found his mother on the floor of the bedroom crying and "bleeding in the back of her head." The police arrived shortly thereafter, and Daria was taken to the hospital, where she received six to eight staples in the back of her head. Deputy Calvo, the sheriff's deputy assigned to investigate the case, confirmed that when he arrived at the scene he found a shattered iron.


[26] 2. Butler Testified


[27] Daria was the one who had instigated physical confrontations in their relationship, attacking and slapping him during marriage counseling sessions, and throwing things at him during arguments. At one point several months before the incident in question, Daria bit him on the chest after an argument.


[28] After Daria told him about the letter from her ex-husband, he responded that she should tell her ex-husband that she could not help him because she was with Butler now. Daria became visibly angry. Butler attempted several times throughout the evening to speak with her, but she refused to have a conversation with him. After his final attempt to speak with her in the downstairs office, he concluded that it was better if he simply left, so he went upstairs to pack. Daria followed him upstairs to the bedroom, and he saw that she had a knife in her left hand. She came at him with the knife, and he grabbed the iron from his closet and hit her with it until she dropped the knife. Laquan, Barbara, and Deputy Calvo all testified that they did not see a knife in the bedroom after the attack.


[29] 3. The jury found Butler guilty of corporal injury to a spouse (Cal. Penal Code § 273.5(a) (2001))*fn1 and assault with a deadly weapon or by means of force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1) (2000)).*fn2 The jury also found as "enhancements" that Butler used a deadly and dangerous weapon and that he inflicted great bodily injury during the commission of the crime. See Cal. Penal Code §§ 12022(b)(1) (2003),*fn3 12022.7(a) (2003).*fn4


[30] B. Sentencing


[31] Under California's DSL as it existed at the time Butler was sentenced, "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime."*fn5


[32] Cal. Penal Code § 1170(b) (2005). The California Rules of Court ("Rules") effective at the time of Butler's sentencing*fn6 also provided that "[t]he middle term must be selected unless imposition of the upper or lower term is justified by circumstances in aggravation or mitigation." Cal. R. Ct. 4.420(a) (1977). Under the Rules, "[c]ircumstances in aggravation and mitigation must be established by a preponderance of the evidence," and "[s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation." Rule 4.420(b). The Rules also specify a non-exhaustive list of aggravating and mitigating factors, including factors relating to the crime and factors relating to the defendant. See Cal. R. Ct. 4.421, 4.423. Both the crimes of which Butler was convicted specify three possible terms, so his sentencing was governed by section 1170(b). See Cal. Penal Code §§ 273.5(a), 245(a)(1).


[33] At Butler's sentencing, the court indicated that it had "read and considered the probation report in this case." The court then found that although Butler had one prior misdemeanor offense, his lack of a significant prior record was a factor in mitigation. The court noted that "on the other side of the coin are factors in aggravation": "the vulnerability of the victim with her back turned to the defendant when she was attacked from behind" and "the fact that [Butler] was on probation at the time the crime was committed."


[34] Butler's counsel objected to the use of Butler's probation-ary status as an aggravating factor, arguing that "there is no indication that he was noncompliant except for this." The court rejected this argument, and went on to conclude that the aggravating factors "outweigh the factor in mitigation." Based on these findings, the court imposed the upper term of four years in state prison for corporal injury to a spouse. The court then also imposed sentences of one year and three years, respectively, for the use of a deadly weapon and the infliction of serious bodily injury enhancements, for a total of eight years in state prison. On count two, assault with a deadly weapon, the court imposed the middle term of three years as well as the three-year enhancement for causing serious bodily injury, but stayed imposition of the sentence.


[35] C. State Direct Appeals and Post-Conviction Relief


[36] On direct appeal, Butler raised a Sixth Amendment challenge to the imposition of an upper term sentence based on facts found by a judge by a preponderance of the evidence, rather than by a jury beyond a reasonable doubt. The California Court of Appeal initially held, on September 22, 2004, that Butler's "sentence was erroneous under compulsion of Blakely v. Washington[, 542 U.S. 296 (2004),]" because "[t]he court imposed the high term . . . based on factual findings it made without a jury."


[37] Shortly before the California Court of Appeal's first decision on Butler's direct appeal, the California Supreme Court had decided People v. Black, 35 Cal. 4th 1238 (2005) ("Black I"), in which it held that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence . . . under California law does not implicate a defendant's Sixth Amendment right to a jury trial." Id. at 1244. The California Supreme Court granted review of the Court of Appeal's initial decision in Butler's case and remanded with directions to vacate and reconsider the appeal in light of Black I. On September 28, 2005, the Court of Appeals reconsidered its earlier ruling and held that Butler's sentence did not violate the Sixth Amendment. Butler did not appeal the Court of Appeal's second decision, but did file a petition for state post-conviction relief in the California Supreme Court, which was denied on the merits without comment or citation.


[38] D. District Court Proceedings


[39] In December 2006, Butler filed a petition for writ of habeas corpus in federal district court, maintaining that his sentence violated Blakely. Shortly thereafter, in January 2007, the Supreme Court decided Cunningham. Cunningham addressed a challenge to California's DSL and concluded that "the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum" for purposes of analysis under Apprendi v. New Jersey, 530 U.S. 466 (2000). 127 S.Ct. at 868. Because "the DSL authorize[d] the judge, not the jury, to find the facts permitting an upper term sentence," it violated the Sixth Amendment. Id. at 871.


[40] [1] The State responded to Butler's petition by filing a motion to dismiss, arguing that Butler's claim of sentencing error was unexhausted. The State contended that, "because the recent Cunningham decision casts petitioner's [claim] in a significantly different light, his petition should be dismissed and proceedings stayed while petitioner returns to state court to seek relief under Cunningham."


[41] The magistrate judge recommended that the district court deny the state's motion because Cunningham "did not effect an intervening change in federal law." In its objections to the magistrate judge's recommendation, the State argued for the first time that Cunningham constitutes a "new rule of constitutional law" within the meaning of Teague v. Lane, 489 U.S. 288 (1989). The district court adopted the magistrate judge's recommendation and denied the motion to dismiss, holding, inter alia, that the State's "Teague argument fails."


[42] Having failed in its effort at dismissal, the State filed an answer to the first amended petition on May 16, 2007, in which it maintained that granting relief to petitioner would violate Teague. Moreover, the State argued, the California Court of Appeal and the California Supreme Court's decisions did not unreasonably apply "clearly established" Supreme Court precedent because Butler's probation status falls within the "recidivism" exception to Apprendi v. New Jersey and, under California's DSL, a trial court's finding of a single aggravating factor is sufficient to render a defendant eligible for the upper term. The State further contended that any error was harmless because the jury would have found the two aggravating factors beyond a reasonable doubt. Butler filed a traverse in response, contesting each of the State's arguments.


[43] The magistrate judge recommended that the district court grant a conditional writ of habeas corpus. The magistrate judge determined that the failure to obtain a jury verdict on the probation aggravating factor was harmless, but that the state had not met its burden of demonstrating harmlessness with regard to the "vulnerability of the victim" finding. The district court adopted the magistrate judge's recommendation and granted a conditional writ of habeas corpus.


[44] II. Analysis


[45] A. Retroactivity


[46] In Cunningham, the Supreme Court addressed a Sixth Amendment challenge to California's DSL. The petitioner in Cunningham was convicted of "continuous sexual abuse of a child under the age of 14." 127 S.Ct. at 860. That crime, like the crimes of which Butler was convicted, was punishable under California law by a lower, middle, or upper term. Id. Finding several aggravating factors, the judge imposed an upper term. Id. Observing that, under Cal. Penal Code § 1170(b) (2005), the judge was required to impose a middle term sentence unless he found one or more aggravating factors, the Court held:


[47] In accord with Blakely, . . . the middle term prescribed in California's statutes, not the upper term, is the relevant statutory maximum. Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt, the DSL violates Apprendi's bright-line rule: Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.


[48] Id. at 868 (internal quotation marks and citations omitted). California's DSL thus "violates a defendant's right to trial by jury safeguarded by the Sixth and Fourteenth Amendments." Id. at 860.


[49] The State argues that the Supreme Court's holding in Cunningham - that California's DSL violates the Sixth Amendment because it raises the statutory maximum based on facts found by a judge, rather than a jury - is a "new rule" of constitutional law and therefore cannot be applied retroactively on collateral review under Teague v. Lane.*fn7 When a State raises the issue of retroactivity, "federal habeas courts must apply Teague before considering the merits" of a claim. Beard v. Banks, 542 U.S. 406, 412 (2004) (emphasis in original) (internal quotation marks omitted). We therefore address the Teague argument first.


[50] Under Teague, "old" rules of criminal procedure apply "both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review." Whorton v. Bockting, 127 S.Ct. 1173, 1180 (2007). Butler's conviction became final on November 7, 2005, when the time for seeking direct review of the California Court of Appeal decision in his case expired. See Caspari v. Bohlen, 510 U.S. 383, 390 (1994); Cal. R. Ct. 24(a), 28(b), 45(a). The decision in Cunningham is thus a "new rule" that cannot be applied to Butler's habeas petition if "the result was not dictated by precedent" as of November 7, 2005. Teague v. Lane, 489 U.S. at 301 (emphasis in original).*fn8 The "new rule" principle "vali-dates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions." Butler v. McKellar, 494 U.S. 407, 414 (1990).


[51] To determine whether precedent dictated the holding that California's DSL is inconsistent with the Sixth Amendment, we must "ascertain the legal landscape as it . . . existed [before November 7, 2005] and ask whether the Constitution, as interpreted by the precedent then existing, compel[led] the rule." Beard, 542 U.S. at 411(citation and internal quotation marks omitted); see also Teague, 489 U.S. at 301 ("[A] case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government."). Teague does not, however, require a habeas petitioner to show that "the Supreme Court ha[s] decided a case involving identical facts, circumstances, and legal issues." See Keating v. Hood, 191 F.3d 1053, 1061 n.11 (9th Cir. 1999), overruled in part on other grounds by Payton v. Woodford, 346 F.3d 1204, 1216 (9th Cir. 2003). Rather, when a general rule must be applied in a new situation, "it can hardly be thought to have created a new principle of constitutional law." Tanner v. McDaniel, 493 F.3d 1135, 1144 (9th Cir. 2007), cert. denied, 128 S.Ct. 722 (2007).*fn9 In particular, in the context of applying rules of constitutional law to statutory schemes from different states, we have noted that "applying existing constitutional rules to different state sentencing schemes d[oes] not implicate Teague." Beardslee v. Brown, 393 F.3d 1032, 1040 (9th Cir. 2004) (citing Stringer v. Black, 503 U.S. 222, 229 (1992) (holding that the Supreme Court's conclusion that California's death penalty statute was a "weighing" statute, where the definition of "weighing" had been established in a case involving a Mississippi statute, was not a new rule)).


[52] [2] Looking at the legal developments prior to Cunningham, we conclude that the Supreme Court's Sixth Amendment case law at the time Butler's conviction became final compelled the conclusion that California's DSL was unconstitutional.*fn10 First in the line of pertinent cases was Apprendi v. New Jersey, 530 U.S. 466 (2000), which held that " 'any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.' " Id. at 476 (quoting Jones v. United States, 526 U.S. 227, 243 n.6 (1999)). Next, Blakely v. Washington, 542 U.S. 296 (2004), clarified that "the 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant" and reaffirmed Apprendi's "bright-line rule." Id. at 303 (emphasis in original). Finally, United States v. Booker, 543 U.S. 220 (2005), held that the Federal Sentencing Guidelines were invalid because, as in Blakely, " 'the jury's verdict alone does not authorize the sentence. The judge acquires that authority only upon finding some additional fact.' " Id. at 235 (quoting Blakely, 542 U.S. at 305). Taken together, Apprendi, Blakely, and Booker, firmly established that a sentencing scheme in which the maximum possible sentence is set based on facts found by a judge is not consistent with the Sixth Amendment.


[53] That the California DSL squarely violated this principle - and that the result in Cunningham was compelled by precedent - is best illustrated by comparing the Washington sentencing statute at issue in Blakely with California's DSL. The Washington law in Blakely provided that "[a] judge may impose a sentence above the standard range if he finds 'substantial and compelling reasons justifying an exceptional sentence.' " 542 U.S. at 299. California's DSL similarly required imposition of the middle term unless the judge found factors in aggravation or mitigation. See Cal. Penal Code § 1170(b); Cal. R. Ct. 4.420(a). Like California's DSL, Washington law provided a non-exhaustive list of possible reasons for an exceptional sentence, and stated that "a reason offered to justify an exceptional sentence [could] be considered only if it t[ook] into account factors other than those which are used in computing the standard range sentence for the offense," i.e., factors other than those found by a jury beyond a reasonable doubt. Blakely, 542 U.S. at 299, 304 (internal quotation marks omitted); cf. Cal. R. Ct. 4.421, 4.423 (lists of factors in aggravation and mitigation); id. 4.408(a) (judge may consider additional criteria); id. 4.420(d) ("A fact that is an element of the crime upon which punishment is being imposed may not be used to impose the upper term.").


[54] A judge's decision to impose an exceptional sentence under Washington law was reversible if "there [wa]s insufficient evidence in the record to support the reasons for imposing an exceptional sentence." Blakely, 542 U.S. at 299-300. A judge's sentencing decision under the DSL was also reviewable. See, e.g., People v. Osband, 13 Cal. 4th 622, 728 (1996) (reviewing a sentence imposed under the DSL). Finally, like a judge applying the California DSL, the Washington sentencing judge was not required to impose an exceptional sentence if he found a single aggravating fact, but rather could make a judgment that a lower sentence was appropriate based on all the facts, as long as he provided sufficient reasons. Blakely, 542 U.S. at 305 n.8; cf. Cal. R. Ct. 4.420(b), (e).


[55] Examining the Washington law at issue in Blakely, the Supreme Court recognized both that the judge had discretion to determine whether to impose an exceptional sentence and that there was not an exhaustive list of mitigating and aggravating factors. Blakely, 542 U.S. at 305 & n.8. These factors did not affect the Court's conclusion that the Washington sentencing scheme violated the Sixth Amendment. Id. Instead, because the maximum possible penalty for the crime was set based on facts that had been found by a judge and not by a jury, the sentence was invalid. Id. Cunningham reiterated these same points, rejecting arguments already disapproved in Blakely. See 127 S.Ct. at 869 (noting that the Court had already held in Blakely that "broad discretion to decide what facts may support an enhanced sentence, or to determine whether an enhanced sentence is warranted in any particular case, does not shield a sentencing system" from the bright-line rule of Apprendi).


[56] [3] In short, Cunningham did not add " 'any new elements or criteria for' " determining when a state statute violates the Sixth Amendment. Boyd v. Newland, 467 F.3d 1139, 1146 (9th Cir. 2006), cert. denied 127 S.Ct. 2249 (2007) (quoting Murphy v. Dretke, 416 F.3d 427, 439 (5th Cir. 2005)); see also Beardslee, 393 F.3d at 1040. It simply applied the rule of Blakely to a distinct but closely analogous state sentencing scheme. That the Supreme Court held for the first time that California's sentencing scheme violates the Sixth Amendment does not render its decision in Cunningham a new rule.


[57] The State advances a number of objections to this conclusion, but each fails for the same reason: the State cannot identify any relevant difference between the sentencing scheme in Blakely and that in Cunningham. The State points, first, to the fact that we have held that Apprendi, Blakely, and Booker announced "new rules." See Jones v. Smith, 231 F.3d 1227, 1236-37 (9th Cir. 2000) (Apprendi); Schardt v. Payne, 414 F.3d 1025, 1035-36 (9th Cir. 2005) (Blakely); United States v. Cruz, 423 F.3d 1119, 1120 (9th Cir. 2005) (per curiam) (Booker). But Apprendi, Blakely, and Booker were each sufficiently distinguishable from the cases that preceded them that courts might reasonably have disagreed as to the application of precedent. And, of course, the status of Apprendi, Blakely, and Booker as new rules has little bearing on whether they, collectively, compelled the result in Cunningham.


[58] Second, the State maintains that the existence of two dissents in Cunningham shows that not all reasonable jurists would have felt compelled to hold that California's sentencing scheme violates the Sixth Amendment. Dissents to the decision announcing a rule are relevant to the new rule analysis, but their existence does not alone "suffice[ ] to show that the rule is new." Beard, 542 U.S. at 416 n.5; see Boyd, 467 F.3d at 1145-46 (holding that Johnson v. California, 545 U.S. 162 (2005), a case that engendered a dissent in the Supreme Court, did not create a new rule). For one thing, dissents do not always rest on the assertion that the precedents do not support the legal rule applied by the majority. They are sometimes used to argue for a modification or overruling of existing precedent, or to express an ongoing disagreement with an entire line of cases. See, e.g., Desist v. United States, 394 U.S. 244, 258-59 (1969) (Harlan, J., dissenting) (arguing that Stovall v. Denno, 388 U.S. 293 (1967), which dictated the result in Desist, was wrongly decided and that new constitutional decisions must be applied to all cases on direct review); Williams v. United States, 401 U.S. 667, 677-81 (1971) (Harlan, J., concurring in part and dissenting in part) (continuing to argue that new rules must be applied to all cases on direct review); Walton v. Arizona, 497 U.S. 639, 674-75 (1990) (Brennan, J., dissenting), overruled by Ring v. Arizona, 536 U.S. 584 (2002) (adhering to his view "that the death penalty is in all circumstances a cruel and unusual punishment").


[59] Also, dissents often disagree with the majority's application of established legal principles to discrete factual circumstances, and do not suggest that the majority has adopted a "new rule" of constitutional law. See, e.g., Rompilla v. Beard, 545 U.S. 374, 377, 385-86 & n.3 (2005) (holding, despite a dissent, that the petitioner was entitled to habeas relief because counsel's failure to examine evidence that the government intended to present in aggravation at sentencing phase violated the standard of Strickland v. Washington, 466 U.S. 668 (1984)). Neither variety of dissent indicates that there are reasonable alternative interpretations of the constitutional rule existing at the time they are written.


[60] In contrast, when the Supreme Court has relied in part on dissents in earlier cases in applying Teague, the dissents in question have addressed considerations pertinent to the Teague analysis. See Beard, 542 U.S. at 414-16 (considering whether the decisions in Mills v. Maryland, 486 U.S. 367 (1988), and McKoy v. North Carolina, 494 U.S. 433 (1990), which held that the Constitution prohibits states from requiring jurors to find mitigating factors unanimously, announced a new rule, and pointing to the dissents in Mills and McKoy as evidence that there was a significant difference between the issues addressed in Mills and McKoy and earlier cases).*fn11


[61] The dissents in Cunningham were not of the variety relied on in Beard. Justice Kennedy's Cunningham dissent, joined by Justice Breyer, did not contend that Cunningham was wrongly decided, but instead maintained that "the Apprendi line of cases remains incorrect." See Cunningham, 127 S.Ct. at 872 (Kennedy, J., dissenting). The dissent then went on to suggest a modification of the Apprendi rule for future cases which would have limited it to facts related to the nature of the crime, rather than the nature of the offender, but did not argue that its proposed modification was consistent with the Court's Sixth Amendment precedents. See id. at 872-73. Instead, Justice Kennedy's Cunningham dissent relied on the dissents in Blakely. See id. at 872 ("As dissenting opinions have suggested before, the Constitution ought not to be interpreted to strike down all aspects of sentencing systems that grant judicial discretion with some legislative direction and control." (citing Blakely, 542 U.S. at 314) (dissenting opinion of O'Connor, J.), and id. at 326-27 (dissenting opinion of Kennedy, J.))). Because the dissent did not present an argument that Apprendi, Blakely, and Booker can be interpreted to reach a result different from that reached in Cunningham, it does not shed light on the Teague inquiry.


[62] Justice Alito's dissent is similarly unhelpful to the State, as that dissent also presented no argument that Blakely could be applied in Cunningham to reach a different result. Instead, Justice Alito, joined by Justices Kennedy and Breyer, contended, primarily, that the majority misapprehended California law, not that the DSL, as the majority understood it, passes constitutional muster under Apprendi, Blakely, and Booker. Id. at 876-79 (Alito, J., dissenting). Moreover, the dissent argued that the practical effect of the California DSL, as Justice Alito understood it, was indistinguishable from the federal sentencing system after Booker. The Cunningham majority pointed out, however, that the dissent's discussion depended on assumptions about aspects of the operation of the federal sentencing guidelines after Booker that had yet to be established.*fn12 See id. at 873. In this focus on the practical effects of the California and federal sentencing schemes, Justice Alito's dissent echoed a position rejected by the majority in Blakely, see 542 U.S. at 320-22 (O'Connor, J., dissenting). Further, to the extent that Justice Alito's dissent suggested that the existence of appellate review of the ultimate sentence mitigates that principle, see Cunningham, 549 U.S. at 877-78, it was, in essence, an argument for overruling Blakely, which involved a sentencing scheme including judicial review, see Blakely, 542 U.S. at 299-300. For these reasons, Justice Alito's Cunningham dissent does not suggest that reasonable alternative interpretations of Blakely were available.


[63] In the end, the State's position would require us to hold that each time a rule of general applicability, such as that announced in Blakely, is applied to a discrete circumstance, a new rule of constitutional law is created. Not only is that result inconsistent with the pertinent case law, it is not supported by the purposes of non-retroactivity on collateral review. In Teague, the Supreme Court adopted Justice Harlan's view that habeas " 'serves as a necessary additional incentive for trial and appellate courts . . . to conduct their proceedings in a manner consistent with established constitutional standards.' " 489 U.S. at 306 (quoting Desist, 394 U.S. at 262-63 (Harlan, J., dissenting)). Habeas courts can maintain this incentive without applying new constitutional standards to cases in which state courts had complied with "the constitutional standards that prevailed at the time the original proceedings took place." Id. To apply new rules to final state court convictions would threaten important principles of finality in criminal proceedings as well as of respect for state courts. Id. at 308-10.


[64] [4] In this case, Apprendi, Blakely, and Booker made "courts throughout the land" aware that sentencing schemes that raise the maximum possible term based on facts not found by a jury violate the constitutional rights of defendants. Id. at 306. No principles of comity or federalism would be served by refusing to apply this rule to functionally indistinguishable state sentencing schemes on collateral review. Cunningham thus did not announce a new rule of constitutional law and may be applied retroactively on collateral review.


[65] B. Exhaustion


[66] The State also argues that Butler's habeas petition must be dismissed for failure to exhaust, because Cunningham constitutes an intervening change in federal law that casts the legal issue in a fundamentally different light. See Blair v. California, 340 F.2d 741, 745 (9th Cir. 1965). Before Teague, we sometimes held a habeas petition unexhausted because of changes in federal law. See, e.g., id. at 743-45 (holding that an issue was not exhausted where Supreme Court subsequently decided Douglas v. California, 372 U.S. 353, 357 (1963) (holding that indigent defendants are entitled to counsel in their first appeal as of right)); Davis v. California, 341 F.2d 982, 986 n.11 (9th Cir. 1965).


[67] After Teague, an intervening change in federal law that casts the legal issue in a fundamentally different light is a "new rule" that cannot be applied on collateral review under any circumstances, regardless of whether the petitioner has exhausted his state court remedies. In other words, after Teague, the Douglas line of cases no longer serves any function. Where there is no new rule announced, the state court has had a fair chance to address the issue when it was raised, and there is no reason to require further exhaustion. We hold that when a petitioner raises a claim in state court that is later resolved in a case that announced no "new rule," a petitioner is not obligated to return to state court to exhaust his remedies under that case.


[68] C. AEDPA


[69] Butler's petition was filed after April 24, 1996, so the provisions of the Antiterrorism and Effective Death Penalty Act apply to his petition. See Fields v. Brown, 503 F.3d 755, 763 (9th Cir. 2007) (en banc), cert. denied 76 U.S.L.W. 3555 (U.S. Apr. 14, 2008) (No. 07-8724). Under AEDPA, we cannot grant habeas relief to Butler unless the State court's decision in his case was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Supreme Court precedents that "qualify as an old rule under [Teague] . . . constitute 'clearly established Federal law' " within the meaning of AEDPA. Williams v. Taylor, 529 U.S. 362, 412 (2000). We therefore proceed from the premise that the case law on a defendant's Sixth Amendment rights was clearly established when Butler's conviction became final and address only the other requirements of AEDPA.


[70] "A state court decision is contrary to clearly established federal law if the state court either applies a rule that contradicts the governing law set forth by the Supreme Court or arrives at a different result when confronted by a set of facts that are materially indistinguishable from a decision of the Supreme Court." Sims v. Rowland, 414 F.3d 1148, 1151 (9th Cir. 2005) (citing Williams v. Taylor, 529 U.S. at 405-06). An unreasonable application of federal law results when a state court "applies [Supreme Court] precedents to the facts in an objectively unreasonable manner," or unreasonably fails "to extend the holding or legal principles of a Supreme Court decision to a situation in which it should have controlled." Id. at 1152 (internal quotation marks omitted).


[71] In reviewing a state court decision under § 2254(d)(1), we "look to the last reasoned decision of the state court as the basis of the state court's judgment." Polk v. Sandoval, 503 F.3d 903, 909 (9th Cir. 2007). The California Court of Appeal issued the last reasoned state court decision when it rejected Butler's direct appeal. In denying Butler's challenge to his sentence, the California Court of Appeal relied entirely on the reasoning of the California Supreme Court in Black I. We therefore look to the reasoning of Black I to determine whether the AEDPA requirements have been met.


[72] [5] Black I reached its result - upholding the DSL - by applying a rule of decision contrary to clearly established Supreme Court precedent. The California Supreme Court articulated the relevant question as whether a trial judge's decision to impose an upper term sentence under the California determinate sentencing law involves the type of judicial factfinding that traditionally has been performed by a judge in the context of exercising sentencing discretion or whether it instead involves the type of factfinding that traditionally has been exercised by juries in the context of determining whether the elements of an offense have been proved.


[73] Black I, 35 Cal. 4th at 1253-54. Applying that rule, the court concluded that the upper term is the relevant statutory maximum, because California's DSL "simply authorize[s] a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge's selection of an appropriate sentence." Id. at 1254. The California Supreme Court so ruled even though a sentencing court "cannot impose the upper term unless there is at least one aggravating factor." Id.


[74] The rule applied in Black I is nowhere to be found in Supreme Court precedent. Instead, it parallels the position of the dissenters in several of the Supreme Court's sentencing cases. See Booker, 543 U.S. at 235-36 (rejecting the dissent's reliance on the traditional authority of judges to engage in factfinding as to matters relevant to sentencing); Apprendi, 530 U.S. at 535 (O'Connor, J., dissenting) (arguing that it is acceptable to allow judges to engage in factfinding as to matters that have traditionally been treated as affecting punishment rather than as elements); accord Black I, 35 Cal. 4th at 1270 (Kennard, J., concurring and dissenting) ("Nothing in the high court's majority opinions in Apprendi, Blakely, and Booker suggests that the constitutionality of a state's sentencing scheme turns on whether, in the words of the majority here, it involves the type of factfinding that traditionally has been performed by a judge." (internal quotation marks omitted)).


[75] [6] In fact, "the 'statutory maximum' for Apprendi pur-poses is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303. Rather than applying this bright-line rule, Black I applied a "traditional judicial factfinding" rule inconsistent with Supreme Court precedent. Its decision was therefore "contrary to" the clearly established law of the Supreme Court, and the requirements of AEDPA are met. See Price v. Vincent, 538 U.S. 634, 640 (2003) (noting that a decision is contrary to clearly established law if it "applies a rule" that contradicts Supreme Court precedent).


[76] D. Constitutional Violation


[77] Our conclusion that the decision of the California Court of Appeal was "contrary" to clearly established Supreme Court precedent is not the end of our inquiry. Our power to grant the writ of habeas corpus to a state inmate depends on his actually being "in custody in violation of the Constitution or laws . . . of the United States." 28 U.S.C. § 2241(c)(3). Having held that the requirements of AEDPA have been met, we must also determine, applying a de novo review standard, whether there has been a constitutional violation. See Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) (holding that, "[w]hen 'the requirement set forth in § 2254(d)(1) is satisfied, a federal court must then resolve the constitutional claim without the deference AEDPA otherwise requires' " (quoting Panetti v. Quarterman, 127 S.Ct. 2842, 2858 (2007)). We therefore proceed to a de novo analysis of whether, under a correct understanding of Supreme Court precedent, Butler's sentence violates the Sixth Amendment. The State contends that Butler's sentence does not violate the Constitution because, under California law, the existence of a single aggravating factor is sufficient to authorize an upper term sentence, and the "probation" aggravating factor comes within the exception for "prior convictions" created by AlmendarezTorres v. United States, 523 U.S. 224 (1998).


[78] Almendarez-Torres held that the fact of a prior conviction need not be pleaded in an indictment or proved to a jury beyond a reasonable doubt. Id. at 244, 247. We agree that, under California law, only one aggravating factor is necessary to authorize an upper term sentence. So the probation factor alone would suffice to render the sentence constitutional were it found applicable in a manner consistent with the Sixth Amendment. We conclude, however, that whether the defendant was on probation at the time of commitment of a crime does not come within the narrow Almendarez-Torres exception to the fact-finding requirements established in the Apprendi line of cases and so cannot suffice to make Butler's sentence constitutional.


[79] 1. California Law


[80] The California Supreme Court revisited its decision in Black I after a remand from the United States Supreme Court for reconsideration in light of Cunningham. See People v. Black, 41 Cal. 4th 799, 805 (2007) ("Black II"). Black II once again upheld Black's sentence, on the ground that, "under the DSL[,] the presence of one aggravating circumstance renders it lawful for the trial court to impose an upper term sentence." Id. at 815. Black II observed that, under Supreme Court precedent, "as long as a single aggravating circumstance . . . has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence . . . does not violate the defendant's right to jury trial." Id. at 812. One of the aggravating factors in Black's case was the existence of a prior conviction. The California Supreme Court concluded, applying Almendarez-Torres, that that factor had been established in a manner consistent with the Constitution; so Black's sentence was not unconstitutional. Id. at 816.


[81] Butler argues that we should not accept the Black II court's interpretation of the California DSL as requiring only a single aggravating factor to authorize the upper term. As an initial matter, Butler waived this argument by failing to raise it either in the district court or in his brief on appeal, mentioning it for the first time at oral argument. See Nw. Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 923 (9th Cir. 1988).


[82] Even were the issue not waived, however, Butler's argument would fail. We are bound to accept a state court's interpretation of state law, except in the highly unusual case in which the "interpretation is clearly untenable and amounts to a subterfuge to avoid federal review" of a constitutional violation. Knapp v. Cardwell, 667 F.2d 1253, 1260 (9th Cir. 1982); see Mullaney v. Wilbur, 421 U.S. 684, 691 n.11 (1975). The California Supreme Court's interpretation of the DSL is not so inconsistent with prior case law or the statute itself as to suggest that it is merely a subterfuge. Before Black II, the California courts had frequently held that only a single aggravating factor is required to support an upper term sentence. See, e.g., People v. Osband, 13 Cal. 4th 622, 728 (1996); People v. Forster, 35 Cal. Rptr. 2d 705, 713 (Ct. App. 1994) ("[A] single valid factor in aggravation is sufficient to justify the imposition of the upper term."); People v. Piceno, 241 Cal. Rptr. 391, 395 (Ct. App. 1987) (same). Although the state courts before Cunningham were addressing a somewhat different question - whether the trial court had abused its discretion in selecting the upper term sentence from among those available - it is consistent with these earlier cases to hold that only one aggravating factor was necessary to set the upper term as the statutory maximum. Indeed, it would be strange if more aggravating factors were required to set the upper term as the statutory maximum than are required to justify selection of the upper term once the maximum has been raised.


[83] Further, although the California Rules of Court state that "[s]election of the upper term is justified only if, after a consideration of all the relevant facts, the circumstances in aggravation outweigh the circumstances in mitigation," Cal. R. Ct. 4.420(b) (emphasis added), the statute itself provides that "the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime," Cal. Penal Code § 1170(b). The weighing language of the Rules of Court can reasonably be interpreted as guiding a judge's discretion to select a term within the statutory maximum set by section 1170(b) after an aggravating factor has been found. In short, California's interpretation of the DSL is not "clearly untenable."


[84] [7] Having established that, under California law, only one aggravating factor is necessary to set the upper term as the maximum sentence, we turn to analyzing whether Butler's sentence was imposed in violation of the Constitution. The Sixth Amendment does not prevent judges from "exercis[ing] discretion - taking into consideration various factors relating both to offense and offender - in imposing a judgment within the range prescribed by statute." Apprendi, 530 U.S. at 481. In imposing a sentence, judges may "implicitly rule on those facts [they] deem[ ] important to the exercise of [their] sentencing discretion." Blakely, 542 U.S. at 309. For that reason, if at least one of the aggravating factors on which the judge relied in sentencing Butler was established in a manner consistent with the Sixth Amendment, Butler's sentence does not violate the Constitution. Any additional factfinding was relevant only to selection of a sentence within the statutory range.


[85] 2. Probation and the "Prior Conviction" Exception


[86] The trial court imposed an upper term sentence on Butler based on two aggravating factors: his victim was particularly vulnerable, and he was on probation at the time he committed the assault. The State argues that Butler's sentence does not violate the Constitution because the fact that Butler was on probation at the time of the crime was found in a manner consistent with the Constitution. We cannot agree with the State's premise - that the narrow exception for prior convictions extends to a defendant's probationary status at the time of the instant crime.


[87] In Almendarez-Torres, the Supreme Court determined that the fact of a prior conviction for an aggravated felony need not be pleaded in an indictment or proved to a jury beyond a reasonable doubt. 523 U.S. at 247. Subsequent sentencing cases, however, have substantially undermined the basis for this conclusion. Distinguishing Almendarez-Torres, Apprendi characterized the "prior conviction" exception as at best "an exceptional departure from" historic sentencing practice, 530 U.S. at 487, and observed that it is "arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested," id. at 489-90. See also id. at 518-19 (Thomas, J., concurring) (concluding that AlmendarezTorres was wrongly decided); Shepard v. United States, 544 U.S. 13, 27-28 (2005) (Thomas, J., concurring in part and in the judgment) (observing that "a majority of the Court now recognizes that Almendarez-Torres was wrongly decided" and suggesting that, "in an appropriate case, this Court should consider Almendarez-Torres' continuing viability").


[88] [8] Nonetheless, the Supreme Court has not overruled the Almendarez-Torres exception for prior convictions, continuing to hold that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Apprendi, 530 U.S. at 490 (emphasis added); see also Booker, 543 U.S. at 244; Blakely, 542 U.S. at 301. Concommittantly, we have repeatedly recognized our obligation to apply the AlmendarezTorres exception, unless and until it is rejected by the Supreme Court. See, e.g., United States v. Lopez, 500 F.3d 840, 848 (9th Cir. 2007), cert. denied, 128 S.Ct. 950 (2008); United States v. Diaz-Argueta, 447 F.3d 1167, 1170 (9th Cir. 2006); United States v. Weiland, 420 F.3d 1062, 1079 n.16 (9th Cir. 2005).


[89] We are left, then, with the task of determining the outer bounds of the "prior conviction" exception after Apprendi. We find some guidance in Shepard, which addressed the kind of evidence on which a court may rely in determining whether a prior conviction constitutes a crime of violence for purposes of the Armed Career Criminal Act of 1984 ("ACCA"). 544 U.S. at 15-16. Shepard noted Almendarez-Torres' exception for prior convictions, but also recognized that a district court's findings of fact about the basis for a prior guilty plea or conviction at some point "raise[ ] the concern underlying . . . Apprendi," that is that the Constitution "guarantee[s] a jury's finding of any disputed fact essential to increase the ceiling of a potential sentence." Id. at 25.


[90] Without delineating precisely the line between those facts that come within the Almendarez-Torres exception and those that do not, Shepard "avoid[ed] serious risks of unconstitutionality" by "limit[ing] the scope of judicial factfinding" under the ACCA to whether a prior guilty plea or jury verdict necessarily constitutes a conviction for the "generic" crime at issue. Id. at 25-26. Specifically, where the conviction is by guilty plea, a judge may consider only "the statutory definition, charging document, written plea agreement, transcript of plea colloquy, and any explicit factual finding by the trial judge to which the defendant assented." Id. at 16; see also Taylor v. United States, 495 U.S. 575, 602, 610 (1990) (indicating the documents which may permissibly be considered in a case where conviction is by jury verdict). Shepard thus strongly suggests that the Almendarez-Torres exception does not extend to any and all facts related to a prior conviction. Rather, to avoid a potential conflict with the Sixth Amendment, Shepard limited the consideration of prior convictions at judicial sentencing to those facts that can be established by the "prior judicial record" of conviction.


[91] Heeding the Supreme Court's cautions about AlmendarezTorres and Shepard's guidance, we have been hesitant to broaden the scope of the prior conviction exception to facts not apparent on the face of conviction documents. United States v. Kortgaard, 425 F.3d 602, 610 (9th Cir. 2005) (concluding that we must treat Almendarez-Torres as a "narrow exception to the general rule"). Under our precedents, the exception does not extend to qualitative evaluations of the nature or seriousness of past crimes, because such determinations cannot be made solely by looking to the documents of conviction. See id. at 607 (holding that "seriousness" of past crimes and "likelihood of recidivism" are not facts that come within the "prior conviction" exception); Stokes v. Schriro, 465 F.3d 397, 404 (9th Cir. 2006) (holding that the determination whether the present offense is "strikingly similar" to a past offense does not come within the "prior conviction" exception).


[92] Nor does the Almendarez-Torres exception apply to past convictions as a juvenile or to prior removal proceedings, because those underlying proceedings lack full Sixth Amendment protections. See United States v. Tighe, 266 F.3d 1187, 1193-95 (9th Cir. 2001) ("[T]he 'prior conviction' exception to Apprendi's general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt." (citing Apprendi, 530 U.S. at 496)); United States v. Covian-Sandoval, 462 F.3d 1090, 1097-98 (9th Cir. 2006), cert. denied, 127 S.Ct. 1866 (2007) (holding that prior removal proceedings are not within the exception because they "are civil, not criminal, lacking both juries and the reasonable doubt standard").


[93] Our case law on criminal penalties for illegal re-entry is especially instructive. In United States v. Salazar-Lopez, 506 F.3d 748 (9th Cir. 2007), cert. denied 2008 WL 1881475 (U.S. May 27, 2008) (No. 07-10561), we addressed a conviction under 8 U.S.C. § 1326(b)(1), which raises the maximum term for illegal re-entry from two to ten years if the relevant prior "removal [i]s subsequent to a conviction for commission of . . . a felony." The jury had found that Salazar-Lopez was removed from the United States at some point, but was not required to find the date of that removal. Salazar-Lopez, 506 F.3d at 751. We held that a district judge could determine whether there was a prior felony conviction without committing Apprendi error, but that the timing of the subsequent removal must be pleaded in an indictment and proved to a jury beyond a reasonable doubt. Id. at 751-52. This was so, even though the statutory maximum was based in part on the fact and timing of a prior conviction reflected in conviction documents, and even though the date of the later removal was reflected in documents from an immigration court. In other words, where the basis for the higher statutory maximum depends on facts that occurred after the prior conviction and is not evident on the face of conviction documents, application of the higher statutory maximum violates Apprendi. Id. at 752.


[94] In sum, our case law establishes three prerequisites for applying the Almendarez-Torres exception. First, "[t]he fact of a prior conviction is the only fact that both increases a penalty beyond the statutory maximum and can be found by a sentencing court." Covian-Sandoval, 462 F.3d at 1097. Second, the narrow prior conviction exception applies only to facts directly reflected in the documents of conviction, not to secondary "facts that are derived or inferred" from a prior conviction or from the conviction documents. Kortgaard, 425 F.3d at 610. Third, as the prior conviction exception is justified by the reliability of court documents created as part of a process with Sixth Amendment safeguards, it does not extend to facts that may be proven only by reference to documents that were not developed as a result of such a process. See Covian-Sandoval, 462 F.3d at 1097-98; Tighe, 266 F.3d at 1195.


[95] [9] Applying these established principles to the determination of a defendant's current probation status, we conclude that such status does not come within the narrow prior conviction exception. That the defendant was initially sentenced to probation should be ascertainable from the conviction documents and, we may assume, would be a fact coming within the prior conviction exception.*fn13 The fact that a defendant was on probation at the moment of the current crime, however, is not reflected in the documents of a prior conviction nor, for that matter, may it be conclusively inferred from those documents.


[96] Under California probation law, for example, a judge retains the authority to modify the terms of an individual's probation at any time, including terminating probation early or extending it for a longer term. California Penal Code § 1203.3(a) provides:


[97] The court shall have authority at any time during the term of probation to revoke, modify, or change its order of suspension of imposition or execution of sentence. The court may at any time when the ends of justice will be subserved thereby and when the good conduct and reform of the person so held on probation shall warrant it, terminate the period of probation, and discharge the person so held.


[98] A probation term can therefore be terminated early, or be extended, or be revoked as a result of a probation violation. See, e.g., People v. Butler, 105 Cal. App. 3d 585, 587 (Cal. Ct. App. 1980) (describing early release from probation after determination that probationer was totally disabled); People v. Cookson, 54 Cal. 3d 1091, 1097 (1991) (extending probation for non-willful failure to pay restitution). Such changes would not appear in the original conviction documents, as they would occur later.


[99] As a result, the fact that an individual was sentenced to a term of probation at the time of a prior conviction - a fact that may be reflected in conviction documents of the kind approved by Shepard - is not sufficient to prove that he was on probation at the time of the current crime. That determination - like the timing of a prior removal in Salazar-Lopez - can only be made by drawing inferences from the prior conviction documents and by considering facts and circumstances that occurred after the prior conviction.


[100] [10] The fact of having been terminated from probation, placed on extended probation, or having probation revoked is, of course, likely to be recorded in court documents. But like a removal proceeding or juvenile adjudication, probation revocation hearings are not conducted with the safeguards that attend a criminal conviction. See, e.g., People v. Shepherd, 60 Cal. Rptr. 3d 616, 619 (Ct. App. 2007) (for revocation of probation, a violation must be proved only by a preponderance of the evidence). Due process does not require that they be so conducted. See Gagnon v. Scarpelli, 411 U.S. 778, 787-90 (1973); Morrissey v. Brewer, 408 U.S. 471, 480 (1972). Requests to modify, extend, or terminate probation may be attended by even fewer procedural formalities than probation revocation hearings, which can lead to incarceration. See, e.g., Cookson, 54 Cal. 3d at 1096-97 (probation may be extended in circumstances under which it would not be constitutional to revoke probation). We are therefore convinced that the fact of being on probation at the time of a crime does not come within the "prior conviction" exception and must be pleaded in an indictment and proved to a jury beyond a reasonable doubt.*fn14


[101] We are aware that decisions of several of our sister circuits suggest that whether a defendant was on probation at the time of the crime is a fact that comes within the prior conviction exception and so may be found by a judge by a preponderance of the evidence. See, e.g., United States v. Corchado, 427 F.3d 815, 820 (10th Cir. 2005); United States v. Williams, 410 F.3d 397, 399, 402 (7th Cir. 2005); United States v. Fagans, 406 F.3d 138, 141-42 (2d Cir. 2005). We do not find these cases helpful in analyzing the issue before us.


[102] As far as we can ascertain from the opinions, our sister circuits were not asked to consider whether the fact of being on probation is distinct from other facts associated with a prior conviction. Rather, they were faced only with general Apprendi challenges to multiple findings about an individual's criminal history. See Corchado, 427 F.3d at 820 (holding that the prior conviction exception extends generally to "subsidiary findings" about a prior conviction); Williams, 410 F.3d at 402 (holding that the district court did not err in making "findings as to the fact of his prior convictions or as to the nature of those convictions"); Fagans, 406 F.3d at 141-42 (holding generally that facts about "the conviction itself and the type and length of a sentence imposed" come within Almendarez-Torres). Insofar as these cases held only that the question whether the defendant was originally sentenced to probation at the time of conviction comes within the Almendarez-Torres exception, we do not disagree, for the reasons we have explained. Insofar as these cases from other circuits suggest that the defendant's status as a probationer at the time of the instant crime is within the exception, that result cannot be squared with this circuit's case law, for the reasons we have explained.*fn15 And as the cases do not clearly distinguish the two issues, they contain no reasoning about why post-conviction probation status comes within the prior conviction exception.


[103] [11] We therefore conclude that the Sixth Amendment was violated when Butler's maximum possible term was raised based on facts, other than a prior conviction, that were not admitted or proved to a jury beyond a reasonable doubt.


[104] E. Harmlessness


[105] Butler is entitled to relief only if the sentencing error in his case is not harmless. See Washington v. Recuenco, 126 S.Ct. 2546, 2552 (2006) (holding that sentencing errors are subject to harmless error analysis). Applying Brecht v. Abrahamson, 507 U.S. 619 (1993), we must determine whether "the error had a substantial and injurious effect on [Butler's] sentence." Hoffman v. Arave, 236 F.3d 523, 540 (9th Cir. 2001) (internal quotation marks omitted). Under that standard, we must grant relief if we are in "grave doubt" as to whether a jury would have found the relevant aggravating factors beyond a reasonable doubt. O'Neal v. McAninch, 513 U.S. 432, 436 (1995). Grave doubt exists when, "in the judge's mind, the matter is so evenly balanced that he feels himself in virtual equipoise as to the harmlessness of the error." Id. at 435.


[106] Further, in conducting harmless error review of an Apprendi violation, we may consider evidence presented at sentencing proceedings. But "we do not consider new admissions made at sentencing in our harmless error inquiry," Salazar-Lopez, 506 F.3d at 755 (citing United States v. Jordan, 291 F.3d 1091, 1097 (9th Cir. 2002)); see also United States v. Nordby, 225 F.3d 1053, 1061 n.6 (9th Cir. 2000), overruled on other grounds by United States v. Buckland, 289 F.3d 558, 568 (9th Cir. 2002) (en banc).*fn16


[107] Under California law, as we have explained, only one aggravating factor is necessary to set the upper term as the maximum term. Any Apprendi error therefore will be harmless if it is not prejudicial as to just one of the aggravating factors at issue.


[108] Here, the district court noted that it is impossible to know what the trial court would have done had it found only one aggravating factor. It concluded that the Sixth Amendment violation therefore could not be harmless unless it did not affect either of the aggravating factors upon which the judge relied. With regard to a Sixth Amendment sentencing violation, however, the relevant question is not what the trial court would have done, but what it legally could have done. After one aggravating factor was validly found, the trial court legally could have imposed the upper term sentence. That the judge might not have done so in the absence of an additional factor does not implicate the Sixth Amendment, as that consideration concerns only the imposition of a sentence within an authorized statutory range.


[109] With these principles in mind, we turn to the aggravating factors that form the basis for Butler's sentence.


[110] 1. Vulnerable Victim


[111] [12] The state trial court found that Daria Butler was a particularly vulnerable victim because "she was attacked from behind." Under California law, vulnerable means " 'defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant's criminal act.' " People v. Weaver, 58 Cal. Rptr. 3d 18, 27 (Ct. App. 2007) (quoting People v. Smith, 156 Cal. Rptr. 502, 503 (Ct. App. 1979)). A victim is "particularly" vulnerable only if he is vulnerable to a "special or unusual degree, to an extent greater than in other cases." People v. Loudermilk, 241 Cal. Rptr. 208, 214 (Ct. App. 1987). A victim is thus not "particularly" vulnerable where all victims of the crime of conviction are vulnerable in the same manner. See People v. Bloom, 190 Cal. Rptr. 857, 865 (Ct. App. 1983) (stating that "[a]ll victims of drunk drivers are 'vulnerable victims' ").


[112] There is little doubt, based on the evidence presented at trial, that the jury would have concluded beyond a reasonable doubt that Daria Butler was attacked from behind. Butler never contested the evidence showing that Daria's wounds were to the back of her head, and the jury's verdict demonstrates that it believed Daria's version of the incident. But after examining California case law on the "particularly vulnerable" victim aggravating factor, we have grave doubt about whether a jury would have found that Daria was a particularly vulnerable victim of the crime of domestic assault (Cal. Penal Code § 273.5) because she was attacked from behind.


[113] In the overwhelming majority of cases, "particularly vulnerable victims" have had inherent personal characteristics that, sometimes in combination with the manner in which the crime was committed, render them more vulnerable than other victims. See, e.g., People v. Bishop, 204 Cal. Rptr. 502, 505 (Ct. App. 1984) (victims were very young and of small stature); People v. McGlothin, 79 Cal. Rptr. 2d 83, 87 (Ct. App. 1998) (the victims were particularly vulnerable because they were elderly and were attacked in a parking lot late at night); People v. Karsai, 182 Cal. Rptr. 406, 416 (Ct. App. 1982) (victim was young and physically weak); id. ("While age and physical traits are not the only factors which may indicate particular vulnerability, they are the most obvious.").


[114] The California courts have in a few cases relied on aspects of the status of the victim that are more changeable than age or physical frailty, but have done so only when the victim was seriously, if only temporarily, incapacitated. People v. Hoover, 92 Cal. Rptr. 2d 208, 215-16 (Ct. App. 2000) (extremely intoxicated victim in domestic violence case); People v. White, 172 Cal. Rptr. 612, 618 (Ct. App. 1981) (shooting a victim already incapacitated from earlier gunshot), abrogated on other grounds by People v. Scott, 9 Cal. 4th 331, 353 n. 16 (1994); Loudermilk, 241 Cal. Rptr. at 214 (sleeping victim); Smith, 156 Cal. Rptr. at 503 (sleeping victims). We found no case in which attacking a victim from behind was the sole basis for a finding of particular vulnerability.


[115] Here, there is no evidence that at the time of the crime Daria was less able than other victims to ward off attacks because of any such disability or incapacitation. Indeed, there was evidence from which a jury could conclude that Daria was generally a physically capable individual, as there was testimony at trial from both Daria and Butler that she had physically attacked Butler in the past.*fn17 A jury might have concluded that having one's back turned is similar to being asleep in the sense that both are temporary states, and that in each case the defendant takes advantage of a moment of greater assailability. But they are not so similar that we can say with confidence, particularly in light of the many cases focused on characteristics such as age and physical frailty, that a jury would conclude that an individual with her back turned is a "particularly vulnerable victim."


[116] [13] Moreover, as we have already discussed, a victim must be not only vulnerable, but "particularly" vulnerable in relation to other victims of the same crime. See, e.g., People v. Piceno, 241 Cal. Rptr. 391, 394 (Ct. App. 1988) (holding that it was error to apply the particularly vulnerable victim factor to a conviction for vehicular manslaughter because, while "[n]o one could possibly deny the victim here was vulnerable[,] . . . all victims of vehicular manslaughter . . . were vulnerable"); People v. Flores, 171 Cal. Rptr. 777, 778-79 (Ct. App. 1981) (applying particularly vulnerable victim aggravator because of the victim's young age was inappropriate because all victims of the crime of oral copulation with an individual under 16 are young).*fn18 The particularly vulnerable victim aggravating factor was applied to Butler's conviction for domestic violence under Cal. Penal Code section 273.5. In interpreting section 273.5, the California Court of Appeal has noted that it was the purpose of the legislature in criminalizing domestic violence to protect individuals who are in a vulnerable position. See People v. Mora, 59 Cal. Rptr. 801, 804-05 (Ct. App. 1996). In other words, it is in the nature of domestic violence that its victims are vulnerable, because of their close relationship with their attacker, their attacker's typically greater physical strength, and their isolation in their homes. As a result, a jury could have concluded that Butler was not more vulnerable than other victims of domestic violence because she was attacked from behind.*fn19


[117] [14] In sum, we are left with "grave doubt" as to whether a jury would have found, beyond a reasonable doubt and based solely on the circumstance of being attacked from behind, that Daria was a "particularly vulnerable" victim of domestic violence. The Apprendi error was therefore not harmless with regard to the first aggravating factor. See O'Neal, 513 U.S. at 445 ("[W]e conclude that, when a habeas court is in grave doubt as to the harmlessness of an error that affects substantial rights, it should grant relief.").


[118] 2. Probationary Status


[119] [15] Whether a jury would have found Butler's probation-ary status beyond a reasonable doubt turns out to be, on the record in this case, a difficult question to answer. The record before the district court does not reveal what evidence on the probation issue was presented to the state trial court. We therefore remand to the district court for an evidentiary hearing on that question.


[120] The state trial court opened the sentencing proceeding by stating, "I've read and considered the probation report in this case." After statements from the prosecutor and defense counsel, the judge found that Daria Butler was a particularly vulnerable victim and that Butler "was on probation at the time the crime was committed." In response to the judge's second finding, Butler's lawyer suggested that the probation aggravating factor be stricken because "there is no indication that he was noncompliant except for this."


[121] The statement of defense counsel at sentencing suggests that Butler acknowledged, or at least did not dispute, that he was on probation at the time of the crime. Even assuming, however, that defense counsel's statement was sufficiently specific as to constitute an admission, we may not consider it in determining whether the Apprendi error in Butler's sentencing was harmless. See Salazar-Lopez, 506 F.3d at 755.


[122] We are left, then, to determine whether the evidence presented by the prosecution at sentencing is sufficient to render the error harmless. Unfortunately, the record simply does not reveal what that evidence was. Having reviewed all the submissions to the district court in this case, we have not found a probation report or any other document that reflects Butler's probationary status at the time of the crime. At oral argument, the government acknowledged that it did not submit the probation report read by the sentencing judge to the district court. We thus cannot be certain what evidence was presented to the state trial court on the question of Butler's probationary status. Yet, to determine whether an Apprendi error was harmless we must examine the whole record, including the evidence presented by the government at sentencing. We therefore cannot make our determination without further fact-finding as to what evidence was presented at sentencing.


[123] [16] We recognize that neither of the parties has requested an evidentiary hearing on this issue. Further factfinding on this issue is necessary, however, not to assist either of the parties in meeting a burden of proof as to harmlessness, but to assist the court in making an accurate determination. See Frantz, 513 F.3d at 1023 (remanding to district court for evidentiary hearing to determine circumstances in which in chambers conference in absence of the petitioner was conducted); see also Mancuso v. Olivarez, 292 F.3d 939, 949 n.4 (9th Cir. 2002) ("[W]hether a trial error had a substantial and injurious effect is not to be analyzed in terms of burdens of proof."). We therefore vacate the grant of a writ of habeas corpus to Butler and remand for an evidentiary hearing on what evidence was presented to the state trial court in support of the allegation that Butler was on probation at the time of his crime.


[124] CONCLUSION


[125] For the foregoing reasons, the judgment of the district court is AFFIRMED in part, VACATED in part, and REMANDED for proceedings not inconsistent with this opinion.*fn20


[126] Each party shall bear its own costs on appeal.



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Opinion Footnotes

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[127] *fn1 Cal. Penal Code § 273.5(a) provides:
Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.


[128] *fn2 Cal. Penal Code § 245(a)(1) provides:
Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.


[129] *fn3 Cal. Penal Code § 12022(b)(1) provides:
Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense.


[130] *fn4 Cal. Penal Code § 12022.7(a) provides:
Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.


[131] *fn5 Section 1170 of the California Penal Code was amended in January 2005 and again in March of 2007. See Cal. Penal Code § 1170 (2005) and Cal. Penal Code § 1170 (2007). The relevant language in section 1170(b) remained unchanged in the version that was passed in January 2005. In contrast, the version that became effective on March 30, 2007, passed in response to Cunningham, provides that: "[w]hen a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." Cal. Penal Code § 1170(b) (2007). All references to section 1170(b) are to the 2005 version - which was in effect at the time Butler's conviction became final in November 2005 - unless otherwise specified.


[132] *fn6 Rule 4.420 was amended substantially on May 23, 2007 in response to Cunningham. See Cal. R. Ct. 4.420 (2007). All references are to the previous version in effect in November 2005 when Butler's conviction became final unless otherwise specified.


[133] *fn7 Teague was a plurality opinion, but the Teague rule was adopted by a majority of the Court shortly thereafter in Penry v. Lynaugh, 492 U.S. 302 (1989). See Danforth v. Minnesota, 128 S.Ct. 1029, 1033 n.1 (2008).


[134] *fn8 A new rule may be applied on collateral review if it places certain primary conduct beyond the reach of the criminal law, or constitutes a "watershed" rule of criminal procedure "implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495 (1990). Butler does not argue that either of these two exceptions applies, and we do not address them.


[135] *fn9 Butler argues that we need not decide whether Cunningham announced a "new rule" because his "petition relies not on Cunningham, but on his rights to proof beyond a reasonable doubt and jury trial as established by Apprendi, Blakely, and [United States v.] Booker[, 543 U.S. 220 (2005)]." This distinction is irrelevant to our task: Whether Butler asks us to apply to him a Supreme Court decision issued after his conviction became final, or to announce independently the very holding that the Supreme Court arrived at in a case decided after his conviction became final, we must determine whether the result he requests was "dictated" by precedent before his conviction was final. See Caspari v. Bohlen, 510 U.S. 383, 395-96 (1994) (determining whether the result that the petitioner was arguing for in his collateral review proceeding would require creation of a new rule in violation of Teague). The pivotal question is thus the same either way: did Apprendi, Blakely, and Booker compel the conclusion that California's DSL violates the Sixth Amendment?


[136] *fn10 In determining whether a rule is "new" for Teague purposes, we may also consider our own case law. See Leavitt v. Arave, 383 F.3d 809, 819 (9th Cir. 2004) (per curiam) ("[C]circuit court holdings suffice to create" an old rule under Teague. (internal quotation marks omitted)). In this case, however, a review of Supreme Court precedent is sufficient to demonstrate that the rule for which Butler argues is not new.


[137] *fn11 In Mills, for example, the dissenters argued that previous case law controlled only the sentencing judge's consideration of mitigating factors, rather than the acts of individual jurors. 486 U.S. at 394 (Rehnquist, J., dissenting). In McKoy, the dissenters maintained that previous cases had controlled only what evidence may be considered, not how it must be considered. 494 U.S. at 465-66 (Scalia, J., dissenting). Although the dissenters were ultimately "wrong," in the sense that their positions were rejected by the majority of the court, they made arguments that the conclusions in Mills and McKoy were not required by precedent, and identified actual, if ultimately not legally significant, distinctions between these cases and prior precedent.


[138] *fn12 In fact, subsequent Supreme Court cases have disproved Justice Alito's assumptions about judicial review of district court sentencing decisions post-Booker. In particular, Justice Alito was mistaken in his view that judicial review would effectively prevent district court judges from substantially departing from the guidelines in the absence of any case-specific facts. See Kimbrough v. United States, 128 S.Ct. 558, 575 (2007) (holding that "it would not be an abuse of discretion for a district court to conclude when sentencing a particular defendant that the crack/powder disparity yields a sentence 'greater than necessary' to achieve § 3553(a)'s purposes, even in a mine-run case"); id. at 570 (noting the government's position that, "as a general matter, courts may vary from Guidelines ranges based solely on policy considerations, including disagreements with the Guidelines" (internal quotation marks and alterations omitted)); see also Rita v. United States, 127 S.Ct. 2456, 2466 (2007) (explaining that even application of a presumption of reasonableness does not render the new Guideline regime unconstitutional because, unlike the regime in Blakely, it does not "forbid[ ] a judge to increase a defendant's sentence unless the judge finds facts that the jury did not find").


[139] *fn13 Indeed, we have permitted judges to make factual findings regarding the sentence initially imposed for a prior conviction, which is apparent on the face of conviction documents. For example, under Almendarez-Torres, a finding by a judge of a prior conviction for an aggravated felony can be the basis for raising the maximum term in an illegal re-entry case under 8 U.S.C. § 1326(b), see United States v. Calderon-Segura, 512 F.3d 1104, 1111 (9th Cir. 2008), and aggravated felonies are often defined in terms of the length of the sentence imposed, see, e.g., 8 U.S.C. § 1101(a)(43)(F) ("a crime of violence . . . for which the term of imprisonment [is] at least one year"); id. § 1101(a)(48)(B) ("Any reference to a term of imprisonment or a sentence with respect to an offense is deemed to include the period of incarceration or confinement ordered by a court of law regardless of any suspension of the imposition or execution of that imprisonment or sentence in whole or in part.").
In contrast, we have never held that the amount of time ultimately served, or the defendant's status as a prisoner at the time of the crime - facts analogous to the probation factor in this case - come within the exception. Although some of our cases have stated generally that "criminal history" determinations under U.S.S.G. § 4A1.1 come within the prior conviction exception, we have never so held in a case involving subsections (d) and (e) of that Guideline, which assign points for committing a crime while on probation or while incarcerated and for committing a crime within two years of release from prison, respectively. See, e.g., United States v. Hernandez-Castro, 473 F.3d 1004, 1007 (9th Cir. 2007); United States v. Martin, 278 F.3d 988, 1006 (9th Cir. 2002).


[140] *fn14 Our conclusion that probation status at the time of the instant crime does not come within the "prior conviction" exception does not suggest that petitioners will always, or even often, obtain relief when a judge, rather than a jury, has made such a finding. As we discuss further below, Apprendi errors are harmless when we can ascertain that a judge was presented with sufficient documents at sentencing - including the original conviction documents and any documents evidencing modification, termination, or revocation of probation - to enable a reviewing or sentencing court to conclude that a jury would have found the relevant fact beyond a reasonable doubt. See Salazar-Lopez, 506 F.3d at 755.


[141] *fn15 Some of our sister circuits have also taken a broader view of the Almendarez-Torres exception, permitting judicial factfinding as to facts that we have held do not come within the Almendarez-Torres exception. See, e.g., Williams, 410 F.3d at 399, 402 (including fact of juvenile adjudications in the prior conviction exception). Moreover, the circuits that have concluded that probation status is within the prior conviction exception have not explicitly held, as we have, that juvenile adjudications do not come within the exception, or that "facts that are derived or inferred" from conviction documents must be found by a jury. See Kortgaard, 425 F.3d at 610; cf. Corchado, 427 F.3d at 820 (judge can make "subsidiary findings" based on conviction documents).


[142] *fn16 The parties have brought to our attention United States v. Zepeda-Martinez, 470 F.3d 909 (9th Cir. 2006), in which it appears that this court did consider a concession made at sentencing in holding that an Apprendi-error was harmless. Id. at 913 (making reference to the defendant's failure to contest the date of his removal at sentencing). Salazar-Lopez, however, was decided after Zepeda-Martinez and reiterates our long-standing rule that admissions at sentencing are not relevant to an Apprendi harmless error analysis. Salazar-Lopez, 506 F.3d at 755. Moreover, in Zepeda-Martinez, there was "overwhelming" evidence demonstrating the date of Zepeda's removal, without regard to any admission by the defendant. 470 F.3d at 913 (the government introduced a warrant of removal indicating the date of Zepeda's removal and Zepeda himself submitted the first page of the same document in a pre-trial filing). At best, then, Zepeda-Martinez stands for the proposition that a defendant's failure at sentencing to dispute a particular fact may be considered in a harmless error analysis when there is overwhelming additional evidence of the relevant fact.


[143] *fn17 We note that, in pointing to the fact that Daria had engaged in physical fights with Butler in the past, we do not mean to suggest that Daria was not clearly a victim of Butler's crime, or that she is in any way at fault for not having defended herself successfully in this instance. We mean only to demonstrate that she did not have any inherent physical characteristics that would render her less capable of defending herself than most victims of assault.


[144] *fn18 The State argues that a recent California Court of Appeal case has limited the rule that a victim is only particularly vulnerable when other victims of the offense are not vulnerable in the same manner. See People v. Weaver, 58 Cal. Rptr. 3d 18, 29 (Ct. App. 2007) (holding that victims of drunk driver were particularly vulnerable because driver was traveling in the wrong direction at night with her lights off). Weaver, however, purported to apply the rule that a victim must be particularly vulnerable, holding that most victims of vehicular manslaughter are not as vulnerable as the victims were in that case. See id. Moreover, Weaver, like all of the cases we have cited, is a California Court of Appeal case, and cannot overrule the many cases that have reached a different result on this issue. See, e.g., Piceno, 241 Cal. Rptr. at 394; People v. McNiece, 226 Cal. Rptr. 733, 739 (Ct. App. 1986), overruled on other grounds by People v. Flood, 18 Cal. 4th 470 (1988)); Bloom, 190 Cal. Rptr. at 865.


[145] *fn19 In concluding that allowing a judge to find the "particularly vulnerable victim" factor was not harmless, we do not hold that the trial court was wrong as a matter of California law when it found that Daria was a particularly vulnerable victim because she was struck from behind. We hold only that a jury properly instructed on California law and applying a reasonable doubt standard could well have found otherwise.


[146] *fn20 Butler also contends that he must be resentenced under California law as it existed at the time of his initial sentencing. Following the decision in Cunningham, the California legislature amended its statutes such that imposition of the lower, middle, or upper term is now discretionary and does not depend on the finding of any aggravating factors. See Cal. Penal Code § 1170(b) (2007). In People v. Sandoval, 41 Cal. 4th 825 (2007), the California Supreme Court addressed the appropriate procedure for resentencing individuals who had been sentenced under the prior version of the law, and concluded that it need not decide whether the 2007 amendments to the penal code were retroactive, because it could simply judicially "re-form" the previous law to require sentencing in accordance with the principles of the 2007 amendments. Id. at 849.
Butler argues that applying this judicial reformation of the law violates the ex post facto principles contained in the Due Process Clause of the Fourteenth Amendment. See Bouie v. City of Columbia, 378 U.S. 347, 352-55 (1964). As Butler acknowledges, however, this question is controlled by United States v. Dupas, 419 F.3d 916 (9th Cir. 2005), in which we held that retroactive application of the remedial opinion in Booker does not violate the Due Process Clause. Id. at 921.

North American Specialty Insurance Co. v. Correctional Medical Services, Inc., No. 05-8038 (10th Cir. 05/28/2008)

[1] UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT


[2] Nos. 05-8038 & 05-8082


[3]

[4] May 28, 2008


[5] NORTH AMERICAN SPECIALTY INSURANCE COMPANY, A NEW HAMPSHIRE CORPORATION, PLAINTIFF-APPELLANT,
v.
CORRECTIONAL MEDICAL SERVICES, INC., A MISSOURI CORPORATION; BRUCE KAHN, J.D., M.D., A UTAH RESIDENT; STEPHEN GOLDMAN, A WYOMING RESIDENT, DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the District of Wyoming (No. 03-CV-1039-B).


[7] Russell F. Watters of Brown & James, P.C., Saint Louis, Missouri (t. Michael Ward of Brown & James, P.C., Saint Louis, Missouri; and Peter J. Young of Schwartz, Bon, Walker & Studer, L.L.C., Casper, Wyoming with him on the briefs), for Plaintiff-Appellant.


[8] Dennis E. O'Connell (Thomas C. Walsh with him on the brief), of Bryan Cave Llp, Saint Louis, Missouri, for Defendants-Appellees.


[9] The opinion of the court was delivered by: Holmes, Circuit Judge.


[10] PUBLISH


[11] Before LUCERO, McCONNELL and HOLMES, Circuit Judges.


[12] The Estate of Orlando Patrick Roan Eagle ("Roan Eagle") sued Correctional Medical Services, Inc., Bruce Kahn, J.D., M.D. and Stephen Goldman (collectively "CMS") for alleged medical malpractice. National American Specialty Insurance Company ("NAS"), CMS's insurer, declined to defend or indemnify CMS, but nonetheless agreed to settle the matter on CMS's behalf. NAS then filed this action seeking a declaratory judgment that it had no duty to defend or indemnify CMS, and to recoup the settlement proceeds. CMS filed a counterclaim for, among other things, breach of contract.


[13] On cross-motions for summary judgment, the district court determined that the NAS policy provided coverage for the Roan Eagle claim, denied NAS's claim for reimbursement of the settlement proceeds, and found NAS liable for CMS's defense costs and attorney's fees. The district court, by later order, required NAS to pay CMS $118,219.82 in damages. NAS appealed from both orders.


[14] We conclude that, although the district court's order resolving the cross-motions for summary judgment was not a final order pursuant to 28 U.S.C. § 1291, the district court's order awarding damages is a final order subject to our review. We further conclude that the district court properly determined that NAS was liable, under the terms of its policy, for CMS's defense costs and attorney's fees in the Roan Eagle litigation. We therefore AFFIRM.


[15] I.


[16] A. Factual Background


[17] CMS provided health care and staffing to the Wyoming State Penitentiary ("Penitentiary"). On July 3, 2000, while CMS was insured by PHICO Insurance Company ("PHICO"), Mr. Roan Eagle, a Penitentiary inmate, committed suicide while under the care of a CMS doctor. Subsequently, on July 20, 2000, Lawyers and Advocates for Wyoming ("LAW"), a not-for-profit public interest law firm, sent a letter to the Wyoming Department of Corrections requesting records, including medical records, related to Mr. Roan Eagle's death. Specifically, LAW asked for "a complete copy of all city, county, state and/or federal records . . . pertaining to" Mr. Roan Eagle's death. Aplt. App. at A-309. LAW further advised that the letter was intended to put the Wyoming Department of Corrections "on notice that all materials related to this incident shall not be destroyed, tampered with or lost." Id.


[18] The Wyoming Attorney General's office forwarded the LAW records request ("LAW request") to a law firm that represented CMS in several matters. On July 31, 2000, the law firm responded to the LAW request. And, on the last day of August 2000, it notified Medical Claims Management Group ("MCMG"), CMS's third party administrator, of a "possible claim" by Roan Eagle. Aplt. App. at A-517.


[19] On October 31, 2000, NAS issued a claims-made insurance policy*fn1 for health care liability to CMS. The NAS policy offered coverage from October 1, 2000 until October 1, 2001, subject to CMS's $100,000.00 self-insured retention.


[20] The policy defined a "claim" as follows:


[21] (1) an express demand for damages arising from a medical incident or a staff privileges incident to which this insurance applies; an express demand for damages shall be deemed to include a civil action in which damages to which this insurance applies are alleged and an arbitration proceeding to which the insured is required to submit by statute or court rule or to which the insured has submitted with Company's consent; or


[22] (2) an act or omission which the insured reasonably believes will result in an express demand for damages to which this insurance applies.


[23] Aplt. App. at A-38.


[24] The policy contained an array of general exclusions. Of particular importance to this litigation is exclusion (h)(3), which barred coverage for any claim against an insured "arising from a demand, summons or other notice received by the insured prior to the effective date of the policy." Aplt. App. at A-37 (emphasis added).


[25] On December 7, 2000, the MCMG litigation administrator completed a Loss Advisory Form-a PHICO-provided form used to report claims-which assigned a claim date of August 11, 2000 for the Roan Eagle matter. However, PHICO did not receive the form. On July 25, 2001, LAW sent a Notice of Claims to the Penitentiary and the Wyoming Department of Health, expressly demanding $15,000,000.00 "for the claims of the Estate of Orlando Roan Eagle for his wrongful death." Aplt. App. at A-332. Almost a year later, Roan Eagle filed a wrongful death action against CMS. When CMS had almost exhausted its self-insured retention, it notified NAS of the claim.


[26] After investigating, NAS determined that the Roan Eagle claim was not covered by its policy, and orally denied coverage. CMS nevertheless continued to request coverage. On June 6, 2003, NAS and CMS agreed that each would pay half of the legal fees and expenses for the Roan Eagle claim, and that they would revisit the coverage issues. On July 15, 2003, NAS formally denied coverage based, as pertinent here, on exclusion (h)(3).


[27] A day after it denied coverage, however, NAS attended a mediation in the Roan Eagle case and agreed to settle the matter. NAS ultimately paid the Roan Eagle settlement.


[28] B. Procedural History


[29] After paying the settlement, NAS filed a complaint against CMS seeking a declaratory judgment that (1) its policy does not provide coverage to CMS, (2) CMS must reimburse NAS for its settlement of the Roan Eagle suit, and (3) CMS may not recoup any defense expenses incurred in the Roan Eagle litigation. NAS alleged that its policy excluded coverage because CMS had knowledge of the Roan Eagle claim prior to the policy's effective date. Conversely, CMS denied that it received notice within the meaning of the policy prior to its effective date.


[30] Both parties moved for summary judgment. On March 23, 2005, the district court granted in part and denied in part both motions. The district court noted that "other notice" was not a defined term and concluded that "giving the term its plain and ordinary meaning does not reveal the parties' intention." Aplt. App. at A-574. Therefore, it declared the language to be ambiguous.


[31] Applying the ambiguity against the insurer, the district court determined that the LAW request was not "other notice" within the meaning of exclusion


[32] (h)(3). In reaching this result, the district court relied upon the contractual construction principle known as ejusdem generis,*fn2 which led the court to conclude that "'other notice' must be construed to be similar to the more specific terms of 'demand' or 'summons.'" Aplt. App. at A-575. According to the court, the LAW request was not sufficiently similar to these terms:


[33] The request for medical records did not contain a demand for money, did not mention malpractice, and did not mention the possibility of a future claim or lawsuit. At most, the request implied that there could be a claim in the future. A possibility of a claim, however, does not rise to the level of definitiveness required by the term "other notice" when that term is construed to be similar to a "demand" or "summons."


[34] Id. at A-576. Therefore, the court concluded that NAS's policy did not exclude the Roan Eagle claim from coverage.*fn3


[35] Because the NAS policy covered the Roan Eagle claim, the district court also held that NAS was not entitled to reimbursement of the settlement proceeds. Correspondingly, because NAS was obligated by its policy to pay reasonable defense expenses, CMS was entitled to reimbursement of the attorney's fees and costs it incurred in defending the Roan Eagle action. Although the March 23, 2005 order established NAS's liability for damages, it did not award them. NAS timely appealed that order in appeal no. 05-8038.


[36] Several months after NAS filed appeal no. 05-8038, the parties stipulated to the amount of damages and, on July 14, 2005, the district court entered a judgment. On August 23, 2005, NAS filed a motion for leave to file a supplemental notice of appeal pursuant to FED. R. APP. P. 4(a)(5), which the court granted the following day. NAS filed a supplemental notice of appeal on August 24, 2005. And, on September 7, 2005, NAS filed appeal no. 05-8082.


[37] CMS filed a motion to vacate the district court's August 24, 2005 order, citing the district court's failure to provide notice and an opportunity to respond to NAS's motion. The district court agreed, and, on January 18, 2006, vacated its August 24, 2005 order. After allowing both parties the opportunity to respond, the district court, on February 14, 2006, granted NAS's motion for leave to file a supplemental notice of appeal. The district court purported to make the effective date of the order the date it initially had authorized the filing of a supplemental notice of appeal-that is, August 24, 2005-"[i]n order to avoid unnecessary filings and needless expense." Aplt. App. at A-623. NAS did not file a new notice of appeal.


[38] II.


[39] A. Appellate Jurisdiction


[40] 1. Appeal No. 05-8038


[41] CMS moved to dismiss appeal no. 05-8038 claiming that the district court's March 23, 2005 order was not final and appealable because, although it found NAS liable for CMS's defense costs and attorney's fees, it did not award damages. On the other hand, NAS claims that since the issue of attorney's fees is generally collateral to the merits of the case, the March 23, 2005 order is final despite the lack of a determination regarding attorney's fees. We conclude that the March 23, 2005 order is not final.


[42] Under 28 U.S.C. § 1291, this court only possesses appellate jurisdiction over "final decisions" of district courts. See Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 969 (10th Cir. 2006). This requirement "precludes consideration of decisions . . . that are but steps towards final judgment in which they will merge." Id. (internal quotation marks and brackets omitted). In Budinich v. Becton Dickinson & Co., 486 U.S. 196 (1988), the Court noted that because a request for attorney's fees under 42 U.S.C. § 1988 is collateral to the merits, a decision on the merits of the case is final even absent a finding regarding the recoverability or the amount of attorney's fees. Id. at 202-03. However, as we recognized in Lampkin v. UAW, 154 F.3d 1136 (10th Cir.1998), the Budinich holding does not apply in cases where attorney's fees are "inseparable from the 'merits' of plaintiff's claim." Id. at 1141. The Federal Rules of Civil Procedure embody this distinction. See FED. R. CIV. P. 54(d)(2)(A) (claims for attorney's fees should be made by post-judgment motion unless "substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial"); FED. R. CIV. P. 58(c) (entry of judgment "may not be delayed" to tax costs or award fees, except when litigant makes timely motion under Rule 54(d)(2)).


[43] In this case, the costs and attorney's fees CMS expended in defending the Roan Eagle litigation represent compensatory damages for NAS's breach of its insurance contract. The amount of defense costs and attorney's fees awardable is therefore inseparable from the merits of CMS's breach of contract claim. Because the district court's March 23, 2005 order is not final pursuant to 28 U.S.C. § 1291, we dismiss appeal no. 05-8038.


[44] 2. Appeal No. 05-8082


[45] CMS also moved to dismiss appeal no. 05-8082 for lack of appellate jurisdiction. CMS argues that because NAS was not authorized to file a supplemental notice of appeal until the district court entered the February 14, 2006 order, its failure to file a second supplemental notice of appeal within ten days of that order dooms its appeal under FED. R. APP. P. 4(a)(5)(C). We disagree.


[46] "[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Bowles v. Russell, 127 S.Ct. 2360, 2366 (2007); see Budinich, 486 U.S. at 203 (noting that "the taking of an appeal within the prescribed time is mandatory and jurisdictional"). FED. R. APP. P. 4(a)(1)(A) provides that notice of appeal in a civil case must be filed with the district court "within 30 days after the judgment or order appealed from is entered." The district court may extend the time upon a showing of "excusable neglect or good cause," if a party moves for an extension no later than thirty days after the time to appeal has expired. FED. R. APP. P. 4(a)(5)(A); see also Bishop v. Corsentino, 371 F.3d 1203, 1206 (10th Cir. 2004). FED. R. APP. P. 4(a)(5)(B) requires the district court to give notice to non-moving parties when a motion for extension is filed after the expiration of the thirty-day period to file a notice of appeal. Here, although the district court erred in granting NAS's motion for extension of time ex parte, it later remedied the error by vacating the August 24, 2005 order, and by entering its February 14, 2006 order granting the extension of time.


[47] At issue is whether the February 14, 2006 order validated NAS's previously-filed supplemental notice of appeal. Our decision in Hinton v. City of Elwood, 997 F.2d 774 (10th Cir. 1993), dictates that it did.


[48] In Hinton, the plaintiff filed his notice of appeal one day late and subsequently moved, within the time period prescribed by FED. R. APP. P. 4(a)(5), to extend the time to file a notice of appeal. Id. at 777. The district court granted the motion, but the plaintiff did not file a second notice of appeal. Id. at 777-78. We held that so long as the order appealed from "remain[s] unchanged in both its form and its content," a premature notice of appeal retains its validity. Id. at 778. We further observed:


[49] A motion to extend, unlike a motion for a new trial for example, does not portend any substantive alteration in the form or content of the order being appealed from. Consequently, as in the case of a notice of appeal from an interlocutory order disposing of less than all the claims, to require the filing of a new notice of appeal following a motion to extend would amount to little more than "empty paper shuffling." We do not believe the Federal Rules of Appellate Procedure were designed to impose such a hollow ritual on a would-be appellant.


[50] Id. at 778 (quoting Lewis v. B.F. Goodrich Co., 850 F.2d 641, 644 (10th Cir. 1988)).


[51] Applying Hinton, we conclude that the district court's February 14, 2006 grant of NAS's motion to extend validated its previously-filed supplemental notice of appeal since the district court's July 14, 2005 judgment remained unchanged in both its form and content throughout the period at issue.*fn4 Therefore, we deny CMS's motion to dismiss appeal no. 05-8082, and reach the merits.


[52] B. Standard of Review


[53] We review a grant of summary judgment de novo. See Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). As this court has often explained:


[54] Summary judgment is appropriate "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 moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When applying this standard, we view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party.


[55] Id. But the nonmoving party must offer more than "a scintilla of evidence" in support of his position: "an issue of material fact is genuine only if the non-movant presents facts such that a reasonable jury could find in favor of the non-movant." Id. (internal quotation marks omitted).


[56] C. Analysis


[57] In this diversity case, we apply Missouri law.*fn5 When interpreting an insurance policy, we read all policy provisions together and apply the plain meaning of the policy terms. See Hawkeye-Sec. Ins. Co. v. Davis, 6 S.W.3d 419, 424 (Mo. Ct. App. 1999). If the parties' intent can be discerned from the plain language of the policy, we will not use construction tools to interpret the contract. See Stotts v. Progressive Classic Ins. Co., 118 S.W.3d 655, 662 (Mo. Ct. App. 2003).


[58] Policy "[l]anguage is ambiguous if it is reasonably open to different constructions and the language used will be viewed in the meaning that would ordinarily be understood by the layperson who bought and paid for the policy." Lincoln County Ambulance Dist. v. Pac. Employers Ins. Co., 15 S.W.3d 739, 743 (Mo. Ct. App. 1998). No presumption of ambiguity arises from the lack of a definition in a policy. See Am. Family Mut. Ins. Co. v. Peck, 169 S.W.3d 563, 567 (Mo. Ct. App. 2005). Nonetheless, if undefined terms are ambiguous, "rules of construction will apply and ambiguous provisions will be construed against the insurer." Lincoln County Ambulance Dist., 15 S.W.3d at 743; see Krombach v. Mayflower Ins. Co., Ltd., 827 S.W.2d 208, 210 (Mo. 1992). In particular, doubts will be resolved in favor of the insured. See Am. Family Mut. Ins. Co., 169 S.W.3d at 568. To ascertain the ordinary meaning of a word, Missouri courts often refer to the standard dictionary definition. See Watters v. Travel Guard Int'l, 136 S.W.3d 100, 108 (Mo. Ct. App. 2004). With these principles in mind, we now turn to the NAS policy.


[59] The NAS policy excludes any claim against an insured "arising from a demand, summons or other notice received by the insured prior to the effective date of this policy. . . ." Aplt. App. at A-37 (emphasis added). We conclude that the undefined phrase "other notice" in exclusion (h)(3) is ambiguous in that it is susceptible to more than one reasonable interpretation. Resolving doubts in favor of the insured, we perceive CMS's interpretive position to be more apt.


[60] Accordingly, like the district court, we determine that NAS's policy provides coverage to CMS for the Roan Eagle claim.


[61] The phrase "other notice" is ambiguous. As NAS pointed out, the word "notice" can mean "attention," "observation," or a "notification or warning of something, esp. to allow preparations to be made." Aplt. Op. Br. at 32 (emphasis added and internal quotation marks omitted) (quoting THE NEW OXFORD AMERICAN DICTIONARY1171 (1st ed. 2001)). Based on this definition, NAS argues that CMS had "other notice" of the claim arising from the Roan Eagle suicide before the October 1, 2000 policy inception date.


[62] NAS views the LAW request as the primary source of this "other notice"-in the sense that the LAW request allegedly drew CMS's attention to the potential Roan Eagle claim and provided CMS with warning adequate for CMS to take necessary preparatory steps to defend against it. We cannot say on these facts that this interpretation of the term "other notice" is unreasonable.


[63] However, NAS's "other notice" argument is not limited to the LAW request. NAS highlights actions taken by CMS and its agents both before and after the October 2000 policy inception date that it contends demonstrate that CMS had "other notice"of the Roan Eagle claim before that date. These actions include the August 2000 communication by CMS's defense counsel to MCMG characterizing the Roan Eagle suicide as a "possible claim," Aplt. App. at A-517, and MCMG's December 2000 assignment of a claim date of August 2000 to the Roan Eagle matter. Thus, NAS argues that the "July 2000 medical records request received by CMS and CMS's conduct thereafter demonstrate that it possessed the requisite 'other notice' that triggers Exclusion (h)(3)'s application." Aplt. Op. Br. at 34.


[64] In arguing that it did not have "other notice," CMS also relies on conventional dictionary definitions of "notice." It asserts that the term "notice" covers "a communication of intelligence or of a claim or demand often required by statute or contract and prescribing the manner or form of giving it." Aplee. Br. at 25 (internal quotation marks omitted) (quoting WEBSTER'S THIRD NEW


[65] INTERNATIONAL DICTIONARY1544 (1993)). Centering itself on this definition, CMS maintains that "the language, properly construed, merely requires that the 'other notice' must emanate from a claimant and must have sufficient formality and particularity as to signal the sender's intent to make a claim."*fn6 Id. at 34. As with NAS's interpretation, we discern nothing unreasonable about CMS's reading of "other notice."


[66] Resolving doubts in favor of CMS as we must, however, we conclude that its interpretation prevails. We are fortified in this conclusion by our consideration of CMS's assertions regarding the proper analytic focus. CMS argues that under the plain language of the contract we must focus on the notice received by the insured from a claimant (or someone acting on the claimant's behalf), not actions or knowledge possessed by the insured. See Aplee. Br. at 39 ("Coverage depends on notice received from the claimant, not knowledge obtained by the insured from experience, intuition, or osmosis."). CMS reasons, therefore, that the inquiry centers on whether CMS received some communication before the October 2000 commencement of the policy period that constitutes "other notice"-more specifically, whether the LAW request constitutes such notice. Under CMS's view, NAS's evidence of the actions CMS and its agents took after receiving the LAW request are irrelevant. The district court essentially adopted CMS's view on this point finding that the "other notice" language "refers to actions of claimants, not the insured." Aplt. App. at A-577. We agree.


[67] Accordingly, we confine our discussion to the notice implications of the LAW request. Like the district court, we find the principle of ejusdem generis helpful in determining whether the LAW request qualifies as "other notice" within the meaning of exclusion (h)(3).*fn7 In legal parlance, the words "demand" and "summons" commonly connote or relate to a formal assertion of a right to legal relief. See BLACK'S LAW DICTIONARY 462, 1477 (8th ed. 2004). Applying the rule of ejusdem generis, therefore, "other" kinds of notice must resemble a formal assertion of a right to relief. The LAW request does not satisfy this standard because it sought medical records, not a right to relief. In fact, it never mentioned even the possibility that Roan Eagle would either formally demand money or institute a lawsuit. As the district court noted, at best it "implied that there could be a claim in the future." Aplt. App. at A-576. Consequently, resolving the contractual ambiguity in CMS's favor, we conclude that (h)(3) does not exclude the Roan Eagle claim from coverage.


[68] NAS's citation to North American Specialty Insurance Co. v. Correctional Medical Services, Inc., No. 4:04CV798 CDP, 2006 WL 208635 (E.D. Mo. Jan. 26, 2006), a case applying Missouri law and finding that (h)(3) excluded coverage for an inmate's medical malpractice claim, does not alter our conclusion. A somewhat detailed discussion of the facts of Correctional Medical Services is necessary to place our views in the proper context.


[69] There, an inmate sued the State of Arizona and Correctional Services Corporation ("CSC"), the state-contracted administrator of the prison facility where the alleged malpractice occurred. Id. at *1. CSC, in turn, had hired CMS to provide health care to inmates at the facility. Id. As in this case, at the time of the alleged malpractice, PHICO insured CMS, and Northland Insurance Company ("Northland") insured CSC. Id. In April and September 2000, CSC formally requested that CMS defend and indemnify CSC in the medical malpractice action, stressing that CMS employed or contracted with the individuals who allegedly provided the negligent medical care to the inmate. Id. CMS refused the demands. Id.


[70] One year after CMS's October 2000 purchase of professional liability insurance policies from NAS-each of which contained exclusion (h)(3)-the Arizona Supreme Court entered judgment on the medical malpractice action against the State of Arizona.*fn8 Id. at *1-2. Northland satisfied this judgment, and subsequently sought indemnification and contribution from CMS. Id. at *2. In response, CMS requested that NAS defend and/or indemnify CMS in the Northland suit. Id. at *3. Relying in part on exclusion (h)(3), NAS denied CMS's claim, arguing that, prior to October 2000, the tenders of defense alerted CMS that an express demand for damages would arise. Id. at * 6. NAS then sought a declaratory judgment that it had no duty to defend or indemnify CMS in the Northland suit. Id. at *1.


[71] The court construed CMS as arguing that "any act short of an 'express demand for damages,' or the filing of a lawsuit, fails to qualify as a 'demand, summons or other notice.'" Id. at *6. Based on its review of the insurance contract, the court rejected that contention, concluding "that the parties did not intend 'demand, summons or other notice' to have such a limited meaning." Id.


[72] The district court implicitly found exclusion (h)(3) to be unambiguous. Relying on dictionary definitions, the court construed the term "demand" to mean "to claim legally or formally." Id. at *7 (internal quotation marks omitted). The tenders of defense met this definition because they formally asserted CSC's contractual rights to a defense and indemnification in the underlying malpractice suit. Id. Rejecting the applicability of ejusdem generis, the court appeared to construe the term "other notice" as meaning a notice that is somewhat less formal than a "demand," stating: "[S]hould there be any doubt whether these tenders of defense constitute 'demands,' I agree with North American that they clearly fall within the plain meaning of 'other notice.'" Id. Significantly however, the court rested its "other notice" determination on a finding that, by virtue of "the tenders of defense and notices that CMS received prior to October 1, 2000," CMS was "informed, in no uncertain terms, of CSC's intent to hold CMS responsible for the fact that the negligence of its own employees or independent contractors was directly responsible for" the inmate's injury. Id. The court therefore found that (h)(3) excluded coverage.


[73] Although the district court in Correctional Medical Services apparently did not perceive the same ambiguity in exclusion (h)(3) that we do, its reading of the contract and ultimate conclusion are otherwise consistent with the result that we reach here. Accordingly, Correctional Medical Services does not give us pause.


[74] In Correctional Medical Services, CMS framed the issue as whether only an express demand for damages or the filing of a lawsuit constituted "other notice" within the meaning of exclusion (h)(3). In answering this question, the court stressed that the language was not "limited to the filing of a lawsuit." Id. CMS's principal contentions here, in contrast, do not present the same issue for our consideration. CMS accepts that the "other notice" in exclusion (h)(3) encompasses something less than an express demand for damages or the filing of a lawsuit, noting that "the language, properly construed, merely requires that the 'other notice' must emanate from a claimant and must have sufficient formality and particularity as to signal the sender's intent to make a claim." Aplee. Br. at 34.


[75] CMS's reading of the contract seems to be in fact fully consistent with the district court's reading of the same language in Correctional Medical Services First, as CMS argues here, the district court in Correctional Medical Services focused on what communications CMS received from the claimant, not the knowledge that the insured possessed. See 2006 WL 208635, at *7 (looking at "the tenders that CMS received" prior to the policy commencement date). Second, although apparently viewing the "other notice" language as allowing for something less than a "demand," the district court still seemed to construe it (as does CMS here) as requiring a communication of sufficient formality and definiteness to signal a claim for relief. In that regard, the court noted that CSC's tenders informed CMS, "in no uncertain terms," that it intended to hold CMS responsible for any damages arising from CMS's employees' negligence. Id.


[76] Under this view of the "other notice" language-a view shared by the district court in Correctional Medical Services and CMS here-it is not surprising that the coverage outcome for CMS in Correctional Medical Services and this case differ. The tenders of defense in Correctional Medical Services specifically requested that CMS perform its contractual duty to defend and indemnify CSC in an already-filed lawsuit. By contrast, the LAW request in this case did not specifically convey to CMS that a medical malpractice action would-or even might-be filed in the future.


[77] In sum, we have concluded that the "other notice" language of exclusion (h)(3) is ambiguous and that CMS's reading of it is reasonable. Resolving doubts in favor of CMS, the insured, its reading must prevail. Accordingly, we conclude that CMS is entitled to coverage under the NAS policy. In particular, NAS was obligated by its policy to pay CMS's reasonable defense costs and attorney's fees. And, because NAS had an obligation to cover the Roan Eagle claim, NAS is not entitled to recoup the settlement proceeds it paid on CMS's behalf.


[78] For the reasons noted, NAS's appeal no. 05-8038 is DISMISSED. With regard to appeal no. 05-8082, we AFFIRM the district court's judgment in favor of CMS.



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Opinion Footnotes

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[79] *fn1 We have previously discussed the nature of a claims-made policy:
"Occurrence-based" insurance requires the insurer to cover any liability that results from an event that occurred during the policy period-even if the injury is discovered and the claim is made after the expiration of the coverage period. This type of insurance contrasts with the second relevant type of insurance-"claims-made." Under this scheme, the date of the discovery of the injury and the claim-filing date must fall within the policy period. Generally, a claims-made policy includes a retroactive date that precludes coverage for liability-producing events occurring prior to that date.
Nat'l Am. Ins. Co. v. Am. Re-Ins. Co., 358 F.3d 736, 738 (10th Cir. 2004).


[80] *fn2 This canon of construction provides "that when a general word or phrase follows a list of specifics, the general word or phrase will be interpreted to include only items of the same type as those listed." BLACK'S LAW DICTIONARY 556 (8th ed. 2004); see generally 2 Lee R. Russ & Thomas F. Segalla, COUCH ON INSURANCE 3D § 22:1, at 22-4 (2005) ("The rule[] of . . . ejusdem generis ha[s] been applied in insurance cases.").


[81] *fn3 Although its conclusion is thoroughly reasoned, the district court's explication lacks precision. Some of its language could suggest that it was deciding whether the LAW request was a "claim" within the meaning of the NAS policy. See Aplt. App. at A-574 ("[T]he question before the Court is whether a claim was made or asserted against CMS prior to October 1, 2000."). Significantly, in at least two instances, in determining the proper characterization of the LAW request, the district court treats the "claim" and "notice" issues as one unit, suggesting that the inquiry was whether the LAW request was "a claim arising from other notice." Id. at A-573, A-578 (emphasis added). In the same vein, the court relied in part on cases addressing whether a medical records request constituted a claim. Id. at A-575 (citing Gaston Mem. Hosp., Inc. v. Va. Ins. Reciprocal, 80 F. Supp. 2d 549, 554 (W.D.N.C. 1999)). However, when the district court's order is read as a whole, the dominant signal is that the court understood that, at the very least, the principal question before it was whether "LAW's request for medical records constitutes 'other notice'" as that term is used in exclusion (h)(3). Id. at A-574. And its partial reliance on claim-related case law might be explained by what NAS referred to as the "scarc[ity]" of "cases discussing or interpreting th[e] precise language at issue here." Id. at A-378.
Importantly, NAS's complaint and its motion for summary judgment underscore that the issue before the district court was when CMS had knowledge (i.e., notice) of the Roan Eagle claim, not whether the factual circumstances giving rise to the alleged knowledge themselves comprised a "claim" under the policy. See Aplt. App. at A-12 (noting that "[c]overage is not available under the Policy" because CMS "had knowledge of the claim prior to the effective date of the NAS policy") (Complaint for Declaratory Relief, dated June 17, 2003); id. at A-378 ("The question then obviously in this case is . . . whether the facts outlined above sufficiently constitute 'other notice' of a claim or potential claim or likelihood that it was going to occur.") (Mem. in Supp. of Mot. for Summ. J. of Pl., dated Feb. 8, 2005). Cf. id. at A-346 (NAS's written denial of coverage to CMS, citing exclusion (h), and most relevant here (h)(3)). Furthermore, CMS understood that a notice issue (not a claims issue) was before the district court. See id. at A-531 ("NAS' case now rests on the application of one policy exclusion, Exclusion (h)(3), which bars a claim that arises from 'a demand, summons or other notice' received prior to the effective date of the policy (i.e., prior to October 1, 2000).") (Defs.' Br. in Opp'n to Pl. Mot. for Summ. J., dated Feb. 22, 2005). Therefore, we do not view it as appropriate to decide here-and the parties do not call for us to do so-whether the LAW request constituted a "claim" as defined by the policy: more specifically, "an act or omission which the insured reasonably believes will result in an express demand for damages to which this insurance applies." Id. at A-38.


[82] *fn4 Citing Bowles, 127 S.Ct. at 2363 (holding that court of appeals "lacked jurisdiction to entertain an appeal filed outside the 14-day window allowed by § 2107(c) but within the longer period granted by the District Court"), CMS vigorously argues that the district court, in its February 14, 2006 order, was without power to revive nunc pro tunc its August 24, 2005 order granting NAS's motion to file its supplemental notice of appeal. The district court may well have been acting under the view that to validate the earlier-filed supplemental notice of appeal it had to revive its August 24 Order nunc pro tunc, because the court suggested that otherwise there would be further appeal-related filings. See Aplt. App. at A-623 (making order effective August 24 "[i]n order to avoid unnecessary filings and needless expense"). Because we conclude that the district court's February 14 order was itself sufficient-even if operative only as of that date-to validate NAS's supplemental notice of appeal, we need not reach the question of the district court's power to revive nunc pro tunc the August 24 order.


[83] *fn5 The district court found that Missouri law governed the interpretation of the NAS policy, a finding the parties do not dispute on appeal. Therefore, we analyze the policy under Missouri law. See, e.g., Flying J Inc. v. Comdata Network, Inc., 405 F.3d 821, 832 n.4 (10th Cir. 2005) (appellate courts do not normally address choice of law issues sua sponte where parties acquiesce in application of a certain state's law).


[84] *fn6 CMS also advanced a more aggressive position arguing that "in the legal context," notice is present "only when given as required by a statute or contract, if applicable." Aplee. Br. at 25. Building on this premise, it reasoned that, because the Roan Eagle matter involved a tort claim against a governmental entity, "other notice" corresponded with the notice required by the Wyoming Governmental Claims Act, WYO. STAT. ANN. § 1-39-113. Id. at 25-26. Because the Notice of Claims submitted by Roan Eagle after the NAS policy inception date was the only communication to CMS that fully complied with Wyoming's statute, CMS argued that it had notice within the meaning of the policy only when it received the Notice of Claims. Id. However, as is evident by our discussion, this position plays no significant role in marking the battle lines between the parties. The district court did not endorse this position, and we need not do so to resolve this case. CMS effectively reads the "other notice" language as requiring-at a minimum-that the communication received by the insured from the claimant bears indicia of a formal and particularized claim for relief. As noted infra, we conclude that CMS's interpretation of this ambiguous language is controlling. And the LAW request does not meet this minimum standard. Accordingly, even under a less aggressive reading of "other notice," (h)(3) does not exclude the Roan Eagle claim from coverage.


[85] *fn7 Notably, Missouri courts have applied the doctrine in the insurance context. See Transit Cas. Co. in Receivership v. Certain Underwriters at Lloyd's of London, 963 S.W.2d 392, 398 (Mo. Ct. App. 1998).


[86] *fn8 Pursuant to a settlement agreement, CSC was dismissed as a defendant prior to trial. Id. at *2 n.1.

Complaint is posted in the brief bank.

The complaint is available in the briefbank.

Anderson v. McDonough, 958 So.2d 1110 (Fla.App. 06/21/2007)

[1] IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA


[2] CASE No. 1D06-6303


[3] 958 So.2d 1110, 32 Fla. L. Weekly D1549,

[4] June 21, 2007


[5] JAMES P. ANDERSON, PETITIONER,
v.
JAMES R. MCDONOUGH, SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS, RESPONDENT.


[6] James P. Anderson, pro se, Petitioner.


[7] Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee, for Respondent.


[8] Per curiam.


[9] Petition for Writ of Certiorari - Original Jurisdiction.


[10] The petitioner seeks to invoke this Court's certiorari jurisdiction to challenge the Department of Corrections's recalculation of his maximum sentence expiration date following revocation of his conditional release supervision. The petitioner has not demonstrated that the circuit court departed from the essential requirements of the law by denying his petition for writ of mandamus and we therefore deny the petition on this ground.


[11] However, the petitioner's argument that the circuit court departed from the essential requirements of the law when it ordered a lien placed on his inmate trust account to pay the mandamus petition filing fee has merit. The petitioner's challenge to the recalculation of his maximum sentence expiration date, which effectively lengthened his sentence, is a collateral criminal proceeding which thus exempts the petitioner from the Prisoner Indigency Statute. See Schmidt v. Crusoe, 878 So. 2d 361, 367 (Fla. 2004) ("It is clear that the Supreme Court has refused to be bound by the variations in terminology used in various challenges to the computation of an inmate's sentence. Instead, it has looked to the effect the challenged action had on the amount of time an inmate has to actually spend in prison.")


[12] Accordingly, the petitioner's petition is DENIED in part, GRANTED in part, and REMANDED with directions to remove the lien from the petitioner's inmate trust account and to refund any funds removed from the account to pay the mandamus petition filing fee.


[13] KAHN, LEWIS, and HAWKES, JJ., CONCUR.

See brief bank for complaint, settlement, and other related documents.

Roberts v. Barreras, 484 F.3d 1236 (10th Cir. 04/16/2007)

[1] UNITED STATES COURT OF APPEALS TENTH CIRCUIT


[2] No. 05-2373


[3] 484 F.3d 1236,

[4] April 16, 2007


[5] ETHAN ERWIN ROBERTS, PLAINTIFF-APPELLANT,
v.
LAWRENCE BARRERAS, SENIOR DIRECTOR, CORNELL CORRECTIONAL INSTITUTION/SANTA FE COUNTY DETENTION CENTER; WILFRED ROMERO, ASSISTANT DIRECTOR, CORNELL CORRECTIONAL INSTITUTION/SFCDC; ROMERO, SECURITY CHIEF, CORNELL CORRECTIONAL INSTITUTION/SFCDC; HICKMAN, SUPERVISOR, CORNELL CORRECTIONAL INSTITUTION/SFCDC; CAROLINE KINGSTON, HEALTH SERVICES/CORRECTIONAL MEDICAL SERVICES, INC./SFCDC; DONNA DEMING, HEALTH SERVICES/CORRECTIONAL MEDICAL SERVICES, INC./SFCDC; STOLLER, HEALTH SERVICES/CORRECTIONAL MEDICAL SERVICES, INC./SFCDC; ERIN FIRE, P.A.C., HEALTH SERVICES/CORRECTIONAL MEDICAL SERVICES, INC./SFCDC; ROBYNN BELL, ADMINISTRATOR, HEALTH SERVICES/CORRECTIONAL MEDICAL SERVICES, INC./SFCDC; DESORMEAUX, ADMINISTRATOR, HEALTH SERVICES/CORRECTIONAL MEDICAL SERVICES, INC./SFCDC; ANNE HALL, QUALITY ASSURANCE, HEALTH SERVICES/CORRECTIONAL MEDICAL SERVICES, INC./SFCDC; RICK PLOOF, DEPUTY U.S. MARSHAL, OPERATIONS SUPERVISOR, U.S. MARSHAL SERVICE; SANTA FE COUNTY, CORNELL CORRECTIONS, INC., CORRECTIONAL MEDICAL SERVICES INC.; JO N/JANE DOES, UNKNOWN AT TIME OF FILING OF THIS COMPLAINT AND HAVING A NEXUS TO THE DAMAGES OF THE PLAINTIFF; ALL PARTIES LISTED ABOVE ARE SUED IN THEIR INDIVIDUAL CAPACITIES AND/OR OFFICIAL CAPACITIES, DEFENDANTS-APPELLEES.


[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW M EXICO (D. Ct. No. 03-0686 LCS/M CA).


[7] Submitted on the briefs:


[8] Ethan Erwin Roberts, pro se.


[9] Patrick D. Allen and April D. White, Yenson, Lynn, Allen & Wosick, P.C., Albuquerque, New Mexico for Defendants-Appellees Cornell Corrections, Inc., Santa Fe County, Lawrence Barreras, and Major Romero. Deborah D. Wells, Kennedy, Moulton & Wells, P.C., Albuquerque, New Mexico for DefendantAppellee CM S. James R. Wood, Miller Stratvert P.A., Albuquerque, New Mexico for Defendant-Appellee Donna Deming.


[10] The opinion of the court was delivered by: McCONNELL, Circuit Judge


[11] PUBLISH


[12] Before MURPHY, SEYMOUR, and McCONNELL, Circuit Judges.*fn1


[13] Ethan Erwin Roberts, a federal corrections inmate, filed a claim in the District of New Mexico on June 9, 2003, pursuant to Bivens v. Six Unknown Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He alleges that while under the care of the defendants, employees of a private prison in New Mexico, he was exposed to harmful secondhand smoke and denied access to legal materials in violation of his constitutional rights. The district court dismissed Mr. Roberts's claim on summary judgment based on a failure to comply with the statute of limitations and failure to exhaust administrative remedies. We reverse and remand.


[14] I. BACKGROUND


[15] Mr. Roberts was incarcerated from April 16, 1999to June 8, 2000, as a pretrial federal prisoner at the Santa Fe County Adult Detention Center. According to his complaint, "[a]ll cells and the common day area . . . were constantly saturated with environmental tobacco smoke from 14 to 20 hours a day," causing him to "suffer irreparable lung damage." R. Vol. I, Doc. 1, at 2. Mr. Roberts also alleges that he was forbidden from using the facility's law library or materials.


[16] Mr. Roberts filed suit in the District of New Mexico on June 9, 2003. The district court dismissed the claims sua sponte at the summary judgment stage, finding that the statute of limitations had expired before the filing of the plaintiff's claim. A Bivens action is subject to the limitation period for an action under 42 U.S.C. § 1983, and that limitation period is set by the personal injury statute in the state where the cause of action accrues. Industrial Constructors Corp. v. U.S. Bureau of Reclamation, 15 F.3d 963, 968 (10th Cir. 1994); Garcia v. Wilson, 731 F.2d 640, 651 (10th Cir. 1984). In New Mexico, the limitation on personal injury claims is three years. N.M. Stat. Ann. § 37-1-8. The court held that, in Mr. Roberts's case, the statute began running no later than September 1999, when Mr. Roberts, in his own words, first "began to experi[e]nce serious medical problems and sought treatment." R. Vol. I, Doc. 5, at 3.


[17] Mr. Roberts appealed from the ruling to this Court, and a panel of this Court reversed, finding that the district court had failed to consider equitable tolling when calculating the elapsed time. Roberts v. Barreras, 109 Fed. App'x 224 (10th Cir. 2004) (unpublished opinion). We noted that "[e]very circuit to address the issue has held that the filing of a mandatory administrative grievance tolls the statute of limitations for § 1983 and Bivens claims." Id. at 226. We remanded to the district court with instructions to consider whether the statute of limitations should have been tolled. Id.


[18] On remand, both parties presented evidence relating to whether M r. Roberts had filed administrative grievances sufficient to toll the statute of limitations. In a detailed affidavit, Mr. Roberts claimed that he filed approximately fourteen grievance forms. Among them, he attests, were a grievance in June or July of 1999 complaining of lack of access to legal materials and a grievance "no later than early September 1999" complaining of exposure to high levels of secondhand smoke. R. Vol. I, Doc. 69, at 2. He asserts that he received no receipts upon submission of his grievances, nor any written responses to them.


[19] Mr. Roberts also provided a copy of an investigation of the Santa Fe County Adult Detention Center conducted by the United States Department of Justice in 2002. The report noted that:


[20] The County is not providing inmates the tools needed [to challenge their sentences or the conditions of their confinement] through a law library, legal assistance, forms system or otherwise.


[21] The grievance system at the Detention Center is not providing a meaningful path for redress of inmate complaints. . . . [T]he facility fails to document its actions in response to inmates' complaints and fails to let the inmate know how it has responded. R. Vol. I, Doc. 7, Ex. M, at 5. Mr. Roberts requested an evidentiary hearing, arguing that a number of witnesses could testify to the fact that they had seen him fill out and file grievance forms.


[22] In response, the defendants offered an affidavit from Linda LeCroy-Ortega, the institution's records custodian. Ms. LeCroy-Ortega testified that a review of the institution's recordsrevealed that M r. Roberts filed six formal grievances. Appellee App. at 59-60, 61-74. Then, in the words of the defendants' brief, "[s]everal weeks later, while searching for documents in an unrelated case, counsel for the SFCADC Defendants located two additional documents which . . . reflected the possibility that Roberts may have filed a seventh administrative grievance." Appellees' Joint Answer Br. at 17. None of the seven grievances produced by the Defendants related to the subjects of Mr. Roberts's suit.


[23] The Defendants conceded that they do not maintain full records of the grievance process: "Given the amount of time that has transpired since these alleged incidents and the retirement of individuals formerly charged with the responsibility for managing these records, it is unclear what the disposition of Roberts' grievances actually was." Id. at 18-19. They also noted that, despite searching their records, they were unable to locate any of the institution's grievance logs or summaries.


[24] The district court again granted summary judgment to the defendants, adopting in full the recommendations of the magistrate judge. The magistrate judge found that equitable tolling did not apply because the Plaintiff did not show that he had, in the language of Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000), "diligently pursue[d] his claims and demonstrate[d] that the failure to timely file was caused by extraordinary circumstances beyond his control." R. Vol. II, Doc. 88, at 7-8. The court also held that the plaintiff had shown no proof of administrative exhaustion, finding that Mr. Roberts "failed to show that he ever filed a grievance related to the subject matter of this lawsuit." Id. at 8. As a result, the court concluded both that the statute of limitations had expired and that Mr. Roberts had failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Mr. Roberts timely appealed.


[25] II. DISCUSSION


[26] A. Standard of Review


[27] We review a district court's grant of summary judgment de novo, using the same standards applied by the district court. Baca v. Sklar, 398 F.3d 1210, 1216 (10th Cir.2005). We view the evidence and reasonable inferences therefrom in the light most favorable to the nonmoving party, id., and will affirm a grant of summary judgment only where "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 moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). Because legal sufficiency is a question of law, we review the district court's disposition of a summary judgment dismissal de novo. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir. 1999).


[28] B. Burden of Proof


[29] What might seem to be one question- whether Mr. Roberts had exhausted his administrative remedies- is really the foundation for two distinct legal issues:


[30] whether equitable tolling applies to halt the statute of limitations, and whether the Plaintiff met the PLRA's exhaustion requirement before filing suit. Both questions rely on Mr. Roberts's use of the institutional grievance process, and both must be answered in the affirmative in order for his suit to proceed. But although these two issues ask the same question of the same set of facts, they entail different burdens of proof.


[31] In the prior appeal in this case, we left open the question of whether New Mexico law or federal law provides the appropriate rules- including, presumably, the setting of the burden of proof- for equitable tolling. Roberts, 109 Fed. App'x at 226. On remand, the district court seemed to assume without deciding that federal law governed the standards for tolling. We disagree. Our Court has held that "state law governs limitations and tolling issues" in § 1983 cases. Garrett v. Fleming, 362 F.3d. 692, 697 (10th Cir. 2004); Fratus v. DeLand, 49 F.3d 673, 675 (10th Cir. 1995); Wilson v. Garcia, 471 U.S. 261, 269 (1985) ("[T]he length of the limitations period, and closely related questions of tolling and application, are to be governed by state law.") (superseded by statute on other grounds).


[32] Under New Mexico law, "the party claiming that the statute of limitations should be tolled has the burden of setting forth sufficient facts to support its position." City of Carlsbad v. Grace, 966 P.2d 1178, 1181 (N.M. Ct. App. 1998). Because it is Mr. Roberts who seeks equitable tolling, it falls on him to prove that his claim merits it.


[33] This Circuit enunciated its rule for administrative exhaustion under the PLRA in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003). Steele adopted the language of the Sixth Circuit, characterizing administrative exhaustion as a pleading requirement that fell on the plaintiff, rather than as an affirmative defense. Id. at 1210. As a result, prisoner-plaintiffs were required to "attach[] a copy of the applicable administrative dispositions to the complaint, or, in the absence of written documentation, describe with specificity the administrative proceeding and its outcome." Id.(quoting Knuckles El v. Toombs, 215 F.3d 640, 642 (6th Cir. 2000). The district court order in this case relies heavily on Steele in rejecting Mr. Roberts's claims, finding that he "does not adequately indicate that he has completed the formal grievance process." R. Vol. II, Doc. 88, at 9.


[34] The Supreme Court recently rejected our rule in Steele, however, and set forth a new standard to govern PLRA lawsuits: "failure to exhaust is an affirmative defense under the PLRA, and . . . inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 127 S.Ct. 910, 921 (2007); see also Aquilar-Avellaveda v. Terrell, ___ F.3d ___, 2007 WL 646150 (10th Cir. Mar. 5, 2007).


[35] Jones does not spell out the proper burden of proof to use in evaluating exhaustion claims, but circuits that treated exhaustion as an affirmative defense prior to Jones have all put the burden of proof on defendants, to the extent that they addressed the issue. See Munson v. Norris, 435 F.3d 877, 880 (8th Cir. 2006); Anderson v. XYZ Correctional Health Servs., Inc., 407 F.3d 674, 681 (4th Cir. 2005); Wyatt v. Terhune, 315 F.3d 1108, 1119 (9th Cir. 2003); Ray v. Kertes, 285 F.3d 287, 295 (3d. Cir. 2002); Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 1999). These holdings comport with the common-law premise that the burden of proving all affirmative defenses rests on the defendant. Patterson v. New York, 432 U.S. 197, 202 (1977). "This common-law rule accords with the general evidentiary rule that 'the burdens of producing evidence and of persuasion with regard to any given issue are both generally allocated to the same party.'" Dixon v. United States, 126 S.Ct. 2437, 2443 (2006) (quoting 2 John W. Strong, McCormick on Evidence § 337, at 415 (5th ed. 1999)). We therefore hold that the burden of proof for the exhaustion of administrative remedies in a suit governed by the PLRA lies with the defendant.


[36] In sum, for equitable tolling of the statute of limitations, the burden lies with the plaintiff; for administrative exhaustion under 42 U.S.C. § 1997, the burden lies with the defendants.


[37] C. Statute of Limitations


[38] In our prior opinion in this case, we noted that "[e]very circuit to address the issue has held that the filing of a mandatory administrative grievance tolls the statute of limitations for § 1983 and Bivens claims." Roberts, 109 Fed. App'x at 226. On remand, the district court applied the federal tolling standard applicable to habeas suits, holding that tolling "is only available when an inmate diligently pursues his claims and demonstrates that the failure to timely file was caused by extraordinary circumstances beyond his control." R. Vol. II, Doc. 88, at 7 (citing Marsh 223 F.3d at 1220).


[39] As noted above, however, in a § 1983 suit, state tolling rules, not federal ones, apply. Fratus, 49 F.3d at 675. That holds both for determining whether the filing of mandatory grievances requires tolling at all, and, if so, how that tolling is to be calculated. See Harris v. Hegmann, 198 F.3d 153, 156-59 (5th Cir. 1999).


[40] i. Time Calculation


[41] Mr. Roberts was removed from the Cornell facility on June 8, 2000. He filed this suit three years and one day later, on June 9, 2003. Under New Mexico law, as under federal law, the day of release is not included when calculating the statute of limitations, and when the period ends on a Saturday or Sunday, the deadline is extended to the following Monday. N.M.R.A., 1-006; Fed. R. Civ. P. 6. June 8, 2003 was a Sunday. Therefore, if tolling is found to apply for the length of Mr. Roberts' stay in the Santa Fe facility, his suit will not be timebarred.


[42] ii. Equitable Tolling


[43] New Mexico has both statutory and equitable tolling provisions. GathmanMatotan Architects and Planners, Inc. v. State, 787 P.2d 411, 414 (N.M. 1990). The state's equitable tolling provision applies both before the commencement of an action and after the filing of a complaint. Gathman-Matotan, 787 P.2d at 414. "Equitable tolling typically applies in cases where a litigant was prevented from filing suit because of an extraordinary event beyond his or her control." Ocana v. American Furniture Co., 91 P.3d 58, 66 (N.M. 2004). Such "extraordinary event[s]" include conduct by a defendant that caused the plaintiff to refrain from filing an action during the applicable period. In re Drummond, 945 P.2d 457, 462 (N.M. Ct. App. 1997); Molinar v. City of Carlsbad, 735 P.2d 1134, 1137 (N.M. 1987). This, then, seems the appropriate provision under which to consider Mr. Roberts's claim that he was prevented from accessing the law library for the majority of his incarceration.


[44] The complaint and its appendices contain allegations that Mr. Roberts was denied the ability to use the prison's library or legal materials in order to draft a complaint against the defendants. Mr. Roberts alleges that, after being permitted to use the library twice in M ay and June, 1999, he repeatedly asked again to use the library, and was told that "the U.S. Marshals Office has ordered [the institution] to prohibit all federal prisoners from using the law library." R. Doc. 1, at 4-B-1. Allegedly, further inquiries obtained similar responses. Appellant notes that, without the use of the library, he was unable to "learn the necessary elements to establish and support his claims and the law and procedures necessary for him to proceed in a timely manner." Id. at 4-B-2. In other words, the plaintiff's lack of access to the library kept him from researching the very question at issue in this appeal: the applicable statute of limitations.


[45] In a federal habeas proceeding, the Antiterrorism and Effective Death Penalty Act permits tolling only "'in rare and exceptional circumstances,'" and thus a claim of insufficient access to relevant legal resources is not enough to support equitable tolling. Gibson v. Klinger, 232 F.3d 799, 808 (10th Cir. 2000) (quoting Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998). That principle is not controlling here.


[46] We are not aware of any New Mexico caselaw determining whether an inmate's lack of access to a law library is a sufficient basis for equitable tolling. Nonetheless, even on the heuristic assumption that it is sufficient, we conclude that Mr. Roberts is not entitled to equitable tolling under New Mexico law. In New Mexico law, equitable tolling- sometimes referred to as fraudulent concealment- only applies when the defendant is prevented from filing throughout the entire length of the statutory period: "[I]f a plaintiff discovers the injury within the time limit, fraudulent concealment does not apply because the defendant's actions have not prevented the plaintiff from filing the claim within the time period and the equitable remedy is not necessary." Tomlinson v. George, 116 P.3d 105, 111 (N.M. 2005). When Mr. Roberts was released from the Cornell correctional facility, a full two years remained for him to file suit under the statute of limitations. Accordingly, equitable estoppel as a result of denial of library access is not sufficient to prevent any of his claims from expiring.


[47] iii. Statutory Tolling


[48] The state's statutory tolling provision, however, does appear to apply to Mr. Roberts's use of the grievance process. A New Mexico statute requires that, "[w]hen the commencement of any action, shall be stayed or prevented by injunction order or other lawful proceeding, the time such injunction order or proceeding shall continue in force shall not be counted in computing the period of limitation." N.M. Stat. Ann. § 37-1-12, 1978. Although New Mexico has no caselaw specifically addressing the tolling requirements upon the filing of mandatory administrative grievances, the language of the statute ("any . . . lawful proceeding") seems to encompass mandatory grievance proceedings.


[49] We cannot agree with the district court that Mr. Roberts failed to show that he filed an administrative grievance on the issue of environmental smoke. Although neither a copy of the grievance nor a response is part of the record, Mr. Roberts submitted an affidavit describing with specificity the grievances that he filed and the dates on which he filed them, and adequately explained why he could provide no paper documentation. He also proffered testimony by fellow inmates that he filled out and filed forms, along with a report from a Department of Justice investigation to the effect that the facility "fails to document its actions in response to inmates' complaints and fails to let the inmate know how it has responded." The defendants, in their answer, virtually admit that the institution's record-keeping is so incomplete that it cannot conclusively deny that Mr. Roberts filed the grievances.


[50] The defendants argue that, even assuming Mr. Roberts properly filed an administrative grievance regarding environmental smoke, the tolling period would last only 32 days, and Appellant's claims would still be time-barred. This is, in effect, a request that we affirm on alternative grounds.


[51] Under the New Mexico statute, tolling occurs only so long as "such injunction order or proceeding shall continue in force." N.M. Stat. Ann. § 37-1-12, 1978. Our habeas corpus precedent concerning the grievance process, though not binding in the context of § 1983 actions, is instructive. It holds "the failure to respond to a grievance within the time limits contained in the grievance policy renders an administrative remedy unavailable." Jernigan v. Stuchell, 304 F.3d 1030, 1032 (10th Cir. 2002). In order to determine how long Mr. Roberts's claim should be tolled, we must know how long his grievance remained viable under the institution's grievance procedures in effect at the time of M r. Roberts's grievance.


[52] The extant grievance forms filled out by the Appellant incorporate the institution's grievance policy by reference. They all read, in part, "Policy and Procedure #30500/30501 explain Cornell's grievance process. Familiarize yourself with the guidelines outlined within the policy." Appellees' App. at 65.


[53] The forms are all signed and dated by Mr. Roberts, and the dates range from October 6, 1999 to May 26, 2000. Mr. Roberts alleges, and we accept as true for the purposes of summary judgment, that he filed a secondhand-smoke grievance in September 1999.


[54] The Appellees argue the entire grievance process, if properly followed by the institution, takes no more than thirty-two days. In support of that contention, Appellees provide a copy of a grievance policy labeled "Policy Number: 246-1." Appellee's App. at 49-55. The corner of the document reads "Revised 11/99." Appellees also provide a blank grievance form, identical to the ones filled out by the Appellant, with one exception. In place of the sentence "Policy and Procedure #30500/30501 explain Cornell's grievance process," it reads "Policy and Procedure SFCDC 246-1 explain Cornell's grievance process." Appellee's App. at 56. Appellees provide an affidavit from Linda Lecroy-Ortega, the former records custodian at the institution, stating that the above documents "constitute the policies and procedures pertaining to inmate grievances that were in effect at the time of the incident which gives rise to Plaintiff's Complaint." Appellee's App. at 60.


[55] Appellees provide no explanation, however, of what policy is contained by forms 30500 and 30501, which were represented as the institution's grievance policy on the grievances filled out by the plaintiffs. Nor do they explain how or why the grievance policy they provided was "Revised 11/99," as noted on form 246-1, or how to square that language with Ms. Lecroy-Ortega's assertion that the grievance policy remained unchanged from April 1999 to June 2000.


[56] The Appellant claims that his grievance was filed under an earlier grievance process, presumably 30500/30501, which was not provided as part of the record. Moreover, Mr. Roberts claims in an affidavit that, despite multiple requests, he was never provided with any copy of any grievance policy.


[57] In short, the accounts of the grievance process, and of M r. Roberts's access to it, are inconsistent and incomplete. We may affirm on alternative grounds only when those grounds are "dispositive, indisputable," and appear clearly in the record. Colorado Property Acquisitions, Inc. v. United States, 894 F.2d 1173, 1175 n.5 (10th Cir. 1990). We find the record unclear as to what grievance process was in place at the time Mr. Roberts allegedly filed his grievance. We therefore find it necessary to remand to the district court with instructions to determine the nature of the grievance process, as conveyed to Mr. Roberts, in September 1999.


[58] E. Exhaustion of Administrative Remedies


[59] Because Mr. Roberts had no affirmative requirement to prove exhaustion for purposes of 42 U.S.C. § 1997, we reverse the district court's ruling that he had not exhausted his administrative remedies. Jones, 127 S.Ct. at 921. On remand, the defendants are entitled to raise exhaustion as an affirmative defense. We remind the district court that, under the newly announced rules of Jones, administrative exhaustion on one claim does not warrant dismissal of the entire action. Id. at 923.


[60] III. CONCLUSION


[61] The judgment of the United States District Court for the District of New Mexico is REVERSED and REMANDED. Appellant's motion to "File Previously Stricken Briefs" is denied.



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[62] *fn1 After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument.

Quarles v. Kane, 482 F.3d 1154 (9th Cir. 04/06/2007)

[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT


[2] No. 06-16308


[3] 482 F.3d 1154, 2007 Daily Journal D.A.R. 4587, 07 Cal. Daily Op. Serv. 3619,


[4] April 6, 2007


[5] ALVIN RAY QUARLES, PLAINTIFF-APPELLANT,
v.
A. KANE, WARDEN; J. WOODFORD, DIRECTOR OF CORRECTIONS AND REHABILITATION, DEFENDANTS-APPELLEES.


[6] Appeal from the United States District Court for the Northern District of California Martin J. Jenkins, District Judge, Presiding. D.C. No. CV-06-02724-MJJ.


[7] Counsel


[8] Alvin Ray Quarles, pro se, Soledad, California, for the appellant.


[9] Per curiam.


[10] FOR PUBLICATION


[11] OPINION


[12] Submitted March 12, 2007*fn1


[13] Before: Alex Kozinski, Edward Leavy and Jay S. Bybee, Circuit Judges.


[14] OPINION


[15] Alvin Ray Quarles, a California state prisoner, appeals pro se the dismissal for failure to state a claim, pursuant to 28 U.S.C. § 1915A, of his action under 42 U.S.C. § 1983. He claims that his plea agreement and his constitutional rights were violated when, pursuant to a post-conviction amendment to Cal. Penal Code § 2085.5, the amount of restitution payments deductible from his prison wages was increased to a maximum of 50% of the wages, and restitution payments were made deductible from trust accounts as well as from wages. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.


[16] Quarles alleges that he was convicted in 1989. He alleges that in his plea agreement he agreed to pay restitution of $10,000, which was to be collected pursuant to section 2085.5. At that time section 2085.5 provided that "the Director of Corrections may deduct a reasonable amount not to exceed 20 percent from the wages of a prisoner." In 1992 section 2085.5 was amended to authorize deduction of a minimum of 20% to a maximum of 50% of an inmate's wages and deposits. Quarles alleges that in October 2003 he received a trust account statement indicating that 33% of his wages had been taken for restitution.


[17] [1] The amendment to section 2085.5 did not increase the amount of restitution, but rather increased the permissible rate at which restitution payments may be collected. This amendment did not violate the Ex Post Facto Clause because it did not impose additional punishment on Quarles. See Russell v. Gregoire, 124 F.3d 1079, 1085 (9th Cir. 1997).


[18] [2] Quarles also contends that, because his plea agreement stipulated that he would pay restitution pursuant to section 2085.5, and that at the time he entered into the agreement section 2085.5 allowed for a maximum of 20% deduction of wages, the 1992 amendment to that section which increased the permissible wage to 50% violated his plea agreement. However, Quarles does not allege that his plea agreement specified an exact percentage to be deducted from his wages. Having agreed to have the restitution payments governed by statute, he assumed the risk that the statute might be amended. The amendment to section 2085.5 therefore does not violate Quarles' plea agreement. See United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005).


[19] AFFIRMED.



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Opinion Footnotes

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[20] *fn1 This panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

Doe v. Pataki, 481 F.3d 93, 481 F.3d 69 (2d Cir. 03/08/2007)

[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term 2006


[2] Docket Nos. 06-2126-cv(L), 06-3709-cv(CON)


[3] 481 F.3d 93, 481 F.3d 69,

[4] March 8, 2007


[5] JOHN DOE, ET AL., INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLEES,
v.
GEORGE E. PATAKI, IN HIS OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF NEW YORK, ET AL., DEFENDANTS-APPELLANTS.


[6] SYLLABUS BY THE COURT


[7] Appeals from the April 27, 2006, and July 18, 2006, orders of the United States District Court for the Southern District of New York (Denny Chin, District Judge), construing a court-approved stipulation of settlement as preventing New York State officials from enforcing against convicted sex offenders recent state legislative changes concerning the duration of registration and scope of community notification pursuant to New York's Sex Offender Registration Act, and enjoining such enforcement.


[8] Orders vacated.


[9] Richard Dearing, Asst. Solicitor Gen., New York, N.Y. (Eliot Spitzer, N.Y. State Atty. Gen., Louis H. Willenken, Asst. Atty. Gen., Michael S. Belohlavek, Senior Counsel, Office of the N.Y. State Atty. Gen., New York, N.Y., on the brief), for Defendants-Appellants.


[10] Thomas O'Brien, The Legal Aid Society, New York, N.Y., for Plaintiffs-Appellees.


[11] The opinion of the court was delivered by: Jon O. Newman, Circuit Judge.


[12] Argued: August 30, 2006


[13] December 18, 2006


[14] Before: NEWMAN, CABRANES, and POOLER, Circuit Judges.


[15] Judge Pooler dissents with a separate opinion.


[16] This appeal presents a novel issue arising in the context of interpreting a court-approved stipulation of settlement between private and governmental parties that is equivalent to a consent decree: do terms of the stipulation that recite provisions of state statutes in force at the time of the stipulation bind the governmental defendants to continue those provisions into the future notwithstanding later changes by a state legislature? This issue arises on an appeal by various New York State officials (collectively "the State") from two orders of the United States District Court for the Southern District of New York (Denny Chin, District Judge) entered in the course of protracted litigation concerning New York's Sex Offender Registration Act ("SORA" or the "Act"). The Plaintiffs are a group of convicted sex offenders required to register pursuant to the SORA. The District Court's orders, entered April 27, 2006, and July 18, 2006 (explained in detail below), have the effect of preventing the State from applying to the Plaintiffs recent statutory changes that (a) extended the time that many of the Plaintiffs are subject to the Act's registration requirements, and (b) broadened for some of the Plaintiffs the extent of the community notification required by the Act. We conclude that the stipulation was negotiated to avoid litigation over the procedures by which the Plaintiffs' risk levels would be redetermined, that the Plaintiffs are entitled to the benefit of those bargained-for procedures, that the Plaintiffs did not bargain to have the stipulation assure them the continued scope of state statutes existing at the time of the stipulation, and that the stipulation cannot be interpreted to preclude the application of subsequent legislative changes on matters distinct from the subject matter of the litigation. We therefore vacate the challenged orders.


[17] Background


[18] The Sex Offender Registration Act. New York enacted the SORA, New York's version of a so-called "Megan's Law," in July 1995. See 1995 N.Y. Laws 2870 (codified at N.Y. Correct. Law §§ 168 to 168-w (McKinney 2003)). The SORA aims both to protect members of the public, especially vulnerable populations, from sex offenders by notifying them of the presence of sex offenders in their communities and to enhance law enforcement authorities' ability to investigate and prosecute sex offenses. See id. at 2870, § 1. To achieve these goals, the Act requires all convicted sex offenders ("the registrants") to register with law enforcement authorities and provides for the disclosure of information about the registrants to local law enforcement authorities, entities with vulnerable populations, and the public at large in enumerated circumstances.


[19] All registrants remain in the SORA database for at least ten years, see N.Y. Correct. Law § 168-h(1), and the public may find out whether any particular individual is in the database, see id. § 168-p(1). Beyond these basic provisions, the Act varies the duration of registration and the extent of public notification depending on which of three risk categories is applicable. State officials place registrants in a risk category based on the perceived risk that a sex offender will commit another offense, see id. § 168-l(6). Under the original version of the Act, low-risk, or "level one" offenders, were obliged to remain registered for ten years, see id. § 168-h(1), and public notification was limited to responding to an inquiry concerning a particular individual (i.e., the database itself could not be searched, and information about level one offenders could not be disseminated to a member of the public without a specific inquiry). Moderate-risk, or "level two" offenders, also registered for ten years, see id., and local law enforcement agencies, without awaiting inquiry from the public, could disseminate certain information about level two offenders to entities with vulnerable populations, see id. § 168-l(6)(b). High-risk, or "level three" offenders, were subject to a lifetime registration requirement, see id. § 168-h(2), and certain information about them was contained in a publicly accessible subdirectory of the database, in addition to being disseminated by law enforcement authorities to vulnerable entities, see id. §§ 168-l(6)(c), 168-q. Level three offenders received the right to petition for relief from the registration and notification requirements after thirteen years. See id. § 168-o(1). The Act specified procedures for the determination of a sex offender's risk level.


[20] Since its enactment, the SORA has undergone several amendments relevant to this litigation. In 1999, following the District Court's ruling that the Act's original procedures for determining risk levels violated sex offenders' procedural due process rights, see Doe v. Pataki ("Doe-SORA III"), 3 F. Supp. 2d 456, 473 (S.D.N.Y. 1998), the New York legislature amended the SORA to incorporate the procedural due process protections required by Doe-SORA III, see 1999 N.Y. Laws 3061 (codified at scattered sections of N.Y. Correct. Law § 168 et seq.). The 1999 amendment applied prospectively to all risk determination hearings conducted after its effective date but did not provide for redetermination of risk levels previously assigned.


[21] Next, in 2002, the SORA was again amended to create the classifications of "sexual predator," "sexually violent offender," and "predicate sex offender." See 2002 N.Y. Laws 66 (codified at scattered sections of N.Y. Correct. Law § 168 et seq.). After March 11, 2002--the effective date of the 2002 amendment--a sex offender's classification as a "sexual predator," "sexually violent offender," or "predicate sex offender" required lifetime registration, regardless of risk level. See N.Y. Correct. Law § 168-h(2). A ten-year registration period applied to all other sex offenders whose risk levels were determined after March 11, 2002. See id. § 168-h(1). Sex offenders already classified as level one or level two risks as of March 11, 2002, retained the ten-year registration requirement. See id. Similarly, sex offenders already classified as level three risks continued under an obligation to register for life. See id. § 168-h(2). The 2002 amendment specified that the amended procedures for calculating the duration of an offender's registration requirement did not apply to the group of sex offenders whom the legislature considered to be members of the plaintiff class in the pending litigation.*fn1 See 2002 N.Y. Laws 66, 78.


[22] In January 2006, as the ten-year registration period for many level one and level two registrants was approaching an end, the legislature amended the SORA to increase the length of the registration requirement "to enhance public safety and provide better tracking and monitoring of sex offenders." 2006 N.Y. Laws 1, § 1. The January 2006 amendment, which prompted the pending round of litigation, increased the registration requirement for level one offenders from ten to twenty years and required level two offenders to register for life, effective as of January 18, 2006. See id. § 3 (to be codified at N.Y. Correct. Law § 168-h). The January 2006 amendment gave level two offenders who are not designated as "sexual predators," "sexually violent offenders," or "predicate sex offenders" the right to petition for relief after thirty years. See id. at 2, § 5 (to be codified at N.Y. Correct. Law § 168-o).


[23] The most recent amendment, effective June 23, 2006, changed the scope of community notification about level one and level two offenders. See 2006 N.Y. Laws 459. Under the June 2006 amendment, law enforcement agencies may disseminate information about level one offenders to entities with vulnerable populations, as previously authorized for level two offenders. See id. § 1(a) (to be codified at N.Y. Correct. Law. § 168-l(6)(a)). In addition, information about level two offenders will now be maintained in the publicly accessible subdirectory that previously contained information only about level three offenders. See id. § 1(b) (to be codified at N.Y. Correct. Law. § 168-l(6)(b)).


[24] To summarize, the SORA, as it currently exists, provides the following. Level one offenders, other than those who have been classified as "sexual predators," "sexually violent offenders," or "predicate sex offenders," must register for twenty years, and information about all level one offenders can be distributed to entities with vulnerable populations but is not maintained in the publicly accessible subdirectory. Level two and level three offenders and all offenders who have been classified as "sexual predators," "sexually violent offenders," or "predicate sex offenders," regardless of risk level, must register for life, though level two offenders who have not received such classifications may petition for relief after thirty years. Level two and three offenders are identified in a publicly accessible subdirectory.


[25] The pending litigation. In March 1996, the Plaintiffs--convicted sex offenders who were incarcerated, on parole, or on probation when the original SORA took effect on January 21, 1996--filed a class action in the District Court, alleging that the Act violated the Ex Post Facto Clause of the Constitution and deprived the Plaintiffs of their due process and equal protection rights. On cross-motions for summary judgment, the District Judge concluded that the SORA's community notification provisions violated the Ex Post Facto Clause and enjoined enforcement of these provisions against the Plaintiffs. See Doe v. Pataki ("Doe-SORA I"), 940 F. Supp. 603, 631 (S.D.N.Y. 1996). On appeal, this Court reversed the District Judge's ruling that the community notification procedures violated the Ex Post Facto Clause and remanded the case for consideration of the Plaintiffs' other claims. Doe v. Pataki ("Doe-SORA II"), 120 F.3d 1263, 1285 (2d Cir. 1997).*fn2


[26] On remand, the Plaintiffs again moved to enjoin enforcement of the SORA, this time on procedural due process grounds. The District Judge concluded that the registration and community notification provisions of the SORA implicated protected liberty interests, see Doe-SORA III, 3 F. Supp. 2d at 467-68, and that the procedures by which risk levels were assigned did not provide adequate due process for protecting these interests, see id. at 468-72. The District Judge entered an injunction requiring that an offender (1) be given a court hearing; (2) receive advance notice of the hearing, its purpose, and the recommended risk level classification; (3) be given the right to retain counsel or the right to have counsel appointed if he cannot afford to retain counsel himself; (4) be given pre-hearing discovery of the evidence on which the risk level recommendation is based; and (5) be given the right to appeal. See id. at 471-72. Moreover, the Judge concluded, the State must bear the burden of proof and must prove the facts supporting the risk level recommendation by clear and convincing evidence. See id. at 472. The District Judge enjoined the State from classifying the Plaintiffs at a risk level other than level one until it reclassified them in accordance with the procedures required by the ruling. See id. at 479.


[27] After the District Judge's procedural due process ruling in DoeSORA III, the parties began settlement discussions. On November 22, 2000, having received no report of a final settlement, the District Judge issued an order dismissing the case without prejudice to reinstatement within sixty days if the parties were unable to reach a final settlement agreement. The parties neither reached agreement within sixty days nor requested an extension of time. Nonetheless, as was represented at the first of two oral arguments, the parties continued to operate as if the injunction was in effect notwithstanding the termination of the case. The parties completed settlement negotiations in June 2004, at which time they jointly moved for reinstatement of the case and approval of a Stipulation of Settlement ("the Stipulation").*fn3 The District Judge reinstated the action and "so ordered" the Stipulation on June 4, 2004.


[28] The Stipulation, the stated purpose of which was to "settl[e] the disputes between [the parties] and avoid[] further litigation," specified detailed procedures for conducting redetermination hearings for level two and level three Plaintiffs and for notifying them of their right to such hearings. Of particular importance to the pending appeal is paragraph fifteen of the Stipulation, set out in full in the margin,*fn4 which provides, among other things, that a Plaintiff whose risk level is determined to be at level two "will be considered to be a level two offender as of March 11, 2002" and that, "therefore, the duration of the registration requirement will be 10 years from the date of his or her original registration." Attached to the Stipulation were a general notice of settlement to be sent to the Plaintiffs*fn5 and specific notices to be sent to level two and level three Plaintiffs, which explained level two and level three Plaintiffs' right to redetermination hearings, the procedures by which redetermination hearings would take place, and the duration-of-registration and scope-of-notification requirements for those classified under level one, two, or three.


[29] Following the January 2006 amendment increasing the duration of the registration requirement for level one and level two offenders, the Plaintiffs filed a motion in the District Court for an order enforcing the Stipulation and enjoining the State from requiring level one or level two Plaintiffs to register beyond ten years. The Plaintiffs contended that paragraph fifteen of the Stipulation and the attached notices bound the State to a ten-year registration requirement for level one and level two Plaintiffs and that the application of the 2006 amendment to these Plaintiffs therefore breached the Stipulation. See Doe v. Pataki ("Doe-SORA IV"), 427 F. Supp. 2d 398, 404 (S.D.N.Y. 2006). In response, the State argued that the District Court lacked jurisdiction to enforce the Stipulation, id., and that, in any event, the Stipulation could not be construed to impose a ten-year limit on registration because it was concerned with the procedures for assessing risk levels, not the substantive consequences of such assessments, id. at 406. The District Judge, after first rejecting the State's jurisdictional argument,*fn6 see id. at 405-06, concluded that the parties had bargained for a ten-year registration period and that application of the January 2006 legislative amendment to level one and level two Plaintiffs therefore breached the parties' agreement, id. at 408-09. The District Judge enjoined enforcement of the January 2006 amendment to level one and level two offenders covered by the Stipulation, see id. at 413, but stayed his order pending appeal. The State filed a timely notice of appeal.


[30] After the June 2006 amendment took effect, expanding the scope of community notification, the Plaintiffs sought clarification of the District Court's stay of the order in Doe-SORA IV granting injunctive relief. In particular, the Plaintiffs sought to confirm that the stay, which had allowed the State, pending appeal, to apply to the Plaintiffs the January 2006 amendment, extending the duration of registration, did not allow the State to apply to the Plaintiffs the June 2006 amendment, extending the scope of community notification. In an order entered July 18, 2006, the District Judge granted the Plaintiffs' motion, thereby enjoining the State from applying the June 2006 amendment and any subsequent amendments to level one and level two Plaintiffs. See Doe v. Pataki ("Doe-SORA V"), 439 F. Supp. 2d 324, 325 (S.D.N.Y. 2006) (noting that the stay of the April 27, 2006, injunction was granted only because "there was a risk that class members who were permitted to come off the registry would be difficult to locate for re-registration in the event of a reversal"). The District Judge subsequently denied the State's motion for clarification of the July 2006 injunction and later denied the State's motion for a stay of that injunction. In denying the State's stay motion, the District Judge reasoned that the Stipulation, by referring to the attached notices specifying "the community notification provisions applicable to each risk level," bound the State to the community notification provisions in effect in 2004 when the Stipulation was approved. He concluded, "The New [June 2006] [a]mendment . . . would increase the extent of public notification for both level 1 and level 2 class members beyond what the parties bargained for--and the Court 'so ordered'--in the Stipulation." The State timely appealed the July 2006 injunction. This Court granted the State's motion to consolidate the two appeals (from the injunctions in Doe-SORA IV and Doe-SORA V) and denied its motion for a stay, leaving in effect the District Judge's stay. After hearing an initial argument, we granted the Plaintiffs-Appellees' request to hear oral argument in No. 06-3709-cv, the appeal from the injunction in Doe-Sora V, concerning the scope of community notification.


[31] As a result of the District Court's various rulings and its stay, the current situation is that, pending appeal, the January 2006 legislative amendment, extending the duration-of-registration requirements, is effective against the Plaintiffs, but the State is enjoined from enforcing against the Plaintiffs the June 2006 legislative amendment, expanding the scope-of-notification requirements.


[32] Plaintiffs' waivers of redetermination hearings. As explained above, the Stipulation provides that level two and level three Plaintiffs are entitled to have their risk levels redetermined pursuant to the procedures ordered by the District Court. The Stipulation also provides for notice to the level two and level three Plaintiffs, informing them of their option to contest the original risk level at a redetermination hearing or to accept the original risk level. The notice included a form for exercising the option and also informed the affected Plaintiffs that failure to return the form would be deemed a waiver of the right to a redetermination hearing. After the January 2006 amendment extending the duration of registration, the Plaintiffs, in their injunction request, complained to the District Court that the waiver provision had become unfair to level two Plaintiffs because some of them who were nearing the end of their ten-year period of registration had waived a redetermination of risk level without awareness of the extension of the registration period to lifetime registration. After the initial oral argument of this appeal, the State advised this Court that it will afford all level two Plaintiffs who waived their redetermination hearing a new opportunity to request such a hearing.


[33] Discussion


[34] The basic principles governing interpretation of consent decrees and their underlying stipulations are well known. Such decrees reflect a contract between the parties (as well as a judicial pronouncement), and ordinary rules of contract interpretation are generally applicable. See United States v. ITT Baking Co., 420 U.S. 223, 236-37 (1975); Crumpton v. Bridgeport Education Ass'n, 993 F.2d 1023, 1028 (2d Cir. 1993). Often deference is given to the interpretation made by the district judge who approves the decree, a precept especially appropriate in circumstances where the judge has played a role in supervising the negotiation of the terms of the decree. See, e.g., Audiovisual Publishers, Inc. v. Cenco Inc., 185 F.3d 93, 95-96 (2d Cir. 1999); United States v. Local 359, United Seafood Workers, 55 F.3d 64, 68 (2d Cir. 1995).*fn7


[35] In the pending case, the Plaintiffs and the District Judge are of the view that these principles and only these principles dictate the outcome of the appeal. In their view, the State is bound to apply the provisions of SORA, including those governing the duration of registration and the scope of community notification, as they existed at the time the decree was entered, because the Stipulation for the decree and the attached notices explicitly mention the duration of registration and the scope of community notification for the various risk levels as they then existed.


[36] We recognize that the duration of registration and the scope of community notification, as they existed under state law at the time of the Stipulation, are explicitly set forth in the Stipulation or incorporated by the attached notices, and there is no dispute as to the meaning of the words in these recitations, e.g., "ten years" means "ten years." What is in dispute is the operative effect of these recitations, i.e., whether these recitations are included only for informational purposes to reflect then-current state law, as the State contends, or as binding commitments precluding application of subsequent legislative changes to the Plaintiff class, as the Plaintiffs contend.*fn8 This issue requires construction of the Stipulation, a matter to be considered de novo on review. See Lee v. BSB Greenwich Mortgage L.P., 267 F.3d 172, 178 (2d Cir. 2001). Moreover, the normal rules of construction may vary depending on the nature of the parties and the effect of enforcement. In the pending matter, one of the parties is a state, and the effect of enforcement of the language reciting the duration of registration and the scope of community notification would be to prohibit the State from applying subsequent legislation on these topics to the Plaintiff class.


[37] Proper construction of the recitations at issue, we believe, depends not only on the words of the Stipulation, but also, and more importantly, on whether the parties intended to place those words in the agreement as part of a resolution of disputed matters for which the parties had bargained, or only to illustrate the provisions of then-existing state law. That intent, properly assessed based on objective indicia, see Klos v. Polskie Linie Lotnicze, 133 F.3d 164, 168 (2d Cir. 1997), can be ascertained initially in this case from the nature of the litigation. After losing their Ex Post Facto Clause challenge to the SORA, the Plaintiffs returned to the District Court solely to challenge the procedures for determining offender risk levels. There is no indication, however, that the Plaintiffs sought to have the duration-of-registration or the scope-of-notification requirements remain unaltered by subsequent state legislation. Maintenance of these requirements was neither the subject of any claim in the lawsuit nor the subject of any bargaining between the parties in the course of settling the lawsuit.*fn9 The Plaintiffs successfully litigated their procedural due process claim and ultimately secured the agreement of the State to incorporate into a consent decree the hearing procedures they had sought.


[38] The limited nature of the litigation strongly indicates that the recitations concerning duration of registration and scope of community notification were not included to secure a prohibition on subsequent state legislation on these topics. Indeed, had the case proceeded to final adjudication in favor of the Plaintiffs, instead of settlement, it is extremely doubtful that the Plaintiffs would have been entitled to a judgment that prohibited the State from amending the then-current provisions concerning duration of registration and scope of community notification.*fn10


[39] Moreover, in a case such as this, how a court should determine what the parties intended the operative effect of their duration and scope recitations to be should reflect traditional concerns regarding a federal court's authority to restrict a state's inherent powers. There is no doubt that a federal court is obliged to determine whether properly challenged state legislation violates the Constitution, a responsibility that the District Court discharged in this litigation in ruling that SORA was unconstitutional for lack of procedures required by the Due Process Clause of the Fourteenth Amendment. We need not review the correctness of that ruling because it is not challenged on this appeal. Moreover, the parties subsequently incorporated those procedural requirements into a consent decree and, indeed, the State legislature itself enacted legislation that also incorporated those procedures.


[40] However, although federal courts have authority to abrogate state laws on the grounds of claimed unconstitutionality or preemption pursuant to paramount federal legislation, they have only the most limited role when determining whether a state has surrendered some inherent authority, such as its authority to modify state statutory law. We assume that in the course of settling a federal lawsuit, parties could bargain for the continued force of a state law provision as it existed at the time of their agreement. In some circumstances, a state might obtain substantial benefits by narrowing the scope of a ruling of unconstitutionality or lessening the scope of a federal court remedy in exchange for its commitment not to alter a provision of then-existing state law.*fn11 But proper regard for state authority requires a federal court to have a clear indication that a state has intended to surrender its normal authority to amend its statutes.*fn12


[41] In other contexts concerning state authority, the Supreme Court has similarly instructed federal courts not to impair state authority absent a clear statement that the relevant governing principle applies. For example, the Supreme Court has frequently instructed that a state will not be deemed to have waived its sovereign immunity unless the waiver is "express" and "unequivocal." College Savings Bank v. Florida Prepaid Post-secondary Education Expense Board, 527 U.S. 666, 680 (1999); see Port Authority Trans-Hudson Corp. v. Feeney, 495 U.S. 299, 306 (1990) (general consent to suit provision insufficient to waive Eleventh Amendment immunity); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 99 (1984) (state's consent must be "unequivocally expressed"); Edelman v. Jordan, 415 U.S. 651, 673 (1974) (waiver of immunity only "by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction" (alteration in original) (internal quotation marks omitted)). Similarly, the Court has insisted that an act of Congress purporting to abrogate a state's sovereign immunity under section 5 of the Fourteenth Amendment will not be effective unless Congress's intent to abrogate is "unmistakably clear." Nevada Dep't of Human Resources v. Hibbs, 538 U.S. 721, 726 (2003); see Kimel v. Florida Board of Regents, 528 U.S. 62, 73 (2000) (same); Dellmuth v. Muth, 491 U.S. 223, 228 (1989) (same). In the same vein, the Court has ruled that when Congress imposes a condition on a state's receipt of federal funds, it must do so "unambiguously" to ensure that the state's acceptance of the "'contract'" is "voluntar[y] and knowing[]." Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17 (1981).


[42] More pertinent to our issue is the Court's development of what it has called the "unmistakability doctrine," United States v. Winstar Corp., 518 U.S. 839, 871 (1996) (plurality opinion), whereby "sovereign power . . . will remain intact unless surrendered in unmistakable terms," Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 148 (1982). In Winstar, Congress had changed the relevant law and prevented the Government from honoring certain contractual agreements it had entered into with several financial institutions. See Winstar, 518 U.S. at 843. Although the Supreme Court held that the Government was liable for breach of contract, id. at 910, the Court emphasized that the unmistakability doctrine was inapplicable because the plaintiffs were claiming that the Government had assumed the risk that it might have to pay damages in the event of subsequent changes in federal law, not that it must be enjoined from applying those changes to the plaintiffs, see id. at 871. In Doe-SORA IV, the District Judge concluded that the unmistakability doctrine as described in Winstar was not relevant to the Stipulation because the contracts in Winstar were not "entered into to resolve judicial proceedings." Doe-SORA IV, 427 F. Supp. 2d at 410. We believe that a clear statement of intent to surrender a state's legislative authority is even more appropriate when the alleged restrictions on future law-making power are part of an agreement authorized and enforced by a federal court. In the pending case, the State cannot be held to have surrendered in a consent decree its authority to amend its statutes unless the decree clearly indicates that intention. In the absence of such clear indication, the recitation of existing statutory provisions is properly construed to do no more than serve as notice of what the state law then provided.


[43] The recitation in the Stipulation of the then-existing duration and notification requirements served a helpful purpose of clarity. The parties needed to know that the Plaintiffs' risk levels would be redetermined under the regime existing before the 2002 amendment, that the then-existing duration requirements would extend from the date of an offender's original registration, and that the then-existing notification requirements would currently apply. The Stipulation and its accompanying notices provided this useful information, but the Stipulation and the decree cannot properly be construed to surrender the State's power to modify the recited requirements.*fn13


[44] Conclusion


[45] The orders of the District Court, enjoining the State from applying the January 2006 and June 2006 amendments, are vacated.


[46] POOLER, Circuit Judge, dissenting:


[47] I respectfully dissent. I believe the majority has reached a wrong conclusion because it has ignored basic principles of contract law. While the majority references the guiding principles of contract law, the majority opinion discusses them in only the most limited detail. In another very brief section, which cites only generally inapposite constitutional law, the majority opinion attempts to explain why the state should be treated differently from any other contracting party.


[48] While the district court below devoted substantial analysis to this problem and the relevant doctrine, Doe-SORA IV, 427 F.Supp.2d at 411*fn14 (citing, inter alia, United States Trust Co. v. New Jersey, 431 U.S. 1, 17 (1997)),*fn15 on appellate review the majority has eschewed this approach, and instead focused on discerning the intentions of the parties. This approach is problematic, since as even defendants-appellants had initially argued, the stipulation is not ambiguous, and we cannot ignore the lack of ambiguity merely because its plain meaning does not correspond with the parties' alleged intentions.


[49] This court cannot merely point to the absence of additional language specifying the allocation of risk in the event of changed circumstances as a basis for shifting that risk onto the obligee. This approach, along with the imposition of a new clear statement rule retroactively, so as to shift the burden of changed circumstances away from the party who would traditionally bear it, are radical departures from our earlier jurisprudence and the longstanding principles of the common law. Furthermore, if the agreement was ambiguous, the only prudent approach would be to remand to the district court for further fact finding, given the paucity of the record. Instead, the majority opinion relies on the absence of evidence, inapplicable principles of contract interpretation, and faulty analogies to inapposite constitutional law to establish a basis for reformation of the stipulation.


[50] I. Under New York Law and the Principles Embodied in this Circuit's Caselaw, the Stipulation at Issue is Not Ambiguous


[51] A dispute over the meaning of a provision in a written instrument after it is executed does not generate ambiguity. It is the text of the agreement itself which must be ambiguous before a court can construe the contract in view of the objective evidence of the parties' shared intentions. However, the majority opinion does not identify the words, syntax or punctuation that render the stipulation ambiguous, stating only that while "there is no dispute as to the meaning of the words in these recitations," "there is a dispute [as to their] operative effect." The first question before us is whether this dispute is legitimate. The majority opinion does not address this question. Rather than pointing to internal textual inconsistencies that might illustrate the purported ambiguity, it proceeds immediately to the determination of how the stipulation should be construed.


[52] This court has held-repeatedly and consistently-that before resorting to indicia of intent, we must determine that an ambiguity is present on the face of the contract; it is not sufficient for the contract to merely appear ambiguous in the light of the previous dealings between the parties. This foundational principle applies equally to consent decrees: [w]hen the language of a consent decree is unambiguous, the scope of a consent decree must be discerned within its four corners." United States v. Broad. Music, Inc., 275 F.3d 168, 175 (2d Cir. 2001).


[53] This "plain meaning" approach to contract construction is the well-established law of the circuit. Roberts v. Consolidated Rail Corp., 893 F.2d 21, 24 (2d Cir. 1989) ("[a]bsent an ambiguity in a written contract, courts will not look to the underlying intent of the parties in executing the contract"); see also O'Neil v. Ret. Plan for Salaried Employees of RKO Gen., Inc., 37 F.3d 55, 58-59 (2d Cir. 1994) (holding that the question of "[w]hether contract language is ambiguous . . . is resolved by reference to the contract alone") (internal quotation marks omitted); accord Collins v. Harrison-Bode, 303 F.3d 429, 433 (2d Cir. 2002) (noting that "[u]nder New York law, the question of ambiguity vel non must be determined from the face of the agreement, without reference to extrinsic evidence").*fn16


[54] Conversely, the majority reasons, without even mentioning the question of ambiguity, that the "[p]roper construction of the recitations at issue, we believe, depends not only on the words of the Stipulation, but also, and more importantly, on whether the parties intended to place these words into the agreement as part of a resolution of disputed matters." Majority Op. [16] (emphasis added).


[55] This approach is contrary to our precedent and the principles of contract law, which the majority agrees should govern. Majority Op. [14].


[56] The importance of our steadfast adherence to the plain meaning rule becomes clear when we consider the unbridled freedom an appellate court has when it is abandoned; we could then rewrite any contract to correspond with what we believe to be the intentions of the parties, utilizing the exceptional equitable remedy of reformation under the guise of contract construction. However, "[t]here is no power at common law to reform a written instrument." 76 C.J.S. Reformation of Interests § 2; see also e.g. Ivinson v. Hutton, 98 U.S. 79, 82 (1878). Accordingly, "[a] court may neither rewrite, under the guise of interpretation, a term of the contract when the term is clear and unambiguous, nor redraft a contract to accord with its instinct for the dispensation of equity upon the facts of a given case." Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir. 2000).


[57] Despite this governing precedent, the reformation of the stipulation is precisely what the majority opinion effects. Here, the majority's recharacterization of the "operative effect" of these provisions-into a mere reference to the state of the existing law-effectively inserts a new provision of critical importance into the agreement. The contract, as rewritten by the majority, now contains a new provision in the sections referring to SORA's notice and duration of registration requirements that reads: "these terms are included only to provide an indication of the existing statutory provisions; the State of New York reserves the right to modify the scope and term of your registration as a sex offender," despite the fact that "[a] promise . . . with a reserved right to deny or change the effect of the promise, is an absurdity." Murray v. Charleston, 96 U.S. 432, 445 (1877).


[58] II. The District Court's Factual Findings Were Not Clearly Erroneous


[59] Even if the stipulation is ambiguous, we would be required to address the district court's factual findings, to which we owe considerable deference, in far more detail to be confident that vacatur is required . However, the majority opinion does not address this issue squarely, relegating to a footnote the finding that "to whatever extent the District Court might have made . . . finding[s] . . . [they] would be clearly erroneous." Majority Op. [17 n.9]. However, since "[w]here there are two permissible views of the evidence [of the parties' intent], the court's pure findings of fact cannot be termed clearly erroneous," United States Naval Institute v. Charter Communications, Inc., 875 F.2d 1044, 1049 (2d Cir. 1989), the majority opinion implicitly holds in the alternative that the district court's well-reasoned and thoughtful opinions below contained findings that were not even plausible. "The reviewing court oversteps the bounds of its duty under Rule 52(a) if it undertakes to duplicate the role of the lower court. In applying the clearly erroneous standard to the findings of a district court sitting without a jury, appellate courts must constantly have in mind that their function is not to decide factual issues de novo . . . . [T]he court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985).


[60] The district court found that defendants-appellants had "agreed to, and indeed bargained for" the notification procedures applicable to each class of SORA registrants, as embodied in the consent decree. Doe-SORA V, 439 F.Supp.2d at 326, see also Doe-SORA IV, 427 F.Supp.2d at 408-09 (considering how the circumstances of the litigation illuminate the parties' intentions). While the majority opinion contains a discussion of why the external evidence of the parties' intentions can be cast in a different light so as to reach a different finding, it does not address the pertinent question, of whether the district court's factual findings are so implausible as to constitute an impermissible view of the same record. Majority Op. [15-18]. Consequently, even if this court could demonstrate that the stipulation was ambiguous on its face, vacatur would not be warranted, because the district court's conclusion is a permissible view of the evidence.


[61] The majority opinion notes that there was no "objective evidence that the parties intended the duration and scope recitations to have the effect of prohibiting the State from applying future legislation on these topics to the Plaintiffs." Majority Op. [17 n.9]. However, the district court relied on the very same type of evidence that the majority argues is dispositive: the context provided by the earlier litigation. See, e.g. Doe-SORA IV, 427 F. Supp. 2d at 408-09. If this is not the sort of "objective evidence" that is adequate to support the district court's holding, it is not apparent why it would provide a more sufficient basis for this court's fact finding, particularly as "few persons are in a better position to understand the meaning of a [settlement] than the district judge who oversaw and approved it." United States v. Local 359, United Seafood Workers, 55 F.3d 64, 68 (2d Cir. 1995).


[62] The majority opines further that "there is no indication that the District Judge participated in developing any of the terms of the Stipulation that resulted in the decree." Majority Op. [15 n.7]. That may be true, but it does not establish that the district court was not familiar with the specifics of the dispute between the parties and their attempts at resolution. The District Judge below supervised-over the span of ten years-various challenges plaintiffs-appellants made to SORA, litigation which the majority believes to provide it with the necessary context for its construction of the consent decree. See Doe-SORA III, 3 F.Supp.2d 456 (Chin, J.); Doe-SORA I, 940 F. Supp. 603 (Chin, J.); Doe v. Pataki, 919 F.Supp. 691 (S.D.N.Y. 1996) (Chin, J.). Accordingly, the principle of deference this court announced in Local 359 applies a fortoiri in the instant case; there is no compelling argument in the majority opinion why it should be set aside.


[63] III. The Majority Relies on the Fact that One Party is a State, Without Specifying Precisely Why this Is Central to Construing the Contract: Winstar is Inapplicable


[64] The majority believes that the most important features of the context of the agreement are that one of the parties is a state, and that the designated forum for its enforcement is a federal court. While this is not unreasonable in itself, it leads the majority to another departure from this circuit's precedent by inspiring the creation of an unprecedented clear statement rule. While the majority opinion presents this new rule as a straightforward application of Supreme Court precedent, it misconstrues the leading case.


[65] The majority notes that federal courts exhibit a "traditional concern[] . . . for restrict[ing] a state's inherent powers." Majority Op. [18]. Accordingly, it reasons that a court construing a consent decree must have "a clear indication that a state has intended to surrender its normal authority to amend its statutes." Id. at [19]. However, what is at issue here is not a wholesale surrender of the police power or an implicit disavowal of the right to amend the statutes that exercise it, but rather whether a state may make a binding promise to certain of its citizens not to subject them to those future amendments.


[66] The majority relies on United States v. Winstar Corp. to support the novel clear statement rule, which it retroactively applies to plaintiffs-appellants, but the opinion does not engage in the analysis deemed critical by the Supreme Court in that case: whether the particular agreement at issue is of the type to which the unmistakability doctrine-i.e. the doctrine that requires that a contract purportedly binding a state to contractual obligations despite later legislative amendments to clearly indicate its intent to be so bound-is properly applicable:


[67] Injecting the opportunity for unmistakability litigation into every common contract action would, however, produce the untoward result of compromising the Government's practical capacity to make contracts, which we have held to be of the essence of sovereignty itself. From a practical standpoint, it would make an inroad on this power, by expanding the Government's opportunities for contractual abrogation, with the certain result of undermining the Government's credibility at the bargaining table and increasing the cost of its engagements. 518 U.S. 839, 884 (1996) (plurality opinion).*fn17 Accordingly, the majority's invocation of the unmistakability doctrine here in support of deference to state sovereignty is perplexing. The state also exercised a sovereign power when executing the stipulation; the majority opinion does not consider whether a federal court's declaration that this sovereign act was implicitly limited is consistent with the principles of federalism.*fn18


[68] Winstar establishes that when no clear statement rule such as the unmistakability doctrine is properly applicable, a sovereign may be held liable for its abrogation of a contractual agreement, because in that event, a bedrock principle of the common law dictates this outcome. The applicable principle is that a party assumes the risk that it will not be able to perform its obligation under the contract. Day v. United States, 245 U.S. 159, 161 (1917) (Holmes, J.) ("One who makes a contract never can be absolutely certain that he will be able to perform it when the time comes, and the very essence of it is that he takes the risk within the limits of his undertaking"). Although the majority opinion states that "there is no indication, however, that the Plaintiffs sought to have the duration-of-registration or the scope-of-notification requirements remain unaltered by subsequent state legislation," Majority Op. [17], this absence merely indicates that there was no provision in the contract stating that the government will be liable in the event that it cannot perform, because it would have been superfluous.


[69] The Supreme Court reaffirmed in Winstar that the government cannot ignore the common-law principle that a party responsible for the changed circumstances that make performance of its contractual obligations impossible cannot evade responsibility by pointing to the changed circumstances, or by asserting that the contract did not specify what should occur in that event. 518 U.S. at 904-910. Put simply, "[i]f the adverse event is due to the fault of the obligor, the offending party cannot be heard to cry that performance is impracticable." 30 Williston on Contracts § 77:1 (4th ed.); see also Restatement (Second) of Contracts § 264 cmt. a (1981).


[70] It follows directly from this principle that a state which amends its laws, such that it cannot perform its contractual obligation, is barred from asserting the defense of impracticability. See, e.g., 14 Corbin on Contracts, § 76.1 (2006) ("[t]he rule favoring discharge [for legal impossibility] following government prohibition does not apply, however, when the government action affects the contractual duties of the government itself.") The majority opinion turns this principle on its head. More problematically, it manufactures a wide-ranging exception to the common law, that: "the normal rules of construction may vary depending on the nature of the parties and the effect of enforcement," Majority Op. [16] and applies this exception for the first time here to create an additional hurdle for those attempting to vindicate their contractual rights against the government.


[71] IV. If the Majority Believes the Contract is Ambiguous, The Proper Disposition is Remand


[72] The majority opinion also fails to mention that the usual evidence that a court ordinarily uses to discern the parties' intentions is absent from the record before us. If the majority believes that the intentions of the parties are central to the proper construction of the contract, surely these intentions should be probed under oath, rather than relying on the representations of their attorneys at oral arguments. The majority opinion does not advance any reasons why this court should not undertake the normal course of action when we hold that a contract is ambiguous, which is to remand to the district court for an evidentiary hearing on the issue of the parties' intentions, where the parties might then submit parol evidence and evidence of custom and usage, among any other forms of evidence that might be probative of the parties' intent. See Int'l Multifoods Corp. v. Commercial Union Ins. Co., 309 F.3d 76, 87 (2d Cir. 2002). To make findings about the intentions of the parties according to the averments of counsel when we can easily remand for reopening of the record and further fact finding is contrary to our precedent that the "resolution of [factual] problems is not the province of an appellate tribunal, but of the trial court."


[73] M. W. Zack Metal Co. v. S.S. Birmingham City, 291 F.2d 451, 454 (2d Cir. 1961).


[74] In addition to what might be discovered if we were to allow for the introduction of parol evidence on remand, a hearing might reveal that the parties' intentions may even have been memorialized, and in any event, what is testified to under oath might be more illuminating than what was merely averred. At present, we also do not know if either party had any reason to be aware that the other was operating with a different understanding of the provisions now at issue, a point of critical importance. We also have no evidence as to which party chose the language at issue, so we cannot invoke the doctrine of contra proferentem.


[75] Finally, since the government's performance under the stipulation was frustrated by the legislation, any court that would decide the outcome of this dispute should have evidence of whether that legislation was forseeable-a question this court probed at oral argument without success-since "[i]f the risk of impossibility of performance was foreseeable, that contingency should have been addressed in the contract. The absence of such a contractual provision gives rise to an inference that the risk was assumed [by the obligor,]" in this case, the government. 30 Williston on Contracts, § 77.95 (4th ed.).


[76] Instead of allowing for the introduction of the evidence necessary for a well-reasoned resolution, the majority opinion reasons from the absence of evidence. The majority opinion mentions that there is "no indication" that certain events occurred -twice. If it not clear that opening the record would not reveal any such indications, there is no reason why this court should not allow the introduction of what might well prove to be crucial to our determination.


[77] While the question of whether or not the contract is ambiguous is one of law, determining the intent of the parties is not only factual, but often requires a painstaking reconstruction of their motivations and strategies and how these changed over time. "Words and conduct used in the process of making a contract-offers, acceptances, modifications, preliminary communications not themselves operative in any way-all these need interpretation . . . before we can determine the operative effect that should be given to the contract." 5 Corbin on Contracts, § 24.1 (2006). The majority opinion states that "what is in dispute is the operative effect of these recitations," Majority Op. [15], but resolves this question without even seeing any evidence of the words and conduct of the parties' negotiations, never mind attempting to interpret this evidence. This is a difficult endeavor in the best of circumstances: to attempt it with nothing but a cold and bare record as a guide is obdurate.


[78] CONCLUSION


[79] I cannot join in the majority's opinion. It dispenses with the plain meaning rule of contractual interpretation by proceeding directly to the question of the parties' intent without identifying an ambiguity visible on the face of the stipulation; it effectively reforms the stipulation, by means of what is admittedly construction -which this court has no authority to do in the absence of such an ambiguity; it does not adhere to several foundational principles of the common law of contracts; and it resolves the ambiguities as to the parties' intentions on the basis of an absence of evidence, where it would be a simple matter to reopen the record- which is entirely bare- in order to obtain vital information on several key issues. For these reasons, I respectfully dissent.



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Opinion Footnotes

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[80] *fn1 In fact, the pending case was never certified as a class action, presumably because the Plaintiffs withdrew their request for class certification upon the State's agreement that the District Court's rulings as to the named Plaintiffs would apply to those who were within the putative class described in the complaint.


[81] *fn2 The Supreme Court later rejected an Ex Post Facto Clause challenge to Alaska's Megan's Law. See Smith v. Doe, 538 U.S. 84 (2003).


[82] *fn3 As the District Court correctly noted, the Stipulation was the equivalent of a consent decree, see Doe v. Pataki (Doe-SORA IV), 427 F. Supp. 2d 398, 404 (S.D.N.Y. 2006), and the State has not sought review of that determination on this appeal. We will therefore refer to the Stipulation as a consent decree throughout this opinion, and our analysis applies to consent decrees whether or not they are explicitly denominated as such by the parties.


[83] *fn4 Paragraph fifteen states in its entirety: If a plaintiff's risk level is determined to be a level 2, that plaintiff will be considered to be a level 2 offender as of March 11, 2002; therefore, the duration of the registration requirement will be 10 years from the date of his or her original registration. If a plaintiff's risk level is determined to be a level 3, that plaintiff will be considered a level 3 offender as of March 11, 2002, requiring lifetime registration with the possibility of relief from registration 13 years after the date of his or her original registration. If a plaintiff's risk level is reduced to a level 1, that plaintiff will be considered a level 1 offender as of March 11, 2002; therefore, the duration of the registration requirement will be ten years from the date of his or her original registration.


[84] *fn5 For the remainder of this opinion, unless otherwise indicated, we refer generally to the group of persons benefitting from the District Court's various rulings as "the Plaintiffs." In fact, the Stipulation and the District Court's rulings make distinctions within the entire group of convicted sex offenders depending on various details such as the date of conviction and the applicable risk category. These details need not be recounted as none of them affects the ruling reflected in this opinion.


[85] *fn6 The State has not renewed this jurisdictional argument on appeal.


[86] *fn7 In this case, there is no indication that the District Judge participated in developing any of the terms of the Stipulation that resulted in the decree.


[87] *fn8 Our dissenting colleague appears to doubt that there is ambiguity as to the meaning of the Stipulation and then suggests that, if there is ambiguity, there is also a question as to whether the dispute as to the meaning of the Stipulation is "legitimate." Dissenting op. at [26]. Whether the recitations of duration of registration and scope of notification are set forth in the Stipulation only to reflect then-current state law or to bind the State to continue those provisions in force in the future is surely an ambiguity on which the parties (and any reader of the Stipulation) may reasonably differ, and the "legitima[cy]" of that dispute need not be further explained in order to require that it be resolved.


[88] *fn9 The Plaintiffs argue and the District Judge agreed that the ten-year registration duration was a key part of the parties' bargain because it encouraged level two Plaintiffs whose registration periods were soon to expire to waive their rights to a redetermination hearing. But the Plaintiffs' counsel conceded at the initial oral argument that the parties never bargained over the registration duration. Moreover, the fact that the registration duration then existing under the SORA may have encouraged some Plaintiffs to waive their rights to a redetermination hearing does not mean that the Plaintiffs bargained for that duration or that the State surrendered its legislative authority to increase the duration.
To whatever extent the District Court might have made an implicit finding as to the parties' intent to maintain the then-existing duration and scope provisions and even if we assume that such a finding was a finding of fact rather than a conclusion of law based on a construction of the Stipulation, such a finding would be clearly erroneous for lack of any objective evidence that the parties intended the duration and scope recitations to be anything other than a reflection of then-current state law and to have the effect of prohibiting the State from applying future legislation on these topics to the Plaintiffs.


[89] *fn10 The Plaintiffs appear to argue that if the decree does not guarantee them the duration of registration and the scope of community notification existing at the time of the Stipulation, they achieved no substantial benefit from it because the hearing procedures ordered by the District Court had already been incorporated into state law. But the 1999 amendment incorporating the hearing procedures required by the District Court applied only prospectively and did not provide for redeterminations of risk levels already assigned. Moreover, even if the 1999 amendment conferred any procedural rights on the Plaintiffs, the decree provided the Plaintiffs the substantial benefit of enforcing compliance with these procedures by invoking the District Court's contempt power, rather than by initiating a new lawsuit in the event of non-compliance with statutory requirements.


[90] *fn11 We have no occasion to consider whether a state court's subsequent limitation on the power of a state's executive authority to surrender any portion of a state's legislative authority might undo a commitment to continue a state law provision in force, thereby risking invalidation of the entirety of a consent decree. Cf. Pigford v. Glickman, 206 F.3d 1212, 1219 (D.C. Cir. 2000) (holding open possibility of modification of decree in the event of subsequent legislation).


[91] *fn12 The District Judge considered the deference normally accorded a state's authority to legislate, but did so only to answer what he understood to be the State's contention that it was entitled to abrogate terms of the Stipulation. Whether or not the State was asserting such a position, we are emphasizing the State's normal legislative authority, not for the purpose of authorizing any breach of the Stipulation, but for the far more limited and entirely appropriate purpose of construing the operative effect of the agreement that the State has made.


[92] *fn13 Our dissenting colleague points out that a party responsible for changed conditions that make contract performance impossible cannot assert such impossibility as a defense. See dissenting op. at [35]. That observation has no relevance to the pending litigation. The State is not contending that performance is impossible or impracticable. It is disputing only the extent of its contractual obligations, and it is correctly asserting that, under the Stipulation as properly construed, it did not contract to surrender its legislative power to modify provisions of state law mentioned in the Stipulation only to recite the content of then-current law. Nor is there any basis for a remand, see dissenting op. at [36], to take evidence as to the parties' intent on whether the recited state law provisions were to remain unamended. The Plaintiffs have made no claim that objective evidence exists beyond the undisputed circumstances we have discussed, which provide a clear basis for construing the Stipulation in the State's favor.


[93] *fn14 I have adopted the numeration of the cases brought challenging SORA by the plaintiffs-appellants as set forth in the majority opinion.


[94] *fn15 As will be discussed in Section III, infra, the question of whether a state can modify its contractual obligations through the amendment of legislation is a vexing one. While states possess a police power which the federal courts should avoid hindering, "[t]he United States Constitution prohibits the impairment of the obligation of contracts by the states . . . . [M]ost courts have held that statutes enacted subsequent to the making of a contract are not incorporated in the contract . . . . [Accordingly,] [t]o hold that such statutes are incorporated would possibly be an unconstitutional impairment of contract rights, because the parties assented to be bound to a different set of rights and obligations." 5 Corbin on Contracts, § 24.26 (2006).


[95] *fn16 This court has implicitly held that the state law of the forum applies to stipulations settling federal claims. Torres v. Walker, 356 F.3d 238, 245-46 (2d Cir. 2004). This court has also determined that the principle of whether the existence of ambiguity in a written agreement must be determined from the face of the agreement is embodied in New York law. Collins, 303 F.3d at 433 Accordingly, by looking instead to the attendant circumstances to reveal the ambiguity, the majority opinion not only disregards the circuit's precedent, but binding New York law, a violation of the very principles of federalism that the majority argues should inform our decision.


[96] *fn17 While it is virtually certain that the stipulation at issue in the instant case would be governed by the unmistakability doctrine if the United States were one of the parties, it far from certain whether it applies here, since the Contract Clause applies directly to the States, whereas Congress is merely the subject of analogous but less exacting limitations on its ability to abrogate its contractual obligations derived from the Due Process Clause. U.S. Const. art. I, § 10, cl. 1; U.S. Const. amend. V; see also United States Trust Co. of N.Y. v. New Jersey, 431 U.S. 1, 17 n.13 (1977) (contrasting Contract Clause with Due Process Clause); Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 717, 732-33 (1984) (similar).


[97] *fn18 Since the majority opines that the unmistakability doctrine is "more pertinent to the issue" here than the clear statement rules for the surrender of sovereign immunity, Majority Op. [21], the defects in the analogy drawn by the majority between this case and our Eleventh Amendment jurisprudence need not be explored, except to note that the surrender of immunity from suit in federal court vests jurisdiction where a federal court would otherwise have none, see Seminole Tribe v. Florida, 517 U.S. 44, 73 (1996), but there is no such "jurisdictional bar" to a district court's construction of a stipulation executed under that court's supervision, especially where the parties explicitly bargained for that court's supervision of the resulting consent decree. Cf. Geller v. Branic Int'l Realty Corp., 212 F.3d 734, 737 (2d Cir. 2000).

Freeman v. Watkins, 479 F.3d 1257 (10th Cir. 03/16/2007)

[1] UNITED STATES COURT OF APPEALS TENTH CIRCUIT


[2] No. 06-1394


[3] 479 F.3d 1257,


[4] March 16, 2007


[5] RUSSELL E. FREEMAN, PETITIONER-APPELLANT,
v.
GARY WATKINS, FREMONT CORRECTIONAL FACILITY WARDEN, GLORIA MASTERSON, FREMONT CORRECTIONAL FACILITY ASSOCIATE WARDEN, MICHAEL CLARK, FREMONT CORRECTIONAL FACILITY CORRECTIONS OFFICER, REC, LISA LEHN, FREMONT CORRECTIONAL FACILITY LIEUTENANT, CHARLES TAPPE, FREMONT CORRECTIONAL FACILITY HEARING OFFICER, BRIAN BRADEN, FREMONT CORRECTIONAL FACILITY LIFE SAFETY COORDINATOR, CHUCK DONLEY, FREMONT CORRECTIONAL FACILITY CAPTAIN, MARIA BORK, FREMONT CORRECTIONAL FACILITY CORRECTIONS OFFICER, DONNIE MCCLURE, FREMONT CORRECTIONAL FACILITY CORRECTIONS OFFICER, DARRYL DIRECTO, FREMONT CORRECTIONAL FACILITY LIEUTENANT, BETTY RIGGIN, FREMONT CORRECTIONAL FACILITY LIEUTENANT, JOHN CARROLL, FREMONT CORRECTIONAL FACILITY CASE MANAGER III, ROBERT LEW IS, FREMONT CORRECTIONAL FACILITY CASE MANAGER, LARRY REID, COLORADO STATE PENITENTIARY WARDEN, CATHIE SLACK, COLORADO STATE PENITENTIARY ASSOCIATE WARDEN, JOE ORTIZ, COLORADO DEPARTMENT OF CORRECTIONS EXECUTIVE DIRECTOR, LIEUTENANT DEPPE, FREMONT CORRECTIONAL FACILITY LIEUTENANT, CATHIE HOLST, DEPARTMENT OF CORRECTION LAW LIBRARIAN, CHARLES GIGANTE, FREMONT CORRECTIONAL FACILITY CAPTAIN, ROBERT ALLEN, FREMONT CORRECTIONAL FACILITY ASSOCIATE WARDEN, ANGEL MEDINA, COLORADO STATE PENITENTIARY SECURITY MAJOR, AND ANY AND ALL OTHER JOHN DOES, SEVERALLY AND JOINTLY IN THEIR OFFICIAL CAPACITY, DEFENDANTS-APPELLEES.


[6] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. NO. 06-CV-405-Z).


[7] Russell E. Freeman, appearing pro se.


[8] The opinion of the court was delivered by: Tymkovich, Circuit Judge


[9] PUBLISH


[10] Before TACHA, Chief Judge, HARTZ, and TYMKOVICH, Circuit Judges.*fn1


[11] Russell E. Freeman, a Colorado state prisoner, files this pro se appeal of the district court's dismissal of his civil rights case. In his 42 U.S.C. § 1983 complaint, Freeman asserted six violations of his constitutional rights: (1) denial of due process in connection with three disciplinary convictions, (2) cruel and unusual punishment based on the conditions of his confinement, (3) retaliation by the defendants, (4) unequal treatment based on his ethnic origin, (5) deprivation of personal property, and (6) denial of access to courts.


[12] A magistrate judge ordered Freeman to file an amended complaint alleging specific facts (1) supporting the claims he is asserting, (2) demonstrating how each defendant personally participated in the alleged constitutional violations, and (3) clarifying how he has exhausted the administrative remedies for each claim. Although Freeman's amended complaint sufficiently complied with the magistrate judge's first two requirements, he failed to demonstrate that he exhausted administrative remedies for all of his claims. The district court found that Freeman properly exhausted remedies on his first claim- the validity of disciplinary convictions, but failed to do so on his remaining five claims. Because Freeman failed to comply with our "total exhaustion" requirement for prisoner § 1983 claims, the district court then dismissed the complaint and the entire action without prejudice.


[13] Freeman appeals the district court's determination. As he proceeds pro se, we construe his pleadings liberally. Cummings v. Evans, 161 F.3d 610, 613 (10th Cir. 1998). In this appeal, Freeman argues that the district court erred in (1) applying the total exhaustion requirement to his § 1983 action; (2) raising the exhaustion requirement sua sponte, holding that it is not an affirmative defense, and placing the burden of establishing it on Freeman; (3) divesting itself of subject matter jurisdiction based on the failure to exhaust; (4) finding that Freeman did not exhaust his available remedies; and (5) denying his motion for leave in forma pauperis (IFP).


[14] Under the prior precedent of this circuit, Freeman's claims would have been unavailing. In Ross v. County of Bernalillo, 365 F.3d 1181, 1190 (10th Cir. 2004), we construed the Prison Litigation Reform Act (PLRA) to append a "total exhaustion" requirement to § 1983 actions. Section 1997e(a) of Title 42 provides that "[n]o action shall be brought with respect to prison conditions under [42 U.S.C. § 1983] . . . until such administrative remedies as are available are exhausted." We interpreted this to require a prisoner to exhaust remedies on all his claims or face dismissal. Thus, if a prisoner submits a complaint containing one or more unexhausted claims, the district court must generally dismiss the entire action without prejudice. Id.


[15] Next, in Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1209 (10th Cir. 2003), we parted company with those circuits interpreting § 1997e(a)'s exhaustion requirement as an affirmative defense. See, e.g., Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003). Rather, we concluded that § 1997e(a) charged prisoners with the burden of pleading exhaustion and a complaint "that fails to allege the requisite exhaustion of remedies is tantamount to one that fails to state a claim upon which relief may be granted." Steele, 355 F.3dat 1210. Consequently, prisoners must "either attach copies of administrative proceedings or describe their disposition with specificity." Id. at 1211. Failure to so plead or demonstrate exhaustion would foreclose litigation of the claims. The purpose of these two practices was to reduce the burden of prisoner litigation on the courts and was consistent with the PLRA's mandate to judicially screen frivolous prisoner suits.


[16] Nevertheless, during the pendency of Freeman's appeal, the Supreme Court handed down a decision which effectively overruled both Ross and Steele. In Jones v. Bock, Warden, 127 S.Ct. 910 (2007), the Court resolved the circuit splits surrounding these two issues and (1) found "that the failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints," id. at 921, and (2) specifically abrogated the "total exhaustion" requirement, id. at 923--26.


[17] In concluding that exhaustion is an affirmative defense to be asserted and pleaded by defendants, the Court noted that under the Federal Rules of Civil Procedure practice a complaint requires only a "short and plain statement of the claim," Rule 8(a), and exhaustion is usually treated as an affirmative defense, Rule 8(c). Id. at 919. The Court reasoned that, without specific leave from the PLRA, "courts should not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns." Id.


[18] The Court also disagreed with our interpretation of § 1997e(a)'s "no action shall be brought" in Ross. While we construed "no action" to mean a prisoner's entire case should be dismissed if it contained any unexhausted claim, the Court found this to be only "boilerplate language." Id. at 924. Instead, it found that "statutory references to an 'action' have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the 'action' may proceed." Id. Furthermore, the Court dismissed our policy argument that total exhaustion furthers the PLRA's screening purpose. See Ross, 365 F.3d at 1190. On the contrary, the Court felt the rule could lead prisoners into filing separate suits with varying claims to avoid the harsh results of the "total exhaustion" requirement. Jones, 127 S.Ct. at 925--26. Accordingly, the Court mandated, "if a complaint contains both good and bad claims, . . . court[s] proceed[] with the good and leave[] the bad." Id. at 924.


[19] Since Jones overrules Steele andRoss, we have no choice but to reverse the district court's order dismissing Freeman's action. See Acquilar-Avellaveda v. Terrell, No. 06-3334, 2007 WL 646150 at *2 (10th Cir. Mar. 5, 2007) ("Steele is no longer good law."). Freeman no longer has the duty of pleading exhaustion, and therefore it is no longer appropriate for the district court to require an affirmative showing of exhaustion at this stage of the case. As Jones makes clear, exhaustion is an affirmative defense and defendants now have the burden of asserting the failure to exhaust in their response pleadings.


[20] As we found in Acquilar-Avellaveda, this holding does not wholly foreclose the district court's ability to raise sua sponte the exhaustion requirement. If it is clear on the face of Freeman's complaint that he had not exhausted his administrative remedies, then the district court properly may raise the exhaustion question sua sponte, consistent with 42 U.S.C. § 1997e(c)(1) and 28 U.S.C. §§ 1915 and 1915A, and seek additional information from Freeman. AcquilarAvellaveda, 2007 WL 646150 at *2. Nevertheless, we caution that "only in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse." Id. Our decision today does not reach whether Freeman's complaint is susceptible to a sua sponte order to present information on exhaustion.


[21] Since we vacate the district court's findings on the issue of exhaustion in their entirety, we need not consider Freeman's other exhaustion-related claims.


[22] Finally, Freeman claims the district court failed to supply the reasons for denying his IFP motion in violation of Federal Rule of Appellate Procedure 24(a)(2). Rule 24(a)(2) states, "[i]f the district court denies the motion [to proceed in forma pauperis], it must state its reasons in writing." In its order denying Freeman's IFP motion, the district court held that Freeman's "appeal is not taken in good faith because Plaintiff has not shown the existence of a reasoned, non-frivolous argument on the law and facts in support of the issues raised on appeal." While we would ordinarily find such an explanation sufficient to satisfy Rule 24(a)(2), in this case, we grant Freeman's renewed IFP motion because the district court's conclusion likely rested on our now-superceded precedent.


[23] Consistent with the reasons set forth above, we VACATE the district court's decision and REMAND for further proceedings in accordance with Jones v. Bock. We further GRANT Freeman's renewed IFP motion and remind him that he is obligated to make partial payments on the filing fee until the entire fee has been paid.



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Opinion Footnotes

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[24] *fn1 After examining appellant's brief and the appellate record, this threejudge panel has determined unanimously that oral argument would not be of material assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

JOE MARTINEZ, Plaintiff-Appellant, v. DR. RICHARD GARDEN, M.D., at the Utah State Prison, individually; DR. KENNON TUBBS, M.D., at the Utah State Prison, individually; DR. SIDNEY ROBERTS, M.D., at the Utah State Prison, individually; CHRIS ABBOTT, P.A., at the Utah State Prison, individually; TERRY JEFFERIES, P.A., at the Utah State Prison, individually; JOHN DOES 1-10, employees at the Utah State Prison, individually, Defendants.



No. 05-4019



UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT



430 F.3d 1302; 2005 U.S. App.



December 13, 2005, Filed



PRIOR HISTORY: [**1] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH. (D.C. No. 2:03-CV-230-DB).




COUNSEL: Submitted on appellant's brief:



Joe Martinez, Pro se, Appellant.



JUDGES: Before LUCERO, ANDERSON, and BRORBY, Circuit Judges.



OPINION BY: BRORBY



OPINION: [*1303] BRORBY, Circuit Judge.

Plaintiff, Joe Martinez, an inmate at the Utah State Prison, appeals from an order of the district court dismissing his pro se, 42 U.S.C. § 1983 complaint for failure to state a claim on which relief may be granted. For the reasons below, we reverse the order and remand the case for further proceedings. *



* After examining the brief and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.



THE COMPLAINT

According to the allegations in the complaint, Mr. Martinez has a cyst on [**2] his left testicle and epididymis of his right testicle. He claims that these conditions were diagnosed by a physician in June 2002, and he was told that if his symptoms did not resolve themselves within a month, he would need surgery.

Mr. Martinez alleges that his condition never improved and that defendants failed [*1304] to provide the required surgery at either the prison or an outside facility. He alleges that he is in constant pain as a result of the failure to treat him.

As to the failure to provide medical treatment, Mr. Martinez claims that defendants have told him that "there is nothing they can do for [his] condition because he has missed medical appointments." R. I., doc. 7 at 3-4. He alleges that he has "not been informed of the medical appointments," and that he is "required to rely upon the staff at the Department of Corrections" to schedule and "arrange transportation" for his appointments. Id. at 4.

His § 1983 complaint, which was filed following exhaustion of his administrative remedies, seeks redress for violation of his Eighth Amendment right against cruel and unusual punishment, including compensatory and punitive damages and an order directing defendants to [**3] provide the prescribed medical care.

THE STANDARD OF REVIEW

This court reviews a decision to dismiss for failure to state a claim de novo, and "dismissal of a pro se complaint . . . is proper only where it is obvious that the plaintiff cannot prevail on the facts he has alleged and it would be futile to give him an opportunity to amend." Gaines v. Stenseng, 292 F.3d 1222, 1224 (10th Cir. 2002) (quotation omitted). In addition to construing a pro se complaint liberally, this court "must accept the allegations of the complaint as true and construe those allegations, and any reasonable inferences that might be drawn from them, in the light most favorable to the plaintiff." Id. (citation omitted). n1



n1 None of the defendants were served in the district court. Thus, there are no responses to the complaint, nor do they appear in this court on appeal.



THE EIGHTH AMENDMENT

A "deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain [**4] proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976) (citation omitted). "This is true whether the indifference is manifested by prison doctors in their response to the prisoner's needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed. Regardless of how evidenced, deliberate indifference to a prisoner's serious illness or injury states a cause of action under § 1983." Id. at 104-05.

"'Deliberate indifference' involves both an objective and a subjective component." Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000).

The objective component is met if the deprivation is "sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994) (quotation omitted). "A medical need is sufficiently serious if it is one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Sealock, 218 F.3d at 1209 (quotation omitted).

"The [**5] subjective component is met if a prison official knows of and disregards an excessive risk to inmate health or safety." Id. (quotation omitted). In measuring a prison official's state of mind, "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Riddle [*1305] v. Mondragon, 83 F.3d 1197, 1204 (10th Cir. 1996) (quotation omitted).

THE DISTRICT COURT ORDER

The district court concluded that the allegations in Mr. Martinez's complaint were sufficient to establish an objectively serious deprivation. However, the court found that the allegations failed to meet the subjective test of deliberate indifference.

In reaching this conclusion, the district court found that the "only factual allegation regarding deliberate indifference was the alleged statement by Defendants that 'there is nothing they can do for [him] because he has missed medical appointments.'" R. I., doc. 22 at 5. The court attributed the lack of treatment to inadvertence or negligence on the part of defendants, and dismissed the complaint because a negligent or inadvertent failure to provide medical [**6] care is not actionable in a § 1983 lawsuit. See Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980).

Instead, viewing the allegations and drawing the reasonable inferences therefrom in the light most favorable to Mr. Martinez, the complaint can be read to allege that defendants knew of his serious medical condition, and despite this knowledge, failed to ensure that he received treatment. Knowledge of his medical condition, coupled with the alleged failure to inform him of medical appointments or to arrange transportation, may give rise to an inference that defendants acted with deliberate indifference. Alternatively, because Mr. Martinez also alleges that he was never informed of the medical appointments, one could infer that defendants did not make the appointments, thus also potentially establishing deliberate indifference.

The district court's summary conclusion that "defendants have attempted to provide [Mr. Martinez] treatment by arranging medical appointments for him," R. I., doc. 22 at 5, is not supported by any evidence, disregards the allegations that he has never been informed of the medical appointments, and improperly construes the allegations in the [**7] complaint and the reasonable inferences drawn from them against Mr. Martinez, instead of in his favor. In reaching this conclusion, we do not express any opinion regarding the merits of the case.

The district court's order dismissing the complaint is REVERSED, and this matter is REMANDED for proceedings consistent with this opinion. Mr. Martinez's motion to proceed in forma pauperis is GRANTED, and he is reminded of his continuing obligation to make partial payments until he has paid the filing fee in its entirety.