Khurana v. Innov Hlth Care , 164 F.3d 900 ( 1998 )

  •                                REVISED
                       UNITED STATES COURT OF APPEALS
                             FOR THE FIFTH CIRCUIT
                                 No. 96-30525
                                RAJIV KHURANA,
                Appeal from the United States District Court
                    for the Eastern District of Louisiana
                               December 12, 1997
    Before WIENER, PARKER, Circuit Judges, and LITTLE,* Chief District
    PARKER, Circuit Judge:
         Dr. Rajiv Khurana appeals the district court’s dismissal of
    his complaint pursuant to Fed. R. Civ. P. 12(b)(6) on the basis
    that he did not have standing to bring his civil claims under the
    Racketeer Influenced and Corrupt Organizations Act (“RICO”) and
            Chief Judge of the Western District of Louisiana, sitting by
    alternatively, because Khurana failed to plead a RICO enterprise
    separate and distinct from the defendant in some of his civil
    claims based on 18 U.S.C. § 1962(c).         Finding that Khurana may have
    standing for some of his civil RICO claims, we affirm in part and
    reverse and remand in part.
                             FACTS AND PROCEEDINGS BELOW
           For purposes of this appeal, we accept the following factual
    allegations as true.
           Dr. Rajiv Khurana (“Khurana”) filed suit in Louisiana state
    court against the defendant-appellees, alleging defamation and
    wrongful discharge from his position as Medical Director of River
    Region Hospital in Vacherie, Louisiana,1 as well as civil claims
    under      the   Racketeer   Influenced    and   Corrupt   Organizations   Act
    (“RICO”), U.S.C. § 1961 et seq., based on violations of 18 U.S.C.
    § 1962(b), (c), and (d).2        Khurana’s civil RICO claims arise from
            Khurana’s state law claims were remanded to state court following
    the district court’s Fed. R. Civ P. 12(b)(6) dismissal of his RICO claims.
    Only issues related to the dismissal of Khurana’s RICO claims are before
    the panel.
               18 U.S.C. § 1962(b)-(d) is as follows:
                  (b) It shall be unlawful for any person through a
               pattern of racketeering activity or through collection of
               an unlawful debt to acquire or maintain, directly or
               indirectly, any interest in or control of any enterprise
               which is engaged in, or the activities of which affect,
               interstate of foreign commerce.
                (c)    It shall be unlawful for any person employed by or
               associated with any enterprise engaged in, or the
               activities of which affect, interstate or foreign
               commerce, to conduct or participate, directly or
               indirectly, in the conduct of such enterprise’s affairs
               through a pattern of racketeering activity or collection
               of unlawful debt.
                (d)    It shall be unlawful for any person to conspire to
               violate any of the provisions of subsection (a), (b), or
    a Medicare and Medicaid fraud scheme in which the appellees were
         River Region Hospital (“River Region” or “hospital”) is an
    owned   subsidiary    of   Innovative    Health     Care     Systems,   Inc.
    (“Innovative”).    Both River Region and Innovative are defendant-
    appellees in this action.      Defendant-appellees also include Karry
    Teel and Carl Holden, who hold offices in both Innovative and River
    Region, and William    Malone, River Region’s administrator.
         Khurana is a practicing physician with dual specialities in
    psychiatry and neurology.      In July 1993, Khurana was hired to be
    River   Region’s   Assistant   Medical   Director    under    a   three-year
    contract.    Khurana agreed to join River Region as its Assistant
    Medical Director on the basis of fraudulent misrepresentations as
    to the legitimacy of the hospital’s operations and qualifications.
    In June of 1994, Khurana was named the hospital’s Medical Director.
    After his promotion, he became aware that the hospital was engaging
    in fraudulent Medicaid and Medicare practices.         He was discharged
    from his position as Medical Director six months later in January
    of 1995.    The hospital went out of business in 1996.
         After the appellees removed the suit to federal court, Khurana
    filed an amended complaint alleging that the appellees committed a
    variety of RICO predicate acts (wire and mail fraud, extortion,
    bribery, witness tampering, and violation of the Travel Act, 18
    U.S.C. § 1952) and that these acts constituted a pattern of
    racketeering activity in violation of § 1962(b) and § 1962(c).
            (c) of this section.
    Khurana also alleged a conspiracy, in violation of 18 U.S.C.
    § 1962(d), to violate 18 U.S.C. § 1962(b) and § 1962(c).             In his
    complaint, Khurana contended (1) that he was fraudulently induced
    into “harmful employment associations” which caused him a loss of
    legitimate business opportunity and damage to his professional
    reputation, (2) that he was wrongfully discharged which caused him
    a loss in earnings, benefits and reputation, and (3) that the
    appellees’ “illegal competition” with him in his private and
    hospital practices caused him a loss in business income.
           The appellees filed a motion to dismiss Khurana’s RICO claims
    pursuant to Fed. R. Civ. P. 12(b)(6).         The appellees argued to the
    district court that (1) Khurana did not have standing to assert the
    RICO   claims,   and   that   (2)   Khurana   failed   to   allege   a   RICO
    “enterprise” separate and distinct from a RICO “person,” i.e., a
    perpetrator, associated with or employed by the enterprise as
    required for claims based on 18 U.S.C. § 1962(c).             The district
    court granted the motion and Khurana now presents this panel with
    the same two issues in his appeal.
                             I. Standard of Review
           We review the dismissal of a complaint for a failure to state
    a claim for which relief can be granted under Fed. R. Civ. P.
    12(b)(6) de novo.      Fernandez-Montes v. Allied Pilots Ass’n, 
    987 F.2d 278
    , 284 (5th Cir. 1993).      A claim may not be dismissed unless
    it appears beyond doubt that the plaintiff cannot prove any set of
    facts in support of his claim which would entitle him to relief.
    Benton v. United States, 
    960 F.2d 19
    , 21 (5th Cir. 1992).               For
    purposes of our review, we must accept the plaintiff’s factual
    allegations as true and view them in a light most favorable to the
    plaintiff.    Campbell v. City of San Antonio, 
    43 F.3d 973
    , 975 (5th
    Cir. 1995).
                        II.   § 1964(c) RICO Standing
         The   appellant   argues   that   the   district   court   erred   in
    dismissing the RICO claims because proper causation between his
    injuries and RICO violations was pleaded, giving him standing. The
    appellees collapse the appellant’s injuries into one mass of
    discharge complaints and contend that Khurana cannot have standing
    for any of his claims because he was not the target of any
    Medicaid/Medicare fraud scheme. We disagree that Khurana’s alleged
    injuries may be viewed as a homogeneous group.          We consider the
    injuries individually because Khurana’s standing for each turns on
    a proximate causation inquiry.
         A.    Overview of § 1964(c) Standing
         Section 1964(c) provides that
           [a]ny person injured in his business or property by
           reason of a violation of section 1962 of this
           chapter may sue therefor in any appropriate United
           States district court and shall recover threefold
           the damages he sustains and the cost of the suit,
           including a reasonable attorney’s fee.
    18 U.S.C. § 1964(c).      In order to establish standing under §
    1964(c), a plaintiff must show (1) a violation of § 1962, (2) an
    injury to his business or property, and (3) that his injury was
    proximately caused by a RICO violation.       See Holmes v. Securities
    Investor Protection Corp., 
    503 U.S. 258
    112 S. Ct. 1311
    117 Lans. Ch. 5
    Ed. 2d 532 (1992); Cullom v. Hibernia Nat’l Bank, 
    859 F.2d 1211
    1214 (5th Cir. 1988).          Khurana challenges the district court
    determination that his injuries were not proximately caused by RICO
           When   the    Supreme   Court   announced    the   proximate   cause
    prerequisite to § 1964(c) standing in Holmes, 
    503 U.S. 258
    , it
    directed us to “the many shapes this concept took at common law.”
    Id. at 268.
             [W]e use “proximate cause” to label generically the
             judicial   tools   used    to   limit   a   person’s
             responsibility for the consequences of that person’s
             own acts. At bottom, the notion of proximate cause
             reflects “ideas of what justice demands, or of what
             is administratively possible, or of what is
             administratively possible and convenient.”        W.
             Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser &
             Keeton on Law of Torts § 41, p. 264 (5th ed. 1984).
    Id. at 268.         In Holmes, the Court held that an alleged stock
    manipulation scheme that disabled two broker-dealers from meeting
    obligations to customers did not proximately cause the claimed
    injury of a plaintiff-corporation subrogated to the rights of the
    broker-dealers’ non-purchasing customers.          Such was too remote an
    injury to satisfy the proximate cause requirement because only an
    intervening insolvency connected the RICO conspirators’ acts to the
    customers’ injuries.      Id. at 271.      Taking guidance from the common
    law’s enunciation of proximate causation, the Court reasoned that
    those injured only “indirectly” by racketeering activity do not
    have § 1964(c) standing.3       Id. at 268, 274.    Allowing for recovery
            The Court noted that in using such a term, it did “not necessarily
    use it in the same sense as courts before us have.” Holmes, 503 U.S. at
    274 n.20.
    for the Holmes’ secondary victims would run afoul of proximate
    causation standards.          Id. at 274.    In her concurrence, Justice
    O’Connor explained that the “words ‘by reason of’ [in § 1964(c)]
    operate . . . to confine RICO’s civil remedies to those whom the
    defendant has truly injured in some meaningful sense.”4                Id. at
    279.        The proximate cause requirement is intended to preclude
    recovery by plaintiffs who “complain[] of harm flowing merely from
    the misfortunes visited upon a third person.”           Id. at 268.
            In    Holmes,   the   Court   acknowledged   that    articulating   a
    definition of “proximate cause” for purposes of § 1964(c) standing
    analysis was difficult:5 “the infinite variety of claims that may
    arise make it virtually impossible to announce a black-letter rule
    that will dictate the result in every case.           Thus, our use of the
    term ‘direct’ should be merely understood as a reference to the
    proximate cause enquiry that is informed by the concerns set out in
    the text.”       503 U.S. at 274 n.20.6     These concerns have been cited
                 To repeat, 18 U.S.C. § 1964(c) is as follows:
                Any person injured in his business or property by reason
                of a violation of section 1962 of this chapter may sue
                therefor in any appropriate United States district court
                and shall recover threefold the damages he sustains and
                the cost of the suit, including reasonable attorney’s
    (emphasis added).
            In fact, it is generally true that an articulation of the meaning
    of “proximate cause” is a “fruitless quest for a universal formula.”
    Prosser & Keeton on Torts § 42, p. 279. “The search for some test or
    formula which will serve as a universal solvent for all of the problems of
    ‘proximate cause’ has occupied many writers.” Id. at 276.
                 In his concurrence, Justice Scalia offered a thought in the same
    as the demands of justice, a reluctance to open the flood gates to
    administratively      inconvenient        and   unmanageable   litigation,
    Standardbred Owners Ass’n v. Roosevelt Raceway Assocs., 
    985 F.2d 102
    , 104 (2d Cir. 1993) (citing Holmes, 112 S. Ct. at 1316 n.10,
    1318), the potential for duplicative recoveries and superfluous
    deterrence, In re Am. Express Co. Shareholder Litig., 
    39 F.3d 395
    401 (2d Cir. 1994), and the statutory goal of encouraging directly
    injured victims to act as private attorneys general to vindicate
    the law, Mendelovitz v. Vosicky, 
    40 F.3d 182
    , 185 (7th Cir. 1994);
    Bieter Co. v. Blomquist, 
    987 F.2d 1319
    , 1325 (8th Cir. 1993).
           Given that factual causation (i.e., “cause-in-fact” or “but-
    for” causation) is now clearly insufficient to confer § 1964(c)
    standing, see, e.g., Standardbred, 985 F.2d at 104, we are left
    with the common law of proximate causation in making civil RICO
    standing determinations.      “[T]he holding of Holmes is no more than
    that   common   law   ideas   about   proximate    causation   inform   the
    understanding of RICO.”       Israel Travel Advisory Serv., Inc. v.
    Israel Identity Tours, Inc., 
    61 F.3d 1250
    , 1257 (7th Cir. 1995),
    cert. denied, — U.S. —, 
    116 S. Ct. 1847
    134 L. Ed. 2d 948
    The pertinent inquiry in determining the existence of proximate, or
    “legal,” cause is “whether the conduct has been so significant and
    important a cause that the defendant should be held responsible.”
             The degree of proximate causality required to recover
             damages caused by predicate acts of sports bribery, for
             example, will be quite different from the degree required
             for damages caused by predicate acts of transporting
             stolen property.
    503 U.S. at 288 (Scalia, J., concurring) (statutory citations omitted).
    Chisholm v. TransSo. Fin. Corp., 
    95 F.3d 331
    , 336 (4th Cir. 1996)
    (quoting Prosser & Keeton on Torts § 42, p. 272 (5th ed. 1984)).
    The proximate cause determination for RICO standing is guided by
    indications     of     preconceived   purpose,     specifically   intended
    consequence, necessary or natural result, reasonable foreseeability
    of result, the intervention of independent causes, whether the
    defendant’s acts are a substantial factor in the sequence of
    responsible causation, and the factual directness of the causal
    connection.     See, e.g., Chisholm, 95 F.3d at 338; In re Am.
    Express, 39 F.3d at 400; Standardbred, 985 F.2d at 104.
           B.   Termination as a Result of a § 1962(b) or § 1962(c)
           Khurana claimed that he was discharged from his position as
    Medical Director of River Region Hospital because he refused to
    participate in and attempted to stop the appellees’ RICO activities
    and that his discharge was an act in furtherance of the appellees’
    fraud scheme.        Those claims are foreclosed for a § 1962(b) or §
    1962(c) violation.      In Cullom v. Hibernia Nat’l Bank,7 we held that
    an employee who refuses to participate in an activity that violates
    RICO and is constructively discharged for such a refusal does not
    have standing to sue under § 1964(c).            
    859 F.2d 1211
    , 1212 (5th
    Cir. 1988).     We found that such a situation lacked the necessary
    “causal connection” between the discharge and the predicate acts.
    Id. at 1216 (discussing and relying on RICO “whistle blower” cases
            While Cullom predated Holmes, like Holmes, it imposed a proximate
    causation requirement for § 1964(c) standing. Thus, Holmes did not disturb
    the our holding in Cullom.
    and citing Sedima, 
    473 U.S. 479
    ).             In order to have standing,
    Khurana’s     injury,    here   his     discharge,     must     “flow       from   the
    commission of the predicate acts.”           Id. (quoting Sedima, 473 U.S.
    at 497).       In our proximate causation discussion in Cullom, we
    explained that “Cullom’s injury resulted from SNB’s decision to
    fire    him    after    he   refused    to   participate        in    the    alleged
    scheme . . . [N]either Cullom’s injury nor SNB’s decision to fire
    Cullom resulted from the alleged predicate acts.”                    Id. at 1216.
           Just as in Cullom, Khurana pleaded predicate acts for the
    alleged violations which did not proximately cause his termination.
    Accordingly,     Khurana     lacks     standing   to    bring    a     civil   claim
    asserting termination injuries resulting from a § 1962(b) or §
    1962(c) violation.
           C.     Loss of Business Income as               a Result of “Illegal
                  Competition” with Khurana’s              Hospital and Private
           We confront the same standing questions with respect to
    Khurana’s standing to bring his civil RICO claim for “illegal
    competition:” was there (1) an alleged injury to property or
    business (2) proximately caused by (3) a RICO violation?                           See
    Holmes, 503 U.S. at 258; Cullom, 859 F.2d at 1214.
           Khurana alleges that the defendants illegally competed with
    his post-termination medical practice.                 The defendants treated
    psychiatric patients for which they illegally obtained Medicaid and
    Medicare reimbursement, thus depleting the available number of
    reimbursable patients in the region, some of whom might otherwise
    have been treated by Khurana and other area hospitals at which he
           Khurana’s loss of business income is too remote to satisfy the
    proximate causation requirement.           See Holmes, 503 U.S. at 267, 272
    (“direct-injury     limitation     [is]    among    the     requirements      of   §
    1964(c)”).      Khurana’s injury does not “flow,” Sedima, 473 U.S. at
    497,   from    either   the   conspiracy     to    engage    in   a   pattern      of
    racketeering activity or from any engagement in a pattern of
    racketeering activity.        There are intervening factors between the
    defendants’      fraudulently      obtaining       Medicaid       and   Medicare
    reimbursement and Khurana’s loss of business income, e.g., a
    significant reduction of the available pool of patients in that
    market, patients’ choices of physicians, Khurana’s ability to
    accommodate additional patients, and exhaustion of state-allocated
    funds.        Justice   Scalia   offered     an    apt    observation    in     his
    concurrence in Holmes.
             Life is too short to pursue every human act to its
             remote consequences; “for want of a nail, a kingdom
             was lost” is a commentary on fate, not the statement
             of a major cause of action against a blacksmith.
    503 U.S. at 287. The necessary contributing factors to this injury
    to Khurana make it clear that such an injury was not proximatley
    caused by the defendants.        See, e.g., Pillsbury, Madison & Sutro v.
    31 F.3d 924
     (9th Cir. 1994) (finding proximate cause
    lacking because plaintiff subleased office space from another
    entity and direct harm ran to the master tenant since plaintiff’s
    harm was contingent on the master tenant’s decision to pass the
    rent increase through to the subletter-plaintiff); Imagineering
    Inc. v. Kiewet Pacific Co., 
    976 F.2d 1303
    , 1312 (9th Cir. 1992)
    (finding no        “direct      relationship”           between    defendants’        conduit
    scheme     and    plaintiffs’          failure      to     earn    certain       profits    on
    subcontracts because intervening inability of prime contractors to
    secure the contracts was direct cause of plaintiffs’ injuries);
    Firestone v. Galbreath, 
    976 F.2d 279
    , 284, 285 (6th Cir. 1992)
    (finding only indirect injury where grandchildren alleged that
    defendants       stole     from    grandmother           during    her       lifetime,   thus
    decreasing the size of her estate and their inheritance); cf.,
    e.g., Beiter Co. v. Blomquist, 
    987 F.2d 1319
     (8th Cir. 1993)
    (finding proximate cause where bribery of council member could have
    caused     rejection       of     developer’s           development      proposal).         In
    addition,        Khurana    was        a    distanced         victim    of    any    “illegal
    competition;” the state and federal government were more directly
    injured.    See Rehkop v. Berwick Healthcare Corp., 
    95 F.3d 285
    , 289
    (3d Cir. 1996) (noting that Medicare and Medicaid programs and
    taxpayers are victims of Medicaid/Medicare fraud).                             As such, the
    risk of multiple recoveries indicates an absence of proximate cause
    in   the   same     fashion       in       which   it    is    absent    in    the   case   of
    shareholders’ RICO claims that are derivative of a corporation.
    See Holmes, 503 U.S. at 273; Manson v. Stacescu, 
    11 F.3d 1127
    , 1131
    (2d Cir. 1993) (finding no “direct relation” because shareholder’s
    injury is generally derivative of injury to corporation and thus
    not directly related to defendant’s injurious conduct).                               Khurana
    thus lacks § 1964(c) standing for all of his RICO claims premised
    on any injuries from “illegal competition.”
          D.     Loss of Opportunity and Damage to Professional Reputation
                 as a Result of “Fraudulent Hiring”
          Khurana’s set of RICO claims based on injuries resulting from
    being hired at River Region must be examined under the same
    proximate causation requirement.
                 1.       Loss of Business Opportunities and Damage to
                          Professional Reputation as a Result of Substantive
                          RICO Violations
          The   injuries        pleaded      by     Khurana      are     denigration    to   his
    professional reputation via the “harmful employment associations”
    that resulted from being “fraudulently lured” into his position at
    the   hospital        and   the   loss     of    foregone        legitimate     employment
    opportunities.          In Sedima, the Court held that the injury relied
    on by a plaintiff must be the result of a § 1962 violation.                              473
    U.S. at 496.          The Court explained that for standing based on a §
    1962(b)     or    §     1962(c)    violation,            a   valid    RICO   injury      must
    necessarily stem from predicate acts that underpin the § 1962
    violation.       Id. at 497.       The necessary racketeering activities are
    those activities catalogued in § 1961(1).                        Id. at 495.        Khurana
    contends that the defendants caused him injury by fraudulently
    inducing him to accept employment via mail and wire fraud, thereby
    damaging his reputation through association with their fraudulent
    activities        and    depriving       him        of   other     legitimate      business
                 a.       Professional Reputation Damage
          Khurana         pleaded     injury       proximately         resulting    from     the
    defendants’ violations of § 1962(b) and § 1962(c) when he asserted
    the injury of business reputation harm.                            For § 1962(b) and §
    1962(c) violations, the injurious conduct must be racketeering acts
    as listed in § 1961(1).      According to Khurana’s pleadings, he
    detrimentally relied on the appellees’ misrepresentations as to the
    legitimacy of the hospital’s operations in taking his position with
    the hospital.    Such reliance on a predicate fraud act can indicate
    the necessary proximate relationship between the injury asserted
    and the injurious conduct. See Chisholm v. TransSo. Fin. Corp., 
    95 F.3d 331
    , 337 (4th Cir. 1996) (citing cases); Standardbred, 985
    F.2d at 104. In Standardbred, the defendants acquired a race track
    financed by municipal bonds. In the application for the bonds, the
    defendants stated an intent to operate the race track and assured
    the plaintiffs of such as well.                 The defendants subsequently
    stopped racing.    The Second Circuit held that the plaintiffs had §
    1964(c) standing because in the fraudulently induced belief that
    the   racing    would   continue,       they     purchased,       relocated   and
    reconstructed capital equipment for use at the track and designed
    their purchases and training of horses with the intent to race them
    at the track.    Khurana similarly relocated himself and his medical
    practice to this hospital, a significant financial and professional
    decision,      allegedly     as     a        result   of        the    appellees’
    misrepresentations      as   to   the        legitimacy    of    the   hospital’s
          In addition, the damage to Khurana’s professional reputation
    was a foreseeable result of the various racketeering acts of wire
    and mail fraud.    See discussion supra Part II.C.               Khurana, as the
    hospital’s director, was essentially the figurehead of a fraud-
    ridden, now defunct institution.             The act of fraudulently hiring
    him can be a proximate cause of any damage that his professional
    reputation has suffered.         Damage to his professional reputation is
    easily    seen   as    a   natural     outgrowth      of   such   an   employment
    association. As the predicate acts were pleaded as responsible for
    Khurana’s acceptance of his employment with River Region, we find
    that the pleadings presented the claim of necessary proximate cause
    for Khurana’s standing for this claim.            See Cox v. Adm’r U.S. Steel
    & Carnegie, 
    17 F.3d 1386
    , 1399 (11th Cir. 1994) (finding proximate
    cause where defendants’ conduct was substantially responsible for
    claimed injuries); see also generally Prosser & Keeton on Torts §
    41, p. 268 (discussing substantial responsibility and proximate
                b.    Legitimate Employment Opportunity
         Regarding     Khurana’s      claimed      loss   of   legitimate   business
    opportunity, we begin our consideration by noting that RICO civil
    standing   is    not   limited    to    only    the   immediate    victim   of   a
    defendant’s RICO violation.          See Zervas v. Faulkner, 
    861 F.2d 823
    823, 833 (5th Cir. 1988) (“A requirement that the nexus between the
    injury and a predicate act be ‘direct’ may . . . be overly
    restrictive.”); Mid Atl. Telecom, Inc. v. Long Distance Servs.,
    18 F.3d 260
    , 263 (4th Cir. 1994) (rejecting adoption of a
    rule that only injuries suffered by the immediate victim of a
    predicate act satisfy the “by reason of” requirement of § 1964(c)).
    In Mid Atlantic, a plaintiff telephone company accused one of its
    competitors of violating RICO by defrauding its customers with
    fictitious charges, enabling it to charge lower rates to entice new
    subscribers.   The plaintiff company alleged that it lost revenues
    from subscribers who were defrauded into accepting the fraudulent
    lower rates of the defendant company.       The Fourth Circuit rejected
    the argument that the plaintiff company lacked standing because the
    customers were the directly injured parties and only they were
    proximately injured by its alleged misconduct.           Similarly, Khurana
    may not have been the intended target of the fraud scheme, but like
    the telephone company in Mid Atlantic, he pleaded the loss of a
    legitimate business opportunity resulting from the defendants’
    alleged racketeering acts.     Holmes did not preclude a RICO claim
    for “indirect” injuries, but rather instructed the federal courts
    to employ common law proximate causation principles.             See Israel
    Travel, 61 F.3d at 1257.    Some indirect RICO injuries, such as this
    one, satisfy the proximate causation requirements of common law.
    Id.   In fact, we have previously rejected a direct versus indirect
    injury test as the dispositive standing inquiry for civil RICO
    claims.   See Ocean Energy II, Inc. v. Alexander & Alexander, Inc.,
    868 F.2d 740
    , 746 (5th Cir. 1989); see also Reynolds v. East Dyer
    Dev. Co., 
    882 F.2d 1249
     (7th Cir. 1989) (avoiding using direct
    versus indirect terminology to make standing determinations and
    instead focusing on causation); Prosser & Keeton on Torts § 42, p.
    273-74 (discussing direct versus indirect as only one of several
    theories of proximate causation).
          In Mid Atlantic, the Fourth Circuit noted that the plaintiff
    was not   seeking   to   vindicate   the   claims   of    its   competitor’s
    customers, but rather its own alleged distinct and independent
    injuries of lost customers and lost revenues.                        Id. at 264.      We
    agree    with   the   Fourth       Circuit      that    distinct     and   independent
    injuries are in keeping with the Supreme Court’s understanding of
    proximate cause in Holmes.            Khurana pleads his own injury of loss
    of legitimate employment opportunity.                   In Holmes, an intervening
    event, the insolvency of the securities brokership, broke the
    causal link between the plaintiff’s injury and the defendant’s
    conduct, 503 U.S. at 262, 264, so that the plaintiff was a
    “secondary victim.”          Id. at 273.         In contrast, the plaintiff in
    this case seeks to recover for losses substantially attributable to
    the defendants’ conduct.
         Finally, as explained before, the fact that Khurana pleaded
    reliance on the defendants’ racketeering acts as a cause of this
    injury    indicates      a    valid      claim     that    the     racketeering      acts
    proximately     caused       him    to    forego       other     legitimate   business
    opportunities.        See Chisholm, 95 F.3d at 337; Standardbred, 
    985 F.2d 102
    .   Khurana claims that he was fraudulently induced to take
    his position with the hospital and argues that such proximately
    caused him to lose other legitimate business opportunities.                           As
    Khurana’s loss of other employment opportunities was foreseeable by
    the defendants and could certainly be anticipated as a natural
    consequence     of    their    alleged       misrepresentations,           Khurana   has
    sufficiently pleaded that the alleged substantive violations of §
    1962(b) and § 1962(c) proximately caused his business opportunity
    loss.     See Chisholm, 95 F.3d at 337 (relying on plaintiff’s
    detrimental reliance on defendants’ material misrepresentations to
    find proximate cause and noting that “[i]n order for the scheme to
    succeed, the appellants needed to be convinced that the ‘private
    sales’     referenced      in     the    TransSouth      notices      were
    legitimate . . . . concealment of the nature of the ‘private sales’
    was the very linchpin of the scheme.”); cf. Shearin v. E.F. Hutton
    Group, Inc., 
    885 F.2d 1162
    , 1170 (3d Cir. 1989) (affirming the
    dismissal of a RICO claim based on a “loss” of the plaintiff’s
    former job where there was no allegation that the employer reneged
    or the plaintiff was “duped out of her old job”).
               .     Standing for a § 1962(d)-based Civil RICO Claim for
                     Loss of Business Opportunity and Damage to
                     Professional Reputation as a Result of Hiring
         Khurana pleaded that the defendants conspired to commit RICO
    violations, and in doing so, injured his professional reputation
    and caused him a loss of legitimate business opportunity.               In
    Cullom, we held that a “retaliatory” discharge lacks sufficient
    causation for § 1964(c) standing for a substantive RICO violation.
    However, Cullom was limited to a causation inquiry and did not
    address standing for a RICO civil claim premised on conspiracy
    acts, i.e., acts in furtherance of a conspiracy to commit a pattern
    of racketeering, a violation of § 1962(d).8
         There is a division of circuit authority on the question of
            In this section we consider civil standing for a § 1962(d)
    violation. Based on our previous discussion in Part II.D.1., we also
    recognize that Khurana pleaded proximate cause for § 1962(d) violations
    causing reputation damage and business opportunity loss where the § 1962(d)
    violations are predicated upon the racketeering acts of wire and mail fraud
    already discussed. Accordingly, we also reverse the district court’s
    dismissal of Khurana’s claims on that basis, subject to our discussion in
    Part III in which we affirm the dismissal of some of Khurana’s claims as
    to the corporate defendants.
    whether § 1964(c) civil RICO standing for a § 1962(d) violation may
    be   premised     on   injury      proximately       caused    by    overt   acts    in
    furtherance of the conspiracy that are not § 1961(1) predicate
    acts.   See Reddy v. Litton Indus., Inc., 
    502 U.S. 921
    , 921, 112 S.
    Ct. 332, 332, 
    116 L. Ed. 2d 272
     (1991) (White, J., dissenting from
    denial of certiorari and noting circuit split); Bowman v. Western
    Auto Supply Co., 
    985 F.2d 383
    , 386 (8th Cir. 1993) (collecting
    cases).     The    Third     and    Seventh      Circuits     have   held    that    the
    injurious acts for § 1964(c) standing for a claim based on a §
    1962(d) violation may be racketeering acts as listed in § 1961(1)
    as well as overt acts in furtherance of the conspiracy.                      Schiffels
    v. Kemper Fin. Servs., Inc., 
    978 F.2d 344
     (7th Cir. 1992) (adopting
    reasoning of Shearin); Shearin v. E.F. Hutton Group, Inc., 
    885 F.2d 1162
     (3d Cir. 1989); see also Gagan v. Am. Cablevision, Inc., 
    77 F.3d 951
    , 958-59 (7th Cir. 1996) (reviewing circuit split and
    following Schiffels); Rehkop v. Berwick Healthcare Corp., 
    95 F.3d 285
    , 290 & n.6 (3rd Cir. 1996) (noting circuit split and applying
    Shearin).   In contrast, for example, the Second Circuit has held
    that because a conspiracy, an agreement to commit predicate acts,
    cannot by itself cause any injury and because RICO’s purpose is to
    target RICO activities and not other conduct, standing may be
    founded only upon injury from overt acts that are also § 1961
    predicate   acts,      and   not     upon    overt    acts     furthering      a    RICO
    conspiracy. See Terminate Control Corp. v. Horowitz, 
    28 F.3d 1335
    1344-45 (2d Cir. 1994).
          Section 1962(d) provides that “[i]t shall be unlawful for any
    person to conspire to violate any of the provisions of subsection
    (a), (b), or (c) of this section.”             It is well-established that we
    must follow a plain meaning statutory interpretation unless a
    statutory provision presents an ambiguity or an inconsistency with
    a statute’s legislative purposes.                   United States v. Ron Pair
    Enters., Inc., 
    489 U.S. 235
    , 242, 
    109 S. Ct. 1026
    , 1030, 
    103 L. Ed. 2d
     290 (1989).           Like the Seventh Circuit, we refuse to place “a
    limitation on RICO standing that RICO itself does not impose.”                   See
    Schiffels, 978 F.2d at 346.          Since § 1962(d) does not require that
    a predicate racketeering act actually be committed, it follows that
    the act causing a § 1964(c) claimant’s injury need not be a
    predicate act of racketeering.           A person injured by an overt act in
    furtherance of a RICO conspiracy has been injured by reason of the
    conspiracy, and thus has § 1964(c) standing.                 See Id. at 349.      To
    interpret otherwise would ignore § 1964(c)’s provision for civil
    liability     for,       inter   alia,   a    violation     of   §   1962(d)   that
    proximately injures a person’s property or business.                  Buttressing
    this position is the Supreme Court’s and Congress’s direction that
    “RICO   is    to    be    read   broadly”     and    “‘liberally     construed   to
    effectuate its remedial purpose.’”                  Sedima, 473 U.S. at 497-98
    (quoting Pub. L. No. 91-452, § 904(a), 84 Stat. 947).
            In addition, while the Second Circuit noted that RICO was
    designed     to    combat    substantive      violations,    Hecht    v.   Commerce
    Clearing House, Inc., 
    897 F.2d 21
    , 25 (2d Cir. 1990), the provision
    for conspiracy violations was part and parcel of Congress’s intent
    and plan and cannot be ignored.                 See Sedima, 473 U.S. at 499
    (noting that although RICO used in ways not originally envisioned,
    Congress and not the courts must amend statute).
         Having determined that Khurana’s standing is not precluded by
    the necessity of causative racketeering acts, we must consider
    whether his pleading sufficiently alleges proximate causation for
    § 1964(c) standing premised on an underlying § 1962(d) violation.
         In Shearin, the Third Circuit held that the plaintiff’s hiring
    as window dressing and firing to preserve the fraud both qualified
    as conspiracy acts for a § 1962(d)-based civil claim.
           Shearin’s hiring and firing plausibly constitute
           overt acts that not only would establish a
           conspiracy, but in this case were allegedly
           essential to it.    Assuming that the hiring and
           firing were injuries, those injuries did occur “by
           reason of” Hutton’s violation of section 1962(d).
    885 F.2d at 1168-69.      Similar facts are presented here.            Hiring
    Khurana allegedly allowed the defendants to pose as a medical
    facility qualifying for federal funds, which allowed them to
    fraudulently obtain Medicare and Medicaid reimbursement.               As in
    Shearin, it appears that the hiring of Khurana was an overt act
    critical to the conspiracy.           As the hiring of Khurana was an
    alleged   predicate   conspiracy      act,    any   lost    opportunity    for
    legitimate   employment     and   damage     to   professional     reputation
    “flowed” from RICO predicate acts, see Cullom, 859 F.2d at 1215,
    and Khurana has pleaded the necessary proximate cause for his claim
    of hiring injuries based on a § 1962(d) violation. Khurana thus has
    cleared, from a pleading standpoint, the proximate cause hurdle for
    standing for these claims.
         E.    Standing   for    a    §   1962(d)-based        Civil   Claim   for
                Termination Injuries
         We explained earlier that Khurana does not have standing under
    § 1964(c) to pursue a § 1962(b) or § 1962(c) claim for termination
    injuries.    However, he may have § 1964(c) standing to pursue a
    claim for termination injuries as a result of an act in furtherance
    of a conspiracy.       RICO racketeering acts as well as acts in
    furtherance of a RICO conspiracy may provide standing to sue for
    civil conspiracy claims if they are the proximate cause of an
         Khurana alleged that he was discharged from his position as
    Medical   Director    in   furtherance   of   the   appellees’   scheme   of
    Medicaid fraud.      “The discharge was intended to remove Plaintiff
    from continuing to have access to information about defendants and
    to intimidate him to hinder and prevent his testimony as a witness
    in future proceeding,” “to eliminate his access to information
    concerning the defendants’ illegal activities” and was an act “to
    maintain control of and conduct” the enterprise.         In addition, and
    probably most importantly, Khurana alleges that terminating him had
    the effect of rescinding Khurana’s order of ten days previous in
    which Khurana suspended the admission to the hospital of illegal
    Medicaid patients.     Khurana alleges that he was terminated so that
    the defendants could “continu[e] their illegal procurement of
    Medicaid and Medicare funds and minimiz[e] impediments thereto.”
    As such, Khurana has presented the necessary proximate causation
    for standing to pursue his claim for termination injuries because
    the termination was an alleged overt act in furtherance of the
    alleged RICO conspiracy.           Such an allegation presents sufficient
    causation to confer standing.               See Rehkop, 95 F.3d at 290-91
    (holding that the plaintiff’s termination constituted an overt act
    in furtherance of an alleged conspiracy and thus the plaintiff had
    RICO standing); Schiffels, 978 F.2d at 350-51 (holding that a
    plaintiff-employee may have RICO standing when he alleges that he
    was fired in an attempt to prevent him from causing the conspiracy
    to   unravel     by   disclosing    scheme);    Shearin,   885    F.2d    at   1170
    (holding that allegation that plaintiff was fired in furtherance of
    a conspiracy in violation of § 1962(d) stated a claim for relief
    under § 1964(c)); White v. Hall, 
    683 F. Supp. 639
    , 642 (E.D. Ky.
    1988) (finding civil RICO standing for discharged employee for
    alleged § 1962(d) violation where the plaintiff alleged that part
    of conspiracy was to cover up illegalities by terminating employees
    refusing to participate in schemes).
    III.        The Enterprise-Person            Distinction   for     a     § 1962(c)
           Khurana    also   contends    that    the   district   court      erred   in
    dismissing his claims under 18 U.S.C. § 1962(c) and § 1962(d) (to
    the extent involving a conspiracy to violate § 1962(c)) for failure
    to plead a RICO enterprise which is separate and distinct from the
    RICO person referenced in § 1962(c).
           We must consider this contention in relation to Khurana’s
    remaining § 1962(c) claims.           The remaining § 1962(d) claims must
    also be considered in relation to this issue to the extent that
    they are based on a conspiracy to commit a § 1962(c) violation.
    Ashe v. Corley, 
    992 F.2d 540
    , 544 (5th Cir. 1993).               Section 1962(c)
    provides that
           [i]t shall be unlawful for any person employed by or
           associated with any enterprise engaged in, or the
           activities of which affect, interstate or foreign
           commerce, to conduct or participate, directly or
           indirectly, in the conduct of such enterprise’s
           affairs through a pattern of racketeering activity
           or collection of unlawful debt.
    18 U.S.C. § 1962(c).          The statutory definition of enterprise
    includes “any individual, partnership, corporation, association, or
    other alleged legal entity, and any union or group of individuals
    associated in fact although not a legal entity.”            18 U.S.C. §
    1961(4). Khurana alleged that the enterprise is an association-in-
    fact of all five defendants (the three individuals and the two
    corporate entities).
         The   district   court    dismissed   Khurana’s   claims   that   were
    bottomed on § 1962(c) on the alternative basis (from the dismissal
    on the basis of standing) that Khurana failed to plead a RICO
    defendant that was distinct from the enterprise in his § 1962(c)-
    premised claim and his claim based on a conspiracy to commit a §
    1962(c) violation in violation of § 1962(d).
         For purposes of a claim based on § 1962(c), RICO persons
    associated with or employed by an enterprise must be distinct from
    the RICO “enterprise.”        Crowe v. Henry, 
    43 F.3d 198
    , 205-06 (5th
    Cir. 1995).     Section 1962(c) imposes liability on an employee or
    associate of an enterprise conducting affairs of the enterprise
    through a pattern of racketeering activity and, logically, such an
    individual cannot employ or associate with itself.              See, e.g.,
    Ashe, 992 F.2d at 544.    Accordingly, some of Khurana’s claims that
    are based on 18 U.S.C. § 1962(c) fail because his pleadings do not
    contain a sufficient distinction between the persons who allegedly
    committed the unlawful acts and the enterprise with which they are
    employed or associated.
           Khurana has failed to plead a corporate defendant distinct
    from the enterprise in that the association-in-fact enterprise that
    he pleaded is in reality a “stand-in,” or another name, for the
    corporate entity. See Riverwoods Chappaqua Corp. v. Marine Midland
    Bank, N.A., 
    30 F.3d 339
    , 344 (2d Cir. 1994).             By alleging as a RICO
    enterprise a group consisting solely of a bank and several of its
    employees,     the   plaintiffs     in   Riverwoods     Chappaqua    effectively
    identified the RICO enterprise as the corporate defendant.                      The
    distinctiveness requirement may not be avoided
             by alleging a RICO enterprise that consists merely
             of a corporation defendant associated with its own
             employees or agents carrying on the regular affairs
             of the defendants . . . . Where employees of a
             corporation associate together to commit a pattern
             of predicate acts in the course of their employment
             and on behalf of the corporation, the employees in
             association with the corporation do not form an
             enterprise distinct from the corporation.
    Id.    While it is theoretically possible for a corporation to play
    a   separate   active   role   in    RICO      violations     committed    by   its
    employees and agents, see Securitron Magnalock Corp. v. Schnabolk,
    65 F.3d 256
    , 263 (2d Cir. 1995), cert. denied, — U.S. —, 
    116 S. Ct. 916
    133 L. Ed. 2d 846
     (1996); Brittingham v. Mobil Corp., 
    943 F.2d 297
    , 302 (3d Cir. 1991); Petro-Tech, Inc. v. Western Co. of No.
    824 F.2d 1349
    ,   1361    (3d      Cir.   1987),   when   the   alleged
    association-in-fact entity is in reality no different from the
    association of individuals or entities that constitute a defendant
    “person”     and        carry    out        its    activities,        the    distinctiveness
    requirement is not met in regard to that defendant.                             See Parker &
    Parsley Petroleum v. Dresser Indus., 
    972 F.2d 580
    , 583-84 & n.3
    (5th Cir. 1992) (finding an association-in-fact of employees of
    corporation        to    be     the    defendant         corporate     entity    functioning
    through its employees in the course of their employment); Glessner
    v. Kenny, 
    952 F.2d 702
    , 712 (3d Cir. 1991); Brittingham, 943 F.2d
    at   302    (“Without         allegations          or    evidence     that    the    defendant
    corporation had a role in the racketeering activity that was
    distinct from the undertaking of those acting on its behalf, the
    distinctiveness requirement is not satisfied.”).                             Khurana has not
    alleged that defendants River Region Hospital or Innovative had any
    active role in the activities of its affiliated entity, employees
    or officers.            See Glessner, 952 F.2d at 712 & n.10.                        In fact,
    Khurana alleged the exact opposite, terming the corporate entities
    “passive instruments” in his complaint.
          In addition, the distinctiveness requirement is not satisfied
    by pleading a subsidiary corporation or affiliated entity as a
    perpetrator-defendant                 if     the        parent     corporation       and   the
    subsidiary’s roles in the alleged racketeering activities are not
    sufficiently distinct.                Discon, Inc. v. Nynex Corp., 
    93 F.3d 1055
    1063-64 (2d Cir. 1996) (distinctiveness requirement not satisfied
    where      three    corporate              defendants       that      constituted      alleged
    enterprise, although legally separate, “operated within a unified
    corporate     structure”          and       were    “guided      by   a     single   corporate
    consciousness”), cert. denied, — U.S. —, 
    118 S. Ct. 49
    , — L. Ed. 2d
    — (1997); Compagnie De Reassurance D’Ile de France v. New England
    Reins. Corp., 
    57 F.3d 56
     (1st Cir. 1995); Lorenz v. CSX Corp., 
    1 F.3d 1406
    , 1412 (3d Cir. 1993) (“A RICO claim under § 1962(c) is
    not stated where the subsidiary merely acts on behalf of, or to the
    benefit of, its parent.”); Chamberlain Mfg. Corp. v. Maremont
    919 F. Supp. 1150
    , 1154-58 (N.D. Ill. 1996)(holding that
    where    enterprise   was   an   association-in-fact        of    the    parent
    corporation and its subsidiary, it lacked its own distinct legal
    identity for purposes of § 1962(c)).          In this case, Khurana did not
    plead any distinct roles for the subsidiary River Region and the
    parent corporation Innovative so that they might be regarded as
    having any distinctiveness from the alleged enterprise.             “We would
    not take seriously . . . an assertion that a defendant could
    conspire with his right arm, which held, aimed and fired the fatal
    weapon.”   United States v. Computer Sciences Corp., 
    689 F.2d 1181
    1190 (4th Cir. 1982).        As the association-in-fact pleaded by
    Khurana is in reality the corporate entity, we must affirm the
    district court as to its dismissal of these claims against the
    corporate entities as the distinctiveness requirement is not met in
    relation to these two defendants.             River Region and Innovative
    cannot   simultaneously     be   both   the    enterprise   and    the   named
    defendants.     See Securitron, 65 F.3d at 263.              Therefore, we
    conclude that Khurana’s attempt to circumvent the distinction
    requirement in regard to the corporate defendants by pleading an
    association-in-fact theory must be rejected.
         We must also consider the claims in relation to the other
    named defendants, the officers and employees of the two corporate
    entities.     See, e.g, Banks v. Wolk, 
    918 F.2d 418
    , 424 (3d Cir.
    1990)   (leaving   RICO    action   intact   against   certain     individual
    defendants while dismissing the corporate defendant for failure to
    withstand distinctiveness requirement); Kehr Packages, Inc. v.
    Fidelcor, Inc., 
    926 F.2d 1406
    , 1411 (3d Cir. 1991) (considering
    § 1962(c) claim separately for each defendant’s fulfillment of
    distinctiveness and other requirements).           As we explained above,
    Khurana’s complaint essentially pleads the corporation as the
    enterprise.     Section 1962(c) may impose liability on individual
    corporate   officers      and   employees    who   conduct   the    corporate
    enterprise which employs them through a pattern of racketeering
    activity.     See Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 
    46 F.3d 258
    , 266-269 (3d Cir. 1995); United States v. Robinson, 
    8 F.3d 398
    , 407 (7th Cir. 1993); Sever v. Alaska Pulp Corp., 
    978 F.2d 1529
    , 1534 (9th Cir. 1992); Ashland Oil, Inc. v. Arnett, 
    875 F.2d 1271
    , 1280 (7th Cir. 1989); McCullough v. Suter, 
    757 F.2d 142
    , 144
    (7th Cir. 1985); see also Securitron, 65 F.3d at 263.          Accordingly,
    we reverse the dismissal of the remaining § 1962(c)-related claims
    against the three individual defendants.
         For the foregoing reasons, we REVERSE in part and AFFIRM in
    part. We affirm the district court’s dismissal of Khurana’s claims
    based on alleged violations of § 1962(c) and § 1962(d) (to the
    extent they allege conspiracy to violate § 1962(c)) against the two
    corporate   defendants.      We   also   affirm   the   district   court’s
    dismissal of all claims alleging injury from “illegal competition.”
    Additionally, we affirm the district court’s dismissal of Khurana’s
    claims alleging termination injuries as a result of § 1962(b) and
    § 1962(c) violations. We reverse the district court’s dismissal of
    all other claims with directions to reinstate them for further
    proceedings consistent with this opinion.9
             Our reversal of the dismissal of these claims is not meant to
    express any opinion as to other issues related to these claims which the
    district court may address on remand. Given that the parties did not brief
    any other issues to the district court and that only the appellant briefed
    the properness of his pleadings of RICO violations, we have concerned
    ourselves only with the district court’s legal conclusions supporting its
    dismissal of Khurana’s RICO claims, namely the issues of proximate
    causation for his standing and the necessary distinctiveness for the §
    1962(c)-related claims. We leave any other issues or challenges for the
    district court’s consideration in the first instance. See Youmons v.
    791 F.2d 341
    , 348 (5th Cir. 1986) (declining to consider challenges
    to the particularity with which mail and wire fraud allegations were
    pleaded in a RICO claim, preferring to remand to district court because the
    district court did not consider such challenges); Morosani v. First Nat’l
    Bank of Atlanta, 
    703 F.2d 1220
    , 1222 (11th Cir. 1983) (refusing to decide
    at interlocutory appeal stage theories for dismissing RICO claims that were
    not decided by district court, preferring to remand theories for district
    court to address in first instance).

Document Info

DocketNumber: 96-30525

Citation Numbers: 164 F.3d 900

Filed Date: 1/26/1998

Precedential Status: Precedential

Modified Date: 3/3/2016

Authorities (48)

Campbell v. City of San Antonio , 43 F.3d 973 ( 1995 )

Sedima, SP RL v. Imrex Co. , 473 U.S. 479 ( 1985 )

United States v. Ron Pair Enterprises, Inc. , 489 U.S. 235 ( 1989 )

Holmes v. Securities Investor Protection Corporation , 503 U.S. 258 ( 1992 )

united-states-v-computer-sciences-corporation-john-w-luke-erwin-l , 689 F.2d 1181 ( 1982 )

rd-mccullough-ii-and-utica-national-bank-as-trustee-of-the-rd , 757 F.2d 142 ( 1985 )

C. Roger Youmans, Jr., M.D., and Leonard B. Tatar, Trustee, ... , 791 F.2d 341 ( 1986 )

petro-tech-inc-robert-chuckrow-gary-goldberg-sterling-keystone , 824 F.2d 1349 ( 1987 )

robert-l-randolph-cullom-v-hibernia-national-bank-new-orleans , 859 F.2d 1211 ( 1988 )

John Zervas v. D.L. Faulkner, Spencer Blain and Jane Nix , 861 F.2d 823 ( 1988 )

Ocean Energy Ii, Inc., and Coteau Services, Inc. v. ... , 868 F.2d 740 ( 1989 )

ashland-oil-inc-a-kentucky-corporation-bell-fuels-inc-a-nevada , 875 F.2d 1271 ( 1989 )

thomas-reynolds-and-ruthann-reynolds-v-east-dyer-development-company-545 , 882 F.2d 1249 ( 1989 )

K. Kay Shearin v. The E.F. Hutton Group, Inc., E.F. Hutton &... , 885 F.2d 1162 ( 1989 )

Jeffrey Hecht v. Commerce Clearing House, Inc., William ... , 897 F.2d 21 ( 1990 )

Philip Banks v. Donald Wolk, Brad Cohen, Larry Cohen, First ... , 918 F.2d 418 ( 1990 )

kehr-packages-inc-charles-and-emily-mcmurtrie-and-james-mcmurtrie-v , 926 F.2d 1406 ( 1991 )

rr-brittingham-individually-and-on-behalf-of-all-others-similarly , 943 F.2d 297 ( 1991 )

john-h-glessner-tito-delgozzo-claudia-capritti-robert-slimm-charles-heck , 952 F.2d 702 ( 1991 )

Merrill Benton v. United States of America and the United ... , 960 F.2d 19 ( 1992 )

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