United States v. Jude Somerset Hardesty, 977 F.2d 1347 (9th Cir. 1992). · Go Syfert
United States v. Jude Somerset Hardesty, 977 F.2d 1347 (9th Cir. 1992). Cases Citing This Book View Copy Cite
“llowing parties to litigate fully their case before the magistrate 8 and, if unsuccessful, change their strategy and present a different theory to the 9 district court would frustrate the purpose of the magistrates act.”
141 citation events (95 in the last 25 years) across 27 distinct courts.
Strongest positive: Tattersalls LTD. v. Wiener (casd, 2020-10-22)
Treatment trajectory · 1992 → 2026 · click a year to view as-of
1992 2009 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Tattersalls LTD. v. Wiener
S.D. Cal. · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
llowing parties to litigate fully their case before the magistrate 8 and, if unsuccessful, change their strategy and present a different theory to the 9 district court would frustrate the purpose of the magistrates act.
discussed Cited as authority (quoted) Sherwin Brook v. J. McCormley
9th Cir. · 2020 · quote attribution · 1 verbatim quote · confidence low
he magistrates act was intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.
discussed Cited as authority (rule) Robert W. Carlson v. Brian Birkholz
C.D. Cal. · 2025 · confidence medium
As Petitioner appears to have sought an extension timely, the court exercises its discretion and GRANTS 28 1 intended to give litigants an opportunity to run one version of their case past the 2 magistrate, then another past the district court.”), overruled on other grounds, 3 United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc).
cited Cited as authority (rule) J. S. v. Eugene School District 4j
9th Cir. · 2024 · confidence medium
Servs., 863 F.2d 633 , 638–39 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992). 4.
discussed Cited as authority (rule) Curry v. Haynes
W.D. Wash. · 2024 · confidence medium
Servs., 863 F.2d 633, 638 (9th Cir. 1988) (finding that the 22 purpose of the Act would be frustrated by “allowing parties to litigate fully their case before the 23 magistrate and, if unsuccessful, to change their strategy and present a different theory to the district 24 court,” because the Act was not “intended to give litigants an opportunity to run one version of 1 their case past the magistrate, then another past the district court”), overruled on other grounds by 2 United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (per curiam). 3 Even if the Court were to consider t…
discussed Cited as authority (rule) Becker v. State Farm Fire And Casualty Company
E.D.N.Y · 2024 · confidence medium
See, e.g., Paterson–Leitch Co. v. Massachusetts Municipal Wholesale Electric Co., 840 F.2d 985 , 990–91 (1st Cir. 1988) (“an unsuccessful party is not entitled as of right to de novo review by the judge of an argument never seasonably raised before the magistrate.”); Cupit v. Whitley, 28 F.3d 532 , 535 & n.5 (5th Cir. 1994) (holding that a party waived an argument by failing to raise it before the magistrate judge); Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir. 1988) (“allowing parties to litigate fully their case before the magistrate and, if unsuccessful…
discussed Cited as authority (rule) Edward Littlejohn v. Calif Dept. of State Hospitals
C.D. Cal. · 2023 · confidence medium
(ECF No. 28 at 2-3.) The Court declines to 17 consider these claims because they were not presented to the Magistrate Judge. 18 “[A]llowing parties to litigate fully their case before the magistrate and, if 19 unsuccessful, to change their strategy and present a different theory to the district 20 court would frustrate the purpose of the Magistrate Act.” Greenhow v. Secretary of 21 Health & Human Services, 863 F.2d 633, 638 (9th Cir. 1988), overruled on other 22 grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en 23 banc).
discussed Cited as authority (rule) Timothy Ray Baker v. F. Villalobos
C.D. Cal. · 2022 · confidence medium
Plaintiff proffers no 3 explanation for his failure to raise this theory in his Opposition to Defendants’ 4 Motion nor has he provided any evidence or citation to the record to support the 5 assertion. “[A]llowing parties to litigate fully their case before the Magistrate and, 6 if unsuccessful, to change their strategy and present a different theory to the district 7 court would frustrate the purpose of the Magistrate Act.” See Greenhow v. 8 Secretary of Health & Human Services, 863 F.2d 633, 638-39 (9th Cir. 1988), 9 overruled on other grounds, United States v. Hardesty, 977 F.2d 1347,…
cited Cited as authority (rule) Jack Roy v. Laborer's Local 737
9th Cir. · 2021 · confidence medium
Servs., 863 F.2d 633, 639 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).
discussed Cited as authority (rule) WASHINGTON v. GILMORE
W.D. Pa. · 2021 · confidence medium
Accord Ward v. United States, 208 F.3d 216 (Table), 2000 WL 282648 , at *1 (6th Cir.2000); Greenhow v. Sec'y of Health & Human Servs., 863 F.2d 633 , 638–39 (9th Cir.1988) (district court properly ruled that issues raised for the first time in objections to magistrate's report had been waived), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992); Hubbard v. Pleasant Valley School Dist., No. Civ.
cited Cited as authority (rule) Roy v. Laborer's Local 737
D. Or. · 2021 · confidence medium
Greenhow v. Secretary of Health & Human Services, 863 F.2d 633 , 638–39 (9th Cir. 1988) (overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).
cited Cited as authority (rule) State of Washington Health Care Authority v. Azar
W.D. Wash. · 2020 · confidence medium
Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633 , 638 10 (9th Cir. 1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347 11 (9th Cir. 1992).
discussed Cited as authority (rule) Gustavo Hernandez v. Neil McDowell
C.D. Cal. · 2020 · confidence medium
We do not believe that the Magistrate Act was intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.”), overruled on other grounds by United States v. 27 | Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (per curiam) (en banc).
discussed Cited as authority (rule) United States v. Muskett
10th Cir. · 2020 · confidence medium
Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 636 (9th Cir. 1988) (citations omitted), overruled in part on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam). 7 So the Ninth Circuit had no binding precedent conflicting with Perez–Vargas when Mr. Muskett committed his offense. * * * In summary, neither a circuit split nor the Supreme Court’s opinion in Johnson provided fair warning to Mr. Muskett that his prior offense could constitute a crime of violence.
discussed Cited as authority (rule) Sundby v. Marquee Funding Group, Inc.
S.D. Cal. · 2020 · confidence medium
The Ninth Circuit has warned that 15 “allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to 16 change their strategy and present a different theory to the district court would frustrate the 17 purpose of the Magistrates Act.” See Greenhow v. Sec'y of Health & Human Servs., 863 18 F.2d 633, 638 (9th Cir. 1988), overruled on other grounds by United States v. Hardesty, 19 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc); see also Howell, 231 F.3d at 622 (quoting 20 Paterson-Leitch Co. v. Massachusetts Mun.
discussed Cited as authority (rule) Jara 223016 v. Ryan
D. Ariz. · 2019 · confidence medium
We do not believe 20 that the Magistrates Act was intended to give litigants an opportunity to run one version of 21 their case past the magistrate, then another past the district court.”).4 Accord Williams v. 22 McNeil, 557 F.3d 1287, 1291 (11th Cir. 2009) (“The First, Fifth, Ninth, and Tenth Circuits 23 . . . [have concluded] that requiring the district court to consider new arguments raised in 24 the objections effectively would eliminate efficiencies gained through the Magistrates Act 25 and would unfairly benefit litigants who could change their tactics after issuance of the 26 magist…
discussed Cited as authority (rule) United States v. Michael Torres (2×)
9th Cir. · 2017 · confidence medium
Or, if the majority believes that this case is controlled by contradictory precedents which will ultimately need en banc review to sort out, Majority at 36, then under our precedent we “must call for en banc review” sua sponte, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam) (quoting Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1479 (9th Cir. 1987) (en banc)).
discussed Cited as authority (rule) Burley v. Miller
E.D. Mich. · 2017 · confidence medium
Co., 840 F.2d 985, 990-91 (1st Cir. 1988) (holding that “an unsuccessful party is not entitled as of right to de novo review ... of an argument never seasonably raised before the magistrate”); Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (“[Allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act.”), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1…
cited Cited as authority (rule) United States v. Sundeep Dharni
9th Cir. · 2014 · confidence medium
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (“the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision”) (citation omitted). 2.
discussed Cited as authority (rule) Roderick Go v. Eric Holder, Jr. (2×)
9th Cir. · 2014 · confidence medium
In general, the “appropriate mechanism for resolving an irreconcilable conflict [between our decisions] is an en banc decision.” United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam).
discussed Cited as authority (rule) Maria Gonzalez v. State of Arizona (2×)
9th Cir. · 2010 · confidence medium
That’s because, like Washington IV’s rule, a statement in an en banc opinion that’s not necessary to resolve the merits of the case often “provides a supervisory function” to “three-judge panels and district courts . . . . [and] thus constitutes authoritative circuit law.” Barapind v. Enomoto, 400 F.3d 744 , 751 n.8 (9th Cir. 2005) (en banc); see, e.g., Mil- ler, 335 F.3d at 900 ; United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam); Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc).
discussed Cited as authority (rule) Gonzalez v. Arizona
9th Cir. · 2010 · confidence medium
That's because, like Washington IV's rule, a statement in an en banc opinion that's not necessary to resolve the merits of the case often "provides a supervisory function" to "three-judge panels and district courts.... [and] thus constitutes authoritative circuit law." Barapind v. Enomoto, 400 F.3d 744 , 751 n. 8 (9th Cir.2005) (en banc); see, e.g., Miller, 335 F.3d at 900 ; United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam); Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1478-79 (9th Cir. 1987) (en banc). [2] Tahoe IV said that it overturned Tahoe III's "b…
examined Cited as authority (rule) Vasquez v. Astrue (6×)
9th Cir. · 2009 · confidence medium
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam).
examined Cited as authority (rule) Vasquez v. Astrue (3×)
9th Cir. · 2009 · confidence medium
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam).
discussed Cited as authority (rule) Williams v. McNeil
11th Cir. · 2009 · confidence medium
The Ninth Circuit noted that “allowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act.” Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir.1988), overruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc).
examined Cited as authority (rule) Vasquez v. Astrue (6×)
9th Cir. · 2008 · confidence medium
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam).
cited Cited as authority (rule) United States v. Esteban Hernandez-Castro
9th Cir. · 2007 · confidence medium
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992).
cited Cited as authority (rule) United States v. Hernandez-Castro
9th Cir. · 2007 · confidence medium
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992).
discussed Cited as authority (rule) Kulvir Singh Barapind v. Jerry J. Enomoto, United States Marshal for the Eastern District of California (2×)
9th Cir. · 2005 · confidence medium
Again, this holding, which we subsequently reaffirmed en banc, see United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam), would have been nonbinding "dicta” by the dissent’s definition.
discussed Cited as authority (rule) Barapind v. Enomoto
9th Cir. · 2005 · confidence medium
Again, this holding, which we subsequently reaffirmed en banc, see United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam), would have been non-binding “dicta” by the dissent’s definition.
discussed Cited as authority (rule) Cole v. State of New Mexico
10th Cir. · 2003 · confidence medium
We conclude that, by failing to raise the issue in his initial response to the respondent’s motion to dismiss, Mr. Cole has waived the argument that the unavailability of his caseworker constituted cause for his failure to file a certiorari petition. “[Ajllowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act.” Greenhow v. Sec’y of Health & Human Servs., 863 F.2d 633, 638 (9th Cir.1988), overruled on other grounds by, United S…
discussed Cited as authority (rule) Salim v. Lee
C.D. Cal. · 2002 · signal: cf. · confidence medium
Cf. United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (an appellate court faced with an irreconcilable conflict must call for en banc review unless the prior decision can be distinguished).
discussed Cited as authority (rule) In Re: The Exxon Valdez, Grant Baker, as Representatives of the Mandatory Punitive Damages Class v. Joseph Hazelwood, and Exxon Corporation Exxon Shipping Company, in Re: The Exxon Valdez, Grant Baker, as Representatives of the Mandatory Punitive Damages Class v. Exxon Corporation Exxon Shipping Company, and Joseph Hazelwood, Daniel R. Calhoun Bradford J. Chisholm David P. Clarke Thomas S. McAllister Phillip G. McCrudden Michael J. McClenaghan Guy Piercey Hugh Wisner Grant C. Baker Larry L. Dooley Kim J. Ewers John W. Herschleb Kent Herschleb David B. Horne Michael J. Owecke Gerald E. Thorne George A. Gordaoff Old Harbor Native Corporation Timberline, Inc. Barbara Brown John Foges Jamie L. Halladay Charles McMahon Jennifer Briggs Terri Mast Mark T. Coles Fred Galicano Mike Hollerbeke Kathy Bryan Vincent Libed Art Huddleston Opinion Robert Love Roxane Villaueva Marcelo Rombaoa Scott Hulbert Brian Gillis Frank Michael Carlson Elenor McMullen Native Village of Larsen Bay Native Village of Chenega Bay v. Exxon Corporation Exxon Shipping Company Joseph Hazelwood
9th Cir. · 2001 · signal: cf. · confidence medium
Co. v. Haslip, 499 U.S. 1 , 23 n.11 (1991). 61 See id. ("We are not persuaded, however, that the Due Process Clause requires [a clear and convincing standard]."). 62 16 U.S. 546 (1818). 63 See id. at 547 . 64 See id. at 547, 550 . 65 See id. at 547-48, 551 . 66 Id. at 558 67 Id. 68 Id. at 559-60 . 69 Id. 70 147 U.S. 101, 117 (1893). 71 Id. at 108 (quoting The Amiable Nancy, 16 U.S. 546, 559 (1818)). 72 Id. at 117. 73 The Amiable Nancy, 16 U.S. 546, 559 (1818). 74 Id.; cf. Kolstad v. American Dental Assoc., 527 U.S. 526 (1999) (explaining that, in a punitive damages context, an employer may not…
discussed Cited as authority (rule) Corbett v. Brill
D. Haw. · 2000 · confidence medium
Petitioner raises his “presumed prejudice” argument for the first time in this appeal. 6 “Arguments raised for the first time on appeal have traditionally been held to be barred, absent exceptional circumstances or a convincing explanation for the failure to present them to the court below.” Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir.1988) (applying rule to appeal from magistrate F & R), oveiruled on other grounds by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992).
discussed Cited as authority (rule) Herman Roberts v. Kenneth S. Apfel
8th Cir. · 2000 · confidence medium
See, e.g., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (issues first raised in objections deemed waived); Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638 (9th Cir. 1988) (Magistrates Act not “intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.”), overruled in part on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (per curiam); Borden v. Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir. 1987) (per curiam) (“Parties must take bef…
discussed Cited as authority (rule) Herman Roberts v. Kenneth S. Apfel, Commissioner, Social Security Administration
8th Cir. · 2000 · confidence medium
See, e.g., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir.1996) (issues first raised in objections deemed waived); Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 638 (9th Cir.1988) (Magistrates Act not “intended to give litigants an opportunity to run one version of their case past the magistrate, then another past the district court.”), overruled in part on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam); Borden v. Secretary of Health & Human Servs., 836 F.2d 4, 6 (1st Cir.1987) (per curiam) (“Parties must take before …
cited Cited as authority (rule) Jackson v. Caton
9th Cir. · 1997 · confidence medium
Greenhow v. Secretary of Health & Human Serv., 863 F.2d 633, 638-39 (9th Cir.1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992).
discussed Cited as authority (rule) Raymond Simpson v. Lear Astronics Corporation, United States Ex Rel. Raymond Simpson v. Lear Astronics Corporation
9th Cir. · 1996 · confidence medium
In Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 635-36 (9th Cir.1988), overruled on other grounds, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam), cert. denied, 507 U.S. 978 , 113 S.Ct. 1429 , 122 L.Ed.2d 797 (1993), we noted that Britt v. Simi Valley Unified Sch.
discussed Cited as authority (rule) United States v. Stone (In re Stone)
9th Cir. · 1993 · confidence medium
Citing Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988), overruled by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc), cert. denied, — U.S. -, 113 S.Ct. 1429 , 122 L.Ed.2d 797 (9th Cir.1993), the State and Hotel argue that unless and until the conflict is resolved by an en banc decision of this circuit, we must follow our prior decisions in Artus and California .
discussed Cited as authority (rule) In Re Stone
9th Cir. · 1993 · confidence medium
Citing Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988), overruled by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc), cert. denied, --- U.S. ----, 113 S.Ct. 1429 , 122 L.Ed.2d 797 (9th Cir.1993), the State and Hotel argue that unless and until the conflict is resolved by an en banc decision of this circuit, we must follow our prior decisions in Artus and California.
discussed Cited as authority (rule) Irwin Koff Darline Ruth Koff v. United States (2×)
9th Cir. · 1993 · confidence medium
Neither do we have the power to “make [a] choice between two opposing lines of authority.” Greenhow v. Secretary of Health & Human Servs., 863 F.2d 633, 636 (9th Cir.1988), overruled en banc, United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc).
discussed Cited as authority (rule) United States v. Reshat Shabani, A/K/A Lee Shabani (2×)
9th Cir. · 1993 · confidence medium
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc), cert. denied, - U.S. -, 113 S.Ct. 1429 , 122 L.Ed.2d 797 (1993).
discussed Cited as authority (rule) United States v. Edward Pisciotta (2×) also: Cited "see"
9th Cir. · 1993 · confidence medium
United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam), cert. denied, 61 U.S.L.W. 3620 (U.S. Mar. 8, 1993) (No. 92-7383). 10 "[U]nder 18 U.S.C. § 3585 (b), the district court lacks the authority to award a defendant credit for time spent in official detention prior to sentencing.
discussed Cited as authority (rule) United States v. Duane Cree (2×) also: Cited "see"
9th Cir. · 1993 · confidence medium
United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989). 5 The district court is expressly authorized to impose either a consecutive or a concurrent sentence on a defendant already serving an undischarged term of imprisonment. 18 U.S.C. § 3584 (a); United States v. Hardesty, 977 F.2d 1347, 1348-49 (9th Cir.1992) (en banc) (per curiam), petition for cert. filed, --- U.S.L.W. ---- (U.S. Jan. 20, 1993) (No. 92-7383); Wills, 881 F.2d at 826 .
discussed Cited as authority (rule) Gordon E. Powelson, Personal Representative of the Estate of Clydena M. Gross v. United States of America, Acting by and Through Its Secretary of the Treasury Irs, Gordon E. Powelson, an Individual Chicago Title Insurance Company of Oregon, an Oregon Corporation v. United States of America, Acting by and Through Its Secretary of the Treasury and Its Internal Revenue Service
9th Cir. · 1992 · signal: cf. · confidence medium
Cf. United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam) (en banc review required " 'unless the prior decisions [alleged to be in conflict] can be distinguished.' ") (quoting Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1479 (9th Cir.1987) (en banc), cert. denied, 485 U.S. 989 , 108 S.Ct. 1293 , 99 L.Ed.2d 503 (1988)). 21 Powelson does not challenge the calculation of his tax liability.
discussed Cited as authority (rule) Powelson v. United States ex rel. Secretary of the Treasury
9th Cir. · 1992 · signal: cf. · confidence medium
Cf. United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir.1992) (en banc) (per curiam) (en banc review required “ ‘unless the prior decisions [alleged to be in conflict] can be distinguished.’ ”) (quoting Atonio v. Wards Cove Packing Co., 810 F.2d 1477, 1479 (9th Cir.1987) (en banc), cert. denied, 485 U.S. 989 , 108 S.Ct. 1293 , 99 L.Ed.2d 503 (1988)).
discussed Cited "see" Leslie Khoreanian v. LoanDepot.com, LLC
D. Or. · 2026 · signal: see · confidence high
See ECF 34 at 11-12 (Plaintiff accepting Defendant’s assertion that a taking is independently wrongful when it is conducted via deceit and misrepresentation and arguing that Plaintiff relied on Defendant’s representation that she would qualify for the loan she sought). “[A]llowing parties to litigate fully their case before the magistrate and, if unsuccessful, to change their strategy and present a different theory to the district court would frustrate the purpose of the Magistrates Act.” Greenhow v. Sec. of Health & Human Servs., 863 F.2d 633, 638 (9th Cir. 1988), overruled in part on…
discussed Cited "see" Gonzalo J. Castillo v. Larry Art Martinez
C.D. Cal. · 2024 · signal: see · confidence high
See Greenhow v. 28 Secretary of Health & Human Services, 863 F.2d 633, 638 (9th Cir. 1988) (“[A]llowing parties to 1 litigate their case before the magistrate and, if unsuccessful, to change their strategy and present a 2 different theory to the district court would frustrate the purpose of the Magistrates Act.”), overruled 3 on other ground by United States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc).
discussed Cited "see" Gregory Bernard Lacy v. J. A. Lizarraga
C.D. Cal. · 2021 · signal: see · confidence high
See Greenhow v. Secretary of Health & Human 2 Services, 863 F.2d 633, 638-39 (9th Cir. 1988), overruled on other grounds by United 3 States v. Hardesty, 977 F.2d 1347, 1348 (9th Cir. 1992) (en banc) (“We do not believe 4 that the Magistrate Act was intended to give litigants an opportunity to run one 5 version of their case past the magistrate, then another past the district court.”); 6 (Rhodes v. Dittmann, 903 F.3d 646, 664 (7th Cir. 2018) (discussing government’s 7 waiver of harmless error issue). 8 “[R]elief is proper only if the federal court has ‘grave doubt about whether a 9 tr…
discussed Cited "see" INAG, Inc. v. Richar, LLC
D. Nev. · 2021 · signal: see · confidence high
See Greenhow v. Sec’y of 25 Health & Human Servs., 863 F.2d 633, 638-39 (9th Cir. 1988) (stating that it would “frustrate the 26 purpose of the Magistrates Act” to “allow[] parties to litigate fully their case before the magistrate 27 and, if unsuccessful, to change their strategy and present a different theory to the district court”), 28 overruled on other grounds by United States v. Hardesty, 977 F.2d 1347 (9th Cir. 1992); see also 1 Pinder v. Byrnes, 2020 U.S. Dist.
Retrieving the full opinion text from the archive…
UNITED STATES of America, Plaintiff-Appellee,
v.
Jude Somerset HARDESTY, Defendant-Appellant
90-30260.
Court of Appeals for the Ninth Circuit.
Oct 22, 1992.
977 F.2d 1347
Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Or., for defendant-appellant., Baron C. Sheldahl, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.
Wallace, Tang, Pregerson, Alarcon, Poole, Canby, Norris, Beezer, Hall, Brunetti, Fernandez.
Cited by 122 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 82%
Citer courts: Ninth Circuit (1)
Reporter's Syllabus — editorial summary, not part of the Court's opinion

Stephen R. Sady, Chief Deputy Federal Public Defender, Portland, Or., for defendant-appellant.

Baron C. Sheldahl, Asst. U.S. Atty., Portland, Or., for plaintiff-appellee.

Appeal from the United States District Court for the District of Oregon.

Before: WALLACE, Chief Judge, TANG, PREGERSON, ALARCON, POOLE, CANBY, NORRIS, BEEZER, HALL, BRUNETTI, and FERNANDEZ, Circuit Judges.

PER CURIAM:

Lead Opinion

PER CURIAM:

Hardesty appeals from the denial of his motion to reduce his sentence pursuant to 28 U.S.C. § 2255 and former Federal Rule of Criminal Procedure 35(a). He was convicted in federal district court for possession of a sawed-off shotgun in violation of 26 U.S.C. §§ 5861(d), 5871 and sentenced to ten years’ imprisonment. The district court ordered that Hardesty’s sentence run consecutively to a state prison sentence that he was serving at the time of his federal conviction.

Hardesty filed a motion to correct the sentence. He argued before the district court that the consecutive sentence was illegal under this court’s decision in United States v. Terrovona, 785 F.2d 767, 769 (9th Cir.1986) (Terrovona), and United States v. Williams, 651 F.2d 644, 647 n. 2 (9th Cir.1981) (Williams).

The government opposed the motion relying on this court’s earlier decision in United States v. Thornton, 710 F.2d 513 (9th Cir.1983) {Thornton). The district court, after observing that the Terrovona opinion did not cite Thornton, denied the motion. The district court concluded that it was bound by Thornton on the ground that “when two panels reach different conclusions the earlier decision controls, unless the [circuit] court decides the question en banc, or a United States Supreme Court opinion reverses the earlier panel.” Unit[*1348] ed States v. Hardesty, No. CR-83-0134-OMP (D.Or. filed June 27, 1990) (citing United States v. Magana, 797 F.2d 777, 779 (9th Cir.1986); United States v. Maybusher, 735 F.2d 366, 371 n. 1 (9th Cir.1984)).

A majority of a three-judge panel of this court affirmed the denial of the motion to correct the sentence holding that it was free to apply Thornton, without calling for en bane review, notwithstanding that “Thornton and Terrovona are clearly in conflict.” United States v. Hardesty, 958 F.2d 910, 912 (9th Cir.1992) (Hardesty). In determining that it had the authority to proceed without an en banc call, the majority relied on Greenhow v. Secretary of Health & Human Services, 863 F.2d 633 (9th Cir.1988).

In his suggestion for rehearing en banc, Hardesty asserted that under the law of this circuit, the irreconcilable conflict between Thornton and Terrovona must be resolved by an en banc court. In Atonio v. Wards Cove Packing Co., 810 F.2d 1477 (9th Cir.1987) (en banc), cert. denied, 485 U.S. 989, 108 S.Ct. 1293, 99 L.Ed.2d 503 (1988), we held that “the appropriate mechanism for resolving an irreconcilable conflict is an en banc decision.” Id. at 1478-79. Unless an alternative method is provided by rule of this court, “[a] panel faced with such a conflict must call for en banc review, which the court will normally grant unless the prior decisions can be distinguished.” Id. at 1479 (emphasis added). In Greenhow, a three-judge panel of this court held that where there are two opposing lines of authority, a panel may, without calling for en banc review, follow the rule which has “successfully posed as the law of the circuit for long enough to be relied upon.” 863 F.2d at 636. Greenhow did not cite our Atonio en banc decision. We therefore overrule Greenhow to the extent that it conflicts with Atonio.

Hardesty argues that the consecutive sentence was illegal and requests that his sentence be reduced for time served or, in the alternative, that probation be substituted for the federal sentence. The district court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 1291. We affirm.

Hardesty argues that the district court improperly ordered his federal sentence to run consecutively to his previously imposed state sentence. Because Hardesty contends that his sentence is illegal as a matter of law, our review is de novo. United States v. Wills, 881 F.2d 823, 825 (9th Cir.1989).

Hardesty points out that in Terrovona we held that until November 1, 1987, a district court lacked the authority to order that a sentence be served either consecutively or concurrently. 785 F.2d at 770. Hardesty was sentenced in 1984. The government contends that consecutive sentences are lawful according to Thornton. In Thornton, we held that former 18 U.S.C. § 3568 did not limit the authority of judges to order that sentences be served consecutively. 710 F.2d at 516; see also United States v. O’Brien, 789 F.2d 1344, 1346 (9th Cir.1986) (O’Brien) (following Thornton).

We granted rehearing en banc to resolve the conflict between Thornton and Terrovona. Our prior cases and authority from other circuits counsel in favor of adopting the rule in Thornton. Consecutive sentencing was permitted by the law of this circuit as early as 1941. See Gunton v. Squier, 185 F.2d 470, 471 (9th Cir.1950) (approving consecutive sentence); Hayden v. Warden, 124 F.2d 514, 514-15 (9th Cir.1941) (same). In Gunton, we stated that

[i]t is a well recognized rule of law that a person who has violated the criminal statutes of both the Federal and State Government may not complain of the order in which he is tried or punished for such offenses. Each is a sentence unto itself, otherwise there would be no orderly procedure in handling cases of this kind between two sovereigns.

185 F.2d at 471. Since our restatement of this rule in Thornton, no appellate court has approved the Terrovona analysis. See, e.g., O’Brien, 789 F.2d at 1346. In addi[*1349] tion, eight of our sister circuits agree that federal district courts have the power to impose a sentence that commences after completion of an existing state sentence. See Harding v. United States, 851 F.2d 1305, 1306 (11th Cir.1988); Pinaud v. James, 851 F.2d 27, 30 (2d Cir.1988); United States v. Campisi, 622 F.2d 697, 699 (3d Cir.1980); Causey v. Civiletti, 621 F.2d 691, 694 (5th Cir.1980); Cox v. United States ex rel. Arron, 551 F.2d 1096, 1098 (7th Cir.1977); United States v. Lee, 500 F.2d 586, 587-88 (8th Cir.), cert. denied, 419 U.S. 1003, 95 S.Ct. 322, 42 L.Ed.2d 279 (1974); Anderson v. United States, 405 F.2d 492, 493 (10th Cir.), cert. denied, 394 U.S. 965, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969); Jervis v. United States, 382 F.2d 592, 593 (1st Cir.1967).

Terrovona, on the other hand, stands alone in failing to recognize the rule enunciated in Thornton as the law of the circuit. Terrovona relied on three cases addressing the question whether a district court could order concurrent sentences under former 18 U.S.C. § 3568. See Terrovona, 785 F.2d at 770; Williams, 651 F.2d 644; United States v. Segal, 549 F.2d 1293 (9th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977); United States v. Myers, 451 F.2d 402 (9th Cir.1972). Of these cases, only Williams discussed the question of the district court’s power to impose consecutive sentences, and then only in dicta. Williams, 651 F.2d at 647 n. 2.

We conclude that the better rule is stated by Thornton and our sister circuits. In our en banc capacity, we reaffirm Thornton and overrule Terrovona to the extent that it is inconsistent with Thornton. The district court did not err in ordering Har-desty’s sentence to run consecutively to his undischarged state sentence.

Hardesty also argues that the district court abused its discretion in refusing to order an updated presentence report. We do not review this issue en banc and leave the panel opinion’s disposition of the question intact. Hardesty, 958 F.2d at 915-16.

AFFIRMED.

Dissent

PREGERSON, Circuit Judge,

dissenting:

I respectfully dissent because I believe that the position set forth in footnote 2 of my opinion in United States v. Williams, 651 F.2d 644, 647 n. 2 (9th Cir.1981), appropriately balances the interests of both the Attorney General and those of the district court. The Attorney General, through the Bureau of Prisons, has the discretion to designate the place of confinement. 18 U.S.C. § 4082; 28 C.F.R, § 0.96. Because this grant of authority precluded the District Court under 18 U.S.C. § 3568 from ordering that a federal sentence run concurrently with a state sentence, I believe it equally prevented the District Court from ordering a consecutive sentence. However, the District Court was free to recommend either situation.

Footnote 2 of Williams sets forth this position. The recommendation of the District Court was invariably followed by the Bureau of Prisons. I believe this approach best accommodated the interests of both the Bureau of Prisons and the District Court. In this way, the District Court accomplished what it wanted and the Attorney General retained the discretion afforded it under section 4082.

I am not persuaded by the majority’s argument that we should adopt the rule in United States v. Thornton, 710 F.2d 513 (9th Cir.1983), just because other circuits have done so. Ante at 1347. The footnote in Williams has been on the books for over a decade. As far as we know, District Courts in this circuit adhered to it until the Crime Control Act of 1984 became effective. See, e.g., United States v. Posey, 665 F.Supp. 848, 850 (C.D.Cal.1987) (noting that order of consecutive sentence was modified to reflect a recommendation to the Attorney General).

The approach in Williams has the appeal of consistency and balance. If the District Court could not order a concurrent sentence, it should not have been able to order a consecutive one. Otherwise, we would be giving the District Court the power to[*1350] make a sentence harsher, but not lighter. Accordingly, I dissent.