Lyndon BARTHOLOMEW and Latonya Bartholomew, Plaintiffs-Appellants, v. Donald BLEVINS, Jr., Linda Potter, Individually and as Fayette County Deputy Clerk and Supervisor, and County of Fayette, Defendants-Appellees.
No. 10-6352
United States Court of Appeals, Sixth Circuit
May 17, 2012
679 F.3d 497
The City of Lincoln Park argues that Plaintiffs abandoned their claims against the City because the claims were not set forth in Plaintiffs’ opening appellate brief. We agree. Plaintiffs here made no mention of municipal liability in their opening brief, even though they were clearly on nоtice that the district court decided the municipal liability issue against them and that it was a proper issue for appeal. Their claims are thus abandoned. United States v. Johnson, 440 F.3d 832, 845-46 (6th Cir.2006) (“[A]n appellant abandons all issues not raised and argued in its initial brief on appeal.” (alteration in original) (internal quotation marks omitted)).
Though Plaintiffs address the issue in their reply brief, “[w]e have consistently held that arguments made to us for the first time in a reply brief are waived.” Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir.2010). Further, even if had they raised their argument at the appropriate time, we would find it waived on grounds that it is “adverted to ... in a perfunctory manner, unaccompanied by some effort at developed argumentation.” Langley v. DaimlerChrysler Corp., 502 F.3d 475, 483 (6th Cir.2007) (internal quotation marks omitted). Plaintiffs’ municipal liability argument consists of a conclusory allegation that Duchane is a policymaker, the incorrect assertion that whether Duchane is a policymaker is a question of fact for a jury, see Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989) (“[T]hе identification of those officials whose decisions represent the official policy of the local governmental unit is itself a legal question to be resolved by the trial judge before the case is submitted to the jury.“), and recitations of facts attempting to establish each Plaintiff‘s innocence of meter tampering irrelevant to the question of municipal liability. Even were we to consider Plaintiffs’ belated argument, they have given us nothing to сonsider.
III. CONCLUSION
Plaintiffs have abandoned their claims against Defendant Vaslo and the City of Lincoln Park. On all other issues, we AFFIRM the judgment of the district court.
ON BRIEF: Leslie Dean, Leslie Dean, Attorney at Law, PSC, Versailles, Kentucky, for Appellants. Donald R. Todd, Todd & Todd, PLLC, Lexington, Kentucky, for Appellees.
Before: GUY and COOK, Circuit Judges; GRAHAM, District Judge.*
COOK, J., delivered the opinion of the court, in which GRAHAM, D.J., joined. GUY, J. (pp. 503-04), delivered a separate dissenting opinion.
OPINION
COOK, Circuit Judge.
Lyndon and Latonya Bartholomew appeal the district court‘s dismissal of their civil rights action challenging Fayette County‘s refusal to accept a photocopy of
Latonya Bartholomew serves in the United States Air Force. According to the Bartholomews, Latonya executed a military power of attorney designating her husband Lyndon as her attorney-in-fact during her deployment overseas. In March 2010, Lyndon presented a photocopy of this instrument to the Fayette County Clerk‘s Office for purposes of recording an original deed and mortgage in the county‘s real property index records. The clerk‘s office rejected the copy as inauthentic and refused to record the deed and mortgage.
The Bartholomews sued the county and members of the clerk‘s office under
The district court denied the Bartholomews’ motion for a preliminary injunction, reasoning that
II.
Federal-question jurisdiction extends to the Bartholomews’
The Bartholomews’ complaint effectively asserts one claim: that the clerk‘s office violated thе protections afforded to military powers of attorney by
Section 1044b provides in pertinent part:
Military powers of attorney: requirement for recognition by States
(a) Instruments to be given legal effect without regard to State law.—A military power of attorney—
(1) is exempt from any requirement of form, substance, formality, or recording that is provided for powers of attorney under the laws of a State; and
(2) shall be given the same legal effect as a power of attorney prepared and executed in accordance with the laws of the State concerned.
(b) Military power of attorney.—For purposes of this section, a military power of attorney is any general or special power of attorney that is notarized in accordance with section 1044a of this title or other applicable State or Federal law.
(c) Statement to be included.—(1) Under regulations prescribed by the Secrеtary concerned, each military power of attorney shall contain a statement that sets forth the provisions of subsection (a).
(2) Paragraph (1) shall not be construed to make inapplicable the provisions of subsection (a) to a military power of attorney that does not include a statement described in that paragraph.
By virtue of the Supremacy Clause,
Reading
While
The Bartholomews challenge this interpretation, citing an IRS legal memorandum, I.R.S. Chief Couns. Adv. 2005-03-001, 2005 WL 122050 (Jan. 21, 2005) (arguing that an attorney-in-fact could correct any omissions in an IRS power of attorney fоrm for an absent taxpayer by filing the appropriate form and attaching “a copy of, the original [power of attorney]“); a 2004 decision of the General Services Administration‘s Board of Contract Appeals, GSBCA No. 16337-RELO; a 2001 Department of Defense regulation, 32 C.F.R. Pt. 153, 66 Fed.Reg. 45169-01; and a Louisiana statute recognizing the preemptive authority of
Still, the Bartholomews contend that the clerk‘s office imposed an impermissible additional requirement of form. The clerk‘s office responds that it followed a general state policy of requiring original instruments, citing an advisory decision by the Kentucky attorney general and statutory provisions addressing different legal instruments. Though correspondence from the clerk‘s office makes no mention of these authorities (see R. 1, Ex. C), assuming that the clerk‘s office applied a policy it believed stemmed from state law, the state
The lеgislative history does not suggest a contrary result. Section 1044b‘s protections for military powers of attorney passed as part of the National Defense Authorization Act for Fiscal Year 1994. Pub.L. No. 103-160, § 547, 107 Stat. 1547 (1993). The House Armed Services Committee Report that accompanied the legislation described the provision‘s purpose as follows:
The past experience of service members and their dependents who executed pоwers of attorney in advance of recent military operations has shown that some states and territories have refused to honor those powers of attorney because they were not executed in accordance with state or territorial legal requirements. The failure to honor these documents has created substantial hardships for military families.
This section would provide that a power of attorney signed by a persоn authorized to receive legal assistance and notarized by a person authorized under section 1044a of title 10, United States Code, to perform notarial acts shall be recognized as valid and given full effect by those to whom such a power of attorney is presented.
H.R.Rep. No. 103-200, at 286, 1993 U.S.C.C.A.N. 2013, 2072-73 (1993). No doubt, Congress intended to simplify the process of preparing and using powers of attorney for military families, and it did so by preempting the states’ various formalities for powers of attorney. See
We further note that notarization serves an important governmental interest in preventing fraud. “[W]hen a notary public certifies a document, he attests that the document has been executed or is about to be executed, that the notary is confronted by the subscriber, and that the subscriber is аsserting the fact of his execution.” 58 Am.Jur.2d Notaries Public § 28 (West 2012); see also Ira Shiflett, Goodbye to Affidavits? Improving the Federal Affidavit Substitute Statute, 54 Clev. St. L.Rev. 309, 311–14 (2006) (discussing the authenticating features of notarization, such as truth, punishment, identity, and witness); Michael L. Closen & G. Grant Dixon III, Notaries Public from the Time of the Roman Empire to the United States Today, and Tomorrow, 68 N.D. L.Rev. 873, 874 (1992) (hereinafter “Closen & Dixon, Notaries“) (“Without [notarization], a signature on an important document might not be worth the paper upon which it is written. The potential for fraud would otherwise grind the business and legal worlds to a halt.” (citation omitted)).
Notarial functions and methods have evolved over time, becoming more ministerial and less formal. See Closen & Dixon, Notaries, 68 N.D. L.Rev. at 875-78 & n.15 (tracing development of notarial functions from the multi-purpose, legal-adviser role in ancient Rome to the modern role of administering oaths and witnessing the execution of important documents); see gеnerally Unif. Law on Notarial Acts § 2(5) (2010) (identifying notarial acts). Perhaps evocative of this trend, Congress has seen fit to eliminate the need for notarial attestation in certain circumstances, such as when it enacted
We AFFIRM.
III.
RALPH B. GUY, JR., Circuit Judge, dissenting.
Although the court acknowledges that we are interpreting a remedial statute that “should be construed broadly to effectuate its purposes,” it proceeds, in my view, to do just the opposite. The time-honored principle of broad construction is avoidеd by a finding that the statute itself provides a clear answer. I fully agree that the statute provides a clear answer, but not the one reached by the court.
The statute, which deals exclusively with military powers of attorney, represents an understanding by Congress that those in our armed forces, particularly those serving abroad for extended periods of time, cannot anticipate every situation that might require action on their part if they werе home. An executed power of attorney is one answer to this dilemma.
Neither the clerk who rejected the proffered power of attorney nor the court maintain that the power of attorney was not executed in accordance with the statute. Rather, they read into the statute a requirement that the power of attorney must be an original. This interpretation is based on the language of
To require an original also seems to ignore the circumstances under which a power of attorney executed by a member of the armed forces in a war zone, for example, would be executed. It is hardly feasible to mail the original home. If a member of the armed forces had the forethought to еxecute a power of attorney before going overseas, this problem probably would be avoided. But the statute is aimed, at least in part, at persons acting under extreme circumstances. The more likely scenario in this digital age, is that the power of attorney would be sent home as an attachment to an email.
Although I do not think any resort to legislative history is either necessary or helpful, I am puzzled by that portion of the legislаtive history which the court finds lends support to its interpretation. The House Armed Services Committee Report, which I quote again to provide context, states:
The past experience of service members and their dependents who executed powers of attorney in advance of recent military operations has shown that some states and territories have refused to honor those powers of attorney because they were not executed in accordance with state or territorial legal requirements. The failure to honor these documents has created substantial hardships for military families.
This section would provide that a power of attorney signed by a person authorized to receive legal assistance and notarized by a person authorized under section 1044a of title 10, United States Code, to perform notarial acts shall be reсognized as valid and given full effect by those to whom such a power of attorney is presented.
From this the court concludes that although Congress “intended to simplify the process of preparing and using powers of attorney for military families, and it did so by preempting the states’ various formalities for powers of attorney ... it still retained minimal formalities, including notarization.” Since the document in question was notarized, the court imports the requirement that it be an original from the contention that “notarization serves an important governmental interest in preventing fraud.” Assuming this to be the case, I would suggest that one consider just what the recording clerk faced when presented with this document. She did not know the person who presented the power of attorney; she did not know the person who executed the power of attorney, or the notary who authenticated the signature; she did not have аny way of knowing if the notary was even a person authorized to authenticate a signature, and all of this would have been the situation whether she had been presented with an original or a copy. All she knew was that she was to accept only originals for recording. It is clear that if fraud is the concern, the recording clerk would have been in no better position to detect it, whether presented with an original or a copy.
This seems tо be a particularly odd time in history to be concerned about copies. We live in a world of copies, whether it be faxes, email attachments, or any number of other digital transmissions. Indeed, for many years the Federal Rules of Evidence has provided in Rule 1003 that “[a] duplicate is admissible to the same extent as the original unless a genuine question is raised about the original‘s authenticity or the circumstances make it unfair to admit the duplicаte.” Since the Federal Rules of Evidence bear the imprimatur of Congress, this is at least some insight, in a global sense, about how Congress feels about the reliability of copies.
Since this is a
I would reverse the district court based upon the interpretation made of the statute at issue, but would not pretermit the possibility of disposition of this matter on other grounds.