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songer_district
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F
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Luba WANG, formerly known as Lillian Murashek, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
No. 294, Docket 27277.
United States Court of Appeals Second Circuit.
Argued April 2, 1962.
Decided April 30, 1962.
Samuel W. Sherman, New York City, for plaintiff-appellant.
Philip J. Ryan, Jr., Asst. U. S. Atty., S. D. N. Y., New York City (Robert M. Morgenthau, U. S. Atty., and Eugene R. Anderson, Asst. U. S. Atty., New York City, on the brief), for defendant-appellee.
Before CLARK, HINCKS, and FRIENDLY, Circuit Judges.
PER CURIAM.
Undoubtedly this action for veteran life insurance is time-barred under 38 U.S.C. § 784(b), requiring action within six years after the right has accrued unless plaintiff can show that the time was suspended by her filing of a claim. Her brother, then in service, took out the policies in 1942 and 1943; but they lapsed for nonpayment of the premiums when he left the service in 1946. He died on July 17, 1949, and she did not make formal claim until 1957. She relies, however, on two letters she wrote the Veterans Administration—one in 1949 and one in 1950—asking for information as to the policies and the possibility that nonpayment of the premiums was excused by his service disability at the time. In each case the Veterans Administration answered stating that no benefits were payable, since the insurance had lapsed for nonpayment of the premiums, but stating that she could apply for waiver of payment for disability and sending her the appropriate forms to fill out. See the opinion below, D.C.S.D.N.Y., 196 F.Supp. 240, at 241-242. But she took no further action until 1957.
While no particular form is necessary for the presentation of a claim under 38 U.S.C. § 784, the courts have uniformly held that requests for information, without demand of payment, do not constitute a claim for purposes of suspending the running of the statute of limitations. We so held quite explicitly in Werner v. United States, 2 Cir., 86 F.2d 113; and other eases so holding are cited in the opinion below, D.C.S.D.N.Y., 196 F.Supp. 240, at 243. The district court was therefore correct in dismissing the complaint.
Affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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songer_counsel2
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
COASTAL STATES ENERGY COMPANY, Plaintiff-Appellant, v. Donald P. HODEL, Secretary of the United States Department of the Interior; Robert F. Burford, Director of the Bureau of Land Management, United States Department of the Interior; Robert Lopez, Chief, Minerals Section, Utah State Office of the Bureau of Land Management, United States Department of the Interior; and the United States Department of the Interior, Defendants-Appellees. Sierra Pacific Power Company; Utah Mining Association; State of Utah; Unelco, Inc., Amicus Curiae.
No. 86-1301.
United States Court of Appeals, Tenth Circuit.
April 9, 1987.
Rehearing Denied July 8, 1987.
Lawrence E. Stevens (Patrick J. Garver and Patricia J. Winmill of Parsons, Behle & Latimer, Salt Lake City, Utah; and Brian E. McGee of Parcel & Mauro, Denver, Colo., with him on the briefs), for plaintiff-appellant.
Peter Stirba, Asst. U.S. Atty. (Brent D. Ward, U.S. Atty., with him on the brief), Salt Lake City, Utah, for defendants-appellees.
John Madariaga and Margaret A. Manes, Reno, Nev., for amicus curiae Sierra Pacific Power Co.
David L. Wilkinson, Dallin W. Jensen and Michael M. Quealy, Salt Lake City, Utah, for amicus curiae State of Utah.
K.L. Mclff of Jackson, Mclff & Mower, Richfield, Utah, for amicus curiae Unelco, Inc.
James T. Jensen, Price, Utah, for amicus curiae Utah Mining Ass’n.
Before LOGAN, MOORE and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
This dispute concerns a readjustment by the Secretary of the Interior of the terms and conditions of two coal leases between the United States and Coastal States Energy Company, the latter a Texas corporation which operates an underground coal mine, known as the SUFCo Mine, in Sevier County, Utah. On administrative appeal, the Interior Board of Land Appeals (IBLA) upheld, in the main, the readjustments made by the Bureau of Land Management (BLM), holding that the readjustments were timely made and were themselves lawful. Coastal States Energy Co., 70 IBLA 386 (1983). Thereafter Coastal filed a petition for review in the United States District Court for the District of Utah. After discovery, Coastal and the Secretary filed motions for summary judgment. The district court granted summary judgment for the Secretary on all of Coastal’s claims except the third claim. Subsequently, additional evidentiary matter bearing on the third claim was given the district court. Then, after further hearing, the district court granted the Secretary summary judgment on Coastal’s third claim. The district court’s opinion entering summary judgment in favor of the Secretary on all of Coastal’s claims appears as Coastal States Energy Co. v. Watt, 629 F.Supp. 9 (D.Utah 1985). On appeal, we affirm with one exception. The instant case is a companion case to FMC Wyoming Corporation v. Hodel, 816 F.2d 496 (10th Cir.1987).
Coastal, as the successor in interest, holds two leases issued by the Secretary under the Mineral Lands Leasing Act of 1920 (MLLA), 41 Stat. 437 (1920), amended by 30 U.S.C. § 201 et. seq. (1976), permitting underground coal mining in Sevier County, Utah. The first lease, designated as the SL lease, was entered into on September 11, 1941. The second lease, designated the U lease, was executed on March 1, 1962. MLLA (1920) provided that coal leases issued by the Secretary would be for an indeterminate term, but subject to the right of the Secretary to readjust the terms of the lease at the end of each 20-year period following the date of issuance of the lease. 41 Stat. 437, § 7 (1920). In accord with the provisions of MLLA (1920), both of Coastal’s leases provided for readjustment of terms and conditions at the end of each 20-year period following the date of issuance of the lease.
Coastal’s SL lease had its first 20-year anniversary date on September 11, 1961. At that time the SL lease was readjusted by the Secretary, the readjustment including raising the royalty rate from ten cents to fifteen cents per ton of coal mined.
The second 20-year anniversary date for the SL lease was September 11, 1981. On July 9, 1981, 63 days before the September 11, 1981, anniversary date, BLM sent notice to Coastal of its intent to readjust the terms and conditions of the SL lease. The readjusted terms and conditions of the SL lease were sent Coastal on September 28, 1981. Coastal objected to the readjusted terms and conditions. The BLM, on March 18, 1982, dismissed these objections, and, as above indicated, on February 9, 1983, the IBLA, on administrative appeal, upheld in major and pertinent part the decision of BLM. Coastal States Energy Co., 70 IBLA 386 (1983).
Coastal’s U lease had its first 20-year anniversary date on March 1, 1982. On October 9, 1981, over five months before the March 1, 1982, anniversary date, the Secretary gave notice to Coastal of his intent to readjust the terms and conditions of the U lease. On December 24, 1981, slightly more than two months before the March 1, 1982, anniversary date, BLM sent the readjusted terms and conditions to Coastal. Coastal’s objections to the readjustments to the U lease were dismissed by the BLM in its decision of March 18, 1982, and BLM’s action in regard to the U lease changes was upheld with one minor exception by the IBLA in its decision of February 9, 1983. 70 IBLA 386. Coastal then sought judicial review of the IBLA’s decision of February 9, 1983, as such relates to both leases.
I. Timeliness of the Readjustment
Section 7 of MLLA (1920) provides that a coal lease issued pursuant to the Act shall be for an indeterminate period, but upon the condition that “at the end of each 20-year period” succeeding the original date of the lease the Secretary may readjust the terms and conditions of the original lease. Coastal’s two leases contain language tracking the statutory language. In the companion case of FMC Wyoming Corp. v. Hodel, 816 F.2d 496 (10th Cir.1987), we found that notice of intent to readjust the terms and conditions of a coal lease sent on or before the anniversary date preserves the Department’s right to readjust the terms within a reasonable time thereafter. Having carefully considered Coastal’s arguments to the contrary, we again conclude that the readjustment of Coastal’s leases was timely as the Interior duly notified Coastal of its intent to readjust the lease prior to the anniversary dates of the lease.
II. Lawfulness of the Readjusted Terms and Conditions
The BLM readjusted the terms and conditions of Coastal’s two leases in several particulars, including the royalty rate increase to 8% of the value of the coal mined, the deletion of the credit against royalty payments for rental payments, the substitution of monthly royalty payments for quarterly payments, increased bond requirements, and change of the readjustment intervals from 20 to 10 years. Coastal puts in issue the lawfulness of all these readjustments, with particular emphasis, of course, on the royalty increase.
Our starting point in this discussion is MLLA (1920), which was the statutory authority under which the present leases were issued by the Secretary. Section 7 of that Act provided as follows:
Leases shall be for an indeterminate period ... upon the further condition that at the end of each 20-year period succeeding the date of the lease such readjustment of terms and conditions may be made as the Secretary of the Interior may determine, unless otherwise provided by law at the expiration of such periods.
Both of Coastal’s leases incorporated the language of this statute.
As we stated in FMC Wyoming Corp., supra, section 7 of the Act, inter alia, clearly advises the lessee coal company that at the end of 20 years the Secretary is empowered to readjust the terms and conditions of the coal lease as he, or she, may determine. This is, of course, a very broad authority which Congress saw fit to grant to the Secretary, an authority which is only subject to the proviso “unless otherwise provided by law at the expiration of such [twenty-year] periods.” So, at the end of 20 years, the Secretary may readjust as he, or she, determines, unless the statutory law in effect on the 20-year anniversary date provides, for example, that a particular term be included in the lease. As we found in FMC Wyoming Corp., supra, the passage of FCLAA (1976) established such statutory law, setting forth the minimum provisions for federal coal leases. Such being the case, the Secretary in readjusting the terms and conditions of Coastal’s leases was required to act in conformity with FCLAA (1976).
Although, as indicated, the Secretary readjusted several significant terms and conditions of the SL and U leases on their 20-year anniversary dates, primary focus is on the increased royalty rate. On the anniversary date of each lease Coastal was paying, and for the prior 20 years had been paying, a royalty rate of fifteen cents per ton of coal mined. Although MLLA (1920) empowered the Secretary to originally determine and fix the royalty rate, it also provided that such rate should not be less than five cents per ton. FCLAA (1976), in effect, reaffirmed the authority of the Secretary to determine and fix the royalty rates of coal leases, but also provided that such rate must be “not less than twelve and one-half per centum of the value of the coal ..., except that the Secretary may determine a lesser amount in the case of coal recovered by underground mining operations.” Acting pursuant to this statute, the Department published a regulation which reads as follows:
A lease shall require payment of a royalty rate of not less than 8 per centum of the value of the coal removed from an underground mine, except that an authorized office may determine a lesser amount, but in no case less than 5 percent if conditions warrant.
43 C.F.R. § 3473.3-2(a)(3) (1979).
The BLM interpreted the foregoing regulation as meaning that on the anniversary dates of Coastal’s underground coal leases the Minerals Management Service had no authority to recommend a royalty rate less than 8% of the value of the coal mined, and in its decision said so in just so many words. BLM went on to add that if Coastal felt the 8% rate to be excessive, its only avenue of relief was to file an application for temporary royalty rate reduction under section 39 of MLLA. See 30 U.S.C. § 209 (1982).
The IBLA, upholding, on appeal, the ruling of the BLM that under the applicable regulations Coastal’s royalty rate must be initially readjusted to 8% of the-value of the removed coal, rather than a lesser figure, quoted the following language with approval:
Departmental regulation 43 CFR 3473.-3-2 provides two ways of granting underground coal lessees relief from the statutory I2V2 percent royalty. Subsections (a)(1) and (a)(3) implement 30 U.S.C. § 207(a) (1976) and provide that a rate as low as 5 percent may be determined at lease issuance____ Alternatively, the Department may establish a royalty rate in the lease and provide relief after lease issuance upon application of the lessee under subsection (d), which implements 30 U.S.C. § 209 (1976). Appellant has not persuaded us that it is unreasonable to establish an 8 percent royalty rate in the lease now, since the rate may temporarily be reduced later if conditions warrant. If a lower rate is put into the lease now and economic conditions change favorably during the term of the lease, there will be no opportunity for upward adjustment of the royalty figure until the lease is again ripe for readjustment. The method chosen by BLM thus assures the United States a fairer return over the life of the lease, provides appellant some relief from the statutory Í2V2 percent rate, yet affords appellant an opportunity for further royalty relief when it is really needed. We previously have affirmed BLM decisions denying special royalty relief at lease readjustment, requiring lessees to seek such relief under 43 CFR 3473.3-2(d). Lone Star Steel Co., 65 IBLA 147 (1982); Garland Coal and Mining Co., 49 IBLA 400 (1980).
Coastal States Energy Co., 70 IBLA 386, 393 (1983) (quoting Blackhawk Coal Co., 68 IBLA 96, 99 (1982)).
As mentioned at the outset, the district court on review of the decision of IBLA initially denied the Secretary’s motion for summary judgment on Coastal’s third cause of action, which concerned the imposition of the 8% royalty rate on coal recovered in underground mines. Subsequently, after a more complete rule making record was presented to the district court, the district court granted the Secretary’s motion for summary judgment on the third cause of action and upheld the readjusted royalty rate of 8%. In its opinion, the district court carefully analyzed the matter and concluded that initially fixing Coastal’s royalty rate at 8% was proper and noted that there was a procedure whereby Coastal could later seek review and relief if it could justify a lesser rate. See 629 F.Supp. 9 at 29-33 (D.Utah 1985). We are in general accord with the district court’s handling of this matter with one conceivably important exception.
The exception concerns the authority of the Minerals Management Service, in the instant case, to consider on the anniversary date of Coastal’s underground mine leases a royalty rate less than 8% of the value of the coal mined. The regulation in the first instance requires that the royalty rate shall not be less than 8% of the value of the coal mined, but the same regulation in the next breath goes on to state that, notwithstanding the 8% figure, “an authorized officer may determine a lesser amount, but in no case less than 5% if conditions warrant.” BLM, IBLA, and the district court have all held that, notwithstanding the rather clear language of the regulation, the royalty rate on the anniversary date of a coal lease must be readjusted to 8%. Agency interpretation of its own regulations is to be accorded considered judicial deference, but, at the same time, the courts should require agency action to conform to its own rules and regulations.
As applied to the instant case, Coastal suggests that, assuming the applicability of FCLAA (1976), under the regulation any mandatory minimum royalty rate is 5%, not 8%, of the value of the coal mined. We reject that suggestion. However, we agree with Coastal that it is error for the BLM to automatically fix the readjusted royalty rate for all underground coal at 8%. Such completely ignores the ensuing proviso in the same regulation that a lesser amount, but not less than 5%, may be set, “if conditions warrant.”
Subsequent to IBLA’s decision in the instant case, the IBLA recently held that Minerals Management Service, now succeeded by BLM, has the authority to set a royalty rate for underground coal at less than 8% in readjusting an existing coal lease. In Utah Power & Light, 80 IBLA 180 (1984), the BLM “admitted” that the regulations do allow a royalty rate of less than 8% to be placed on a readjusted undermine coal lease “if conditions warrant.” IBLA agreed with BLM and remanded the case there before it to the BLM for further consideration. This particular pronouncement of IBLA is in accord with our reading of the regulations.
As indicated, the readjusted royalty rate was not the only issue raised by Coastal in its petition for review, although it was perhaps the principal one. However, having concluded that FCLAA (1976) has application to the Secretary’s readjustment of the terms and conditions of Coastal’s two leases, it follows that Coastal’s other claims concerning terms mandated by FCLAA were also properly rejected. In sum, FCLAA (1976) applies to pre-FCLAA leases on their post-FCLAA anniversary date under which the leases were issued. See FMC Wyoming Corp., supra. Such was the intent behind FCLAA (1976) and such intent is in accord with MLLA (1920). Other action by the Secretary in readjusting Coastal’s leases not mandated by FCLAA (1976) is, in our view, a reasonable exercise of the Secretary’s broad authority to readjust.
Judgment affirmed, except for that part of the judgment which upheld the IBLA’s decision that on the anniversary dates of Coastal’s two leases the royalty rate had to be set at 8% of the value of the coal mined, and that a lesser figure could not even be considered. That part of the judgment only is reversed, and that particular matter only shall, by order of the district court, be remanded to IBLA with direction that further proceedings be in accord with this opinion.
. Coastal's third claim raised several issues challenging the validity of the Department’s 8% royalty readjustment regulation.
. Coastal’s SL lease reserved in the lessor "[t]he right to readjust and fix royalties payable hereunder and other terms and conditions at the end of 20 years from the date hereof and thereafter at the end of each succeeding 20 year period during the continuance of this lease unless otherwise provided by law at the time of expiration of any such period." The U lease contained similar language modifying only the "right to readjust” to read "the right reasonably to readjust."
. The original royalty rate for the SL lease was 15$ per ton. However during the first 20 years, this rate was reduced to 10$ per ton as a result of economic hardship.
. Coastal received a standard notice-informing Coastal that its leases would be readjusted to the minimum royalty rate prescribed in Interior's regulations. The notice also stated that the readjusted terms would be sent within two years of the date of the notice.
. Coastal also contends that the Interior’s own regulations require a final readjustment prior to the anniversary date. We do not agree. A fair reading of 43 C.F.R. § 3451.1 indicates only notice is required before the readjustment date. This reading comports with the Secretary’s interpretation of the regulation. See Lonestar Steel Co., 65 IBLA 147 (1982). An agency’s interpretation of its own regulation is of controlling weight unless plainly erroneous or inconsistent with the regulation. U.S. v. Larionoff, 431 U.S. 864, 97 S.Ct. 2150, 53 L.Ed.2d 48 (1977).
Nor do we find the regulations governing the timing of readjustments to be arbitrary or capricious. As found by the district court, the challenged regulations were published by the Secretary and comments were received. However not one comment suggested the readjustment must be final prior to the readjustment date. Coastal States Energy Co. v. Watt, 629 F.Supp. 9, 17-19 (D.Utah 1985). Further the Secretary justified its requirement of notice as assuring "timely and competent administration of leases by the self-imposition of the sanction of waiver’’ thus "guarantying] accountability.” 44 Fed. Reg. 42601-02 (1970). The scope of review under the arbitrary and capricious standard is narrow and this court may not substitute its judgment for that of the agency. Motor Vehicle Manufacturer’s Ass’n. v. State Farm Mutual Automobile Insurance, 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). In short we find no basis for Coastal’s contention.
. We do not interpret the language in MLLA (1920), which was incorporated verbatim in the two leases here involved, as only meaning that the Secretary on an anniversary date may readjust unless the law in effect at the time of readjustment has taken that right away. It no doubt covers that possibility. But in our view it also permits Congress to allow the Secretary to continue to have the right to readjust, but at the same time circumscribe that right by enacting, for example, a revised minimum royalty rate. The power to do the greater includes the power to do the lesser.
. Section 39 allows the Secretary to reduce or waive a royalty rate whenever he or she judges it necessary in order to promote development or allow the lessee to successfully operate. This power has existed since 1946 and was not altered by FCLAA (1976). See 60 Stat. 957 (1946); 30 U.S.C. § 209 (1982).
. In other decisions, however, the IBLA has reaffirmed the position taken in Coastal. See, e.g., Kanawha & Hocking Coal & Coke Co., 93 IBLA 179 (1986); Consolidation Coal Co., Chevron Coal Development Co., 86 IBLA 60 (1985).
. FCLAA did not specifically address the following terms which Coastal contends are unreasonable: the increased bonding requirement; the change from monthly to quarterly rental payments and, the deletion of a right to credit rental payments against royalty payments. As noted in Rosebud, under MLLA (1920) and the lease language, the Secretary possesses a "very broad power to make changes considered to be in accordance with the proper administration of the lands.” Rosebud Coal Sales Co., Inc. v. Andrus, 667 F.2d 949, 951 (10th Cir.1982). Coastal contends this power is limited by its lease language to "reasonable” changes. As discussed, under the MLLA (1920) and the leases themselves, the Secretary’s power is limited where the terms are "provided by law." As to those terms not so provided, Coastal has merely asserted that they are unreasonable without providing any basis for its claim. We do not agree and hence affirm the readjustment of these leases.
. We do not reach the issue of whether failure to notify the attorney general of the readjustment as required by 30 U.S.C. § 184(/ )(2) (1982) rendered the readjusted lease unlawful. We agree with the district court that the issue was waived as Coastal did not present it in the administrative proceedings below. In spite of Coastal’s claim that the action violated the specific language of the statute, we find no exceptional circumstances justifying judicial review of this issue. Hormel v. Helvering, 312 U.S. 552, 557, 61 S.Ct. 719, 721, 85 L.Ed. 1037 (1941); see also, Sunray Mid-Continent Oil Co. v. FPC, 364 U.S. 137, 157, 80 S.Ct. 1392, 1403, 4 L.Ed.2d 1623 (1960); U.S. v. L.A. Tucker Truck Lines, 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_applfrom
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
Hurley KELLY, Libelant-Appellant, v. THREE BAYS CORPORATION, Ltd., Respondent-Appellee.
No. 291, Docket 25844.
United States Court of Appeals Second Circuit.
Argued April 13,1960.
Decided April 15, 1960.
Kenneth Heller, New York City, for libelant-appellant.
Daniel J. Dougherty, New York City (Kirlin, Campbell & Keating, New York City, and Robert L. Mahar, Brooklyn, N. Y., on the brief), for respondentappellee.
Before LUMBARD, Chief Judge, and SWAN and CLARK, Circuit Judges.
PER CURIAM.
The decree of the district court is affirmed on the thorough and well reasoned opinion of Judge Bryan, reported at 1959, 173 F.Supp. 835.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
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songer_procedur
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Glenn D. PARSONS, Petitioner, v. UNITED STATES DEPARTMENT OF the AIR FORCE, Respondent.
No. 82-1687.
United States Court of Appeals, District of Columbia Circuit.
Argued March 17, 1983.
Decided May 6, 1983.
Michael S. Wolly, Washington, D.C., with whom Edward J. Hickey, Jr., Washington, D.C., was on the brief, for petitioner. Thomas A. Woodley, Washington, D.C., also entered an appearance for petitioner.
Jeffrey N. Gibbs, Sp. Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys., Washington, D.C., were on the brief, for respondent. Alan F. Greenwald, Atty., Merit Systems Protection Bd. and Michael J. Ryan, Asst. U.S. Atty., Washington, D.C., also entered appearances for respondent.
Before WALD and MIKVA, Circuit Judges, and SWYGERT, Senior Circuit Judge, United States Court of Appeals for the Seventh Circuit.
Sitting by designation pursuant to 28 U.S.C. § 294(d).
Opinion PER CURIAM.
PER CURIAM:
Petitioner, Glenn D. Parsons, seeks relief from a Merit Systems Protection Board (MSPB or Board) decision upholding his removal as a fire fighter at Tinker Air Force Base in Oklahoma by the United States Department of the Air Force (Air Force). On appeal, Parsons argues that because his discharge does not promote the “efficiency of the service” as required by 5 U.S.C. § 7513(a) and because the Air Force did not take into account any of the mitigating factors listed in the applicable Air Force regulations in assessing the penalty for his misconduct, the MSPB’s decision must be set aside as arbitrary, capricious, and an abuse of discretion. In reply, the government argues that Parsons may not raise these issues for the first time on appeal. It also contends that even if Parsons may raise these issues, the Air Force’s decision to discharge Parsons is not arbitrary, capricious, or an abuse of discretion because it promotes the efficiency of the service and is an appropriate penalty for Parsons’ misconduct. In light of its decision in Douglas v. Veterans Administration, 5 MSPB 313 (1981), we remand the case to the MSPB for further consideration.
I. Facts
The Air Force discharged Parsons from his position as a fire fighter because he falsified a government document and was absent from his job without authorization. The facts on which the Air Force relied in reaching its decision are not disputed on this appeal. In January 1980, Parsons, president of Local F-211 of the International Association of Fire Fighters, requested annual leave for March 22, 26, and 28, 1980, so that he might attend a union seminar in Reno, Nevada. Parsons’ supervisors originally approved this leave, but on March 12, 1980, they told Parsons that they had cancelled his leave request for March 22 due to a shortage of available fire fighters on that date.
Parsons did not report to work on March 22. Prior to the beginning of his work shift on that day, he called the fire station at Tinker Air Force Base and told his supervisor that he was feeling ill and would be unable to come in to work. Parsons made this phone call from Albuquerque, New Mexico, en route to the union seminar in Reno.
Parsons returned to work on March 30. Either that day,, or on April 1, he signed a sick leave request form (completed in all other respects by his supervisor), stating that he was requesting sick leave for March 22. On April 1 the fire chief at Tinker Air Force Base questioned Parsons regarding his whereabouts on March 22. Based on his answers and information it had obtained revealing that he had not been at home sick on that date, the Air Force fired Parsons on July 2 for falsifying the sick leave form and for being absent from duty .without authorization on March 22, 26, and 28, 1980.
Parsons appealed his discharge to the MSPB. Following an evidentiary hearing, the MSPB’s presiding official sustained Parsons’ discharge. The presiding official concluded that Parsons’ testimony that he was sick on March 22 was not credible; as a result, he held that Parsons had indeed falsified a government document and taken unauthorized leave on March 22. The presiding official rejected Parsons’ arguments that the Air Force had committed procedural error when it denied him union representation on April 1 while he was being questioned about his activities on March 22; that the questioning violated his right to representation under Air Force Regulation 40-750 § C(12), 5 U.S.C. § 7114(a) (2)(B)(ii), or the collective bargaining agreement between the Air Force and the fire fighters; and that the Air Force fired him because of his position with the union.
The presiding official also determined that Parsons’ removal promoted the “efficiency of the service.” The presiding official noted evidence from the deputy fire chief at Tinker Air Force Base that firemen have to protect life and property, that government officials must be able to depend upon and trust their employees, that a piece of fire equipment had to be taken out of service at Tinker Air Force Base on March 22, and that Parsons had a prior offense that, although it was not relied upon in removing Parsons, also raised questions of credibility and truthfulness. An agency “has the right to expect its employees to be truthful in all matters of official business,” the presiding official concluded, and Parsons’ action in falsifying an official government document struck “to the very heart of the employer-employee relationship.” Joint Appendix at 30-31.
On December 1 Parsons appealed this decision to the full Board, arguing that the presiding official’s decision that Air Force Regulation 40-750 § C(12), dealing with his right to representation during examination, did not apply to his case was an erroneous interpretation of the regulation. He also contended that the presiding official erred when he refused to give consideration to specific negotiated agreements between the Air Force and the union because they were not entered into evidence at the hearing. In a two-page order issued on June 11,1981, the MSPB upheld the initial decision. This appeal followed.
II. Analysis
In an agency removal action based on employee misconduct, the agency must make three determinations: (1) that the employee actually committed the alleged misconduct; (2) that there is a sufficient nexus between the misconduct and the efficiency of the service to sustain an adverse action; and (3) that the penalty imposed has been appropriately chosen for the specific misconduct involved. See Young v. Hampton, 568 F.2d 1253, 1257, 1264 (7th Cir.1977); Douglas v. Veterans Administration, 5 MSPB 313, 329 (1981). The agency has the burden of persuasion regarding these three elements of its decision and is therefore obligated to present evidence to the Board necessary to support each element. See Douglas v. Veterans Administration, 5 MSPB at 334.
We do not quarrel with the MSPB’s determination that the Air Force made the necessary showing that Parsons’ alleged misconduct actually occurred and that it had a nexus to the efficiency of the service. On the record before us, however, we do not think the Air Force carried its burden of persuasion regarding the appropriateness of Parsons’ discharge for his misconduct.
The MSPB reviews agency personnel actions so that, inter alia, they will not be declared arbitrary, capricious, an abuse of discretion, not in accordance with law, procedurally incorrect, or unsupported by substantial evidence when reviewed by appellate courts under 5 U.S.C. § 7703(e). Douglas v. Veterans Administration, 5 MSPB at 328. Thus, to assure that agency penalty decisions will meet the requirements of § 7703(c), “the Board must ... review the agency’s penalty selection to be satisfied (1) that on the charges substantiated by the Board the agency’s penalty is within the range allowed by law, regulation, and any applicable table of penalties, and (2) that the penalty ‘was based on a consideration of the relevant factors and [that] ... there has [not] been a clear error of judgment.’ ” Id., quoting Citizens to Protect Overton Park, Inc. v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 823, 28 L.Ed.2d 136 (1971).
The Office of Personnel Management’s (OPM’s) Federal Personnel Manual (FPM) specifically discusses the factors that may be relevant to agencies’ selection of disciplinary sanctions. See FPM, ch. 751, subch. 1-2 (1976). It advises agencies to “ ‘give consideration to all factors involved when deciding what penalty is appropriate, including not only the gravity of the offense but such other matters as mitigating circumstances, the frequency of the offense, and whether the action accords with justice in the particular situation.’ ” Douglas v. Veterans Administration, 5 MSPB at 330-31, quoting FPM, ch. 751, subch. l-2(c)(2). Any disciplinary action, the FPM notes, must be responsibly undertaken so that the affected employee is not penalized out of proportion to the actual offense. Id. at 330; FPM, ch. 751, subch. l-2b. Under some circumstances, “ ‘an unduly harsh penalty can effectively ruin [an agency’s] ... goal of deterrence.’ ” Id., quoting Power v. United States, 531 F.2d 505, 509 (Ct.Cl.1976). Thus, such adverse actions as suspensions or removals may be taken only after the agency has determined that “ ‘a less severe penalty, such as admonition or reprimand, is inadequate.’ ” Id., quoting FPM, ch. 751, subch. l-2b.
While an agency decision notice need not contain information showing that the agency has explicitly considered all possible mitigating factors before concluding that a lesser penalty would be inadequate, an agency’s selection of a particular penalty must still be demonstrably based on a responsible balancing of the relevant factors in the individual case. Douglas v. Veterans Administration, 5 MSPB at 331-32. An agency must therefore select an appropriate disciplinary sanction based on the specific facts of the- particular case before it; it may not automatically impose a fixed penalty for a specific category of misconduct regardless of individual factors. Id. at 330, 333.
As we noted above, the selection of an appropriate penalty is a distinct element of an agency’s decision. The agency therefore has the ultimate burden of persuading the MSPB of the appropriateness of the penalty imposed. Douglas v. Veterans Administration, 5 MSPB at 333. This is necessary even if — as in Parsons’ case — the penalized employee has not raised a question as to the appropriateness of the imposed sanction:
In many cases the penalty, as distinct from the underlying conduct alleged by the agency, will go unchallenged and need not require more than prima facie justification. An agency may establish a prima facie case supporting the appropriateness of its penalty by presenting to the Board evidence of the facts on which selection of the penalty was based, a concise statement of its reasoning from those facts or information otherwise sufficient to show that its reasoning is not on its fact [sic] inherently irrational, and by showing that the penalty conforms with applicable law and regulation. When no issue has been raised concerning the penalty, such a prima facie case will normally suffice to meet also the agency’s burden of persuasion on the appropriateness of the penalty.
Id. at 334 (emphasis added).
Parsons, unrepresented by counsel, did not challenge the appropriateness of his discharge before the MSPB. Under Douglas, the Air Force therefore needed only to establish a prima facie case at the MSPB hearing indicating that it had given the necessary consideration to relevant factors in deciding that Parsons’ discharge was appropriate and that his removal did not clearly exceed the limits of reasonableness.
We do not find any such demonstration by the agency here, nor did the MSPB supply it. There are several reasons why we reach this conclusion. First, although the Air Force stated in its “Notice of Proposed Removal” sent to Parsons on May 24, 1980, that “[i]n determining the action to be proposed, consideration was given to your previous disciplinary record [a reprimand for failure to honor a debt or to keep an agreement to liquidate that debt],” one of Parsons’ supervisors, Chief Dunkin, later testified that the Air Force did not take that offense into account when it decided to remove Parsons. Joint Appendix at 12, 39. Second, at the time the Air Force chose to discharge Parsons, he was accused not only of falsifying a government document, but also of being absent without authorization on three dates; the MSPB’s presiding official, however, subsequently found that Parsons had been absent without authorization on only one of those dates. Third, although Parsons’ supervisors knew that his claim for sick leave was fraudulent and were presumably considering discipline against him by the time he returned to work on March 30, upon his return they still presented him with a completed sick leave form to sign, a form that now constitutes the core of the charges against him. Finally, there is no evidence that the Air Force or the MSPB took into consideration that during the nearly ten years he had worked for the federal government, Parsons had previously been subject to only one other disciplinary action, for conduct unrelated to his government work; that in 1979 he received a letter of appreciation from the Air Force for not using any of the sick leave he had accrued in 1978; and that aside from the incident involved here his supervisors had no fault to find with his work performance.
Indeed, we are inclined to conclude that imposition of the drastic penalty of removal here was based solely on the nature of Parsons’ offense of falsifying an official sick leave form without any consideration of factors relevant to his individual case. In answering a question at the hearing before the MSPB’s presiding official as to why he felt Parsons could not be rehabilitated, Chief Dunkin testified that “[o]f course, we have regulations to follow, 40-750. We feel that the type of person Mr. Parsons — we need dependable people on that Fire Department; and I feel that anybody that falsifies a document, of all things, we don’t have any need for.” Joint Appendix at 40 (emphasis added). And in his decision of November 13, 1980, the MSPB’s presiding official stated that, “[wjhile it may be argued that the one offense of unauthorized absence which has been sustained would not be serious enough to warrant removal, appellant’s offense of falsifying a government document certainly warrants such action [because it] strikes to the very heart of the employer-employee relationship ... violate[s] the trust necessary to the continuance of [that] relationship and ... adversely affect[s] the efficiency of the service ... [A]n agency has the right to expect its employees to be truthful in all matters of official business.” Id. at 30-31.
The Air Force’s failure to consider the factors relevant to its choice of penalty in this case is of particular concern here because its own table of penalties — to which Douglas commends agency compliance— provides for a range of penalties for falsification of an official document extending from reprimand to removal; it does not even permit removal for a first-offense unauthorized absence or failure to honor a valid denial of a leave request. See “Guide to Disciplinary Actions,” Attachment 1 to AFR 40-750, Joint Appendix at 87-88. These same regulations specifically admonish the Air Force to choose the “minimum penalty capable of producing the desired correction.” Id. at 75. Moreover, they state that penalties solely motivated by a desire to punish are not appropriate and that removal should be based on the offense alone only where the misconduct is “so serious or the violation of rules and regulations so flagrant that discharge for a first ... offense is clearly warranted.” Id. at 75, 83.
Given the number of potentially mitigating factors in this case, coupled with the paucity of evidence in the record that the agency, the presiding official, or the MSPB considered anything beyond the nature of Parsons’ misconduct in deciding to discharge him, we cannot comfortably conclude that the requirements of Douglas have been met here. The Air Force must present at least a prima facie case to the MSPB establishing that it considered the factors relevant to this particular case and that it reasonably chose to impose this particular penalty. Were we to affirm the MSPB’s decision without remand for such a presentation, we would be ignoring — or permitting the MSPB to ignore — its own major decision regarding agency selection of appropriate penalties. We therefore remand the case to the MSPB so that it may consider the appropriateness of Parsons’ penalty in light of Douglas.
So Ordered.
. At the MSPB hearing, Parsons’ supervisors testified that Parsons did not answer their several telephone calls to his home on March 22, that they called his hotel in Reno early in the morning on March 23 and were told that he had checked in, and that he answered his hotel phone that morning. Joint Appendix at 20.
. The presiding official concluded that Parsons’ absences on March 26 and 28 were not unauthorized.
. AFR 40-750 § C(12) provides:
12. Personal Representation:
a. An employee who has received a notice of proposed disciplinary action or adverse action may obtain advice and assistance in the preparation of his or her reply. In addition, the employee may be accompanied by a representative of his or her own chopsing when making his or her oral reply to a proposed adverse action....
b. An exclusive representative of an appropriate unit ... shall be given the opportunity to be represented at any examination of an employee in the unit by a representative of the agency in connection with an investigation if:
(1) The employee reasonably believes that the examination may result in disciplinary action against the employee; and,
(2) The employee requests representation.
. 5 U.S.C. § 7114(a)(2)(B)(ii) provides:
(a) ...
(2) An exclusive representative of an appropriate unit in an agency shall be given the opportunity to be represented at — ...
(b) Any examination of an employee in the unit by a representative of the agency in connection with an investigation if — ...
(ii) the employee requests representation.
. The Civil Service Reform Act provides that the federal government employer may discharge its employees “only for such cause as will promote the efficiency of the service.” 5 U.S.C. § 7513(a). The Act further provides that, other than in the case of a criminal conviction, an agency may take disciplinary action against an employee only on the basis of conduct that adversely affects the performance of the employee himself or of other employees. 5 U.S.C. § 2302(b)(10). Administrative regulations adopted to effectuate the purposes of the Act specify that disciplinary action against any employee to “promote the efficiency of the service” must be based on an evaluation of (1) whether the conduct of the individual may reasonably be expected adversely to affect effective performance by the employee of the duties of his position, or (2) whether such conduct may reasonably be expected adversely to affect the effective performance by the agency itself of its duties and responsibilities. 5 C.F.R. §§ 731.201, 731.202(a) (1983).
. Parsons was not represented by counsel either at the hearing or before the full Board.
. As Douglas points out, the question of the appropriateness of a particular penalty is separate and distinct from the question of whether there is an adequate nexus between the grounds for an adverse action and the “efficiency of the service.” Douglas v. Veterans Administration, 5 MSPB at 329. Before an agency can properly conclude that a particular penalty will promote service efficiency, it must determine “that the penalty takes reasonable account of the factors relevant to promotion of [such] efficiency in the individual case. Thus, while the efficiency of the service is the ultimate criterion for determining both whether any disciplinary action is warranted and whether the particular sanction may be sustained, those determinations are quite distinct and must be separately considered.” Id. at 330.
. The Air Force’s table of penalties is set forth at Attachment 1 to AFR 40-750, Joint Appendix at 86-91. The table provides the following penalties: (1) for unauthorized absences of eight hours or less, reprimand for the first offense, reprimand to five-day suspension for the second offense, and reprimand to removal for the third offense; (2) for failures to honor valid denials of leave requests, reprimand to five-day suspension for the first offense, reprimand to ten-day suspension for the second offense, and five-day suspension to removal for the third offense; and (3) for falsifying a government document, reprimand to removal for the first and second offenses and five-day suspension to removal for the third offense. Id. at 87-88.
. The applicable Air Force Regulation, AFR 40-750 § C(ll)(b), suggests the following factors be considered:
(1) The employee’s past work and disciplinary history including the nature and recency of other offenses;
(2) The nature and extent of the employee’s contributions to the Federal service (awards, and so forth);
(3) The opportunity for constructive rehabilitation;
(4) The character of position to which the employee is assigned (the more responsible the position, the more rigorous the standard of performance or conduct);
(5) The nature and consequences of the offense;
(6) The possibility of misunderstanding, misinterpretation, enticement or provocation;
(7) The existence of contributory inefficiency or misconduct on the part of others;
(8) The degree to which the employee could control timing, location or events;
(9) The types and severity of corrective action available.
See Joint Appendix at 76.
OPM (formerly Civil Service Commission) issuances also cite a number of factors that are relevant in determining the appropriateness of a penalty, including:
(1) The nature and seriousness of the offense, and its relation to the employee’s duties, position, and responsibilities, including whether the offense was intentional or technical or inadvertent, or was committed maliciously or for gain, or was frequently repeated;
(2) the employee’s job level and type of employment, including supervisory or fiduciary role, contacts with the public, and prominence of the position;'
(3) the employee’s past disciplinary record;
(4) the employee’s past work record, including length of service, performance on the job, ability to get along with fellow workers, and dependability;
(5) the effect of the offense upon the employee’s ability to perform at a satisfactory level and its effect upon supervisors’ confidence in the employee’s ability to perform assigned duties;
(6) consistency of the penalty with those imposed upon other employees for the same or similar offenses;
(7) consistency of the penalty with any applicable agency table of penalties;
(8) the notoriety of the offense or its impact upon the reputation of the agency;
(9) the clarity with which the employee was on notice of any rules that were violated in committing the offense, or had been warned about the conduct in question;
(10) potential for the employee’s rehabilitation;
(11) mitigating circumstances surrounding the offense such as unusual job tensions, personality problems, mental impairment, harassment, or bad faith, malice or provocation on the part of others involved in the matter; and
(12) the adequacy and effectiveness of alternative sanctions to deter such conduct in the future by the employee or others.
See Douglas v. Veterans Administration, 5 MSPB at 331-32, 331 n. 66; 5 C.F.R. § 731.-202(c) (1983); Federal Personnel Manual, ch. 751, subch. 1-2 (1976).
We again emphasize that the Air Force did not have to discuss all these factors to establish a prima facie case that discharge was an appropriate penalty for Parsons’ misconduct. The Air Force did have to indicate, however, as it did not do here, that it had considered these factors, and it had to demonstrate, which it aíso failed to do, that removal was within the limits of reasonableness in this case.
. Several sections of Air Force Regulation 40-750 direct the Air Force to choose the minimum penalty necessary to correct employee misconduct, to take into consideration all material factors in selecting the minimum penalty, and to avoid using penalties merely to punish the guilty employee. See AFR 40-750 §§ B(8)(d), D(18), D(19), and D(19)(e)(2). Joint Appendix at 75, 79, 81, 83. It is clear from the Air Force’s own table of penalties that it chose to impose the maximum penalty possible on Parsons. See Attachment 1 to AFR 40-750, id. at 87-88; supra note 8.
. We recognize, of course, that the Air Force and the MSPB’s presiding official did not have the benefit of Douglas when they made their decisions, since the MSPB issued Douglas on April 10, 1981, and the initial MSPB decision in this case was made on November 13, 1980. This may very well explain why there are so few references to the appropriateness of the . Air Force’s choice of penalty in the record. At the same time, the decision of the full Board was issued after it decided Douglas, on June 11, 1981. In these circumstances, we do not think the MSPB should be allowed to disregard its own precedent or that the Air Force should not be required specifically to meet the Douglas requirements. Indeed, in a similar case involving an appeal from an MSPB decision made before Douglas was decided but appealed to this court after that decision, we remanded the case to the MSPB for “reconsideration in light of the intervening decision in Douglas v. Veterans Administration." Ligon v. The District of Columbia, MSPB Case No. DC0752809030 (April 28, 1982). On remand, the MSPB explicitly considered the Douglas factors and upheld the appropriateness of Ligón’s discharge as a clerk-typist from the Central Services Division of the Government of the District of Columbia. Id. Ligón is now challenging the latest MSPB decision before this Court as arbitrary, capricious, and an abuse of discretion. Ligon v. The District of Columbia, 706 F.2d 1229, No. 82-1621.
. Indeed, Parsons only became subject to the most severe penalty of removal because he falsified an official document by signing the sick leave form his supervisors gave him — even though they knew he had not been sick.
. It is wfell settled that we may require an agency to follow its own prior rulings and regulations. See, e.g., Service v. Dulles, 354 U.S. 363, 372, 77 S.Ct. 1152, 1157, 1 L.Ed.2d 1403 (1957); United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954). It is equally well settled that an agency, although free to alter its past rulings ' and practices, must provide a reasoned explanation for any failure to adhere to its own precedents. See, e.g., Atchison, Topeka & Santa Fe Ry. Co. v. Wichita Board of Trade, 412 U.S. 800, 806-17, 93 S.Ct. 2367, 2374, 37 L.Ed.2d 350 (1973); Hatch v. Federal Energy Regulatory Commission, 654 F.2d 825, 834 (D.C.Cir.1981). The MSPB provided no such explanation here. If it intends to depart from Douglas, which we doubt, it needs to set forth its reasons for doing so.
In addition, this Court has recently remanded a case to the MSPB for a similar reconsideration, see Ligon v. The District of Columbia, supra note 11, and other cases in this circuit have, at least implicitly, suggested that the government must make a showing that it has taken the Douglas factors into account in determining the proper penalty for employee misconduct. See Moffer v. Watt, 690 F.2d 1037, 1041 n. 14 (D.C.Cir.1982) (per curiam) (the MSPB’s explicit reference to Douglas in its order constitutes sufficient indication that it took into account potentially mitigating considerations in accordance with that decision); Gipson v. Veterans Administration, 682 F.2d 1004, 1012 n. 15 (D.C.Cir.1982) (although the MSPB did not list each of the Douglas factors arguably relevant to the penalty imposed here, because it cited its ruling in Douglas and indicated that it had considered the potentially mitigating factors in accordance with that opinion, it adequately disclosed its reasoning process and did not “cross[] the line from the tolerably terse to the intolerably mute”).
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_counsel1
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
OIL CHEMICAL & ATOMIC WORKERS INTERNATIONAL UNION LOCAL NO. 4-23, et al., Plaintiffs-Appellants, v. AMERICAN PETROFINA COMPANY OF TEXAS, Defendant-Appellee.
No. 84-2322.
United States Court of Appeals, Fifth Circuit.
May 6, 1985.
Provost, Umphrey, McPherson & Swearingen, M. Diane Dwight, Port Arthur, Tex., for plaintiffs-appellants.
Goins, Underkofler, Crawford & Lang-don, Durwood D. Crawford, Steve Kardell, Jr., Dallas, Tex., for defendant-appellee.
Before WISDOM, WILLIAMS and HILL, Circuit Judges.
JERRE S. WILLIAMS, Circuit Judge:
Appellants Oil, Chemical and Atomic Workers International Union Local No. 4-23, and Leo Max Hildabridle, Jr. contend that appellee American Petrofina Company of Texas must submit to arbitration their dispute over the propriety of Petrofina’s discharging an economic striker because of alleged improper conduct on the picket line. Petrofina counters that it has no obligation to undertake arbitration because its collective bargaining agreement with the Union expired before it fired the worker and because the new agreement does not apply retroactively. After a bench trial, the district court rendered judgment for Petrofina, 586 F.Supp. 643. Because we conclude that the new agreement requires arbitration of the discharge grievance, we reverse and remand the case with directions to order arbitration.
I.
The Union’s collective bargaining agreement with Petrofina expired on January 8, 1982, and the Union promptly initiated an economic strike at the company’s Port Arthur, Texas, refinery. Union members manned picket lines at the gates. Workers refused to cross the picket lines, but Petrofina management continued to work at the plant. Rancor flared up occasionally. Petrofina posted security guards.
The incident that generated the dispute at issue in this case occurred on February 20, 1982, along one of the picket lines. Union member Hildabridle allegedly brandished a knife at security guards, who soon summoned local police. Hildabridle allegedly repeated the assault after the police departed. Local authorities later charged him with a misdemeanor, but a jury found him not guilty. No other tribunal, including the National Labor Relations Board, has adjudicated the lawfulness of Hildabridle’s conduct on the picket line or the justification of the company in discharging him.
Petrofina informed Hildabridle of his termination by letter of May 27, 1982. The Union demanded arbitration of the discharge pursuant to the expired collective bargaining agreement, which prohibited firings “without just cause” and mandated arbitration of disputes over discharges, but Petrofina refused.
The strike lasted some eleven months, ending on December 20, 1982, when workers returned to their jobs. On that date, the Union and Petrofina signed a back-to-work agreement and tentatively approved a new collective bargaining contract. The latter document contained grievance and arbitration provisions identical to those in the expired agreement, and it, too, barred discharges without just cause. It said nothing of the Hildabridle dispute. The back-to-work agreement, however, recorded the disagreement over the arbitrability of Hildabridle’s termination: “The Union’s position is that such action is subject to the grievance and arbitration provisions and the Company’s position is that it is not.” The Union again filed a grievance ending in a demand for arbitration, this time pursuant to the new contract. The company again refused, and this suit resulted. The Union alleged that Petrofina’s discharge of Hildabridle without just cause and its refusal to submit the grievance to arbitration violated the new collective bargaining agreement and thus constituted a violation of section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185 (1982), which authorizes suits to redress such contractual breaches.
The district court held a bench trial. Observing that any obligation to arbitrate a dispute must arise from a contractual undertaking, the court held that the arbitration clauses in both the old and the new collective bargaining agreements did not apply to the controversy over Hildabridle’s discharge. The former contract had ended, and the new one had not taken effect when Hildabridle lost his job. The court accordingly refused to order arbitration and dismissed the Union’s claim. The Union appeals.
II.
Established principles make resolution of this case straightforward. As a general rule, “an employer may not discharge an economic striker.” International Union of Electrical, Radio and Machine Workers v. Ingram Mfg. Co., 715 F.2d 886, 890 (5th Cir.1983) (citing NLRB v. International Van Lines, 409 U.S. 48, 52, 93 S.Ct. 74, 77, 34 L.Ed.2d 201 (1972)), cert. denied, — U.S. -, 104 S.Ct. 1711, 80 L.Ed.2d 184 (1984). To the extent that federal labor law protects his employment, therefore, the striker remains an “employee” until the strike ends. See NLRB v. Fansteel Metallurgical Corp., 306 U.S. 240, 256, 59 S.Ct. 490, 496, 83 L.Ed. 627 (1939) (citing 29 U.S.C. § 152(3)). It follows that until there is an adjudication of a company’s right to fire an economic striker he remains an employee. Thus, Hildabridle was legally still in the status of an employee when the strike ended and the new contract went into effect. The failure of the company to treat him as an employee under the new contract raised the issue of the propriety of his discharge under that agreement.
What is critical to the resolution of the appeal in this case is the firm recognition by the courts that they lack authority to decide at this stage of a controversy such as this whether the grievance procedure and arbitration process provided for in the new contract is applicable to Hildabridle’s discharge. All the Union needs to show to remove from the courts the power to decide whether this grievance is arbitrable under the new contract is that there is at least some possibility that it is. Whether this dispute is arbitrable under the new contract is an issue that the parties must submit in the first instance to the arbitrator. In United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), the Supreme Court spoke with clarity and firmness concerning the obligation of the parties to submit to the arbitrator the issue of arbitrability in a case such as this. The Court said:
[T]he judicial inquiry under § 301 [of the LMRA] must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance or did agree to give the arbitrator power to make the award he made. An order to arbitrate the particular grievance should, not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.
Id. at 582-83, 80 S.Ct. at 1353.
It cannot be said with “positive assurance” that the arbitration clause in the new contract cannot be applicable to this dispute. All that needs to be shown, and it was clearly shown in this case, is that because Hildabridle was an economic striker, and there had been no adjudication of a right to discharge him during the strike, he remained an employee. He was not effectively discharged until the company refused to reinstate him when the new contract went into effect. It is up to the arbitrator, therefore, to decide in the first instance whether the grievance procedure and arbitration promise in the new contract are applicable to Hildabridle’s discharge. If he decides that they are, he then can go on to decide on the merits the issue of the justification for the discharge.
The National Labor Relations Board also has the authority to decide whether there was justification for firing a striker during an economic strike. Board jurisdiction, however, does not bar an obligation to arbitrate the same dispute. The “congressional policy [is] in favor of settlement of disputes by the parties through the machinery of arbitration____” Warrior & Gulf, 363 U.S. at 582, 80 S.Ct. at 1353. The Board has a specific policy of deferring to arbitration of disputes where it also has jurisdiction. Carey v. Westinghouse Electric Corp., 375 U.S. 261, 270, 84 S.Ct. 401, 408, 11 L.Ed.2d 320 (1964); Smith v. Evening News Ass’n, 371 U.S. 195, 198 n. 6, 83 S.Ct. 267, 269 n. 6, 9 L.Ed.2d 246 (1962). Further, the fact that the Board refused to issue a formal complaint on behalf of the Union against the company for discharging Hildabridle is not controlling. Luckenbach Overseas Corp. v. Curran, 398 F.2d 403, 406 (2d Cir.1968). See R. Gorman, Labor Law, ch. 23, § 12, at 568-73 (1976).
Finally, there is an additional significant consideration establishing that the issue of the arbitrability of this dispute is for the arbitrator in the first instance. The fact is that the parties themselves agreed to disagree about whether the dispute was arbitrable. This alone under Warrior & Gulf is enough to require submission of the issue of arbitrability to the arbitrator.
Our jurisdiction to interfere with contract arbitrations set up in collective bargaining agreements is highly restricted. International Union v. E-Systems, Inc., 632 F.2d 487, 489 (5th Cir.1980), cert. denied, 451 U.S. 910, 101 S.Ct. 1979, 68 L.Ed.2d 298 (1981); Boise Cascade Corp. v. United Steelworkers of America, Local 7001, 588 F.2d 127, 128 (5th Cir.), cert. denied, 444 U.S. 830, 100 S.Ct. 57, 62 L.Ed.2d 38 (1979). We conclude that the district court was in error in refusing to order arbitration of the Union’s grievance involving the asserted discharge of Hilda-bridle for alleged picket line misconduct during an economic strike while there was no contract in effect. Under well-established legal authority, the issue of whether this dispute falls under the arbitration clause of the newly-instituted collective bargaining agreement between the parties must be submitted to an arbitrator pursuant to that agreement since we cannot say with positive assurance that the arbitration clause of that agreement is not susceptible to an interpretation that covers this dispute. The case will be remanded to the district court for the issuance of an order directing the parties to proceed to arbitration under the terms of the December 1982 collective bargaining agreement.
REVERSED AND REMANDED.
. See, e.g., United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 1353, 4 L.Ed.2d 1409 (1960).
. Section 2(3) of the National Labor Relations Act provides, in relevant part: “The term ‘employee’ shall include any employee ..., unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute____” 29 U.S.C. § 152(3) (1982).
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_petitioner
|
019
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
BLESSING, DIRECTOR, ARIZONA DEPARTMENT OF ECONOMIC SECURITY v. FREESTONE et al.
No. 95-1441.
Argued January 6, 1997
Decided April 21, 1997
C. Tim Delaney, Solicitor General of Arizona, argued the cause for petitioner. With him on the briefs were Grant Woods, Attorney General, Carter G. Phillips, Richard D. Bernstein, and Adam D. Hirsh.
Marsha S. Berzon argued the cause and filed a brief for respondents.
Patricia A. Millett argued the cause for the United States as amicus curiae urging affirmance. With her on the brief were Acting Solicitor General Dellinger, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, William Ranter, and Alfred Mollin.
Briefs of amici curiae urging reversal were filed for the State of Illinois et al. by James E. Ryan, Attorney General of Illinois, Barbara A. Preiner, Solicitor General, and James C. O’Connell, Barbara L. Greenspan, and James C. Stevens, Special Assistant Attorneys General, and Charles F. C. Ruff, Corporation Counsel of the District of Columbia, and by the Attorneys General for their respective jurisdictions as follows: Jeff Sessions of Alabama, Bruce M. Botelho of Alaska, Daniel E. Lungren of California, Gale A. Norton of Colorado, Richard Blumenthal of Connecticut, M. Jane Brady of Delaware, Robert A. Butterworth of Florida, Michael J. Bowers of Georgia, Margery S. Bronster of Hawaii, Alan G. Lance of Idaho, Pamela S. Carter of Indiana, Thomas J. Miller of Iowa, Carla J. Stovall of Kansas, Richard P. Ieyoub of Louisiana, Andrew Ketterer of Maine, J. Joseph Curran, Jr., of Maryland, Scott Harshbarger of Massachusetts, Frank J. Kelley of Michigan, Mike Moore of Mississippi, Joseph P. Mazurek of Montana, Don Stenberg of Nebraska, Frankie Sue Del Papa of Nevada, Jeffrey R. Howard of New Hampshire, Peter Verniero of New Jersey, Dennis C. Vacco of New York, Michael F. Easley of North Carolina, Heidi Heitkamp of North Dakota, Betty D. Montgomery of Ohio, W. A. Drew Edmondson of Oklahoma, Theodore R. Kulongoski of Oregon, Thomas W. Corbett, Jr., of Pennsylvania, Jeffrey B. Pine of Rhode Island, Charles Molony Condon of South Carolina, Mark Barnett of South Dakota, Charles W. Burson of Tennessee, Dan Morales of Texas, Jan Graham of Utah, Jeffrey L. Amestoy of Vermont, James S. Gilmore III of Virginia, Christine 0. Gregoire of Washington, William U. Hill of Wyoming, Malaetasi M. Togafau of American Samoa, Calvin E. Holloway, Sr., of Guam, and Julio A. Brady of the Virgin Islands; for the American Public Welfare Association et al. by Diana L. Fogle; for the Council of State Governments et al. by Richard Ruda and Charles Rothfeld; and for the National District Attorneys Association et al. by John D. Krisor, Jr., John Kaye, Michael R. Capizi, John Ladenburg, and Michael McCormick.
Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Christopher A. Hansen, Steven R. Shapiro, and Erwin Chemerinsky; for the Anti-Poverty Project of the Edwin F. Mandel Legal Aid Clinic of the University of Chicago Law School by Gary H. Palm; for the National Center for Youth Law et al. by Leora Gershen-zon, Martha Matthews, and Brian Paddock; and for the National Women’s Law Center et al. by Regina G. Maloney, Nancy Duff Campbell, Elisabeth Hirschhorn Donahue, and Martha F. Davis.
Justice O’Connor
delivered the opinion of the Court.
This case concerns a lawsuit brought by five mothers in Arizona whose children are eligible to receive child support services from the State pursuant to Title IV-D of the Social Security Act, as added, 88 Stat. 2351, and as amended, 42 U. S. C. §§ 651-669b (1994 ed. and Supp. II). These custodial parents sued the director of Arizona’s child support agency under Rev. Stat. § 1979, 42 U. S. C. § 1983, claiming that they had an enforceable individual right to have the State’s program achieve “substantial compliance” with the requirements of Title IV-D. Without distinguishing among the numerous provisions of this complex program, the Court of Appeals for the Ninth Circuit held that respondents had such a right. We disagree that the statutory scheme can be analyzed so generally, and hold that Title IV-D does not give individuals a federal right to force a state agency to substantially comply with Title IV-D. Accordingly, we vacate and remand with instructions to remand to the District Court.
I
This controversy concerns an interlocking set of cooperative federal-state welfare programs. Arizona participates in the federal Aid to Families with Dependent Children (AFDC) program, which provides subsistence welfare benefits to needy families. Social Security Act, Title IV-A, 42 U. S. C. §§ 601-617. To qualify for federal AFDC funds, the State must certify that it will operate a child support enforcement program that conforms with the numerous requirements set forth in Title IV-D of the Social Security Act, 42 U. S. C. §§651-669b (1994 ed. and Supp. II), and will do so pursuant to a detailed plan that has been approved by the Secretary of Health and Human Services (Secretary). § 602(a)(2); see also § 652(a)(3). The Federal Government underwrites roughly two-thirds of the cost of the State’s child support efforts. § 655(a). But the State must do more than simply collect overdue support payments; it must also establish a comprehensive system to establish paternity, locate absent parents, and help families obtain support orders. §§651,654.
A State must provide these services free of charge to. AFDC recipients and, when requested, for a nominal fee to children and custodial parents who are not receiving AFDC payments. §§651, 654(4). AFDC recipients must assign their child support rights to the State and fully cooperate with the State’s efforts to establish paternity and obtain support payments. Although the State may keep most of the support payments that it collects on behalf of AFDC families in order to offset the costs of providing welfare benefits, until recently it only had to distribute the first $50 of each payment to the family. 42 U. S. C. § 657(b)(1). The amended version of Title IV-D replaces this $50 pass-through with more generous distributions to families once they leave welfare. 42 U. S. C. § 657(a)(2) (1994 ed., Supp. II). Non-AFDC recipients who request the State’s aid are entitled to have all collected funds passed through. § 657(a)(3). In all cases, the State must distribute the family’s share of collected support payments within two businéss days after receipt. § 654b(c)(l).
The structure of each State’s Title IY-D agency, like the services it provides, must conform to federal guidelines. For example, States must create separate units to administer the plan, §654(3), and to disburse collected funds, § 654(27), each of which must be staffed at levels set by the Secretary, 45 CFR §303.20 (1995). If a State delegates its disbursement function to local governments, it must reward the most efficient local agencies with a share of federal incentive payments. 42 U. S. C. § 654(22). To maintain detailed records of all pending cases, as well as to generate the various reports required by federal authorities, States must set up computer systems that meet numerous federal specifications. § 654a. Finally, in addition to setting up this administrative framework, each participating State must enact laws designed to streamline paternity and child support actions. §§654(20), 666.
To oversee this complex federal-state enterprise, Congress created the Office of Child Support Enforcement (OCSE) within the Department of Health and Human Services (HHS). This agency is charged with auditing the States’ compliance with their federally approved plans. Audits must occur at least once every three years, or more often if a State’s performance falls below certain standards. § 652(a)(4). If a State does not “substantially comply” with the requirements of Title IV-D, the Secretary is authorized to penalize the State by reducing its AFDC grant by up to five percent. § 609(a)(8). The Secretary has interpreted “substantial compliance” as: (a) full compliance with requirements that services be offered statewide and that certain recipients be notified monthly of the support collected, as well as with reporting, recordkeeping, and accounting rules; (b) 90 percent compliance with case opening and case closure criteria; and (c) 75 percent compliance with most remaining program requirements. 45 CFR §305.20 (1995). The Secretary may suspend a penalty if the State implements an adequate corrective action plan, and if the program achieves “substantial compliance,” she may rescind the penalty entirely. 42 U. S. C. § 609(c) (1994 ed., Supp. II).
II
Arizona’s record of enforcing child support obligations is less than stellar, particularly compared with those of other States. In a 1992 report, Arizona’s Auditor General chronicled many of the State’s problems. In the 1989-1990 fiscal year, Arizona failed to collect enough child support payments and federal incentives to cover the administrative costs of its Title IV-D program — 1 of only 10 States to fall below that target. Arizona Auditor General, A Performance Audit of the Arizona Department of Economic Security 2 (1992). The Auditor General also pointed out that the cost effectiveness of Arizona’s support enforcement efforts had been “minimal.” For every dollar spent on enforcement, the State collected barely two dollars — almost half the nationwide average. Ibid. In 1992, nearly three-quarters of Arizona’s 275,000 child support cases were still in the earliest stages of the enforcement process. In 42 percent of all cases, paternity had yet to be established. In a further 29 percent, the absent parent had been identified but his or her whereabouts were unknown. Id., at 12. Overall, the Auditor General found that Arizona “obtains regular child support payments for fewer than five percent of the parents it serves.” Id., at 9.
Federal audits by OCSE have also identified shortcomings in Arizona’s child support system. In several reviews of the State’s performance from 1984 to 1989, the Secretary found that Arizona had not substantially complied with significant program requirements, and she repeatedly penalized the State one percent of its AFDC grant. The State developed a corrective action plan after each failed audit, which prompted the Secretary to suspend and — in every instance but one — waive the one-percent reduction in Arizona’s AFDC funding.
Respondents are five Arizona mothers (some of whom receive AFDC benefits) whose children are eligible for Title IV-D child support services. They filed this lawsuit in the United States District Court for the District of Arizona against the Director of the Arizona Department of Economic Security, the state agency charged with providing child support services under Title IV-D. In a lengthy complaint, respondents claimed that they had properly applied for child support services but that, despite their good faith efforts to cooperate, the agency never took adequate steps to obtain child support payments from the fathers of their children. These omissions, respondents contended, were largely attributable to structural defects in the State’s child support efforts: staff shortages, high caseloads, unmanageable backlogs, and deficiencies in the State’s accounting methods and recordkeeping. App. 11, 14-16. Respondents sought to represent a class of all children and custodial parents residing in Arizona who are or will be entitled to Title IV-D services.
Respondents claimed that the State’s systemic failures violated their federal rights under Title IV-D. Invoking .42 U. S. C. § 1983, they asked the District Court to grant them the following broad relief:
“Enter a declaratory judgment determining that operation of the Arizona Title IV-D program violates controlling, substantive provisions of federal law creating rights in plaintiffs and the class enforceable through an action permitted by 42 U. S. C. § 1983.
“Grant permanent (and as necessary and appropriate, interlocutory) injunctions prohibiting continued adherence to the aforesaid pattern and practices and requiring affirmative measures sufficient to achieve as well as sustain substantial compliance with federal law, throughout all programmatic operations at issue.” App. 42.
The Director immediately moved to dismiss the complaint on several grounds, arguing primarily that Title IV-D ere-ates no individual rights enforceable under § 1983. The District Court treated this motion as one for summary judgment and ruled in favor of the Director. Relying primarily on a decision of the Court of Appeals for the Sixth Circuit, Carelli v. Howser, 923 F. 2d 1208 (1991), the District Court held that Congress had foreclosed private actions to enforce Title IV-D by authorizing the Secretary to audit and cut off funds to States with programs that do not substantially comply with Title IV-D’s requirements.
A divided panel of the Court of Appeals for the Ninth Circuit reversed. 68 F. 3d 1141 (1995). The majority identified the three principal factors this Court has used to determine whether a statute creates a privately enforceable right: whether the plaintiff is one of the “intended beneficiaries of the statute,” whether the plaintiffs’ asserted interests are not so “ Vague and amorphous’ as to be ‘beyond the competence of the judiciary to enforce,’ ” and whether the statute imposes a binding obligation on the State. Id., at 1147 (quoting Wilder v. Virginia Hospital Assn., 496 U. S. 498, 509 (1990)). Title IV-D, the Court of Appeals held, satisfied each of these criteria. First, “needy families with children” were the intended beneficiaries of Title IV-D. 68 F. 3d, at 1150. Second, the majority held that the “plaintiffs’ asserted interest is not vagüe or amorphous, and it is sufficiently concrete to be judicially enforceable” because whether a State delivers the services required by Title IV-D “to the degree required by law is judicially ascertainable.” Id., at 1149-1150. Finally, the Court of Appeals stated that the statute imposes binding obligations because a State must satisfy each of the requirements spelled out in Title IV-D in order to receive AFDC funding. Although the majority acknowledged that the requirement that a State remain in “substantial compliance” with its plan might seem ambiguous when divorced from context, the majority believed that the “highly detailed requirements” of the statute and its implementing regulations adequately notified the State of the extent of its duties. Id., at 1148. Moreover, the Court of Appeals noted that “the statute . . . sets forth detailed criteria for measuring compliance with the statute,” for example, generally requiring States to establish paternity in a given percentage of all cases. Id., at 1149 (citing 42 U. S. C. § 652(g)). Accordingly, the Court of Appeals concluded that respondents could sue petitioner under § 1983 to bring Arizona’s child support enforcement program into substantial compliance with federal law. 68 F. 3d, at 1150.
The Court of Appeals also disagreed with the District Court’s conclusion that Congress had implicitly foreclosed an individual remedy under § 1983 for violations of Title IV-D. The majority noted that Title IV-D includes no provisions for judicial enforcement that might supplant the § 1983 remedy. Id., at 1153. Instead, the law simply gave the Secretary administrative oversight powers that were virtually indiscernible from those we had found insufficient to displace §1983 liability in Wright v. Roanoke Redevelopment and Housing Authority, 479 U. S. 418 (1987). The majority expressed no opinion as to the appropriateness of either in-junctive or declaratory relief, and left that question for the District Court to answer in the first instance. 68 F. 3d, at 1156.
Judge Kleinfeld dissented, arguing that Congress placed the power to enforce Title IV-D exclusively in the hands of the Secretary. He contended that the “ ‘substantial compliance’ standard does not ‘unambiguously confer’ enforceable rights on any individual.” Id., at 1157. At most, Title IV-D called upon States “to try pretty hard, and do a pretty good job, of enforcing child support, and come up with a plan to try harder if the Secretary thinks they have not been trying hard enough.” Ibid.
We granted certiorari to resolve disagreement among the Courts of Appeals as to whether individuals may sue state officials under § 1983 for violations of Title IV-D. 517 U. S. 1186 (1996).
III
Section 1983 imposes liability on anyone who, under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” We have held that this provision safeguards certain rights conferred by federal statutes. Maine v. Thiboutot, 448 U. S. 1 (1980). In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 106 (1989). We have traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Wright, 479 U. S., at 430. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so “vague and amorphous” that its enforcement would strain judicial competence. Id., at 431-432. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. Wilder, supra, at 510-511; see also Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 17 (1981) (discussing whether Congress created obligations giving rise to an implied cause of action).
Even if a plaintiff demonstrates that a federal statute ere-ates an individual right, there is only a rebuttable presumption that the right is enforceable under § 1983. Because our inquiry focuses on congressional intent, dismissal is proper if Congress “specifically foreclosed a remedy under § 1983.” Smith v. Robinson, 468 U. S. 992, 1005, n. 9 (1984). Congress may do so expressly, by forbidding recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983. Livadas v. Bradshaw, 512 U. S. 107, 133 (1994).
A
With these principles in mind, we turn first to the question whether respondents
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_decisiondirection
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
FORT BEND COUNTY, TEXAS, Petitioner
v.
Lois M. DAVIS
No. 18-525
Supreme Court of the United States.
Argued April 22, 2019
Decided June 3, 2019
Randall W. Morse, Kevin T. Hedges, County Attorney's Office, Richmond, TX, Neal Kumar Katyal, Colleen E. Roh Sinzdak, Mitchell P. Reich, Michael J. West, Hogan Lovells US LLP, Washington, DC, for Petitioner.
Brian H. Fletcher, Pamela S. Karlan, Stanford Law School, Supreme Court, Litigation Clinic, Stanford, CA, Thomas C. Wright, R. Russell Hollenbeck, Raffi Melkonian, Wright Close &, Barger, LLP, Houston, TX, for Respondent.
Raffi Melkonian, Houston, TX, for Respondent.
Colleen E. Roh Sinzdak, for Petitioner.
Jonathan C. Bond for the United States as amicus curiae, by special leave of the Court, supporting the Respondent.
Justice GINSBURG delivered the opinion of the Court.
Title VII of the Civil Rights Act of 1964 proscribes discrimination in employment on the basis of race, color, religion, sex, or national origin. 78 Stat. 255, 42 U.S.C. § 2000e-2(a)(1). The Act also prohibits retaliation against persons who assert rights under the statute. § 2000e-3(a). As a precondition to the commencement of a Title VII action in court, a complainant must first file a charge with the Equal Employment Opportunity Commission (EEOC or Commission). § 2000e-5(e)(1), (f)(1). The question this case presents: Is Title VII's charge-filing precondition to suit a "jurisdictional" requirement that can be raised at any stage of a proceeding; or is it a procedural prescription mandatory if timely raised, but subject to forfeiture if tardily asserted? We hold that Title VII's charge-filing instruction is not jurisdictional, a term generally reserved to describe the classes of cases a court may entertain (subject-matter jurisdiction) or the persons over whom a court may exercise adjudicatory authority (personal jurisdiction). Kontrick v. Ryan , 540 U.S. 443, 455, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004). Prerequisites to suit like Title VII's charge-filing instruction are not of that character; they are properly ranked among the array of claim-processing rules that must be timely raised to come into play.
I
Title VII directs that a "charge ... shall be filed" with the EEOC "by or on behalf of a person claiming to be aggrieved" within 180 days "after the alleged unlawful employment practice occur[s]." 42 U.S.C. § 2000e-5(b), (e)(1). For complaints concerning a practice occurring in a State or political subdivision that has a fair employment agency of its own empowered "to grant or seek relief," Title VII instructs the complainant to file her charge first with the state or local agency. § 2000e-5(c). The complainant then has 300 days following the challenged practice, or 30 days after receiving notice that state or local proceedings have ended, "whichever is earlier," to file a charge with the EEOC. § 2000e-5(e)(1). If the state or local agency has a "worksharing" agreement with the EEOC, a complainant ordinarily need not file separately with federal and state agencies. She may file her charge with one agency, and that agency will then relay the charge to the other. See 29 CFR § 1601.13 (2018) ; Brief for United States as Amicus Curiae 3.
When the EEOC receives a charge, in contrast to agencies like the National Labor Relations Board, 29 U.S.C. § 160, and the Merit Systems Protection Board, 5 U.S.C. § 1204, it does not "adjudicate [the] clai[m]," Alexander v. Gardner-Denver Co. , 415 U.S. 36, 44, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974). Instead, Title VII calls for the following course. Upon receiving a charge, the EEOC notifies the employer and investigates the allegations. 42 U.S.C. § 2000e-5(b). If the Commission finds "reasonable cause" to believe the charge is true, the Act instructs the Commission to "endeavor to eliminate [the] alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion." Ibid. When informal methods do not resolve the charge, the EEOC has first option to "bring a civil action" against the employer in court. § 2000e-5(f)(1). Where the discrimination charge is lodged against state or local government employers, the Attorney General is the federal authority empowered to commence suit. Ibid.
In the event that the EEOC determines there is "n[o] reasonable cause to believe that the charge is true," the Commission is to dismiss the charge and notify the complainant of his or her right to sue in court. 42 U.S.C. § 2000e-5(b), f(1); 29 CFR § 1601.28. Whether or not the EEOC acts on the charge, a complainant is entitled to a "right-to-sue" notice 180 days after the charge is filed. § 2000e-5(f)(1) ; 29 CFR § 1601.28. And within 90 days following such notice, the complainant may commence a civil action against the allegedly offending employer. § 2000e-5(f)(1).
II
Respondent Lois M. Davis worked in information technology for petitioner Fort Bend County. In 2010, she informed Fort Bend's human resources department that the director of information technology, Charles Cook, was sexually harassing her. Following an investigation by Fort Bend, Cook resigned. Davis' supervisor at Fort Bend, Kenneth Ford, was well acquainted with Cook. After Cook resigned, Davis alleges, Ford began retaliating against her for reporting Cook's sexual harassment. Ford did so, according to Davis, by, inter alia , curtailing her work responsibilities.
Seeking redress for the asserted harassment and retaliation, Davis submitted an "intake questionnaire" in February 2011, followed by a charge in March 2011. While her EEOC charge was pending, Davis was told to report to work on an upcoming Sunday. Davis informed her supervisor Ford that she had a commitment at church that Sunday, and she offered to arrange for another employee to replace her at work. Ford responded that if Davis did not show up for the Sunday work, she would be subject to termination. Davis went to church, not work, that Sunday. Fort Bend thereupon fired her.
Attempting to supplement the allegations in her charge, Davis handwrote "religion" on the "Employment Harms or Actions" part of her intake questionnaire, and she checked boxes for "discharge" and "reasonable accommodation" on that form. She made no change, however, in the formal charge document. A few months later, the Department of Justice notified Davis of her right to sue.
In January 2012, Davis commenced a civil action in the United States District Court for the Southern District of Texas, alleging discrimination on account of religion and retaliation for reporting sexual harassment. The District Court granted Fort Bend's motion for summary judgment. Davis v. Fort Bend County , 2013 WL 5157191 (SD Tex., Sept. 11, 2013). On appeal, the Court of Appeals for the Fifth Circuit affirmed as to Davis' retaliation claim, but reversed as to her religion-based discrimination claim. Davis v. Fort Bend County , 765 F. 3d 480 (2014). Fort Bend filed a petition for certiorari, which this Court denied. 576 U.S. ----, 135 S.Ct. 2804, 192 L.Ed.2d 847 (2015).
When the case returned to the District Court on Davis' claim of discrimination on account of religion, Fort Bend moved to dismiss the complaint. Years into the litigation, Fort Bend asserted for the first time that the District Court lacked jurisdiction to adjudicate Davis' religion-based discrimination claim because she had not stated such a claim in her EEOC charge. Granting the motion, the District Court held that Davis had not satisfied the charge-filing requirement with respect to her claim of religion-based discrimination, and that the requirement qualified as "jurisdictional," which made it nonforfeitable. 2016 WL 4479527 (SD Tex., Aug. 24, 2016).
The Fifth Circuit reversed. 893 F. 3d 300 (2018). Title VII's charge-filing requirement, the Court of Appeals held, is not jurisdictional; instead, the requirement is a prudential prerequisite to suit, forfeited in Davis' case because Fort Bend did not raise it until after "an entire round of appeals all the way to the Supreme Court." Id. , at 307-308.
We granted Fort Bend's petition for certiorari, 586 U.S. ----, 139 S.Ct. 915, 202 L.Ed.2d 641 (2019), to resolve a conflict among the Courts of Appeals over whether Title VII's charge-filing requirement is jurisdictional. Compare, e.g. , 893 F. 3d at 306 (case below) (charge-filing requirement is nonjurisdictional), with, e.g. , Jones v. Calvert Group, Ltd. , 551 F. 3d 297, 300 (CA4 2009) (federal courts lack subject-matter jurisdiction when the charge-filing requirement is not satisfied).
III
"Jurisdiction," the Court has observed, "is a word of many, too many, meanings." Kontrick , 540 U.S. at 454, 124 S.Ct. 906 (quoting Steel Co. v. Citizens for Better Environment , 523 U.S. 83, 90, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) ). In recent years, the Court has undertaken "[t]o ward off profligate use of the term." Sebelius v. Auburn Regional Medical Center , 568 U.S. 145, 153, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013). As earlier noted, see supra , at ----, the word "jurisdictional" is generally reserved for prescriptions delineating the classes of cases a court may entertain (subject-matter jurisdiction) and the persons over whom the court may exercise adjudicatory authority (personal jurisdiction). Kontrick , 540 U.S. at 455, 124 S.Ct. 906.
Congress may make other prescriptions jurisdictional by incorporating them into a jurisdictional provision, as Congress has done with the amount-in-controversy requirement for federal-court diversity jurisdiction. See 28 U.S.C. § 1332(a) ("The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 75,000 ... and is between (1) citizens of different States ...."). In addition, the Court has stated it would treat a requirement as "jurisdictional" when "a long line of [Supreme] Cour[t] decisions left undisturbed by Congress" attached a jurisdictional label to the prescription. Union Pacific R. Co. v. Locomotive Engineers , 558 U.S. 67, 82, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009) (citing Bowles v. Russell , 551 U.S. 205, 209-211, 127 S.Ct. 2360, 168 L.Ed.2d 96 (2007) ). See also John R. Sand & Gravel Co. v. United States , 552 U.S. 130, 132, 128 S.Ct. 750, 169 L.Ed.2d 591 (2008).
Characterizing a rule as a limit on subject-matter jurisdiction "renders it unique in our adversarial system." Auburn , 568 U.S. at 153, 133 S.Ct. 817. Unlike most arguments, challenges to subject-matter jurisdiction may be raised by the defendant "at any point in the litigation," and courts must consider them sua sponte . Gonzalez v. Thaler , 565 U.S. 134, 141, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012). "[H]arsh consequences" attend the jurisdictional brand. United States v. Kwai Fun Wong , 575 U.S. 402, ----, 135 S.Ct. 1625, 1632, 191 L.Ed.2d 533 (2015)."Tardy jurisdictional objections" occasion wasted court resources and "disturbingly disarm litigants." Auburn , 568 U.S. at 153, 133 S.Ct. 817.
The Court has therefore stressed the distinction between jurisdictional prescriptions and nonjurisdictional claim-processing rules, which "seek to promote the orderly progress of litigation by requiring that the parties take certain procedural steps at certain specified times." Henderson v. Shinseki , 562 U.S. 428, 435, 131 S.Ct. 1197, 179 L.Ed.2d 159 (2011). A claim-processing rule may be "mandatory" in the sense that a court must enforce the rule if a party "properly raise[s]" it. Eberhart v. United States , 546 U.S. 12, 19, 126 S.Ct. 403, 163 L.Ed.2d 14 (2005) (per curiam ). But an objection based on a mandatory claim-processing rule may be forfeited "if the party asserting the rule waits too long to raise the point." Id. , at 15, 126 S.Ct. 403 (quoting Kontrick , 540 U.S. at 456, 124 S.Ct. 906 ).
The Court has characterized as nonjurisdictional an array of mandatory claim-processing rules and other preconditions to relief. These include: the Copyright Act's requirement that parties register their copyrights (or receive a denial of registration from the Copyright Register) before commencing an infringement action, Reed Elsevier, Inc. v. Muchnick , 559 U.S. 154, 157, 163-164, 130 S.Ct. 1237, 176 L.Ed.2d 18 (2010) ; the Railway Labor Act's direction that, before arbitrating, parties to certain railroad labor disputes "attempt settlement 'in conference,' " Union Pacific , 558 U.S. at 82, 130 S.Ct. 584 (quoting 45 U.S.C. § 152 ); the Clean Air Act's instruction that, to maintain an objection in court on certain issues, one must first raise the objection "with reasonable specificity" during agency rulemaking, EPA v. EME Homer City Generation, L. P. , 572 U.S. 489, 511-512, 134 S.Ct. 1584, 188 L.Ed.2d 775 (2014) (quoting 42 U.S.C. § 7607(d)(7)(B) ); the Antiterrorism and Effective Death Penalty Act's requirement that a certificate of appealability "indicate [the] specific issue" warranting issuance of the certificate, Gonzalez , 565 U.S. at 137, 132 S.Ct. 641 (quoting 28 U.S.C. § 2253(c)(3) ); Title VII's limitation of covered "employer[s]" to those with 15 or more employees, Arbaugh v. Y & H Corp. , 546 U.S. 500, 503-504, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (quoting 42 U.S.C. § 2000e(b) ); Title VII's time limit for filing a charge with the EEOC, Zipes v. Trans World Airlines, Inc. , 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982) ; and several other time prescriptions for procedural steps in judicial or agency forums. See, e.g. , Hamer v. Neighborhood Housing Servs. of Chicago , 583 U.S. ----, ----, 138 S.Ct. 13, 17, 199 L.Ed.2d 249 (2017) ; Musacchio v. United States , 577 U.S. ----, ----, 136 S.Ct. 709, 716-717, 193 L.Ed.2d 639 (2016) ; Kwai Fun Wong , 575 U.S., at ----, 135 S.Ct., at 1633-1634 ; Auburn , 568 U.S. at 149, 133 S.Ct. 817 ; Henderson , 562 U.S. at 431, 131 S.Ct. 1197 ; Eberhart , 546 U.S. at 13, 126 S.Ct. 403 ; Scarborough v. Principi , 541 U.S. 401, 414, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) ; Kontrick , 540 U.S. at 447, 124 S.Ct. 906.
While not demanding that Congress "incant magic words" to render a prescription jurisdictional, Auburn , 568 U.S. at 153, 133 S.Ct. 817, the Court has clarified that it would "leave the ball in Congress' court": "If the Legislature clearly states that a [prescription] count[s] as jurisdictional, then courts and litigants will be duly instructed and will not be left to wrestle with the issue[;] [b]ut when Congress does not rank a [prescription] as jurisdictional, courts should treat the restriction as nonjurisdictional in character." Arbaugh , 546 U.S. at 515-516, 126 S.Ct. 1235 (footnote and citation omitted).
IV
Title VII's charge-filing requirement is not of jurisdictional cast. Federal courts exercise jurisdiction over Title VII actions pursuant to 28 U.S.C. § 1331's grant of general federal-question jurisdiction, and Title VII's own jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3) (giving federal courts "jurisdiction [over] actions brought under this subchapter"). Separate provisions of Title VII, § 2000e-5(e)(1) and (f)(1), contain the Act's charge-filing requirement. Those provisions "d[o] not speak to a court's authority," EME Homer , 572 U.S. at 512, 134 S.Ct. 1584, or "refer in any way to the jurisdiction of the district courts," Arbaugh , 546 U.S. at 515, 126 S.Ct. 1235 (quoting Zipes , 455 U.S. at 394, 102 S.Ct. 1127 ).
Instead, Title VII's charge-filing provisions "speak to ... a party's procedural obligations." EME Homer , 572 U.S. at 512, 134 S.Ct. 1584. They require complainants to submit information to the EEOC and to wait a specified period before commencing a civil action. Like kindred provisions directing parties to raise objections in agency rulemaking, id. , at 511-512, 134 S.Ct. 1584 ; follow procedures governing copyright registration, Reed Elsevier , 559 U.S. at 157, 130 S.Ct. 1237 ; or attempt settlement, Union Pacific , 558 U.S. at 82, 130 S.Ct. 584, Title VII's charge-filing requirement is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.
Resisting this conclusion, Fort Bend points to statutory schemes that channel certain claims to administrative agency adjudication first, followed by judicial review in a federal court. In Elgin v. Department of Treasury , 567 U.S. 1, 132 S.Ct. 2126, 183 L.Ed.2d 1 (2012), for example, the Court held that claims earmarked for initial adjudication by the Merit Systems Protection Board, then review in the Court of Appeals for the Federal Circuit, may not proceed instead in federal district court. Id. , at 5-6, 8, 132 S.Ct. 2126. See also Thunder Basin Coal Co. v. Reich , 510 U.S. 200, 202-204, 114 S.Ct. 771, 127 L.Ed.2d 29 (1994) (no district court jurisdiction over claims assigned in the first instance to a mine safety commission, whose decisions are reviewable in a court of appeals). Nowhere do these cases, or others cited by Fort Bend, address the issue here presented: whether a precondition to suit is a mandatory claim-processing rule subject to forfeiture, or a jurisdictional prescription.
Fort Bend further maintains that "[t]he congressional purposes embodied in the Title VII scheme," notably, encouraging conciliation and affording the EEOC first option to bring suit, support jurisdictional characterization of the charge-filing requirement. Brief for Petitioner 27. But a prescription does not become jurisdictional whenever it "promotes important congressional objectives." Reed Elsevier , 559 U.S. at 169, n. 9, 130 S.Ct. 1237. And recognizing that the charge-filing requirement is nonjurisdictional gives plaintiffs scant incentive to skirt the instruction. Defendants, after all, have good reason promptly to raise an objection that may rid them of the lawsuit filed against them. A Title VII complainant would be foolhardy consciously to take the risk that the employer would forgo a potentially dispositive defense.
In sum, a rule may be mandatory without being jurisdictional, and Title VII's charge-filing requirement fits that bill.
* * *
For the reasons stated, the judgment of the Court of Appeals for the Fifth Circuit is
Affirmed.
A different provision of Title VII, 42 U.S.C. § 2000e-16, prohibits employment discrimination by the Federal Government and sets out procedures applicable to claims by federal employees.
Davis submitted these documents to the Texas Workforce Commission. Complaints lodged with that commission are relayed to the EEOC, under a "worksharing" agreement between the two agencies. See How To Submit an Employment Discrimination Complaint, Texas Workforce Commission, https://twc.texas.gov/jobseekers/how-submit-employment-discrimination-complaint (as last visited May 30, 2019).
Davis also alleged intentional infliction of emotional distress, but she did not appeal the District Court's grant of summary judgment to Fort Bend on that claim.
"Courts, including this Court, ... have more than occasionally [mis]used the term 'jurisdictional' " to refer to nonjurisdictional prescriptions. Scarborough v. Principi , 541 U.S. 401, 413, 124 S.Ct. 1856, 158 L.Ed.2d 674 (2004) (quoting Kontrick v. Ryan , 540 U.S. 443, 454, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004) (alterations in original)). Passing references to Title VII's charge-filing requirement as "jurisdictional" in prior Court opinions, see, e.g. , McDonnell Douglas Corp. v. Green , 411 U.S. 792, 798, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), display the terminology employed when the Court's use of "jurisdictional" was "less than meticulous," Kontrick , 540 U.S. at 454, 124 S.Ct. 906.
The Court has "reserved whether mandatory claim-processing rules may [ever] be subject to equitable exceptions." Hamer v. Neighborhood Housing Servs. of Chicago , 583 U.S. ----, ----, n. 3, 138 S.Ct. 13, 18, n. 3, 199 L.Ed.2d 249 (2017).
"If a time prescription governing the transfer of adjudicatory authority from one Article III court to another appears in a statute, the limitation [will rank as] jurisdictional; otherwise, the time specification fits within the claim-processing category." Hamer , 583 U.S., at ----, 138 S.Ct., at 20 (citation omitted).
When Title VII was passed in 1964, 28 U.S.C. § 1331's grant of general federal-question jurisdiction included an amount-in-controversy requirement. See § 1331(a) (1964 ed.). To ensure that this "limitation would not impede an employment-discrimination complainant's access to a federal forum," Arbaugh v. Y & H Corp. , 546 U.S. 500, 505, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006), Congress enacted Title VII's jurisdiction-conferring provision, 42 U.S.C. § 2000e-5(f)(3). See Arbaugh , 546 U.S. at 505-506, 126 S.Ct. 1235. In 1980, Congress eliminated § 1331's amount-in-controversy requirement. See Federal Question Jurisdictional Amendments Act of 1980, § 2, 94 Stat. 2369. Since then, "Title VII's own jurisdictional provision, 42 U.S.C. § 2000e-5(f)(3), has served simply to underscore Congress' intention to provide a federal forum for the adjudication of Title VII claims." Arbaugh , 546 U.S. at 506, 126 S.Ct. 1235. Title VII also contains a separate jurisdictional provision, § 2000e -6(b), giving federal courts jurisdiction over actions by the Federal Government to enjoin "pattern or practice" discrimination.
Fort Bend argues that Title VII's charge-filing requirement is jurisdictional because it is "textually linked" to Title VII's jurisdictional provision. Brief for Petitioner 50. Title VII states in 42 U.S.C. § 2000e-5(f)(1) that "a civil action may be brought" after the charge-filing procedures are followed. Section 2000e-5(f)(3) gives federal courts jurisdiction over "actions brought under this subchapter," a subchapter that includes § 2000e-5(f)(1). Therefore, Fort Bend insists, federal jurisdiction lies under § 2000e-5(f)(3) only when a proper EEOC charge is filed. But as just observed, see supra , at ----, the charge-filing requirement is stated in provisions discrete from Title VII's conferral of jurisdiction on federal courts. See Sebelius v. Auburn Regional Medical Center , 568 U.S. 145, 155, 133 S.Ct. 817, 184 L.Ed.2d 627 (2013) (a requirement "does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions"); Gonzalez v. Thaler , 565 U.S. 134, 145, 132 S.Ct. 641, 181 L.Ed.2d 619 (2012) (a nonjurisdictional provision does not metamorphose into a jurisdictional limitation by cross-referencing a jurisdictional provision).
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
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sc_adminaction_is
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B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
FEDERAL POWER COMMISSION v. SIERRA PACIFIC POWER CO.
NO. 51.
Argued November 8, 1955.
Decided February 27, 1956.
Howard E. Wahrenbrock argued the cause for petitioner in No. 51. With him on the brief were Solicitor General SobelojJ, Assistant Attorney General Burger, Melvin Richter, Lionel Kestenbaum, Willard W. Gatchell, William J. Grove and Drexel D. Journey.
F. T. Searls argued the cause for petitioner in No. 53. With him on the brief were Robert H. Gerdes, Robert E. May and John C. Morrissey.
William C. Chanler argued the cause and filed a brief for respondent.
Mr-. Justice Harlan
delivered the opinion of the Court.
This case presents questions under Title II of the Federal Power Act, 49 Stat. 847, 16 U. S. C. § 824 et seq., which are in part similar to those we have decided today under the Natural Gas Act in United Gas Pipe Line Co. v. Mobile Gas Service Corp., ante, p. 332. The pertinent provisions of the Federal Power Act, set forth in the margin, are §§ 205 (c), (d), and (e), and 206 (a), which are substantially identical to §§ 4 (c), (d), and (e), and 5 (a), respectively, of the Natural Gas Act.
Respondent Sierra Pacific Power Company (Sierra) distributes electricity to consumers in northern Nevada and eastern California. For many years, it has purchased the major part of its electric power from petitioner Pacific Gas and Electric Company (PG&E), a “public utility” subject to regulation under Part II of the Federal Power Act. In 1947 Sierra, faced with increased postwar demands and consumer agitation for cheaper power, began negotiating for power from other sources, including the Federal Bureau of Reclamation, which at the time had unused capacity at Shasta Dam. To forestall the potential competition, PG&E offered Sierra a 15-year contract for power at a special low rate, which Offer Sierra finally accepted in June 1948. The contract was duly filed with the Federal Power Commission.
Early in 1953, when power from Shasta Dam was no longer available to Sierra, PG&E, without the consent of Sierra, filed with the Commission under § 205 (d) of the Federal Power Act a schedule purporting to increase its rate to Sierra by approximately 28%. The Commission, acting under § 205 (e), suspended the effective date of the new rate until September 6, 1953, and initiated a proceeding to determine its reasonableness. Sierra was permitted to intervene in the proceeding but its motion to reject the filing on the ground that PG&E could not thus unilaterally change the contract was denied. After completion of the hearings, the Commission, by order dated June 17, 1954, reaffirmed its refusal to reject the filing and held the new rate not to be “unjust, unreasonable, unduly discriminatory, or preferential.” 7 P. U. R. 3d 256. On Sierra's petition for review, the Court of Appeals for the District of Columbia, holding that the contract rate could be changed only upon a finding by the Commission that it was unreasonable, set aside the Commission’s order and remanded the case with instructions to the Commission to dismiss the § 205 (e) proceeding, but without prejudice to its instituting a new proceeding under § 206 (a) to determine the reasonableness of the contract rate. 96 U. S. App. D. C. 140, 223 F. 2d 605. We brought the case here because of the importance of the questions involved in the administration of the Federal Power Act. 349 U. S. 937.
The first question before us is whether PG&E’s unilateral filing of the new rate under § 205 (d), and the approval of the new rate by the Commission under § 205 (e), were effective to supersede PG&E’s contract with Sierra. We think not. As the parties concede, the provisions of the Federal Power Act relevant to this question are in all material respects substantially identical to the equivalent provisions of the Natural Gas Act. In United Gas Pipe Line Co. v. Mobile Gas Service Corp., supra, decided today, we construed the Natural Gas Act as not authorizing unilateral contract changes, and that interpretation is equally applicable to the Federal Power Act. Accordingly, for the reasons there given, we conclude that neither PG&E’s filing of the new rate nor the Commission’s finding that the new rate was not unlawful was effective to change PG&E’s contract with Sierra.
This case, however, raises a further question not present in the Mobile case. The Commission has undoubted power under § 206 (a) to prescribe a change in contract rates whenever it determines such rates to be unlawful. While this power is limited to prescribing the rate “to be thereafter observed” and thus can effect no change prior to the date of the order, the Commission’s order here, if based on the necessary findings, could have been effective to prescribe the proposed rate as the rate to be in effect prospectively from the date of the order, June 17, 1954. If the proceedings here satisfied in substance the requirements of § 206 (a), it would seem immaterial that the investigation was begun as one into the reasonableness of the proposed rate rather than the existing contract rate.
The condition precedent to the Commission’s exercise of its power under § 206 (a) is a finding that the existing rate is “unjust, unreasonable, unduly discriminatory or preferential.” Petitioners contend that the Commission did in fact make such a finding. It was stipulated in the proceedings before the Commission that 5.5% was normally a reasonable rate of return for PG&E’s operations, that the contract rate would produce a 2.6% rate of return, and that the proposed rate would produce a 4.75% rate of return. The Commission concluded that the proposed rate was not unreasonably high because it provided no more than a fair return and was not unreasonably low because the 0.75% deficiency of its yield from the stipulated reasonable rate of return was not being made up on other sales and was justified in order to retain business the loss of which by PG&E would result in idle facilities. It also concluded that the proposed rate was not unduly discriminatory or preferential, despite substantial differences between it and the rates being charged other customers. While no further findings were necessary in view of the Commission’s interpretation of the Act as permitting unilateral contract changes, the Commission went on to say:
“However, we may point out that if a finding on the lawfulness of the 1948 contract rate were necessary or appropriate, on the record before us that finding would have to be that the 1948 rate is unreasonably low and therefore unlawful. For none of the evidence in this record warrants a finding that any rate would be reasonable that would produce a return of substantially less than the 4.75% resulting from the proposed rate, which is the minimum PG&E is willing to accept.”
It is contended that by this statement the Commission in substance found that the existing contract rate was “unreasonable” and fixed the proposed rate as “the just and reasonable rate,” thereby satisfying the requirements of §206 (a).
But even accepting this statement as a finding of unreasonableness of the contract rate, the Commission’s conclusion appears on its face to be based on an erroneous standard. In short, the Commission holds that the contract rate is unreasonable solely because it yields less than a fair return on the net invested capital. But, while it may be that the Commission may not normally impose upon a public utility a rate which would produce less than a fair return, it does not follow that the public utility may not itself agree by contract to a rate affording less than a fair return or that, if it does so, it is entitled to be relieved of its improvident bargain. Cf. Arkansas Natural Gas Co. v. Railroad Comm’n, 261 U. S. 379. In such circumstances the sole concern of the Commission would seem to be whether the rate is so low as to adversely affect the public interest — as where it might impair the financial ability of the public utility to continue its service, cast upon other consumers an excessive burden, or be unduly discriminatory. That the purpose of the power given the Commission by § 206 (a) is the protection of the public interest, as distinguished from the private interests of the utilities, is evidenced by the recital in § 201 of the Act that the scheme of regulation imposed “is necessary in the public interest.” When § 206 (a) is read in the light of this purpose, it is clear that a contract may not be said to be either “unjust” or “unreasonable” simply because it is unprofitable to the public utility.
Whether under the facts of this case the contract rate is so low as to have an adverse effect on the public interest is of course a question to be determined in the first instance by the Commission. We shall therefore affirm the order of the Court of Appeals, with instructions to remand the case to the Federal Power Commission for such further proceedings, not inconsistent with this opinion, as the Commission may deem desirable.
It is so ordered.
“Sec. 205. . . . (c) Under such rules and regulations as the Commission may prescribe, every public utility shall file with the Commission, within such time and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection schedules showing all rates and charges for any transmission or sale subject to the jurisdiction of the Commission, and the classifications, practices, and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.
“(d) Unless the Commission otherwise orders, no change shall be made by any public utility in any such rate, charge, classification, or service, or in any rule, regulation, or contract relating thereto, except after thirty days’ notice to the Commission and to the public. Such notice shall be given by filing with the Commission and keeping open for public inspection new schedules stating plainly the change or changes to be made in the schedule or schedules then in force and the time when the change or changes will go into effect. The Commission, for good cause shown, may allow changes to take effect without requiring the thirty days’ notice herein provided for by an order specifying the changes so to be made and the time when they shall take effect and the manner in which they shall be filed and published.
“(e) Whenever any such new schedule is filed the Commission shall have authority, either upon complaint or upon its own initiative without complaint, at once, and, if it so orders, without answer or formal pleading by the public utility, but upon reasonable notice, to enter upon a hearing concerning the lawfulness of such rate, charge, classification, or service; and, pending such hearing and the decision thereon, the Commission, upon filing with such schedules and delivering to the public utility affected thereby a statement in writing of its reasons for such suspension, may suspend the operation of such schedule and defer the use of such rate, charge, classification, or service, but not for a longer period than five months beyond the time when it would otherwise go into effect; and after full hearings, either completed before or after the rate, charge, classification, or service goes into effect, the Commission may make such orders with reference thereto as would be proper in a proceeding initiated after it had become effective. If the proceeding has not been concluded and an order made at the expiration of such five months, the proposed change of rate, charge, classification, or service shall go into effect at the end of such period, but in case of a proposed increased rate or charge, the Commission may by order require the interested public utility or public utilities to keep accurate account in detail of all amounts received by reason of such increase, specifying by whom and in whose behalf such amounts are paid, and upon completion of the hearing and decision may by further order require such public utility or public utilities to refund, with interest, to the persons in whose behalf such amounts were paid, such portion of such increased rates or charges as by its decision shall be found not justified. At any hearing involving a rate or charge sought to be increased, the burden of proof to show that the increased rate or charge is just and reasonable shall be upon the public utility, and the Commission shall give to the hearing and decision of such questions preference over other questions pending before it and decide the same as speedily as possible.” 49 Stat. 851-852,16 U. S. C. § 824d.
“Sec, 206. (a) Whenever the Commission, after a hearing had upon its own motion or upon complaint, shall find that any rate, charge, or classification, demanded, observed, charged, or collected by any public utility for any transmission or sale subject to the jurisdiction of the Commission, or that any rule, regulation, practice, or contract affecting such rate, charge, or classification is unjust, unreasonable, unduly discriminatory or preferential, the Commission shall determine the just and reasonable rate, charge, classification, rule, regulation, practice, or contract to be thereafter observed and in force, and shall fix the same by order.” 49 Stat. 852, 16 U. S. C. § 824e.
Set forth as footnote 1 to the opinion in the Mobile case, ante, p. 334.
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES ex rel. KARPATHIOU v. SCHLOTFELDT, District Director of Immigration and Naturalization.
No. 6934.
Circuit Court of Appeals, Seventh Circuit.
Oct. 20, 1939.
Rehearing Denied Nov. 14, 1939.
Herman P. Haase, of Chicago, Ill., for appellant.
A. Bradley Eben, of Chicago, Ill., for appellee.
Before EVANS, MAJOR, and KERNER, Circuit Judges.
MAJOR, Circuit Judge.
This is an appeal from a judgment dismissing a petition for writ of habeas corpus filed on behalf of appellant, Constantinos Karpathiou, an alien. By the proceeding it was sought to test the validity of a warrant issued by the Secretary of Labor for the deportation of appellant upon the ground that he is in the United States contrary to the Act of February 5, 1917, Section 155, Title 8 U.S.C.A., in that appellant “has been found managing a house of prostitution, or music or dance hall or other place of amusement or resort habitually frequented by prostitutes or where prostitutes gather.”
Appellant entered this country September 23, 1907, and admittedly is an alien. A hearing was had before a United States Immigration Inspector, at which time the additional charge “in that he has been found an inmate of a house of prostitution” was made. Prior to the hearing before the Immigration Inspector, affidavits had been obtained from four persons, some of whom had been inmates or employees of the house in question, known as the Willow Inn. At the hearing a large number of witnesses testified, and during the hearing these affidavits, previously obtained, were offered in evidence. The record does not disclose whether the persons who made these affidavits were all personally present or not, but we assume they were. At any rate, counsel for appellant was asked if he desired to cross-examine such persons. He availed himself of the privilege of cross-examining one of such persons but waived such privilege as to the other three. The one examined repudiated the material statements contained in her affidavit. It is not disputed by appellant but what the evidence contained in the affidavits was sufficient to support at least some of the charges preferred.' It is argued, however, that these affidavits were improperly received in evidence and should not have been considered by the Department of Labor, and can not be here considered in support of the charge.
The impotency of this argument lies in the fact that the courts have recognized it generally as being proper. In connection with such holdings it has been held that the alien is entitled to the privilege of an oral examination of the persons who have made the affidavits. Appellant cites and relies upon the authority of Hanges v. Whitfield, D.C., 209 F. 675, but an examination of that case discloses that it is not at variance with the general rule. The effect of that holding was that the affidavits were improperly received in evidence for the reason that the alien was denied the right to examine the witnesses at the hearing. Inasmuch as this privilege was offered appellant in the instant case, and waived by his counsel, we think there can be no question but what the affidavits were properly received in evidence.
In addition to the affidavits, however, there was testimony at the hearing which tended very strongly to support the charge. One witness in particular, an immigration inspector, gave strong and convincing testimony in support of the charge. It would serve no good purpose to relate the details of his testimony — it is sufficient to state it was positive and direct and in connection with other circumstances testified to at the hearing, was sufficient to justify the conclusion reached and this, irrespective of the affidavits. complained of.
It is true, as argued by appellant, that- a large number of witnesses, including business men, local officials and acquaintances of appellant,' many of whom at rather infrequent intervals had visited the house in question, gave testimony to the effect that they had not observed anything about the place of an immoral or improper nature. ’ This testimony, however, was negative in character and did not preclude the Secretary of Labor from determining the issue presented adversely to appellant upon the direct and positive evidence before him.
Appellant also urges that the Secretary of Labor erroneously found that the appellant “is an inmate of a house of prostitution,” and argues that the words “an inmate” can not apply to a male person; Even if this argument be sound, it would avail appellant nothing, as it was merely one of the charges on which deportation was ordered. We do not agree, however, with appellant’s contention in this respect. The question was before the court in Ex parte Psimoules, D.C., 222 F. 118, and we agree with the construction there given the wofds in question, as well as the reason assigned by the court for its. conclusion. See also. United -States v. Brough, 2 Cir., IS F.2d 377.
As recognized by the appellant in his brief, the District Court was not the trier of the facts relevant to the issues presented. The statute itself, as well as numerous authorities, plainly, makes the decision of the Secretary of Labor in deportation proceedings final. The court is without authority to weigh the evidence or to substitute its judgment as to the merits of the controversy,2 and this court is bound by the same limitations.
The order of the District Court is affirmed.
Hays y. Zahariades, 8 Cir., 90 F.2d 3; Ranieri v. Smith, 7 Cir., 49 F.2d 537; Ghiggeri v. Nagle, 9 Cir., 19 F.2d 875; Kjar v. Doak, 7 Cir., 61 F.2d 566.
Lewis v. Frick, 233 U.S. 291, 34 S.Ct. 488, 58 L.Ed. 967; Taranto v. Haff, 9 Cir., 88 F.2d 85; United States v. Brooks, D.C., 284 F. 908: Section 155, Title 8, United States Code,. 8 U.S.C.A. § 155.
Costanzo v. Tillinghast, 287 U.S. 341, 53 S.Ct. 152, 77 L.Ed. 350; United States ex rel. Mastoras v. McCandless, 3 Cir., 61 F.2d 366; Cahan v. Carr, 9 Cir., 47 F.2d 604; Ex parte Keizo Shibata, D.C., 30 F.2d 942; Ex parte Wong Nung, 9 Cir., 30 F.2d 766.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
RITE-NAIL PACKAGING CORP., A Corporation and Donald B. Halstead, Plaintiffs-Appellees, v. BERRYFAST, INC., A Corporation, Defendant-Appellant. RITE-NAIL PACKAGING CORP., A Corporation and Donald B. Halstead, Plaintiffs-Appellants, v. BERRYFAST, INC., A Corporation, Defendant-Appellee.
Nos. 82-4159, 82-4171.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Sept. 17, 1982.
Decided May 19, 1983.
Francis A. Even, Fitch, Even, Tabin, Flannery & Welsh, Chicago, Ill., for defendant-appellant cross-appellee.
John D. Pope, Ill., P.C., St. Louis, Mo., for plaintiffs-appellees cross-appellants.
’ Before BROWNING, Chief Judge, PRE-GERSON and POOLE, Circuit Judges.
PER CURIAM:
Rite-Nail Packaging Corporation and Donald B. Halstead sued Berryfast, Inc., for infringement of U.S. Patent No. 3,432,895, the Halstead patent, issued in 1969 for a machine for packaging nails in plastic strips for use in a power-operated nailing gun, and for breach of a license agreement under that patent. Berryfast counterclaimed, seeking declaratory judgment that the Hal-stead patent was invalid, -recission of the license agreement, and restitution of royalties paid. The district court held the Hal-stead patent invalid and approved recission of the license agreement, but denied restitution. Both parties appeal. We affirm in part and reverse in part.
I.
The district court held the Halstead device was anticipated by U.S. Patent No. 2,503,518 — granted to C.E. Slaughter in 1950, 15 years before the Halstead patent was issued — and was obvious in light of the Slaughter patent. 35 U.S.C. §§ 102, 103.
Both patents disclose a machine for encapsulating elongated objects in plastic strips by extruding hot plastic directly on the articles. However, they differ .in some respects. For example, Halstead employs a “carrier means” or “carrier wheel” for feeding the articles into the portion of the device where they are encapsulated in hot plastic, while Slaughter states only that the objects “may be fed” into the molding mechanism “either manually or by automatic machinery.” This difference is sufficient to undercut the district court’s conclusion that the Halstead device was “anticipated” by Slaughter. “Unless all of the same elements are found in exactly the same situation and united in the same way to perform the identical function in a single prior art reference there is no anticipation.” Jones v. Vefo Inc., 609 F.2d 409, 410 (9th Cir. 1979).
We agree with the district court, however, that the Halstead device was “obvious” in light of Slaughter. Slaughter was not considered by the patent office in issuing Halstead, and the Halstead patent therefore is not presumed to be valid. Penn International Industries v. New World Manufacturing, 691 F.2d 1297, 1300 (9th Cir.1982).
Rite-Nail distinguishes Slaughter from Halstead in several respects which appellee characterizes, we think accurately, as essentially “semantic differences.” These include the use by Slaughter of two “compression members,” described as “cylinders” having a series of “peripheral chambers or grooves,” to receive and hold the objects during encapsulation with plastic, while Halstead employs two “plastic molding wheels with circumferentially spaced teeth” to perform this function. Similarly, we see no substantive difference between Hal-stead’s “extrusion” of two streams of hot plastic “onto the objects” from opposite sides, and Slaughter’s “dropping” of the objects “into the convergence of two [extruded] preformed sheets” of hot plastic.
Rite-Nail’s principal reliance, however, is upon Halstead’s provision of a “carrier means” to feed articles into the portion of the device in which encapsulation occurs, and the absence of such a provision in Slaughter, except in a most general form. The district court rejected this contention on the ground that “the carrier wheel in the patent in suit is an old means for transporting articles in succession along a prescribed path, as the Plaintiffs themselves concede,” and the combination of this old element with the old extrusion process for encapsulating articles in hot plastic did not produce “a new and surprising or unusual result,” as required to justify a patent on a combination of old elements.
The district court applied the correct legal principle, see Sarkisian v. Winn-Proof Corp., 688 F.2d 647, 650 (9th Cir.1982) (en banc), and nothing in the record would support a conclusion that the addition of a carrier wheel to Slaughter’s mechanism for encapsulating elongated objects in hot plastic produced a new and surprising result rather than simply the result to be expected. This analysis does not disregard the “subject matter as a whole,” 35 U.S. § 103, as Rite-Nail suggests. Viewing Halstead’s combination of old elements as a whole, it does not reflect a new and surprising result.
Rite-Nail argues that failure of efforts by others to develop a machine to produce clips of nails for nailing guns, and the commercial success of the Halstead device, establishes the non-obviousness of the Halstead device to persons “of ordinary skill in the art.” If that were so, such “secondary” factors as commercial success, long-felt but unsolved needs, and failures of others would be sufficient without more to establish patentable inventions — but clearly they are not. Bristol Locknut Co. v. SPS Technologies, 677 F.2d 1277, 1281 (9th Cir. 1982). One reason is that obviousness is to be determined on the hypothesis that the person of ordinary skill in the art, who is the judge of obviousness under section 103, is aware of all pertinent prior art. Cool-Fin Electronics Corp. v. International Electronic Research Corp., 491 F.2d 660, 662 n. 7 (9th Cir.1974); Walker v. General Motors Corp., 362 F.2d 56, 60 n. 3 (9th Cir.1966). Even the patent office examiner was unaware of Slaughter, the most pertinent prior art, and nothing in the record suggests that persons of ordinary skill working in the field were better informed.
Because we agree with the district court that the Halstead patent is obvious in light of the prior art, we do not discuss the additional bases offered by Berryfast to invalidate the patent.
II.
Berryfast paid royalties under the license agreement from 1965 through the first quarter of 1970, then ceased payment without explanation. On September 18, 1970, Berryfast notified Rite-Nail that it believed the patent was invalid, and that it would make no further payments. On February 7, 1973, Rite-Nail gave written notice of termination of the license agreement. On September 24, 1973, Rite-Nail filed suit to recover royalties due from April 1970 to the date of termination. The district court denied recovery.
Rite-Nail argues that because the licensing agreement provided that royalties would be paid until a final and unappeala-ble declaration of invalidity, and because of the provisions of a California statute governing recission of contracts, Cal.Civ.Code § 1689 (West 1973), the district court erred in refusing to award unpaid royalties accrued prior to a final determination of patent invalidity.
Federal patent policies favoring early adjudication of patent validity prevail over the provisions of state law and private contract in determining whether to award unpaid royalties accrued under an invalid patent. Lear, Inc. v. Adkins, 395 U.S. 653, 670-75, 89 S.Ct. 1902, 1911-13, 23 L.Ed.2d 610 (1969); Bristol Locknut Co. v. SPS Technologies, 677 F.2d at 1282; St. Regis Paper Co. v. Royal Industries, 552 F.2d 309, 312-14 (9th Cir.1977). Provisions of ‘state law or private contract to the contrary notwithstanding, a licensee under an invalid patent may not be required to pay royalties which accrue under the license agreement after the licensee “takes an affirmative step that would prompt the early adjudication of the validity of the patent, such as filing an action contesting the patent’s validity or notifying the licensor that the payments were being stopped because the patent was believed to be invalid.” Bristol Locknut Co. v. SPS Technologies, 677 F.2d at 1283.
Although a licensee need not institute suit challenging the validity of the patent, mere nonpayment of royalties is not enough. See American Sterilizer Co. v. Sybron Corp., 614 F.2d 890, 896-97 (3d Cir. 1980); PPG Industries v. Westwood Chemi cal, 530 F.2d 700, 706 (6th Cir.1976). The licensee must clearly notify the licensor that the licensee is challenging the patent’s validity. Bristol Locknut Co. v. SPS Technologies, 677 F.2d at 1283. Since Berryfast did not give such notice until September 18, 1970, it remained liable to Rite-Nail for royalties that accrued from April 1, 1970, through September 18, 1970, but no more.
Berryfast contends it should be allowed to recover all of the royalties it paid under the agreement because Rite-Nail fraudulently induced Berryfast to enter into the agreement. See St. Regis Paper Co. v. Royal Industries, 552 F.2d at 314. We do not reach the question. The district court found that Berryfast had not proved fraud, and this finding is not clearly erroneous.
III.
The trial court’s rejection of Berryfast’s request for an award of attorneys’ fees under 35 U.S.C. § 285 may be reversed only for abuse of discretion. See SSP Agricultural Equipment v. Orchard-Rite Ltd., 592 F.2d 1096, 1101-02 (9th Cir. 1979); Pickering v. Holman, 459 F.2d 403, 408 (9th Cir.1972). None has been shown.
The judgment is affirmed except for the denial of Berryfast’s claim for royalties for the period April 1, 1970, to September 18, 1970. That portion of the judgment is reversed and remanded to the district court for determination of the amount due.
Each party shall bear its own costs.
. Rite-Nail argues the district court improperly rescinded the licensing agreement since a second patent, U.S. Patent No. 3,303,632, was covered under the agreement, preventing a complete failure of consideration. The district court found the device patented under No. ’632 to be inoperable. In the trial court Rite-Nail did not rely upon the inclusion of this apparently worthless patent in the license agreement as a. ground for sustaining the agreement. We therefore decline to consider the contention on appeal. Confederated Tribes & Bands of the Yakima Indian Nation v. Washington, 608 F.2d 750, 752 (9th Cir. 1979); Evans v. Valley West Shopping Center, 567 F.2d 358, 361 (9th Cir. 1978).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES of America, Plaintiff-Appellee, v. Joel H. DARK, Defendant-Appellant.
No. 78-5237.
United States Court of Appeals, Sixth Circuit.
Argued April 10, 1979.
Decided May 4, 1979.
Walter S. Clark, Phyllis L. Bateman, Nashville, Tenn., for defendant-appellant.
Hal D. Hardin, U. S. Atty., Richard L. Windsor, Asst. U. S. Atty., Nashville, Tenn., for plaintiff-appellee.
Before ENGEL and MERRITT, Circuit Judges, and PECK, Senior Circuit Judge.
PER CURIAM.
Appellant Dark was convicted of two counts of willfully failing to file income tax returns, in violation of 26 U.S.C. § 7203 (1976), after a jury trial in the United States District Court for the Middle District of Tennessee. He was sentenced to five months’ imprisonment on count one and to one year’s imprisonment on count two, the latter sentence suspended in favor of three years’ probation.
The government’s evidence was plainly sufficient to support the verdict. During 1973 and 1974, Dark was self-employed as a certified public accountant, he taught elementary accounting at Tennessee State University in Nashville, and he attended law school at night. His total receipts on accounts receivable from his accounting practice amounted to $36,331.10 in 1973 and $40,779.22 in 1974. In 1973 he received a salary of $5,420 from Tennessee State. He failed to file income tax returns for either year, despite the fact that he had been specifically warned by the Internal Revenue Service of his obligation under the law to file timely returns. Dark had failed to file his returns for the years 1967-1971 until March 1973, when he learned that he was under investigation by the IRS. At that time, Dark assured the IRS that he would comply with all filing requirements in the future.
Dark’s defense was that his failure to file had not been “willful.” He testified that his financial books and records were simply “not in shape to file a tax return” on the respective due dates, principally because of the complicated and cumbersome nature of his personal accounting system, and that the pressures of his accounting practice and legal studies had distracted him from properly maintaining his books. The jury deliberated only five minutes before returning its verdict of guilty on both counts.
Dark raises numerous claims of error on appeal, most of which are wholly without merit. He contends that the testimony of certain witnesses subpoenaed by the government should have been excluded at trial because the Assistant United States Attorney had instructed the Marshal not to place the returned subpoenas in the ease file in the district court clerk’s office, thereby preventing defense counsel from looking at the case file to find out who was going to testify for the government. The short answer to this claim is that defense counsel was not entitled to know, in advance of trial, who was going to testify for the government. United States v. Conder, 423 F.2d 904, 910 (6th Cir.), cert. denied, 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970).
Dark contends that the district judge committed reversible error during jury selection by telling the panel, in the course of explaining the presumption of innocence and burden of proof in a criminal case, that “Neither side has the edge.” Read in context, the remark was apparently calculated to impress upon the prospective jurors that both parties in a criminal case come before the court with equal dignity and that neither should be arbitrarily favored out of prejudice for or against the government or defendants as a class. While perhaps better left unsaid, the remark could not have confused the jury, especially in light of the district judge’s more than adequate explanation of the defendant’s presumption of innocence and the government’s heavy burden of proof in his other comments to the panel during jury selection and in his instructions at the close of the trial.
Dark also argues that the trial judge erred in refusing to order the government to turn over to defense counsel, as “statements” under the Jencks Act, the contents of IRS Special Agent Hollingsworth’s case file after Hollingsworth’s testimony at trial, without at least inspecting the file in camera to determine whether it contained any Jencks material. Agent Hollingsworth’s written case reports are not his “statements” under 18 U.S.C. § 3500(e), and the trial court was under no obligation to examine the file in camera, since there was “no basis for belief that a Jencks Act ‘statement’ existed other than those already furnished defense counsel.” United States v. Nickell, 552 F.2d 684, 687-90 (6th Cir. 1977), cert. denied, 436 U.S. 904, 98 S.Ct. 2233, 56 L.Ed.2d 402 (1978).
Dark’s two remaining claims of error are more troublesome. Both involve actions of the trial court, which, Dark argues, unfairly hampered the presentation of his defense.
Dark sought to introduce in evidence some of his personal financial records in an effort to corroborate his claim that his personal record-keeping system was so complicated that it would have been difficult, if not impossible, to prepare accurate tax returns by the dates required by law. The trial judge ruled that the records were irrelevant .and refused to admit them. We think this was error. The records were plainly relevant to Dark’s defense, lame though it might have been.
The other incident occurred during the prosecutor’s cross-examination of Dark. Dark testified, “I do not think I could have done [the 1973 and 1974 tax returns] under the circumstances under which I was laboring. On the due date my books were not in shape to file a tax return.” At that point, the trial judge interrupted to ask the following question: “Well, the reason your books were not in shape is that you elected to spend time making money off somebody else and not keep your own books up, is that not correct?”
This Court has only recently had occasion to observe that “potential prejudice lurks behind every intrusion into a trial made by a presiding judge” and that, when such intrusion occurs, the judge must “sedulously avoid all appearances of advocacy as to those questions which are ultimately to be submitted to the jury.” United States v. Hickman, 592 F.2d 931, 933 (6th Cir. 1979). The question propounded by the trial judge here came dangerously close to violating this principle, for it could have created the impression in the minds of the jurors that the trial judge was unsympathetic to Dark’s defense, a matter which was for the jury, and the jury alone, to evaluate.
In light of the overwhelming evidence of Dark’s guilt, however, we do not believe that either the erroneous exclusion of Dark’s financial records or the trial judge’s isolated intrusion into the cross-examination of Dark affected Dark’s substantial rights. Rule 52, Fed.R.Crim.P.
Accordingly, it is Ordered that the judgment of conviction be, and hereby is, Affirmed.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Albert HARTWICK, Elizabeth Hartwick, Plaintiffs-Appellants. v. UNITED STATES STEEL CORPORATION, Defendant-Appellee.
No. 72-1280.
United States Court of Appeals, Sixth Circuit.
Argued Oct. 12, 1972.
Decided Jan. 18, 1973.
James A. Tuck, Goodman, Eden, Mil-lender, Goodman & Bedrosian, Detroit, Mich., for plaintiffs-appellants; William H. Goodman, Detroit, Mich., on brief.
Gilbert E. Gove, Miller, Canfield, Paddock & Stone, Detroit, Mich., for defendant-appellee; John A. Marxer, Detroit, Mich., on brief.
Before CELEBREZZE and MILLER, Circuit Judges, and HOGAN , District Judge.
The Honorable Timothy S. Hogan, United States District Judge for the Southern District of Ohio, sitting by designation.
WILLIAM E. MILLER, Circuit Judge.
This is a negligence action against United States Steel Corporation arising from the injury of Albert Hartwick, the appellant, while he was foreman for the C-Way Construction Company. The United States Army Corps of Engineers had contracted with C-Way, appellant’s employer, for the construction of a lock on the Crooked River near Alanson, Michigan. The appellant was in charge of the steel pile driving crews.
In order to construct the lock it was necessary first to divert the river and to fill the river bed with gravel. Two cells, each 15 feet wide and 80 feet long, were then to be contructed on the sides of the old river bed. The cell walls were to consist of a continuous web of sheet piling to be driven some 27 feet into the ground by a pile driver. The sheet piling was manufactured by the 'appellee, United States Steel Corporation.
The sheets of piling are “Z” shaped, about 18 inches wide and varying in length from 27 to 28 feet. On each edge of the piling and extending the entire length of one edge there is a ball or a socket allowing the sheets of piling to be attached to one another. To assemble the piling around the cell, it is necessary to lift a sheet some 30 feet into the air and align the ball of that sheet with the corresponding socket of the adjacent sheet. After the ball and socket are initially aligned, the sheet piling is lowered into place and driven into the ground. Correctly manufactured, the sheets will form a straight line when installed. The sheets of piling manufactured by the ap-pellee, however, would not align properly. When the pilings were threaded together the sheets would be from 4 to 6 inches out of alignment. It was un-eontradicted at trial that appellee was aware of this defect in the piling when it was manufactured.
In order to correct the defect the appellant’s employer used a system of chains and chain binders to pull the piling back into alignment, so that it could be correctly driven into the ground. During the pile driving process, tension is placed on the chains and binders as they hold the pile in alignment. At the time of the accident the appellant was releasing the tension on a chain and chain binder attached to a pile that had been driven into the ground. When the binder was first attached to the chain holding the pile, a small wire had been placed around the handle of the binder to prevent it from being inadvertently knocked open. To release the tension on the chain and binder, the appellant removed the wire from the binder’s handle. The handle snapped open, striking the appellant on the shin and causing the injury.
After completion of the appellant’s proof, the appellee moved for a directed verdict. This motion was granted by the district court. In its ruling on the motion the district court found that the appellee’s manufacture of the pilings was not the proximate cause of the appellant’s injury.
The jurisdiction of the court was based upon diversity of citizenship. Directed verdicts are not favored in Michigan. Blazo v. Neveau, 382 Mich. 415,170 N.W.2d 62 (1969); See Serratoni v. Chesapeake & Ohio Ry., 333 F.2d 621 (6th Cir. 1964). The standard to be applied for directed verdicts is succinctly stated in Blazo:
On a motion for directed verdict it is the duty of the trial judge to review all the evidence, giving to the opposing party the benefit of all conflicts and inferences, and decide if there is any evidence from which the jury could reasonably find a verdict contrary to the moving party. 382 Mich. at 424, 170 N.W.2d at 66.
If reasonable minds can differ, the question should be submitted to the jury. Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).
The district court found that the injury was not a natural event flowing from the appellee’s “negligent construction of the pilings . . . . ” In so ruling the court thus assumed that the appellee was negligent in its manufacture of the pilings and there is substantial evidence in the record to support this conclusion. The Michigan Supreme Court has made clear that the question of proximate cause, in case of doubt, is for the jury. As the court stated in Davis v. Thornton, supra at 145, 180 N. W.2d at 15.
But determination of negligence alone does not end the inquiry. Once a jury or judge has found that the defendant was negligent and that the plaintiff suffered injuries, it must be determined, whether the plaintiff’s injuries were caused by the defendant’s wrongful conduct and, then, if the defendant did cause the injuries, judge whether the plaintiff's injuries were too insignificantly related to or too remotely effected by the defendant’s negligence.
Of all the elements necessary to support recovery in a tort action, causation is the most susceptible to summary determination for it usually amounts to a logical connection of cause to effect. However, any doubts about the connections between the causes and the effects, should be resolved by the jury.
In Parks v. Starks, 342 Mich. 443, 448, 70 N.W.2d 805, 807 (1955), the court quoted with approval from 38 Am.Jur. Negligence, § 55 at 705 (1941):
The proximate cause of an injury is not necessarily the immediate cause; not necessarily the cause nearest in time, distance, or space. Assuming that there is a direct, natural, and continuous sequence between an act and an injury, . . . the act can be accepted as the proximate cause of the injury without reference to its separation from the injury in point of time or distance.
This holding was reaffirmed by the court in McKine v. Sydor, 387 Mich. 82, 88, 194 N.W.2d 841, 844 (1972).
Since- we must assume that the appellee’s manufacture was negligent, under the applicable Michigan precedents the element of the foreseeability of the harm is removed. As noted in Davis v. Thornton, supra, 384 Mich. at 146, 180 N.W.2d at 15:
The jury must then bridge the gap between the plaintiff’s injuries and the defendant’s negligence. This is the determination of cause and the remoteness of the effect. Once negligence is determined, foreseeability of harm should no longer be considered.
Causation is a process of logical determination, while the significance of the connections — remoteness—is a policy determination.
There is no doubt from the record before us that the appellee’s negligent construction was at least one of the causes of the appellant’s injury. Plainly the accident and injury would not have occurred absent such negligence. Thus we are left with the question of remoteness. As the Michigan Supreme Court has demonstrated, such an issue, as that of negligence itself, should ordinarily be determined by the jury:
The determination of remoteness, however, should seldom, if ever, be summarily determined.
Both the determination of remoteness and of negligence should almost always be left to the jury. Davis v. Thornton, supra, 384 Mich. at 147-148, 180 N.W.2d at 16.
Under these principles declared by the highest court of Michigan, we feel that there is sufficient connection between the appellee’s negligent construction or manufacture of the pilings and the appellant’s injury that reasonable minds could differ on the issue of causation and hence that the issue of proximate cause should have been left to the jury.
Although the district court made reference to the possibility of contributory negligence, he made no specific ruling on this issue and we therefore express no opinion with respect to it.
The judgment of the district court is reversed and the action is remanded for further proceedings not inconsistent with this opinion.
. This opinion specifically refers to the appellants, Albert Hartwick and Elizabeth Hartwick, only in the singular since any possible recovery by Elizabeth Hartwick is dependent upon her husband’s negligence action. The complaint alleges that she has been damaged by “Loss of society, companionship, love, affection and services of her husband . . . .”
. We need not determine here whether the rule governing the direction of verdicts is “substantive” or “procedural” within the meaning of the Erie rationale. This is true because the federal and Michigan rules appear to be substantially identical. For the Federal rule see 5A Moore, Federal Practice If 50.02(1) (2d ed. 1971). For the Michigan rule see the cases cited in this opinion, particularly Davis v. Thornton, 384 Mich. 138, 180 N.W.2d 11 (1970).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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sc_casedisposition
|
C
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
HICKLIN et al. v. ORBECK, COMMISSIONER, DEPARTMENT OF LABOR OF ALASKA, et al.
No. 77-324.
Argued March 21, 1978
Decided June 22, 1978
Brennan, J., delivered the opinion for a unanimous Court.
Robert H. Wagstaff argued the cause for appellants. With him on the briefs was Lee S. Glass.
Ronald W. Lorensen, Assistant Attorney General of Alaska, argued the cause and filed a brief for appellees.
Briefs of amici curiae urging reversal were filed by Edwin Vieira, Jr., for the National Right to Work Legal Defense Foundation; and by Peabody Testing — Bill Miller X-Ray, Inc.
Ronald Y. Amemiya, Attorney General, and Lawrence D. Kumabe and Michael A. Lilly, Deputy Attorneys General, filed a brief for the State of Hawaii as amicus curiae urging affirmance.
Mr. Justice Brennan
delivered the opinion of the Court.
In 1972, professedly for the purpose of reducing unemployment in the State, the Alaska Legislature passed an Act entitled “Local Hire Under State Leases.” Alaska Stat. Ann. §§ 38.40.010 to 38.40.090 (1977). The key provision of “Alaska Hire,” as the Act has come to be known, is the requirement that “all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party” contain a provision “requiring the employment of qualified Alaska residents” in preference to nonresidents. Alaska Stat. Ann. § 38.40.030 (a) (1977). This employment preference is administered by providing persons meeting the statutory requirements for Alaskan residency with certificates of residence — -“resident cards” — that can be presented to an employer covered by the Act as proof of residency. 8 Alaska Admin. Code 35.015 (1977). Appellants, individuals desirous of securing jobs covered by the Act but unable to qualify for the necessary resident cards, challenge Alaska Hire as violative of both the Privileges and Immunities Clause of Art. IY, § 2, and the Equal Protection Clause of the Fourteenth Amendment.
I
Although enacted in 1972, Alaska Hire was not seriously enforced until 1975, when construction on the Trans-Alaska Pipeline was reaching its peak. At that time, the State Department of Labor began issuing residency cards and limiting to resident cardholders the dispatchment to oil pipeline jobs. On March 1, 1976, in response to “numerous complaints alleging that persons who are not Alaska residents have been dispatched on pipeline jobs when qualified Alaska residents were available to fill the jobs,” Executive Order #76-1, Alaska Dept, of Labor (Mar. 1, 1976) (emphasis in original), Edmund Orbeck, the Commissioner of Labor and one of the appellees here, issued a cease-and-desist order to all unions supplying pipeline workers enjoining them “to respond to' all open job calls by dispatching all qualified Alaska residents before any non-residents are dispatched.” Ibid, (emphasis in original). As a result, the appellants, all but one of whom had previously worked on the pipeline, were prevented from obtaining pipeline-related work. Consequently, on April 28, 1976, appellants filed a complaint in the Superior Court in Anchorage seeking declaratory and injunctive relief against enforcement of Alaska Hire.
At the time the suit was filed, the provision setting forth the qualifications for Alaskan residency for purposes of Alaska Hire, Alaska Stat. Ann. § 38.40.090, included a one-year durational residency requirement. Appellants attacked that requirement as well as the flat employment preference given by Alaska Hire to state residents. By agreement of the parties, consideration of a motion for a preliminary injunction was consolidated with the determination of the suit on its merits. The case was submitted on affidavits, depositions, and memo-randa of law; no oral testimony was taken. On July 21, 1976, the Superior Court upheld Alaska Hire in its entirety and denied appellants all relief. On appeal, the Alaska Supreme Court unanimously held that Alaska Hire’s one-year durational residency requirement was unconstitutional under both the state and federal Equal Protection Clauses, 565 P. 2d 159, 165 (1977), and held further that a durational residency requirement in excess of 30 days was constitutionally infirm. Id., at 171. By a vote of 3 to 2, however, the court held that the Act’s general preference for Alaska residents was constitutionally permissible. Appellants appealed the State Supreme Court’s judgment insofar as it embodied the latter holding, and we noted probable jurisdiction. 434 U. S. 919 (1977). We reverse.
II
Preliminarily, we hold that this case is not moot. Despite the Alaska Supreme Court’s invalidation of the one-year durational residency requirement, a controversy still exists between at least five of the appellants- — Tommy Ray Woodruff, Frederick A. Mathers, Emmett Ray, Betty Cloud, and Joseph G. O’Brien — and the state appellees. These five appellants have all sworn that they are not residents of Alaska, Record 43, 47, 49, 96, 124. Therefore, none of them can satisfy the element of the definition of “resident” under § 38.40.090 (1) (D) that requires that an individual “has not, within the period of required residency, claimed residency in another state.” They thus have a continuing interest in restraining the enforcement of Alaska Hire’s discrimination in favor of residents of that State.
Appellants’ principal challenge to Alaska Hire is made under the Privileges and Immunities Clause of Art. IV, § 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” That provision, which “appears in the so-called States’ Relations Article, the same Article that embraces the Full Faith and Credit Clause, the Extradition Clause . . . , the provisions for the admission of new States, the Territory and Property Clause, and the Guarantee Clause,” Baldwin v. Montana Fish and Game Comm’n, 436 U. S. 371, 379 (1978), “establishes a norm of comity,” Austin v. New Hampshire, 420 U. S. 656, 660 (1975), that is to prevail among the States with respect to their treatment of each other’s residents. The purpose of the Clause, as described in Paul v. Virginia, 8 Wall. 168, 180 (1869), is
“to place the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned. It relieves them from the disabilities of alienage in other States; it inhibits discriminating legislation against them by other States; it gives them the right of free ingress into other States, and egress from them; it insures to them in other States the same freedom possessed by the citizens of those States in the acquisition and enjoyment of property and in the pursuit of happiness; and it •secures to them in other States the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this.”
Appellants’ appeal to the protection of the Clause is strongly supported by this Court’s decisions holding violative of the Clause state discrimination against nonresidents seeking to ply their trade, practice their occupation, or pursue a common calling within the State. For example, in Ward v. Maryland, 12 Wall. 418 (1871), a Maryland statute regulating the sale of most goods in the city of Baltimore fell to the privileges and immunities challenge of a New Jersey resident against whom the law discriminated. The statute discriminated against nonresidents of Maryland in several ways: It required nonresident merchants to obtain licenses in order to practice their trade without requiring the same of certain similarly situated Maryland merchants; it charged nonresidents a higher license fee than those Maryland residents who were required to secure licenses; and it prohibited both resident and nonresident merchants from using nonresident salesmen, other than their regular employees, to sell their goods in the city. In holding that the statute violated the Privileges and Immunities Clause, the Court observed that “the clause plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of engaging in lawful commerce, trade, or business without molestation.” Id., at 430. Ward thus recognized that a resident of one State is constitutionally entitled to travel to another State for purposes of employment free from discriminatory restrictions in favor of state residents imposed by the other State.
Again, Toomer v. Witsell, 334 U. S. 385 (1948), the leading modern exposition of the limitations the Clause places on a State’s power to bias employment opportunities in favor of its own residents, invalidated a South Carolina statute that required nonresidents to pay a fee 100 times greater than that paid by residents for a license to shrimp commercially in the three-mile maritime belt off the coast of that State. The Court reasoned that although the Privileges and Immunities Clause “does not preclude disparity of treatment in the many situations where there are perfectly valid independent reasons for it,” id., at 396, “[i]t does bar discrimination against citizens of other States where there is no substantial reason for the discrimination beyond the mere fact that they are citizens of other States.” Ibid. A “substantial reason for the discrimination” would not exist, the Court explained, “unless there is something to indicate that non-citizens constitute a peculiar source of the evil at which the [discriminatory] statute is aimed.” Id,., at 398. Moreover, even where the presence or activity of nonresidents causes or exacerbates the problem the State seeks to remedy, there must be a “reasonable relationship between the danger represented by non-citizens, as a class, and the . . . discrimination practiced upon them.” Id., at 399. Toomer’s analytical framework was confirmed in Mullaney v. Anderson, 342 U. S. 415 (1952), where it was applied to invalidate a scheme used by the Territory of Alaska for the licensing of commercial fishermen in territorial waters; under that scheme residents paid a license fee of only $5 while nonresidents were charged $50.
Even assuming that a State may validly attempt to alleviate its unemployment problem by requiring private employers within the State to discriminate against nonresidents — an assumption made at least dubious by Ward-— it is clear that under the Toomer analysis reaffirmed in Mul-laney, Alaska Hire’s discrimination against nonresidents cannot withstand scrutiny under the Privileges and Immunities Clause. For although the statute may not violate the Clause if the State shows “something to indicate that non-citizens constitute a peculiar source of the evil at which the statute is aimed,” Toomer v. Witsell, supra, at 398, and, beyond this, the State “has no burden to prove that its laws are not violative of the . . . Clause,” Baldwin v. Montana Fish and Game Gomm’n, 436 U. S., at 402 (Brennan, J., dissenting), certainly no showing was made on this record that nonresidents were “a peculiar source of the evil” Alaska Hire was enacted to remedy, namely, Alaska’s “uniquely high unemployment.” Alaska Stat. Ann. § 38.40.020 (1977). What evidence the record does contain indicates that the major cause of Alaska’s high unemployment was not the influx of nonresidents seeking employment, but rather the fact that a substantial number of Alaska’s jobless residents — especially the unemployed Eskimo and Indian residents — were unable to secure employment either because of their lack of education and job training or because of their geographical remoteness from job opportunities; and that the employment of nonresidents threatened to deny jobs to Alaska residents only to the extent that jobs for which untrained residents were being prepared might be filled by nonresidents before the residents’ training was completed.
Moreover, even if the State’s showing is accepted as sufficient to indicate that nonresidents were “a peculiar source of evil,” Toomer and Mullmey compel the conclusion that Alaska Hire nevertheless fails to pass constitutional muster. For the discrimination the Act works against nonresidents does not bear a substantial relationship to the particular “evil” they are said to present. Alaska Hire simply grants all Alaskans, regardless of their employment status, education, or training, a flat employment preference for all jobs covered by the Act. A highly skilled and educated resident who has never been unemployed is entitled to precisely the same preferential treatment as the unskilled, habitually unemployed Arctic Eskimo enrolled in a job-training program. If Alaska is to attempt to ease its unemployment problem by forcing employers within the State to discriminate against nonresidents — again, a policy which may present serious constitutional questions — the means by which it does so must be more closely tailored to aid the unemployed the Act is intended to benefit. Even if a statute granting an employment preference to unemployed residents or to residents enrolled in job-training programs might be permissible, Alaska Hire’s across-the-board grant of a job preference to all Alaskan residents clearly is not.
Relying on McCready v. Virginia, 94 U. S. 391 (1877), however, Alaska contends that because the oil and gas that are the subject of Alaska Hire are owned by the State, this ownership, of itself, is sufficient justification for the Act’s discrimination against nonresidents, and takes the Act totally without the scope of the Privileges and Immunities Clause. As the State sees it “the privileges and immunities clause [does] not apply, and was never meant to apply, to decisions by the states as to how they would permit, if at all, the use and distribution of the natural resources which they own . . . .” Brief for Appellees 20 n. 14. We do not agree that the fact that a State owns a resource, of itself, completely removes a law concerning that resource from the prohibitions of the Clause. Although some courts, including the court below, have read McCready as creating an “exception” to the Privileges and Immunities Clause, we have just recently confirmed that “[i]n more recent years . . . the Court has recognized that the States’ interest in regulating and controlling those things they claim to ‘own’ ... is by no means absolute.” Baldwin v. Montana Fish and Game Comm’n, 436 U. S., at 385. Rather than placing a statute completely beyond the Clause, a State’s ownership of the property with which the statute is concerned is a factor — although often the crucial factor — to be considered in evaluating whether the statute’s discrimination against noncitizens violates the Clause. Dispositive though this factor may be in many cases in which a State discriminates against nonresidents, it is not dispositive here.
The reason is that Alaska has little or no proprietary interest in much of the activity swept within the ambit of Alaska Hire; and the connection of the State’s oil and gas with much of the covered activity is sufficiently attenuated so that it cannot justifiably be the basis for requiring private employers to discriminate against nonresidents. The extensive reach of Alaska Hire is set out in Alaska Stat. Ann. § 38.40.050 (a) (1977). That section provides:
“The provisions of this chapter apply to all employment which is a result of oil and gas leases, easements, leases or right-of-way permits for oil or gas pipeline purposes, unitization agreements [] or any renegotiation of any of the preceding to which the state is a party after July 7, 1972; however, the activity which generates the employment must take place inside the state and it must take place either on the property under the control of the person subject to this chapter or be directly related to activity taking place on the property under his control and the activity must be performed directly for the person subject to this chapter or his contractor or a subcontractor of his contractor or a supplier of his contractor or subcontractor.” (Emphasis added.)
Under this provision, Alaska Hire extends to employers who have no connection whatsoever with the State’s oil and gas, perform no work on state land, have no contractual relationship with the State, and receive no payment from the State. The Act goes so far as to reach suppliers who provide goods or services to subcontractors who, in turn, perform work for contractors despite the fact that none of these employers may themselves have direct dealings with the State’s oil and gas or ever set foot on state land. Moreover, the Act’s coverage is not limited to activities connected with the extraction of Alaska’s oil and gas. It encompasses, as emphasized by the dissent below, “employment opportunities at refineries and in distribution systems utilizing oil and gas obtained under Alaska leases.” 565 P. 2d, at 171. The only limit of any consequence on the Act’s reach is the requirement that “the activity which generates the employment must take place inside the state.” Although the absence of this limitation would be noteworthy, its presence hardly is; for it simply prevents Alaska Hire from having what would be the surprising effect of requiring potentially covered out-of-state employers to discriminate against residents of their own State in favor of nonresident Alaskans. In sum, the Act is an attempt to force virtually all businesses that benefit in some way from the economic ripple effect of Alaska's decision to develop its oil and gas resources to bias their employment practices in favor of the State’s residents. We believe that Alaska’s ownership of the oil and gas that is the subject matter of Alaska Hire simply constitutes insufficient justification for the pervasive discrimination against nonresidents that the Act mandates.
Although appellants raise no Commerce Clause challenge to the Act, the mutually reinforcing relationship between the Privileges and Immunities Clause of Art. IV, § 2, and the Commerce Clause- — a relationship that stems from their common origin in the Fourth Article of the Articles of Confederation and their shared vision of federalism, see Baldwin v. Montana Fish and Game Comm’n, 436 U. S., at 379-380 — renders several Commerce Clause decisions appropriate support for our conclusion. West v. Kansas Natural Gas, 221 U. S. 229 (1911), struck down an Oklahoma statutory scheme that completely prohibited the out-of-state shipment of natural gas found within the State. The Court reasoned that if a State could so prefer its own economic well-being to that of the Nation as a whole, “Pennsylvania might keep its coal, the Northwest its timber, {and] the mining States their minerals,” so that “embargo may be retaliated by embargo” with the result that “commerce [would] be halted at state lines.” Id., at 255. West was held to be controlling in Pennsylvania v. West Virginia, 262 U. S. 553 (1923), where a West Virginia statute that effectively required natural gas companies within the State to satisfy all fuel needs of West Virginia residents before transporting any natural gas out of the State was held to violate the Commerce Clause. West and Pennsylvania v. West Virginia thus established that the location in a given State of a resource bound for interstate commerce is an insufficient basis for preserving the benefits of the resource exclusively or even principally for that State's residents. Foster Packing Co. v. Haydel, 278 U. S. 1 (1928), went one step further; it limited the extent to which a State’s purported ownership of certain resources could serve as a justification for the State’s economic discrimination in favor of residents. There, in the face of Louisiana’s claim that the State owned all shrimp within state waters, the Court invalidated a Louisiana law that required the local processing of shrimp taken from Louisiana marshes as a prerequisite to their out-of-state shipment. The Court observed that “by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control.” Id., at 13.
West, Pennsylvania v. West Virginia, and Foster Packing thus establish that the Commerce Clause circumscribes a State’s ability to prefer its own citizens in the utilization of natural resources found within its borders, but destined for interstate commerce. Like Louisiana’s shrimp in Foster Packing, Alaska’s oil and gas here are bound for out-of-state consumption. Indeed, the construction of the Trans-Alaska Pipeline, on which project appellants’ nonresidency has prevented them from working, was undertaken expressly to accomplish this end. Although the fact that a state-owned resource is destined for interstate commerce does not, of itself, disable the State from preferring its own citizens in the utilization of that resource, it does inform analysis under the Privileges and Immunities Clause as to the permissibility of the discrimination the State visits upon nonresidents based on its ownership of the resource. Here, the oil and gas upon which Alaska hinges its discrimination against nonresidents are of profound national importance. On the other hand, the breadth of the discrimination mandated by Alaska Hire goes far beyond the degree of resident bias Alaska’s ownership of the oil and gas can justifiably support. The confluence of these realities points to but one conclusion: Alaska Hire cannot withstand constitutional scrutiny. As Mr. Justice Cardozo observed in Baldwin v. G. A. F. Seelig, Inc., 294 U. S. 511, 523 (1935), the Constitution “was framed upon the theory that the peoples of the several states must sink or swim together, and that in the long run prosperity and salvation are in union and not division.”
Reversed.
The regulations implementing the Act further require that all nonresidents be laid off before any resident "working in the same trade or craft” is terminated: “[T]he- nonresident may be retained only if no resident employee is qualified to fill the position.” 8 Alaska Admin. Code 35.011 (1977). See also 8 Alaska Admin. Code 35.042 (4) (1977).
The complete text of § 38.40.030 (a) is as follows:
“In order to create, protect and preserve the right of Alaska residents to employment, the commissioner of natural resources shall incorporate into all oil and gas leases, easements or right-of-way permits for oil or gas pipeline purposes, unitization agreements, or any renegotiation of any of the preceding to which the state is a party, provisions requiring the lessee to comply with applicable laws and regulations with regard to the employment of Alaska residents, a. provision requiring the employment of qualified Alaska residents, a provision prohibiting discrimination against Alaska residents and, when in the determination of the commissioner of natural resources it is practicable, a provision requiring compliance with the Alaska Plan, all in accordance with the provisions of this chapter.”
See Trans Alaska Pipeline Rate Cases, 436 U. S. 631 (1978); Trans-Alaska Pipeline Authorization Act, 87 Stat. 584, 43 U. S. C. § 1651 et seq. (1970 ed., Supp. Y).
App. 13-14. The vast majority of pipeline jobs were filled through union dispatchment. Deposition of David Finrow, Deputy Director of the Wage and Hour Division of the Alaska Dept, of Labor, in No. 3025 (Sup. Ct. Alaska), pp. 18-19, 28, 48.
Section 38.40.090 provides:
“In this chapter
“(1) 'resident’ means a person who
“(A) except for brief intervals, military service, attendance at an educational or training institution, or for absences for good cause, is physically present in the state for a period of one year immediately before the time his status is determined;
“(B) maintains a place of residence in the state;
“(C) has established residency for voting purposes in the state;
“(D) has not, within the period of required residency, claimed residency in another state; and
“(E) shows by all attending circumstances that his intent is to make Alaska his permanent residence.”
Appellees have not cross-appealed this portion of the Alaska Supreme Court’s decision, which rests upon an independent and adequate state ground. Murdock v. Memphis, 20 Wall. 590 (1875).
As to the remaining three appellants — Sidney S. Hieklin, Ruby E. Dorman, and Harry A. Browning — the case does appear moot. At the time this suit was instituted, all three claimed to be Alaskan residents, but none had lived in the State continuously for one year. Record 45, 51-52, 126-127. Consequently, the only aspect of Alaska Hire they challenged was the Act’s one-year durational residency requirement. When this requirement was held invalid by the Alaska Supreme Court, their controversy with the appellees seems to have terminated.
Although this Court has not always equated state residency with state citizenship, compare Travis v. Yale & Towne Mfg. Co., 252 U. S. 60, 78-79 (1920), and Blake v. McClung, 172 U. S. 239, 246-247 (1898), with Southern R. Co. v. Mayfield, 340 U. S. 1, 3-4 (1950); Douglas v. New Haven R. Co., 279 U. S. 377, 386-387 (1929); and La Tourette v. McMaster, 248 U. S. 465, 469-470 (1919), it is now established that the terms “citizen” and “resident” are “essentially interchangeable,” Austin v. New Hampshire, 420 U. S. 656, 662 n. 8 (1975), for purposes of analysis of most cases under the Privileges and Immunities Clause of Art. IV, § 2. See Toomer v. Witsell, 334 U. S. 385, 397 (1948).
Cf. Edwards v. California, 314 U. S. 160 (1941).
For example, a report quoted in the State’s Memorandum in Opposition to Plaintiffs’ Motion for Partial Preliminary Injunction and Second Motion for Preliminary Injunction, Record 58, observed:
“The skill levels of in-migrants and seasonal workers are generally higher than those of the unemployed or under-employed resident workers. Their ability to command jobs in Alaska is a sympton of, rather than the cause of conditions resulting in high unemployment rates, particularly among Alaska Natives. Those who need the jobs the most tend to be undereducated, untrained, or living in areas of the state remote from job opportunities. Unless unemployed residents — most of whom are Eskimos and Indians' — have access to job markets and receive the education and training required to fit them into Alaska’s increasingly technological economy and unless there is a restructuring of labor demands, new jobs will continue to be filled by persons from other states who have the necessary qualifications.” Federal Field Committee for Development Planning in Alaska, Economic Outlook for Alaska 311-312 (1971) (emphasis added; footnote omitted).
At the time Alaska was admitted into the Union on January 3, 1959, 99% of all land within Alaska’s borders was owned by the Federal Government. In becoming a State, Alaska was granted and became entitled to select approximately 103 million acres of those federal lands. Alaska Statehood Law, 72 Stat. 340, § 6, note preceding 48 U. S. C. § 21. The selection process is not yet complete, but since 1959 large portions of land have been conveyed to the State, in fee, by the Federal Government. Full title to those lands and to the minerals on and below them is vested in the State. 72 Stat. 342, § 6 (i), note preceding 48 U. S. C. §21.
The term “unitization agreement” is not defined in the Act. Alaska’s Commissioner of Natural Resources gave the following definition of the term:
“Well, unitization agreement is an agreement between the operators and any given oil field as to the equity that each of them would have with respect to the oil and gas resources in that field. And in some cases that word is used to also include something called the ‘Plan of Operations’, which sets out the way in which an oil field or gas field would be operated pursuant to the State’s conservation laws.” Deposition of Guy R. Martin in No. 3025 (Sup. Ct. Alaska), p. 5.
According to one of the administrative regulations implementing Alaska Hire, “[sjuppliers shall have the same hiring requirements as an employer covered by this chapter, as to that portion of their supply business that is the result of a project or activity of a lessee, contractor or subcontractor.” 8 Alaska Admin. Code 35.080 (a) (1977).
The Commissioner of Natural Resources expressed this understanding of the scope of the Act:
Mr. Martin: "... I think it would cover relationships such as anything on a work pad or an associated construction road or possibly a site for a support camp or construction camp.”
Mr. Wagstaff (attorney for appellants): “What about things such as docks if shipping is being used?”
Mr. Martin: “I would think that it could possibly include that.” Deposition of Guy R. Martin, supra, at 4.
Heim v. McCall, 239 U. S. 175 (1915) and Crane v. New York, 239 U. S. 195 (1915) — if they have any remaining vitality, see Sugarman v. Dougall, 413 U. S. 634, 643-645 (1973); C. D. R. Enterprises, Ltd. v. Board of Education, 412 F. Supp. 1164 (EDNY 1976), summarily aff’d sub nom. Lefkowitz v. C. D. R. Enterprises, Ltd., 429 U. S. 1031 (1977)— do not suggest otherwise. In those cases, a New York statute that limited employment “in the construction of public works” to United States citizens and also required that an employment preference be given to New York citizens in such projects was upheld against challenges under both the Constitution and the Treaty of 1871 with Italy. Although the Art. IV, § 2, Privileges and Immunities Clause, along with the Due Process, Equal Protection, and Privileges and Immunities Clauses of the Fourteenth Amendment, was listed as one of the constitutional bases for attacking the statute, no out-of-state United States citizen challenged the law. As a consequence, both the appellants and the Court were concerned almost exclusively with the statute’s discrimination against resident aliens. This was reflected in the Court’s holding, which was limited to the Fourteenth Amendment and Treaty challenges and expressed no view on appellants’ passing Art. IV, § 2, privileges and immunities claim.
That Article provided: “The better to- secure and perpetuate mutual friendship and intercourse among the people of the different states in this union, the free inhabitants of each of these states, paupers, vagabonds and fugitives from justice excepted, shall be entitled to- ail privileges and immunities of free citizens in the several states; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions, and restrictions, as the inhabitants thereof respectively; provided, that such restrictions shall not extend so far as to prevent the removal of property, imported into any State, to any other State of which the owner is an inhabitant; provided, also that no imposition, duties or restriction, shall be laid by any State on the property of the United States, or either of them.” 9 Journal of the Continental Congress 908-909 (1777) (Library of Congress ed., 1907).
In authorizing the construction of the Trans-Alaska Pipeline, Congress expressly found that “[t]he early development and delivery of oil and gas from Alaska’s North Slope to domestic markets is in the national interest because of growing domestic shortages and increasing dependence upon insecure foreign sources.” 43 U. S. C. § 1651 (a) (1970 ed., Supp. V) (emphasis added).
In enacting the Alaska Natural Gas Transportation Act of 1976, 15 U. S. C. § 719 et seq. (1976 ed.) Congress declared:
“(1) a natural gas supply shortage exists in the contiguous States of the United States;
“(2) large reserves of natural gas in the State of Alaska could help significantly to alleviate this supply shortage;
“(3) the expeditious construction of a viable natural gas transportation system for delivery of Alaska natural gas to United States markets is in the national interest; and
“(4) the determinations whether to authorize a transportation system for delivery of Alaska natural gas to the contiguous States and, if so, which system to select, involve questions of the utmost importance respecting national energy policy, international relations, national security, and economic and environmental impact, and therefore should appropriately be addressed by the Congress and the President in addition to those Federal officers and agencies assigned functions under law pertaining to the selection, construction, and initial operation of such a system.” 15 U. S. C. § 719 (1976 ed.). See n. 17, supra.
In light of our conclusion that Alaska Hire is invalid under the Privileges and Immunities Clause of Art. IV, §2, we have no occasion to address appellants’ challenges to the Act under the Equal Protection Clause of the Fourteenth Amendment.
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
|
songer_numappel
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of appellants in the case. If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES v. ROSENBERG et al.
No. 8.
Circuit Court of Appeals, Second Circuit
July 17, 1945.
Writ of Certiorari Denied Oct. 15, 1945.
See 66 S.Ct. 90.
See also 47 F.Supp. 406.
Henry G. Singer, of Brooklyn, N. Y. (Sol L. Firstenberg, of New York City, on the brief), for appellant Rosenberg.
M. M. Kreindler, of New York City (Abraham S. Robinson and Sol L. Firstenberg, both of New York City, and Harry Silver, of Brooklyn, N. Y., on the brief), for appellant Freier.
M. M. Kreindler, of New York City (Sol L. Firstenberg, of New York City, on the brief), for appellants Ferenc Weisz, Ernest Weiss, and Irene Weisz.
Sol L. Firstenberg, of New York City (M. M. Kreindler, of New York City, on the brief), for appellant Friedman.
Harry E. Kreindler, of New York City (M. M. Kreindler and Sol L. Firstenberg, both of New York City, on the brief), for appellant Eisler.
Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y. (Milo F. McDonald, U. S. Atty., of Brooklyn, N. Y., on the brief), for appellee.
Before SWAN, CHASE, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
The seven defendants herein were convicted under the usual conspiracy statute, 18 U.S.C.A. § 88, of conspiring to export platinum without a license, in violation of Presidential Proclamation 2413, 54 Stat. 2712, 3 CFR, Cum.Supp., 164, issued pursuant to Section 6 of the Act of July 2, 1940, 54 Stat. 714, 50 U.S.C.A. Appendix, § 701. They were indicted with two others, of whom one eventually pleaded guilty and became a witness for the prosecution at the trial, and the other obtained a severance. These defendants demurred to the indictment on several grounds, of which those still most pressed are that the statute is unconstitutional, as an improper delegation of legislative power to the executive, and that the prosecution is unauthorized because the statute by its terms had expired prior to the trial. But the District Court overruled the demurrers in a reasoned opinion, D.C.E.D.N.Y., 47 F.Supp. 406, and upon their conviction after a month’s trial before a jury gave each of them a substantial sentence of both fine and imprisonment. This appeal followed.
Before considering the claimed errors at the trial, we shall dispose of the important issues of law stated above. The constitutional objection is based upon the grant of authority to the President to prohibit the export of munitions or supplies of war whenever he “determines that it is necessary in the interest of national defense” to do so. Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S.Ct. 241, 79 L.Ed. 446, stated limits to the power of Congress to delegate its legislative powers to the President ; and A. L. A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947, and United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed. 477, 102 A.L.R. 914, held unconstitutional grants of authority to the executive to formulate both policy and the applicable standard. There is some thought that these precedents have lost vigor of recent years; be that as it may, we are clear that they do not apply here, for the statute does itself define policy and set a definite standard. This was part of an extensive statute “to expedite the strengthening of the national defense,” 54 Stat. 712, passed just after the fall of France, when the invasion of England appeared imminent. Those were days of fear and stress for us, as well as for our later allies; that Congress, having defined the policy of prohibiting or curtailing supplies needed for defense, could not leave to the Chief Executive, the Commander in Chief of the Army and Navy, the time and detail of its execution would surely seem a harsh, impractical rule, and one more strict than the precedents support. Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 102, 103, 63 S.Ct. 1375, 87 L.Ed. 1774; National Broadcasting Co. v. United States, 319 U.S. 190, 216, 63 S.Ct. 997, 87 L.Ed. 1344; United States v. Randall, 2 Cir., 140 F.2d 70; United States v. Von Clemm, 2 Cir., 136 F.2d 968, 970, certiorari denied 320 U.S. 769, 64 S.Ct. 81, 88 L.Ed. 459. Moreover, the delegation of authority may be upheld on another ground, that of the traditional dominance of the Executive in the conduct of foreign affairs. The statutes involved in the Schechter and Butler cases dealt with purely internal affairs, while the statute here in issue provided for “national defense” by regulating “exportation” of war munitions, and thus concerned very vitally this country’s relations with foreign nations. In fact the leading case which points out the President’s greater power over the conduct of international affairs and freedom from restriction to an extent not permitted in internal matters, United States v. Curtiss-Wright Export Corporation, 299 U.S. 304, 322, 57 S.Ct. 216, 81 L.Ed. 255, cited as examples of such power the early acts of 1794 and 1795, 1 Stat. 372, 401, 444, authorizing the President to lay, regulate, and revoke embargoes and to permit the exportation of arms and military stores, notwithstanding statutory prohibitions. See also Panama Refining Co. v. Ryan, supra, 293 U.S. 388, 422, 55 S.Ct. 241, 79 L.Ed. 446; United States v. Bareno, D.C. Md., 50 F.Supp. 520, 522, 523; United States v. Kertess, 2 Cir., 139 F.2d 923, certiorari denied Kertess v. United States, 321 U.S. 795, 64 S.Ct. 847, 88 L.Ed. 1084; McDougal and Lans, Treaties and Congressional-Executive or Presidential Agreements: Interchangeable Instruments of National Policy, 54 Yale L. J. 181, 244-255, 1945. We do not doubt the validity of the statute.
Next as to the claim that all prosecution must cease on June 30, 1942, when, according to its terms, the original statute expired, we think the answer not at all in doubt. Though the trial was had in the fall of 1942, the alleged acts of conspiracy-occurred between February and July, 1941. And on June 30, 1942, Congress enacted what it termed an amendment to this very statute, extending its date of expiration to June 30, 1944, and providing even further that it should remain in effect thereafter for the purpose of sustaining any prosecution under it. Defendants contend vigorously, however, that, notwithstanding this plain assertion of legislative intent, the later act is not an amendment, but a new and substitute statute which cannot be read so as to extend the old provisions. But they fail to suggest any persuasive ground for this contention. True, because of this country’s entry into the war, Congress thought it wise to broaden the President’s powers so as to remove all boundaries from the category of articles subject to export control. But it did not alter the earlier penalties. See United States v. Borden Co., 308 U.S. 188, 60 S.Ct. 182, 84 L.Ed. 181; Posadas v. National City Bank of New York, 296 U.S. 497, 56 S.Ct. 349, 80 L.Ed. 351. And it seems absurd to contend .that Congress, in extending the scope of the Act, meant those who violated, the earlier, more limited statute to escape prosecution. True, the later statute also specifically designated the Board of Economic Warfare as the agency of control. But this, too, was neither new nor repugnant to the earlier statute. For the President as early as September 15, 1941, had instructed the Board to “exercise and perform all powers and functions * * * under section 6 of the act of July 2, 1940.” Executive Order 8900, 3 CFR, Cum.Supp., 1009; see United States v. Bareno, supra. Actually the 1942 Act simply continued the then existing system of administration. It must be read as postponing the date of expiration of the 1940 Act and as authorizing the present prosecution. This was the conclusion not only of the learned judge below, but also of Judge Kennerly in United States v. 251 Ladies Dresses, D.C.S.D. Tex., 53 F.Supp. 772, and United States v. 8 Automobiles, D.C.S.D. Tex., 53 F.Supp. 775.
The claimed errors at the trial require consideration of the evidence for the prosecution. On February' 1, 1941, defendants Rosenberg and Freier met with the coconspirators Hersch Neumann, Abe Neumann, and Arnold Weisz at the office of a friend at 50 Pine Street, New York City, and discussed generally the possibility of profitably exporting platinum to Europe. So Hersch Neumann, with the knowledge and approval of this group, sent a cablegram to the Lisbon house of Salzberg & Alt to ascertain the price of platinum and whether “there is any market to sell platinum” ; and to this he received a favorable reply. Then the brothers Hersch and Abe Neumann, together with Rosenberg, took an office in the office building at 50 Pine Street. Thereafter between February and May, 1941, the conspirators made four shipments of platinum by boat to Lisbon, Portugal. The general pattern followed by the conspirators was the purchase of platinum from precious metal dealers in New York; the forwarding of platinum to Lisbon by bribing members of the personnel of ships plying between that port and New York to carry the packages secretly; the sale of the metal in Lisbon or Zurich, Switzerland, by Salzberg & Alt; and distribution of the proceeds among at least some of the coconspirators. During all this time the conspirators were well aware that they required a license to export platinum, since they had been so advised by dealers from whom they made their purchases and with whom they signed agreements that the metal was for domestic consumption only.
After the first shipment to Portugal, Abe Neumann, Hersch Neumann, Freier, Rosenberg, Arnold Weisz, Koppel (the defendant who pleaded guilty), and Irene Weisz met and decided to take some platinum to Canada. Thereafter Koppel, Arnold Weisz, Freier, Rosenberg, and the two Neumanns contributed funds for the purchase of 120 ounces of platinum; and Abe Neumann, Arnold Weisz, and Irene Weisz took part of the purchase to “Ernest Weiss’s place to give it over to him,” where it was packed by Ferenc Weisz in a suitcase with a double bottom. Ernest Weiss then took the platinum to Canada, but brought it back without making a sale there because he was afraid to sell. Thereafter Ferenc returned the platinum to the others, who later shipped it to Portugal.
About May, 1941, Arnold Weisz undertook to send further parcels to Lisbon by means of airplanes leaving LaGuardia Airport for the transatlantic flight. For this purpose he purchased platinum through a confederate named Felsenberg. He then asked Mezenen, a flight steward on clipper ships making flights to Lisbon, to take some platinum across. . But since Mezenen was not flying he suggested that he would turn the shipment over to a costeward named Mario, which he did. After two shipments were completed in that way, Arnold Weisz on the evening of June 4, 1941, desiring to make a further shipment, rode in a taxicab to Mezenen’s residence and there delivered to him a package of platinum and various pieces of paper. This package and the papers were found on Mezenen when he was arrested the following day while proceeding to the airport. Defendant Friedman was with Weisz on the trip to Mezenen’s residence.
Defendants attack the sufficiency of the proof to convict; but in addition, each vigorously asserts the prejudicial effect upon his case of a variance from the charge of a single conspiracy to the proof of three separate and distinct conspiracies: the boat shipments, the trip to Canada, and the shipments by clipper. This claim, not at all unusual in a conspiracy case, is here developed with such earnestness as to constitute, with the legal issues considered above, the chief grounds of this appeal. There can be no doubt, however, that at least the Canadian transaction was closely tied to the scheme to ship platinum to Portugal. For the most part the same parties were involved; the trip to Canada occurred in the ' interim between the first and second shipments by boat; the platinum used was part of a larger purchase and was finally sent to Portugal. Nor is the cry of variance justified with respect to the proof of shipments by airplane. Though these are somewhat more disconnected from the other transactions, so far as the proof shows, we may not usurp the place of the jury to view them as entirely separate matters. The United States did show that Arnold Weisz, one of the chief conspirators, participated in all the transactions; that he had at some time discussed the possibility of airplane shipments with Hersch Neumann; and that these shipments were started at about the time of the last shipment by boat. This was sufficient to justify the jury, in the light of the careful instructions it received from the court, in finding a close interrelation between this and the other transactions. United States v. Valenti, 2 Cir., 134 F.2d 362, certiorari denied Valenti v. United States, 319 U.S. 761, 63 S.Ct. 1317, 87 L.Ed. 1712; United States v. Cohen, 2 Cir., 145 F.2d 82, certiorari denied Cohen v. United States, 323 U.S. 799, 65 S.Ct. 553.
But even were we to conclude that the airplane scheme was not connected with other transactions, the objection is not of serious consequence in the present setting. For as this court pointed out in the Cohen case, supra, 145 F.2d 82, 88, 89, per L. Hand, J., “it comes to no more than that, instead of being tried upon a single ‘scheme/ the accused were tried upon three ‘schemes’ at the same time. As variance, it would not have mattered if the prosecution had wholly failed to prove any joint ‘scheme’ at all; but had only proved the two local ones. Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314, definitively held that the question in each case was whether any practical prejudice resulted to the accused from such a variance.” Here no such prejudice appears. Just as in the Cohen case, all the transactions are crimes of the same kind and could have been joined and pleaded in separate counts, even though the confederates were not the same in all. 18 U.S.C.A. § 557; United States v. Liss, 2 Cir., 137 F.2d 995, 998, certiorari denied Liss v. United States, 320 U.S. 773, 64 S.Ct. 78, 88 L.Ed. 462; United States v. Twentieth Century Bus Operators, 2 Cir., 101 F.2d 700, certiorari denied Twentieth Century Bus Operators v. United States, 307 U.S. 624, 59 S.Ct. 821, 83 L.Ed. 1502; United States v. Tuffanelli, 7 Cir., 131 F.2d 890, 893, 894, certiorari denied Tuffanelli v. United States, 318 U.S. 772, 63 S.Ct. 769, 87 L.Ed. 1142. And the indictment clearly set out overt acts involving all the transactions and in every way provided all the notice to the accused which can be considered at all required in criminal prosecutions. United States v. Fried, 2 Cir., 149 F.2d 1011; United States v. Wodiska, 2 Cir., 147 F.2d 38; United States v. Achtner, 2 Cir., 144 F.2d 49. Nor were defendants prejudiced by irrelevant evidence. We shall refer more in detail below to two specific objections stressed on this appeal; here it is sufficient to say that the challenged evi dence either so directly concerned only a single conspirator’s participation as not to confuse, or, where it was of wider significance, was relevant background material as to a conspirator participating in all the transactions. United States v. Liss, supra; Marino v. United States, 9 Cir., 91 F.2d 691, 113 A.L.R. 975, certiorari denied Gullo v. United States, 302 U.S. 764, 58 S.Ct. 410; 82 L.Ed. 593; United States v. Compagna, 2 Cir., 146 F.2d 524, 530, certiorari denied Compagna v. United States, 65 S.Ct. 912.
Passing this objection of variance, therefore, the evidence against these defendants appears clearly sufficient to go to the jury. Thus Rosenberg and Freier were at the very heart and center of the conspiracy. Ferenc Weisz, in addition to his connection with the Canadian transaction already noted, was shown to have acted as agent for his brother Arnold in receiving in the latter’s behalf part of the proceeds from one of the shipments by boat. He also typed an insurance policy whereby Freier guaranteed his associates against loss. Irene Weisz, in addition to her activities already discussed, carried the platinum which Ernest Weiss had returned from Canada, and which Ferenc Weisz had brought back to the office of the Neumann brothers, from that office to the office of her brother Arnold, for the purpose of transferring it to Silva, an officer of the ship “Pero d’Alerlquer,” for transmission to Lisbon. She was also present at a meeting which discussed a further shipment to Portugal on the ship “Guiñe” and obtained passes in the name of her brother Ernest to go aboard that vessel for the purpose of interviewing a member of the crew. Again she brought to the Neumanns’ office money which Arnold Weisz owed to the conspirators as his contribution to one of the boat shipments. In addition to Ernest Weiss’s activities in connection with the Canadian transaction, the evidence showed a payment to his bank account from the Chase National Bank of $8,943; and the jury was not limited in the inferences it might draw by his own testimony that he knew no more than that this money belonged to his brother Arnold and that he paid it all to Arnold.
Possibly somewhat more doubt may exist as to the defendants Friedman and Eisler; but, if so, it was a doubt to be resolved by the jury. Thus Friedman, who rode in the taxi with Arnold Weisz when the latter delivered the platinum to Mezenen, denied any knowledge prior to Arnold’s delivery of the package that it contained platinum. The jury, however, was justified in drawing a different conclusion, particularly in the light of his conflicting statements about the trip shown by a government agent and the further conflict with his testimony at the trial. Moreover, he had also written or hand printed various cables for Arnold Weisz, as well as the delivery instructions given Mezenen. One of these cables, inquiring into the possibility of purchasing platinum from Chile, was sent long before the airplane transactions. Although Friedman admitted having prepared these papers, he claimed that he did not know some of them referred to platinum, and also that he did not know of anything wrong in these transactions; but the issue was thus one for the jury. United States v. Wodiska, supra, 2 Cir., 147 F.2d 38, 39; United States v. Rosenberg, 2 Cir., 145 F.2d 653, 654, 655; United States v. Marino, 2 Cir., 141 F.2d 771, 772, 773, certiorari denied Marino v. United States, 323 U.S. 719, 65 S.Ct. 48.
As to Eisler, the prosecution showed that in order to accomplish the first boat shipment of platinum, Rosenberg, carrying platinum in his pocket, and accompanied by Hersch Neumann, went to Eisler’s office. Rosenberg entered the office while Neumann waited outside. After ten minutes Neumann went into the office and found Rosenberg and Eisler engaged in a conversation. When Rosenberg came’ out he did not have the platinum with him. Since the platinum was later received in Lisbon, and since Eisler admitted that he knew the first officer of the “Concalho Velho,” the jury could properly infer that Eisler engineered the final stages of the shipment. Even though this may not show Eisler’s direct knowledge of the full nature of the scheme and of the participation of other conspirators, the complicated nature of the transaction was sufficient in itself to tell him that Rosenberg had not been acting alone; this was clearly sufficient to make him a coconspirator with the others. United States v. Compagna, supra, 2 Cir., 146 F.2d 524, 536; United States v. Liss, supra, 2 Cir., 137 F.2d 995, 1000, 1001. And as we have pointed out above, under the circumstances here shown Eisler would have been properly convicted even had he thought Rosenberg the only coconspirator and even had this particular transaction in fact been separate and distinct from the others.
The trial was long and was fairly conducted. Most of the errors assigned as to it depend on the contention discussed above that the proof showed three separate and distinct conspiracies, instead of the single one charged. We need note further only certain of the objections to the admission of evidence. The court properly allowed testimony to the effect that Freier entered into a written agreement with Arnold Weisz and Rosenberg insuring their interest against loss in case the United States entered the war. Whatever Freier did to induce or make attractive the continuance of his confederates in the illicit business was probative against him. And, once the conspiracy was established, it was relevant as against the others as incidental to the transactions effectuating the illegal scheme. The court also committed no reversible error in admitting a statement of Friedman’s bank account, showing large deposits during the period here involved, as well as the platinum which was taken from Mezenen. Both these exhibits were certainly relevant as against Friedman. Again they became relevant against the other defendants, once the conspiracy was shown (as indeed the court stated in making its rulings). Even had the defendants’ theory of separate and distinct conspiracies been accepted, none of this evidence had enough connection with separate conspirators to suggest prejudice. Freier’s agreement implicated himself and his promisees only; Friedman’s access of wealth had little bearing on remote conspirators; while the admission of the platinum, even though it was the only production of “the valuable metal for all to behold,” as defendants say, can hardly have been so dazzling in view of the convincing evidence of the other extensive dealings in platinum. The necessity of weighing the evidence separately as to each accused was brought home to the jury by the court’s detailed charge and statement as to each one.
Affirmed.
As originally passed, the statute provided: “Whenever the President determines that it is necessary in the interest of national defense to prohibit or curtail the exportation of any military equipment or munitions,' or component parts thereof, or machinery, tools, or material, or supplies necessary for the manufacture, servicing, or operation thereof, he may by proclamation prohibit or curtail such exportation, except under such rules and regulations as he shall prescribe. Any such proclamation shall describe the articles or materials included in the prohibition or curtailment contained therein.” Then, after stating penalties for violations of the statute, proclamations, or regulations, it concluded: “The authority granted in this section shall terminate June 30, 1942, unless the Congress shall otherwise provide.” Act of July 2, 1940, § 6, 54 Stat. 714, 50 U.S.C.A.Appendix, § 701. It was made applicable to territories, dependencies, and possessions of the United States on May 28, 1941, 55 Stat. 206, 50 U.S.C.A.Appendix, § 702, and was greatly extended in 1942, as shown in note 2, infra.
This Act, entitled as one “to further expedite the prosecution of the war by-authorizing the control of the exportation of certain commodities,” provided: “That section 6 of the Act of July 2, 1940 (54 Stat. 714) is hereby amended to read as follows:
“Sec. 6. (a) The President is hereby authorized to prohibit or curtail the exportation of any articles, technical data, materials, or supplies, except under such rules and regulations as he shall prescribe.
“(b) Unless the President shall otherwise direct, the functions and duties of the President under this section shall be performed by the Board of Economic Warfare.
“(c) [Penal provisions, in terms substantially identical with those of the 1940 Act.]
“(d) The authority granted by this section shall terminate on June 30, 1944 or upon any prior date which the Congress by concurrent resolution, or the President, may designate; except that as to offenses committed, or rights or liabilities incurred prior to such date, the provisions of this section and such rules, regulations, and proclamations shall be treated as remaining in effect for the purpose of sustaining any suit, action, or prosecution with respect to such right, liability, or offense.” 56 Stat. 463, 50 U.S.C.A.Appendix, § 701.
By Act of July 1, 1944, c. 360, 58 Stat. 671, 50 U.S.C.A.Appendix, § 701, the “Foreign Economic Administration” was substituted for the “Board of Economic Warfare,” and the expiration date was extended to’June 30, 1945.
This case has a detailed statement of how the general regulations under the Act were promulgated and administered, as well as a convincing showing that the delegation and redelegation of authority was an appropriate means of carrying out the legislative purpose.
In view of tins conclusion we need not consider the government’s further contention that the same result follows either under the general statute, 1 U.S.C.A. § 29, passed originally in 1871, which provides that the repeal of a statute shall not affect existing liabilities under it unless otherwise expressly provided, or under the amendment to it, which extended its terms to “the expiration of a temporary statute” and which was adopted March 22, 1944, e. 123, 58 Stat. 118, while these proceedings were still pending by virtue of the appeals.
Ernest Weiss is a brother of Arnold Weisz and of defendants Ferenc and Irene Weisz, notwithstanding differences in the spelling of the surname.
Of the conspirators named in the indictment, the two Neumanns, Koppel, and Mezenen testified for the government. Six of the defendants testified in defense; Irene Weisz did not take the stand. Arnold Weisz, key figure in the conspiracy, was not present at the trial.
Question: What is the total number of appellants in the case? Answer with a number.
Answer:
|
songer_late
|
C
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the appeals court level. That is, it is conceded that the trial court properly reached the merits, but the issue is whether, in spite of that concession, the appellant has a right to an appeals court decision on the merits (e.g., the issue became moot after the trial). The issue is: "Did the court refuse to decide the appeal because the appellant failed to comply with some rule relating to timeliness of the appeal (e.g., failed to pay the filing fee on time or missed the deadline to file the appeal)?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
HARTFORD ACCIDENT & INDEMNITY CO. v. CITY OF SULPHUR, OKL. CITY OF SULPHUR, OKL., v. HARTFORD ACCIDENT & INDEMNITY CO.
Nos. 2294, 2296.
Circuit Court of Appeals, Tenth Circuit.
Nov. 10, 1941.
Rehearing Denied Dec. 15, 1941.
F. A. Rittenhouse, of Oklahoma City, Okl. (John F. Webster, W. D. Hanson, and A. J. Rittenhouse, all of Oklahoma City, Okl., on the brief), for appellant and crossappellee.
W. J. Williams and E. H. Williams, both of Ardmore, Okl. (J. E. Williams and H. A. Ledbetter, both of Ardmore, Okl., on the brief), for appellee and cross-appellant.
Before BRATTON, HUXMAN, and MURRAII, Circuit Judges.
BRATTON, Circuit Judge.
This appeal and cross-appeal grow out of an action instituted by the City of Sulphur, Oklahoma, against The Hartford Accident and Indemnity Company to recover upon the bonds of certain former officers of the city on which the company was surety. The complaint contained six causes of action. The first was on the bond of G. Leslie Horsman, city clerk from May 2, 1936, to June 1, 1937. It was alleged that the clerk failed to charge against the appropriations made by the excise board of the county certain accounts for labor, material and supplies in the aggregate sum of $6,293.92; that such accounts were allowed by the board of city commissioners but that no warrants were issued for them; that instead of issuing warrants the accounts were offset with accounts due the city for water furnished the claimants; that warrants were issued for other claims than those offset for the entire amount of the appropriations for the respective fiscal years in question; and that all of the claims offset in the manner outlined were in excess of the appropriations. The second cause of action was on the bond of Newton Rice, clerk from June 9, 1937, to July 6, 1937. It was alleged that like accounts aggregating $486.65 were similarly offset. The third cause of action was on the bond of Charles F. Smith, clerk from August 1, 1937, to May 31, 1938. It was alleged that accounts of the same kind aggregating $3,-793.49 were offset in like manner. And it was further alleged that Smith and Glenn Ray, mayor and manager of the city, failed to account for $7,429.39 which they had received in payment of water bills due the city. The fourth cause of action was on the bond of R. E. Mudd, commissioner from May 7, 1935, to May 7, 1937. It was alleged that Mudd voted to allow and pay the claims described in the first cause of action up to and including those allowed on April 6, 1937; and that with knowledge that such claims had been so allowed and not charged against the appropriation, he and other commissioners allowed claims far in excess of 'the appropriations made- for that purpose. The fifth cause of action was on the bond of Jphn M. Townsley, commissioner from May 3, 1935, to May 3, 1937. It was alleged that Townsley voted to allow and pay the claims described ■ in the first cause of action, up to and including those allowed April 6, 1937; and that with knowledge that such claims had been allowed in that manner and not charged against the appropriation, he and other commissioners allowed claims far in excess of the'appropriations. And the sixth cause, of action was on the bond of Ray, mayor and manager from May 4, 1936, to May 4, 1938. It was- alleged that Ray, as mayor, approved and voted for each of the claims described in the first, second and third causes of action; that he failed to account for funds of the city, as set forth in the third cause of action,; and further, that he was authorized to purchase sewerpipe for use of the city in extending its sewer system, that he failed to accept the lowest laid but accepted a higher one, that only 6,500 feet of pipe were needed, that the city received only that amount but that he approved and allowed a claim for 9,200 feet at the price fixed in the higher bid. The city subsequently filed an amendment to its complaint in which it pleaded that since the institution of the suit, it had collected from the surety on the bond of George B. Carr, a commissioner, the sum of $562.50 which had been applied, $174.65 to the claims allowed on May 5, 1936, and $387.85 to those allowed on June 2, 1936; that it had collected from the surety on the bond of Hugh Cushenberry, another commissioner, the sum of $562.50 which had been applied, $104.20 to the claims allowed on June 2, 1936, and $458.30 to those allowed on July 8, 1936; that it had collected from the surety on the bond of Ernest Ball, a third commissioner, the sum of $562.50 which had been applied, $544.64 to the claims allowed on May 4, 1937, and $17.86 to those allowed on June 1, 1937; and that the prayer of plaintiff should be therefore reduced in the sum of $1,687.50, or to the sxim of $20,745.95, together with interest thereon from May 4, 1938.
The company filed its answer and third party complaint, bringing in the respective principals on the bonds in suit, except Horsman. The execution of the bonds was admitted. In respect to the causes of action on the bonds of the clerks, the company pleaded that the acts of the clerks were merely clerical or ministerial and created no liability, and that the causes were barred by limitation. In respect to the causes of action on the bonds of the commissioners, it joined issue, denied liability or the existencé of any cause of action, denied that the commissioners had voted for the allowance of the claims, and pleaded limitation. In respect to the cause of action on the bond of the mayor and manager, it joined issue, denied that the principal had voted for the allowance of the claims, pleaded limitation as to recovery for the allowance of such claims, denied that funds belonging to the city had been withheld, denied any irregularity in the purchase of sewer pipe, and pleaded that the city received and used all pipe purchased. In addition, the pleading contained appropriate allegations as a third party complaint for recovery against the third party defendants.
On the day of the trial plaintiff dismissed the second cause of action, and the company dismissed its third party complaint against Rice. The court determined that the offsetting of water bills with claims for labor against the city was not authorized by law, and that the company was liable on the bonds of the mayor and manager and the two commissioners; that the causes of action on such bonds were not barred by limitation; that the causes of action on the bonds of the clerks were barred by limitation; that the city was not entitled to recover for the alleged withholding of city funds or for the alleged irregularities in respect of the purchase and use of the sewer pipe; and that the company was entitled to credit on the amount due for the entire sum which the city received from the sureties on the bonds of the other commissioners. Judgment was entered accordingly. By appeal the company challenges on several grounds the judgment rendered against it, and by cross-appeal the city urges that the court erred in holding that the causes of action on the bonds of the clerks were barred by limitation, in failing to render judgment in its favor for the alleged withholding of city funds and for the alleged wrongful acts of the mayor and manager in connection with the purchase and use of the sewer pipe, and in allowing the company credit for the full sum received from the sureties on other bonds.
As already indicated, the city sought in the first and third causes of action to recover upon the respective bonds of two clerks for their acts in connection with the offsetting of water bills due the city with claims against the city for labor performed. The last offsetting pleaded in the first cause of action occurred on June 1, 1937, the last alleged in the third cause took place on April 1, 1938, and the suit was filed on October 4, 1939. The fourth subdivision of section 101, Oklahoma Statutes 1931, 12 Okl.St.Ann. § 95, subd. 4, provides that an action upon a statute for penalty or forfeiture shall be filed within one year after the cause of action shall have accrued and not afterwards, except where the statute imposing the liability prescribes a different limitation. That provision has application here, and since the suit was not filed until after the expiration of the prescribed period, the first and third causes of action (except that part of the latter which sought recovery for the withholding of city funds) were barred. Battles v. Conner, 182 Okl. 613, 79 P.2d 232.
We come next to the fourth and fifth causes of action in which recovery was sought on the respective bonds of two commissioners for the offsetting of water bills with claims for labor, and to that part of the sixth cause in which like recovery was sought on the bond of the mayor and manager. The city had a charter form of government. Section 12674, Oklahoma Statutes 1931, 68 Okl.St.Ann. § 286, requires the mayor and council of each city, or the officers exercising like power in a city having a charter form of government, to prepare and furnish the excise board of the county an itemized statement of estimated needs and probable income from sources other than ad valorem tax for current expenses for the current fiscal year; section 12677, 68 Okl.St.Ann. § 289, authorizes the excise board to revise and correct the estimate, and provides that when the board has examined, revised and adjusted the items it shall approve such items and appropriate the respective amounts thereof for the purposes specified, and that the appropriations for a city shall be itemized so as to show among other things the amount of funds appropriated for water; section 12678, 68 Okl.St.Ann. § 290, authorizes the excise board to make levies of ad valorem taxes upon property in each municipal subdivision with which to meet the appropriations, and provides that the several items of the estimate made by the board shall be an appropriation of funds for the several and specific purposes named in the estimate, that the appropriations made shall not be used for any other fiscal year or purpose whatever, that each clerk or issuing officer shall open and keep an account with the amount of each item of appropriation showing the purpose for which the appropriation was made, that no warrant shall be issued, approved, signed or registered against an appropriation for a purpose other than that for which it was made, or in excess of the amount of such appropriation; section 12681, 68 Okl.St. Ann. § 293, provides that the term “appropriation” shall be synonymous with that of “estimate made and approved,” as defined in section 3, chapter 80, Laws of 1911, 62 Okl.St.Ann. § 473; section 12682, 62 Okl. St.Ann. § 474, provides that every warrant must be drawn against a specific appropriation, and that as soon as it is issued it shall be signed, attested and delivered to the treasurer of the county or subdivision thereof issuing it for registration; section 5948, 62 Okl. St.Ann. § 471, provides that all public funds of a county or subdivision thereof shall be disbursed only in payment of legal warrants, bonds and interest coupons; section 5953, 62 Okl.St.Ann. § 477, provides that it shall be unlawful for any officer to issue, approve, sign, attest or register a warrant or certificate of indebtedness in any form in excess of the estimate of expenses made and approved for such year' or authorized for such purpose, and that any warrant issued, approved, attested or registered in excess of the estimate made and approved shall not be a charge against the municipality, but may be collected by civil action from the offending officer, or from the surety or sureties on his bond; and section 5955, 62 Okl.St.Ann. § 479, provides that it shall be unlawful for the commissioners of any city to make any contract for, incur, acknowledge, approve, allow or authorize any indebtedness against the municipality, or authorize it to be done by others, in excess of the estimate made and approved by the excise board for such purpose for the current fiscal year, that any such indebtedness contracted, incurred, acknowledged, approved, allowed or authorized in excess of the appropriation shall not be a charge against the municipality but may be recovered by civil action from the officer whose acts offend the statute, or from his bondsmen.
The policy of offsetting water bills with claims for labor extended over many months. Several hundred transactions of that kind took place, aggregating thousands of dollars. Each instance of offsetting was tantamount to the water bill being paid in money, the money being covered into the city treasury, and the claim for labor being allowed and paid out of city funds. But other claims for all or substantially all of the appropriations made by the excise board for the current fiscal year were allowed and paid by warrant in the manner authorized by law. It therefore is readily apparent that the essence and effect of the action of the mayor and manager and the commissioners in offsetting claims against claims in the manner and under the circumstances outlined was to incur, acknowledge, approve, allow and authorize an indebtedness against the city in excess of the estimate made and approved by the excise board for such purpose, in contravention of laws of the state, particularly section 5955, supra, for which such section expressly makes the surety on their official bonds liable. It amounted to the unauthorized expenditure of city funds in excess of the appropriation made for that purpose. Regardless of the actuating motive, it constituted a wrongful misapplication of funds for which the company is liable. Cf. Dowler v. State, 179 Okl. 532, 66 P.2d 1081.
But the company contends that such causes of action were penal in nature and therefore barred by limitation in like manner to the causes on the bonds of the clerks. In State v. Ingram, 164 Okl. 244, 23 P.2d 648, an informing taxpayer sued the county assessor, the deputy assessor who was also county treasurer during part of the time in question, the county commissioners, a tax ferret, and the sureties on their official bonds. It was alleged that pursuant to a fraudulent scheme which the deputy assessor and the tax ferret entered into, properties listed for taxes were omitted from the rolls, the schedules were delivered to the tax ferret, he pretended to discover the properties and placed them on the rolls and received fifteen per cent of the amount paid as taxes which was divided among the assessor, the deputy assessor and the tax ferret. Recovery was sought against the three officers and the sureties on their official bonds for the amount of the money misappropriated, and in addition double recovery was sought against such officers under sections 5964 and 5965 of the statutes, 62 Okl.St.Ann. §§ 372, 373, supra. The court held that in respect to seeking recovery for the funds misappropriated the action was not one for a penalty, but that in respect to seeking double recovery it was for penalty. The city sought in these causes of action to recover for funds wrongfully expended. No additional recovery was sought. No double recovery was involved. The liability was therefore not penal in nature. The fifth subdivision of section 101, supra, provides that an action upon the official bonds or undertaking of an executor, administrator, guardian, sheriff, or any other officer can be brought only within five years after the cause of action shall have accrued, and not afterwards. In respect to limitation, that provision has application to a suit upon the official bonds of a mayor and manager and city commissioners, except where a penalty is sought. National Surety Co. v. State, 111 Okl. 185, 239 P. 262; Arnold v. Board of Commissioners, 124 Okl. 42, 254 P. 31; James v. State, 160 Okl. 99, 15 P.2d 591. It may be that as an original proposition the applicable statutes relating to the liability of clerks in one instance and to that of mayor and manager and commissioners in the other fail to indicate a clear basis for the conclusion that the liability is penal in one and therefore barred by the one-year provision but not in the other. But the question does not come to us as an original proposition. The supreme court of the state has charted our course, and we must follow.
It is further contended that the city failed to make out a case for recovery upon the bonds of the two commissioners in that no evidence was offered to show that they voted for the allowance of the claims used in offset against water bills. The minutes of the meetings were offered in evidence. They disclosed the presence of the mayor at all meetings; in most instances they recited the presence of all commissioners; in two instances the presence of Mudd was expressly noted but not that of Townsley; after Mudd’s term expired, the presence of Townsley was noted in virtually all instances ; and in some cases they were not entirely clear. They recited the approval of the claims, and in one or two instances recited that such claims were unanimously approved but were otherwise silent in respect to the manner in which any particular commissioner voted; and they failed to recite in any instance a vote against approval. No other evidence was offered touching the question. The argument is that although the commissioners were present at the opening of each meeting, still they may have departed or absented themselves when the particular action in question was taken. The case of Pickton v. City of Fargo, 10 N.D. 469, 88 N.W. 90, is relied upon to sustain the contention. There a statute of the state required that the yeas and nays be taken upon the passage of all ordinances and be entered upon the journal of the proceedings. An entry in the minutes showed by name eight members of the council present at the beginning of the meeting, and a subsequent entry recited that on the final passage of the ordinance in question eight members voted in the affirmative but did not record the yeas and nays by name. The court held that there was a failure of compliance with the requirements of the statute. Section 6385, Oklahoma Statutes, 11 Okl. St.Ann. § 647, supra, provides that no ordinance for the borrowing or appropriation of money shall be valid unless a majority of all councilmen elected shall vote for it, and that the vote shall be taken by yeas and nays and entered upon the records. But no other statute has been called to our attention requiring that the vote of city commissioners be by yeas and nays. In the absence of a controlling statute or rule, all members of a legislative body present and not recorded as voting otherwise or as refusing to vote are presumed to have voted in the affirmative. United States v. Ballin, 144 U.S. 1, 12 S.Ct. 507, 36 L.Ed. 321; Abels v. McKeen, 18 N.J.Eq. 462. The minutes were sufficient to constitute a prima facie showing that the two commissioners voted for the action taken and to shift to the company the burden of showing otherwise. No effort was made to carry that burden.
The court allowed interest upon the amount of the misappropriated funds from the end of the respective fiscal years during which the misappropriations occurred. That action is challenged. Section 9959 of the statutes, 23 Okl.St.Ann. § 6, supra, provides in substance that where damages are susceptible of calculation with reasonable certainty both as to amount and time when due, interest shall be allowed from that day, except during such time as the debtor may have been prevented by law or by act of the creditor from making payment. Here the misappropriated public funds were susceptible of calculation with reasonable certainty both in respect to amount and time, and the allowance of interest in such circumstances was proper. Cf. Blackwell Oil & Gas Co. v. Mid-Continent Petroleum Corporation, 182 Okl. 588, 79 P.2d 227; Hartford Accident & Indemnity Co. v. Collins-Dietz-Morris Co., 10 Cir., 80 F.2d 441.
The city sought in the third cause of action to recover on the bond of Smith for money which he received in payment of water bills and appropriated to his own use. Like recovery was sought in the sixth cause on the bond of the mayor and manager. Evidence was adduced which tended to show that the mayor and manager and the clerk frequently gambled in the city building, that they sometimes took money from the cash till with which to engage in such pastime, and that the cash deposited in the bank during the period in question was much less than that deposited during the preceding and the following year. But Smith testified that he accounted for all city funds coming into his, hands, and that he replaced in the till all funds withdrawn for the purpose of gambling. The mayor and manager testified that he took some cash from the till from time to time but always put in his personal check which was paid, or otherwise accounted for the amount. And there was other testimony which tended to corroborate them. • The court found in general language that the evidence failed to sustain the allegations of the complaint in respect to the charged misappropriations. The evidence presented an issue of fact for the trial court, and it was resolved against the city. It cannot be said that the finding was clearly erroneous, due regard being had for the opportunity of the trial court to see and observe the witnesses as well as their demeanor while testifying. The finding must, therefore stand on appeal. Rules of Civil Procedure, 52(a), 28 U.S. C.A. following section 723c.
The city also sought in the sixth cause of action to recover on the bond of the mayor and manager for alleged wrongful acts in connection with the purchase and use of sewer pipe. The court found that after inspecting samples of the material offered at eighty cents per foot and that offered at ninety-five cents per foot, the commissioners accepted the bid for the latter; that the company submitting the bid delivered to the city 9,476 feet of pipe, for which the city paid ninety-five cents per foot; that employees of the city receipted for the pipe and delivered it to the Works Progress Administration for use in the completion of a project for the city; that the commissioners had nothing to do with the handling of the project, except to furnish the pipe; that the evidence failed to disclose that the mayor and manager personally had anything to do with the handling of the pipe; that while the circumstances surrounding the transaction were suspicious and the evidence failed to show that the city received any beneficial use of about 2,000 feet of such pipe, still there was no basis for a finding that the mayor and manager either conspired with the contractor to file a false claim or that he disposed of any of such pipe after it was delivered; and that the most which could be said was that the matter had been handled negligently. Again, the evidence presented an issue of fact for the .court; again, it cannot be said that the finding was clearly erroneous, due regard being had for the opportunity of the trial court to observe the witnesses and judge of their credibility; and again, the finding cannot be overturned on appeal. Rule 52(a), supra.
The remaining question is whether the full amount which the city received frm the sureties on the official bonds of other commissioners should have been treated as a credit on the amount for which the company was liable in this case. Where a creditor holds more than one debt or claim against his debtor, or where a single debt or claim consists of several items, the debtor has the right to direct the debt or item on which a payment shall be credited, and it is the duty of the creditor to make application as directed. Wheeler v. American Investment Co., 167 Okl. 558, 31 P.2d 117; Sipes v. John, 177 Okl. 299, 58 P.2d 854. But where the debtor fails to direct 'how a payment shall be applied, and in the absence of equities of third persons, the creditor is ordinarily free to make the application in the manner of his choice. Sipes v. John, supra. There was no showing that any specific directions were given in respect of the manner in which the payments in question should be applied. Neither was there any indication that any part of the money was applied to a liability which had become barred by the five-year statute of limitation to which reference has been made. In the absence of direction, the city was free to apply the amount as it saw fit. Other than a payment expressly or impliedly made on the offset claims pleaded in the complaint in this cause, this company, as surety on the bonds of the mayor and manager and the two commissioners whose bonds are involved here, had no equity in the payments which those sureties made. And since it had no such equity, the city was not required to make application in a manner most beneficial to it. Southwestern Surety Insurance Co. v. Neal, 81 Okl. 194, 197 P. 439; Sipes v. John, supra.
For the error in allowing the company credit for the full amount paid by the sureties on the bonds of other commissioners, the' judgment is reversed and the cause remanded.
Question: Did the court refuse to decide the appeal because the appellant failed to comply with some rule relating to timeliness of the appeal?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
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songer_r_natpr
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1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Percy T. STIERS, Appellant, v. James I. MARTIN, Appellee.
No. 8060.
United States Court of Appeals Fourth Circuit.
Argued April 21, 1960.
Decided April 25, 1960.
Charles W. Laughlin, Richmond, Va., for appellant.
J. Kenneth Lee, Greensboro, N. C. (Major S. High, Greensboro, N. C., on the brief) for appellee.
Before SOPER, HAYNSWORTH and BOREMAN, Circuit Judges.
PER CURIAM.
After this Court affirmed a judgment awarding damages to the plaintiff, the defendant filed a motion in the District Court under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A., by which he sought a new trial upon the ground of newly discovered evidence and fraud. Attached to the motion were the affidavits of three persons stating that the plaintiff rented and planted only three acres of the defendant’s land, rather than ten acres as the plaintiff’s evidence showed and the District Court found.
Who his tenants were and what acreage they planted, the defendant knew, though he did not testify at the trial. He knew, also, of the three witnesses whose affidavits he now tenders, but he did not produce them at the trial. He offers no explanation of his failure to produce one of them. The other two, he says, were out of the state at the time of the trial, but the record does not show what, if any, effort he made to locate them and obtain their testimony.
We think the District Judge properly denied the motion upon the ground that the defendant had not shown due diligence to discover this evidence within the time allowed for a motion for a new trial under Rule 59(b) of the Federal Rules of Civil Procedure.
Affirmed.
. Stiers v. Martin, 4 Cir., 264 F.2d 795.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_genresp2
|
I
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the second listed respondent. If there are more than two respondents and at least one of the additional respondents has a different general category from the first respondent, then consider the first respondent with a different general category to be the second respondent.
Thomas Edward YOUNG and Margaret Rita Young, Appellants, v. UNITED STATES of America, Appellee.
No. 16287.
United States Court of Appeals Eighth Circuit.
Feb. 11, 1960.
Thomas Edward Young and Margaret Rita Young, pro se.
Robert Vogel, U. S. Atty., Fargo, N. D., for appellee.
Before JOHNSEN, Chief Judge, and WOODROUGH and MATTHES, Circuit Judges.
JOHNSEN, Chief Judge.
Appellants, who are husband and wife, are under conviction and sentence for a number of different offenses, including some Post Office burglaries. Involved in the proceeding before us are five consecutive sentences of five years each, or a total of 25-years imprisonment, against the husband, and four consecutive sentences of five years each, or a total of 20-years imprisonment, against the wife.
This proceeding is the third attack upon the sentences referred to which has been attempted to be made by appellants through motions under 28 U.S.C.A. § 2255. The grounds and results of their previous attacks are set forth in Young v. United States, 8 Cir., 228 F.2d 693; 8 Cir., 246 F.2d 901; 8 Cir., 259 F.2d 641.
The instant motion, which was denied by the District Court on the face of the record of the sentencing proceedings, seeks to have it declared that the form and effect of the court’s pronouncement legally left all of the sentences against each of appellants as concurrent and not consecutive in their operation, and further seeks to have the language of the signed judgment and commitment modified to so reflect.
The sentences had all been imposed at the same time in three separate criminal proceedings. The court, in making its pronouncement, dealt with each of the proceedings in its chronological order, and with each separate count therein in its numerical sequence. No ambiguity or question therefore exists as to the order and sequence in which the several sentences actually were imposed and pronounced.
The pronouncement of the court was made in the following form and expression [174 F.Supp. 423]:
“Thomas Edward Young, it is the sentence of this Court that in case No. 8048, as to Count 1 you be confined * * * for a period of five years; that you also be confined on Count 2 for a period of five years. Margaret Rita Young, it is the sentence of this Court that you be confined * * * under Count 1 for a period of five years and under Count 2 for a period of five years.
“As to case No. 8052, in which you, Mr. Young, are the sole defendant, * * * it is the sentence of the Court that you be confined for a period of five years.
“As to case No. 8136, on Count 1, which charges the two of you jointly, it is the sentence of the Court that each of you be confined for a period of five years. On Count 2, you, Thomas Edward Young, it is the sentence of the Court that you be confined for a period of five years. On Count 3, it is the sentence of the Court that you, Margaret Rita Young be confined for a period of five years.
“It is the order of this Court that these sentences be served consecutively, which means for you, Mr. Young, a total sentence of 25 years and for you, Mrs. Young, a total sentence of 20 years.”
Like the court below, we are unable to see how this can be claimed, in ordinary understanding, to present any doubt as to the court’s intent or as to the meaning which would be conveyed to the appellants thereby, or how a commitment drawn in conformity thereto could leave any uncertainty on the part of prison officials as to the mode of its execution and operation.
Here the signed judgment and commitment was made to set out the several sentences in the order in which they had been pronounced. As to the sentences in case No-. 8048, there was added immediately following their enumeration a recital that they were “to run consecutively with each other”. As to case No. 8052, a recital similarly was inserted, after statement of the sentence, that it was “to commence at the expiration of the sentence * * * in Criminal Case-No. 8048”. And as to Case No. 8136, following the listing of the sentences, there was a provision that they were “to run consecutively”, and that those-as to the husband were “to commence at the expiration of the sentence * * * in Criminal Case No. 8052”, while those as to the wife were “to commence at the-expiration of the sentence * * * in; Criminal Case No. 8048”.
While the language of the judgment and commitment thus was more detailed and precise than that of the pronouncement, it nevertheless was, as the trial court held, without any departure, except in its form, from the plain indication of intent, significance and operativeness reflected by the pronouncement in its whole.
United States v. Daugherty, 269 U.S-360, 46 S.Ct. 156, 70 L.Ed. 309, lends-support and confirmation to the views-which have just been expressed. In that case, the defendant had been convicted on each of the three counts in an indictment, and the trial court had imposed a sentence "for the term of five (5) years on each of said three counts”, with the-proviso added, “Said term of imprisonment to run consecutively and not concurrently”.
An appeal was taken by the defendant to this Court to have it established that this created only a five-year and not a fifteen-year term, and this Court held that, notwithstanding the proviso in the pronouncement and judgment that the sentences were “to run consecutively”, they were required in the situation to be given a concurrent operation, because there had been no specification as to their “order of sequence”. Daugherty v. United States, 8 Cir., 2 F.2d 691, 692.
The Supreme Court granted certiorari, reversed, and said, 269 U.S. at page 363, 46 S.Ct. at page 157,
“Sentences in criminal cases should reveal with fair certainty the intent of the court and exclude any serious misapprehensions by those who must execute them. The elimination of every possible doubt cannot be demanded. Tested by this standard, the judgment here questioned was sufficient to impose total imprisonment for 15 years made up of three 5-year terms, one under the first count, one under the second, and one under the third, to be served consecutively, and to follow each other in the same sequence as the counts appeared in the indictment. This is the reasonable and natural implication from the whole entry. The words, ‘said term of imprisonment to run consecutively and not concurrently,’ are not consistent with a five-year sentence.”
Appellants argue, however, that this recognition of operational sequence from reasonable and natural implication, where the court has declared in its pronouncement that the sentences are to run consecutively and not concurrently, cannot be regarded as having any application to sentences imposed on separate indictments but at most to those imposed on the counts of the same indictment.
It is true that the sentences involved in the Daugherty case were on counts of the same indictment. And at the time of Daugherty, there was an old habeas-corpus decision (1887) by Mr. Justice Bradley, sitting on circuit, United States v. Patterson, C.C.D.N.J., 29 F. 775, 776, where a sentence “That the prisoner * * ® be confined * * * for the term of five (5) years upon each of the three indictments above named, said terms not to run concurrently” was held to be too uncertain as to sequence to entitle the terms to a consecutive operation, because the pronouncement did not specify “the order in which they were to run”. 29 F. at page 778. Also, this Court, in a two-to-one decision, Biddle v. Hall, 1926, 15 F.2d 840, had applied the holding of the Patterson case to two sentences of a year and a day imposed on separate indictments, which the pronouncement declared were not to run concurrently.
The opinion in Daugherty made reference to the Patterson case, on which this Court had relied in its holding, 2 F.2d 691, and said, “We think the reasoning of that opinion is not applicable to the present situation”. 269 U.S. at page 363, 46 S.Ct. at page 157. It further remarked that “The question there was materially different from the one here presented, which concerns counts in an indictment”. Ibid. We do not, however, regard this as constituting any implied recognition or approval on the part of the Supreme Court of an absolute and artificial rule that, no matter what a court may have done and said in imposing sentences on separate indictments, such sentences cannot at all have any consecutive or successive operation, unless the court expressly specifies the sequence in which they are to be served.
As a matter of fact, while this is the effect which appellants seek to have imputed to Patterson, we do not believe that the uncertainty which that case and Hall, supra, regarded as existing as to intended sequence in the situations there involved is required or is entitled to be extended beyond the facts which the opinions reveal, or that such facts have any relationship to the present situation.
Neither in Patterson nor in Hall does it appear that the court, in pronouncing sentence, took up the indictments separately and meted out punishment on them in their chronological order. Whatever uncertainty as to sequence of intended service might be argued to be capable of existing, where the court has not dealt with the indictments in their chronological order, or perhaps even where the pronouncement has referred to them only generally or collectively and. without any individual identification, we do not believe presents any sound element of application or persuasion as to the present situation.
Hero, as has been indicated, each indictment was taken up by the court in its chronological order, identification was made of it by its individual docket number, and sentence was pronounced in relation to it before consideration was engaged in of the next proceeding. When all of the proceedings had been thus dealt with, the court made clear the intent, relationship and significance of what was being done, by an express direction, as a part of its pronouncement, “that these sentences be served consecutively, which means for you, Mr. Young, a total sentence of 25 years and for you, Mrs. Young, a total sentence of 20 years”.
Just as much as in the case of the separate counts in an indictment does the manner in which the court dealt with the separate indictments here make clear, it seems to us, on the basis of reasonable and natural understanding, the extent of the terms to be served and the sequence in which the sentences were intended to operate in effecting this result. As to Patterson and Hall, we therefore need not go further in our consideration than the distinction which we have made. Any attempt to recognize them as legally having any scope beyond this would, we think, make them wholly artificial and unconvincing.
Finally, appellants contend that the language in the signed judgment and commitment that the sentences on the two counts in case No. 8048 were “to run consecutively with each other” was without operable effect and that these sentences therefore had to be regarded as being concurrent. The language used in the pronouncement clearly made the sentences consecutive, as we have previously discussed. If the insertion of the phrase “with each other” in the judgment and commitment constituted any departure from the effect of the pronouncement, this would be subject to being appropriately corrected. But we do not believe that, after separate specification of the sentences on the two counts in their numerical sequence, the use of the expression “to run consecutively with” could reasonably be regarded as having any other natural and contextual meaning in the situation than “consecutive to”. A similar conclusion was reached in Fulton v. United States, 5 Cir., 250 F.2d 281, and we agree with the discussion in that opinion.
The denial made of appellants’ motion is affirmed.
Question: What is the nature of the second listed respondent whose detailed code is not identical to the code for the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_casetyp1_7-3-1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - taxes, patents, copyright".
SCHERZER ROLLING LIFT BRIDGE CO. v. CITY OF CHICAGO et al.
(Circuit Court of Appeals, Seventh Circuit.
February 19, 1926.)
No. 3606.
Patents <©=v>328 — No. 735,414, claim 9, for double-deck bascule bridge, held not to involve invention.
Scherzer & Kandeler patent, No. 735,414, claim 9, for a double-deck bascule bridge, held not to involve invention.
Appeal from the District Court of the United States for the Eastern Division of the Northern District of Illinois.
Suit by the Scherzer Rolling Lift Bridge Company against the City of Chicago and another. From a decree for defendants (2 F.[2d] 601), plaintiff appeals.
Affirmed.
Geo. I. Haight, of Chicago, 111., for appellant.
Geo. A. Chritton and Russell Wiles, both of Chicago, 111., for appellees.
Before ALSCHULER, PAGE, and ANDERSON, Circuit Judges.
PAGE, Circuit Judge.
In this action, •upon patent No. 735,414, now expired, invalidity was found. Claim 9, chiefly argued and relied on, is as follows:
“A double-deck baseule bridge comprising” (1) “a lifting span provided with two floors located one above the other,” (2) “and an approach having two corresponding floors or roadways,” (3) “the ends of the span floors which meet the approach floors or roadways being extended past the support by which the span is sustained,” (4) “and the end of the lower span floor which meets the lower approach or roadway being extended past the adjacent end of the upper span floor to a point outside of the path of the said end of the upper span floor.”
Baseule bridges and lifting spans are very old, and in Chicago long antedated the patent in question. Whether a truss-span shall carry one, two, or a dozen floors presents merely questions of loads, thrusts, strains, and stresses, to be determined by mathematical calculations, and does not get into the field of discovery or experimentation. The second element means nothing, except there are to be as many approaches as there are road levels on the bridge. The third and fourth elements present the problem of keeping the ends of the approaches out of the way of the shore end of the span, which must move in the are of a circle when raised and, lowered, clearly a matter within the knowledge of any engineer. Much stress is placed upon the admission of Gen. Goethals that designing such a bridge presented a problem, and that plaintiff’s patent solved that problem. That did not mean that the solution of problems necessarily means invention.
We are of opinion that no invention is shown.
Decree is affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - taxes, patents, copyright"?
A. state or local tax
B. federal taxation - individual income tax (includes taxes of individuals, fiduciaries, & estates)
C. federal tax - business income tax (includes corporate and parnership)
D. federal tax - excess profits
E. federal estate and gift tax
F. federal tax - other
G. patents
H. copyrights
I. trademarks
J. trade secrets, personal intellectual property
Answer:
|
songer_casetyp1_7-2
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation".
UNITED STATES v. GOLDSTEIN.
No. 4555.
United States Court of Appeals. First Circuit.
June 13, 1951.
Mamie S. Price, Sp. Asst. to Atty. Gen. (Theron Lamar Caudle, Asst. Atty. Gen., Ellis N. Slack and Robert N. Anderson, Sp. Asst. to Atty. Gen., and George F. Garrity, U. S. Atty. and Philip T. Jones, Asst. U. S. Atty., both of Boston, Mass., on brief), for appellant.
Thomas V. Moriarty, Springfield, Mass. (Ralph W. Crowell, Springfield, Mass., on brief), for'appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
HARTIGAN, Circuit Judge.
This is an appeal from a judgment for the plaintiff in the sum of $800.25 with interest thereon from September 20, 1946, which was entered October 5, 1950, in the United States District Court for the District of Massachusetts in accordance with the opinion of the court handed down June 7, 1950. 92 F.Supp. 589.
The case was submitted to the district court on a stipulation and briefs, and it ’accepted and adopted the facts in the stipulation as its finding of fact.
The stipulation filed April 20, 1950 is as follows:
“The plaintiff seasonably filed income tax returns for the taxable year 1940 and for the taxable year 1941 and paid to the defendant the taxes due under said returns. Subsequently, the defendant claimed deficiencies in respect to each of said returns filed for the calendar years 1940 and 1941; the deficiency claimed for the year 1940 being in the amount of $3,660.09 and the deficiency for the year 1941 being in the amount of $9,978.07. The taxpayer objected to these further assessments and seasonably filed a protest setting forth his grounds for his objections. Following field proceedings and conferences with the New England Division, Technical Staff, the taxpayer, on October 25, 1944, agreed to the determination of net deficiencies in income tax for the years 1940 and in 1941 in amounts of $3,103.44 and $6,920.97, respectively. Agreement Form 870TS was then signed and filed. On October 31, 1944, a Collateral Agreement Form, signed by five related taxpayers, was filed with the Technical Staff. The receipt of these agreements on October 26, 1944, and November 1, 1944, respectively, was acknowledged in a letter from the Technical Staff dated November 2, 1944.
“The Technical Staff later, on January 10, 1945, advised the plaintiff that the tax return filed for the year 1941 by one of the related taxpayers could not be found in the files of the Collector of Internal Revenue. Thereupon on March 5, 1945, the plaintiff secured and submitted evidence in the form of an affidavit and photostat of a cancelled check that the return in question had been filed and the tax paid thereon.
“In a letter dated January 15, 1946, the taxpayer was advised of the Commissioner’s approval of the settlement. Thereafter, on or about February 5, 1946, the taxpayer received from the Collector of Internal Revenue, statements of the additional taxes assessed and due together with interest computed to February 1, 1946, in the amounts of $908.67 for the year 1940 and $1,611.16 for the year 1941. On February 11, 1946, the taxpayer forwarded to the Collector of Internal Revenue his check in payment of the additional taxes together with an objection to the computation of interest. The taxpayer’s letter was not replied to by the Collector. The taxpayer’s objection was based upon the fact that under date of October 25, 1944, the taxpayer signed and filed an offer of waiver (Form 870-TS, a copy of which is hereto attached marked Exhibit A) under Section 272(d), I.R.C., offering to consent to the assessment of the amounts subsequently paid. This waiver was received in the office of the New England Division, Technical Staff, Boston, Massachusetts, on October 26, 1944, as acknowledged in a letter from said office dated January 10, 1945.
“On or about September 20, 1946, under threat of distraint proceedings, the taxpayer paid, under protest, the interest demanded. The taxpayer claimed that the interest assessed for the year 1940 was excessive in the amount of $255.79 and excessive in the amount of $544.46 for the year 1941. The present action was brought for the purpose of recovering these two sums of money together with interest thereon from February 11, 1946, as provided by statute.”
In its opinion issued June 7, 1950, the district court held that the Form 870-TS filed with the technical staff by this taxpayer became a waiver, within the meaning of Section 272(d) of the Internal Revenue Code, upon the date it was received by the technical staff, October 26, 1944, and that, under the provisions of Section 292 of the Internal Revenue Code interest on the tax deficiencies ceased to run thirty days after October 26, 1944.
A motion for rehearing and request for oral argument was filed by the government on June 22, 1950, together with a memorandum in support of motion for rehearing. Argument on, the government’s motion and request was heard by the district court on September 18, 1950, and taken under advisement. On September 29, 1950, the motion was denied.
The question for determination’ in this case is the date upon which a Form 870-TS, executed by the taxpayer, became effective as a waiver within the meaning of Section 272(d) of the Internal Revenue Code; that is, whether the offer of waiver contained in .that Form became effective as such waiver on the date it was received by the Technical Staff of the Bureau of Internal Revenue, or upon the date the proposed adjustments set out therein were accepted on behalf of the Commissioner.
A reading of the “offer” in our foot note, supra, clearly reveals its conditional character. It was “subject to' acceptance by or on behalf of the Commissioner of Internal Revenue on the basis of the adjusted liability as hereinabove proposed” and was “to take effect as a waiver of restrictions then filed with the Commissioner, from the date said adjusted liability is accepted by or on behalf of the Commissioner as a basis for the closing of the case, and if not thus accepted will have no force or effect.” Although filed October 25, 1944, the “offer” was not accepted until January 15, 1946.
The argument of the taxpayer that the delay was occasioned 'by the government’s investigation and that the taxpayer should not be “penalized” for interest during that delay is without merit.
If the taxpayer wished to avoid the running of interest he could do so by depositing with the Collector the amount of the proposed deficiency, which amount could be held in the Collector’s suspense account pending final determination of the taxpayer’s liability. See Rosenman v. United States, 323 U.S. 658, 65 S.Ct. 536, 89 L.Ed. 535. Rather, he chose to keep the money and await the acceptance or rejection of his “offer”. During this period of waiting he had the use of the money due the government. Interest is compensation for the use of money and is exacted because of delay in payment of the tax. It is not a penalty. See United States v. Childs, 266 U.S. 304, 45 S.Ct. 110, 69 L.Ed. 299; Owens v. Commissioner of Internal Revenue, 10 Cir., 125 F.2d 210, certiorari denied 316 U.S. 704, 62 S.Ct. 1308, 86 L.Ed. 1772.
The taxpayer could also have stopped the running of interest on the proposed deficiency by filing waiver Form 870, rather than Form 870-TS. Form 870 is an express, unconditional waiver under § 272(d), authorizing the Commissioner immediately to assess and collect the deficiency agreed to, and thus stopping the running of interest on this amount thirty days after the waiver is filed, as provided in § 292. However, according to its terms, the filing of Form 870 does not preclude “the assertion of a further deficiency in the manner provided by law should it subsequently be determined that additional tax is due”. It therefore differs in this important respect from Form 870-TS which upon acceptance by the Commissioner prevents him from claiming any further deficiencies for the years involved “in the absence of fraud, malfeasance, concealment or misrepresentation of material fact, or of an important mistake in mathematical calculations”.
The restrictions referred to in § 272(a) are on the Commissioner and are in the taxpayer’s interest. They restrict the Commissioner in that “No assessment of a deficiency * * * and no distraint or proceeding in court for its collection shall be made, begun, or prosecuted until such notice has been mailed to the taxpayer, nor until the expiration of such ninety-day period, nor, if a petition has been filed with the Board, until the decision of the Board has become final.”
Upon the filing of Waiver Form 870 by the taxpayer, the Commissioner could immediately assess and collect the deficiency. But upon the filing of an “offer” of waiver, Form 870-TS, it does not appear that the Commissioner could immediately assess and collect the deficiency. Rather he, the Commissioner, investigates the offer and accepts or rejects it. Had he rejected it, the restrictions under § 272(a) as to the notice, the 90 day waiting period, etc. would be binding on the Commissioner. Had he sought to collect a deficiency before the offer was accepted by him, he might have been enjoined for the reason that there had been no waiver filed but merely an “offer of waiver”. See Associated Mutuals v. Delaney, 1 Cir., 176 F.2d 179, 11 A.L.R.2d 896; Ventura Consolidated Oil Fields v. Rogan, 9 Cir., 86 F.2d 149, 154.
The important and undisputed fact here is that the taxpayer filed Form 870-TS, which is clearly conditional on its face, and that he did not file Form 870, which is not conditional. We conclude that the filing of Form 870-TS, in the circumstances here, does not satisfy the definition of waiver so as to stop the running of interest.
Since we conclude that the offer of waiver was not effective as a waiver until its acceptance by the Commissioner, the plaintiff is not entitled to the amount of interest in dispute here.
The judgment of the district court is, accordingly, reversed.
. Form 870-TS
Treasury Department Internal Revenue Service (Revised Sept. 1941)
In re Nathan E. Goldstein
74 Marengo Park Springfield, Massachusetts
Offer of Waiver of Restrictions on Assessments and Collection of Deficiency in Tax.
C-TS:NED SJM
Received Oct. 26, 1944.
Accepted Jan. 15, 1946. (Date)
(s) G. F. Towers, (Bead of Division)
“Pursuant to the provisions of section 272 (d) of the Internal Revenue Code [26 U.S.C.A. § 272(d)], and/or the corresponding provisions of prior internal revenue laws, the undersigned offers to waive the restrictions provided in section 272 (a) of the Internal Revenue Code, and/or the corresponding provisions of prior internal revenue laws, and hereby offers to consent to the assessment and collection of the following deficiency or deficiencies in tax: taxable year ended December 31, 1940—
income tax in the sum of $3,103.44
taxable year ended December 31, 1941—
income tax in the sum of $6,920.97
*************
amounting to the total sum of___________________________________$10,024.41
together with interest thereon as provided by law.
“This Offer of Waiver of Restrictions is subject to acceptance by or on behalf of the Commissioner of Internal Revenue, on the basis of the adjusted liability as hereinabove proposed, and is to take effect as a waiver of restrictions then filed with the Commissioner, from the date said adjusted liability is accepted by or on behalf of the Commissioner as a basis for the closing of the case, and if not thus accepted will have no force or effect.
“If this proposal is accepted by or on behalf of the Commissioner the case shall not be reopened nor shall any claim for refund be filed or prosecuted respecting the taxes for the year(s) above stated, in the absence of fraud, malfeasance, concealment or misrepresentation of material fact, or of an important mistake in mathematical calculations; and the taxpayer also agrees: (1) To make payment of the above deficiency, together with interest, as provided by law, promptly upon receipt of notice and demand from the Collector of Internal Revenue, and not to file an offer in compromise respecting such liability; and (2) upon request of the Commissioner to execute at any time a final closing agreement as to the tax liability, on the foregoing basis, for said year(s) under the provisions of section 3760 of the Internal Revenue Code [26 U.S.C.A. § 3760].
“(s) Nathan E. Goldstein, (Taxpayer).
“Date Oct. 25/44.
“Note. — The execution and filing of this waiver at the address shown in the accompanying letter will expedite the adjustment of your tax liability as indicated above. It is not, however, a final , closing agreement under section 3760 of the Internal Revenue Code, nor does it extend the statutory period of limitation .for refund, assessment, or collection of the tax. * * * * * * * * * * * * •
“Exhibit A.”
Question: What is the specific issue in the case within the general category of "economic activity and regulation"?
A. taxes, patents, copyright
B. torts
C. commercial disputes
D. bankruptcy, antitrust, securities
E. misc economic regulation and benefits
F. property disputes
G. other
Answer:
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songer_treat
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I
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the disposition by the court of appeals of the decision of the court or agency below; i.e., how the decision below is "treated" by the appeals court. That is, the basic outcome of the case for the litigants, indicating whether the appellant or respondent "won" in the court of appeals.
AMERICAN CAN CO. v. BRUCE’S JUICES, Inc.
No. 13037.
United States Court of Appeals Fifth Circuit.
June 14, 1951.
Gerhard A. Gesell, Washington, D. C., John M. Allison, Tampa, Fla., and Wm. M. Aiken, Washington, D. C., for appellant.
Cody Fowler and R. W. Shackleford, Tampa, Fla., for appellee:
Before McCORD, BORAH and RUSSELL, Circuit Judges.
McCORD, Circuit Judge.
From a careful consideration of the petition for rehearing filed by appellant in this cause, we conclude that the opinion heretofore filed warrants explanation. The Court held: “It was shown that in granting quantity discounts the defendant did not adhere to the various brackets of its quantity discount schedule. To the contrary, it began to divide and classify all of its customers into three groups designated as ‘A’, ‘B’ and ‘C’. * * *” [187 F.2d 919, 921.] (Italics ours.)
Even though the record evidence does sustain the contention that defendant adhered in some sort to its quantity discount schedule, we adhere to our former holding that such schedule was nevertheless discriminatory for the reason that the discounts granted were based almost entirely on the annual volume of purchases, and were legally unjustified as having practically no relation to the actual cost of selling customers, or reasonable classes of customers. In this connection, our former 'opinion speaks exactly and succinctly in this wise: “Thus, for all practical purposes, the above grouping of defendant’s customers was based almost entirely on the annual volume of their respective purchases, and was in no wise governed by the actual cost of selling customers.”
.Appellant further complains of the statement in the opinion to the effect that plaintiff’s competitors, Engelman Gardens of Texas and Morgan Packing Company of Indiana, “had received from the defendant special discounts on the price of a particular type Iscan which had been denied to plaintiff." (Italics ours.) In the above quoted language, the court had reference to that testimony concerning the alleged “secret low price” on the 3.12 Iscan which was offered to plaintiff’s competitor, En-gelman Gardens, in the Fall of 1939, and later made available to Morgan Packing Company in June, 1940. We adhere to our former holding that this lower price, or its equivalent, was actually and in effect “denied to plaintiff” for the reason that defendant failed, to adhere to its established freight pricing policy with respect to the 3.12 Iscan shipments desired by plaintiff by refusing to quote a price on such shipments which would include the freight to plaintiff’s Tampa plant, and that, under the circumstances such action was unlawful and discriminatory.
Appellant fastens upon the statement in our opinion that “the unlawful discrimina-tions of the defendant * * * had the effect of restricting its (plaintiff’s) can quota [for the duration of the war]” as a basis for the contention that this Court arbitrarily awarded damages for that entire period. Neither the trial court nor this Court has ever condoned such an award; and such contention is wholly without substance or merit. No damages were included in the award for the period subsequent to December 9th, 1942, as it is without dispute that Order M-81 did not adversely affect plaintiff’s sales after that date.
That portion of the opinion wherein it is held that none “of defendant’s customers except plaintiff were ever required to pay freight on a shipment of the 3.12 Iscan” is explained by insertion of the phrase “unusual and discriminatory” before the word “freight”, making the challenged quotation read: “It was not shown that any of defendant’s customers except plaintiff were ever required to pay [unusual and discriminatory] freight on a shipment of the 3.12 Iscan.” (Italics ours.)
Upon further consideration of the motion for the assessment of additional attorneys’ fees we conclude that counsel for appellee are entitled to an additional allowance in the amount of Five Thousand Dollars ($5,000) for their services upon this appeal.
With the opinion thus modified, the petition for rehearing is hereby
Denied.
Question: What is the disposition by the court of appeals of the decision of the court or agency below?
A. stay, petition, or motion granted
B. affirmed; or affirmed and petition denied
C. reversed (include reversed & vacated)
D. reversed and remanded (or just remanded)
E. vacated and remanded (also set aside & remanded; modified and remanded)
F. affirmed in part and reversed in part (or modified or affirmed and modified)
G. affirmed in part, reversed in part, and remanded; affirmed in part, vacated in part, and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to another court
K. not ascertained
Answer:
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sc_issue_4
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G
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What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
MacDONALD, SOMMER & FRATES v. COUNTY OF YOLO et al.
No. 84-2015.
Argued March 26, 1986
Decided June 25, 1986
Stevens, J., delivered the opinion of the Court, in which Brennan, Marshall, Blackmun, and O’Connor, JJ., joined. White, J., filed a dissenting opinion, in which Burger, C. J., joined and in Parts I, II, and III of which Powell and Rehnquist, JJ., joined, post, p. 353. Rehnquist, J., filed a dissenting opinion in which Powell, J., joined, post, p. 364.
Howard N. Ellman argued the cause for appellant. With him on the briefs were Gus Bauman, Kenneth N. Burns, Scott C. Verges, and Edward R. MacDonald.
William L. Owen argued the cause for appellees. With him on the brief were Richard W. Sherwood, Charles R. Mack, and P. Lawrence Klose
Briefs of amici curiae urging reversal were filed for Adirondack Park Local Government Review Board et al. by Ronald A. Zumbrun, Robert K. Best, and Thomas W. Birmingham; for the American College of Real Estate Lawyers by Robert 0. Hetlage, Eugene J. Morris, John P. Tre-vaskis, Jr., and Edward I. Cutler; for the California Building Industry Association by Rex E. Lee, Benjamin W. Heineman, Jr., and Carter G. Phillips; for the First English Evangelical Lutheran Church of Glendale, Cal., et al. by J err old A. Fadem and Michael M. Berger; for Lodestar Co. by Gideon Kanner; and for the Mid-America Legal Foundation by John M. Cannon, Susan W. Wanat, and Ann Plunkett Sheldon.
Briefs of amici curiae urging affirmance were filed for the city of Mountain View, Cal., et al. by Peter D. Bulens, Robert J. Logan, Carter J. Stroud, Albert E. Polonsky, R. R. Campagna, Robert J. Lanzone, Mary Jo Levinger, Steven F. Nord, K. Duane Lyders, John W. Witt, Hadden Roth, and Robert Rogers; for the American Farmland Trust et al. by Fred P. Bosselman and Clijford L. Weaver; for the County Supervisors Association of California by Mark A. Wasser; and for the National Association of Counties et al. by Benna Ruth Solomon and Joyce Holmes Benjamin.
Briefs of amici curiae were filed for the United States by Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Kuhl, Deputy Assistant Attorney General Marzulla, and Peter R. Steen-land; for the State of California ex reí. John K. Van de Kamp, Attorney General, et al. by Mr. Van de Kamp, Richard C. Jacobs, N. Gregory Taylor, and Theodora Berger, Assistant Attorneys General, and Craig C. Thompson and Richard M. Frank, Deputy Attorneys General, joined by the Attorneys General of their respective jurisdictions as follows: Harold M. Brown of Alaska, Francis X. Bellotti of Massachusetts, LeRoy S. Zimmerman of Pennsylvania, Charles M. Oberly III of Delaware, Jim Smith of Florida, L. Su’ esu’ Lutu of American Samoa, Leroy Mercer of the Virgin Islands, Richard Opper of Guam, Corinne K. A. Watanabe of Hawaii, James T. Jones of Idaho, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Stephen H. Sachs of Maryland, Frank J. Kelley of Michigan, William L. Webster of Missouri, Jeffrey L. Amestoy of Vermont, Hubert H. Humphrey III of Minnesota, Robert Abrams of New York, T. Travis Medlock of South Carolina, Jim Maddox of Texas, David L. Wilkenson of Utah, Kenneth 0. Eikenberry of Washington, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming; for the National Institute of Municipal Law Officers et al. by Roy D. Bates, Wil liam I. Thornton, Jr., John W. Witt, Roger F. Cutter, George Agnost, J. Lamar Shelley, Robert J. Alfton, James K. Baker, Frank B. Gummey III, James D. Montgomery, Clifford D. Pierce, Jr., William H. Taube, and Charles S. Rhyne; and for the Conservation Foundation et al. by Charles L. Siemon, Wendy U. Larsen, and Christopher J. Duerksen.
Justice Stevens
delivered the opinion of the Court.
The question presented is whether rejection of a subdivision proposal deprived appellant of its property without just compensation contrary to the Fifth and Fourteenth Amendments to the United States Constitution.
h — I
This appeal is taken from a judgment sustaining a demurrer to a property owner’s complaint for money damages for an alleged “taking” of its property. In 1975, appellant submitted a tentative subdivision map to the Yolo County Planning Commission. Under appellant’s proposal, the subject property, at least part of which was planted with corn, would be subdivided into 159 single-family and multifamily residential lots.
The Yolo County Planning Commission rejected the subdivision plan, however, and the Board of Supervisors of the county affirmed that determination. The Board found numerous reasons why appellant’s tentative subdivision map was neither “consistent with the General Plan of the County of Yolo, nor with the specific plan of the County of Yolo embodied in the Zoning Regulations for the County.” App. 73. Appellant focuses our attention on four of those reasons. See id., at 45-46 (fourth amended complaint). First, the Board criticized the plan because it failed to provide for access to the proposed subdivision by a public street: the city of Davis, to which the subdivision would adjoin, refused to permit the extension of Cowell Boulevard into the development. See id., at 74. Even ignoring this obstacle, “[t]he map presented ma[de] no provision for any other means of access to the subdivision,” and the Board calculated that relying on an extension of Cowell Boulevard alone would “constitute] a real and substantial danger to the public health in the event of fire, earthquake, flood, or other natural disaster.” Id., at 77.
Second, the Board found that appellant’s “Tentative Map as presented [did] not provide for sewer service by any governmental entity”:
“The only means for provision of sewer services by the El Macero interceptor sewer require that the proposed subdivision anne[x] to the existing Community Services Area. Said annexation is subject to Local Agency Formation Commission jurisdiction. The Board finds that no proceedings currently are pending before LAFCO for the annexation of the proposed subdivision.” Id., at 75.
Third, the Board rejected the development plan because “[t]he level of [police] protection capable of being afforded to the proposed site by the [Yolo County] Sheriff’s Department is not intense enough to meet the needs of the proposed subdivision.” Id., at 76. Fourth, the Board found inadequate the provision for water service for the reason that there was “no provision made in the proposed subdivision for the provision of water or maintenance of a water system for the subdivision by any governmental entity.” Ibid.
After this rebuff, appellant filed the present action and, on the same day, a petition for a writ of mandate. The mandate action, which is still pending, seeks to set aside the Board’s decision and to direct the Board to reconsider appellant’s subdivision proposal. See id,., at 32-33 (amended petition for writ of mandate). This action, in contrast, seeks declaratory and monetary relief. In it, appellant accuses appellees County of Yolo and city of Davis of “restricting the Property to an open-space agricultural use by denying all permit applications, subdivision maps, and other requests to implement any other use,” id., at 46, and thereby of appropriating the “entire economic use” of appellant’s property “for the sole purpose of [providing] ... a public, open-space buffer,” id., at 51. In particular, the fourth amended complaint challenges the Board’s decision with respect to the adequacy of public access, sanitation services, water supplies, and fire and police protection. Because appellees denied these services, according to the complaint, “none of the beneficial uses” allowed even for agricultural land would be suitable for appellant’s property. Id., at 52. The complaint alleged, in capital letters and “Without limitation by the foregoing ENUMERATION,” that “ANY APPLICATION FOR A ZONE CHANGE, VARIANCE OR OTHER RELIEF WOULD BE FUTILE.” Id., at 58. The complaint also alleged that appellant had “exhausted all of its administrative remedies” and that its seven causes of action were “ripe” for adjudication. Id., at 58, 59.
In response to these charges appellees demurred. Pointing to “its earlier Order Sustaining Demurrers and Granting Leave to Amend,” the California Superior Court contended that “the property had obvious other uses than agriculture under the Yolo County Code,” id., at 115, and referenced sections permitting such uses, among others, as ranch and farm dwellings and agricultural storage facilities, see Yolo County Code §§8-2.502, 8-2.503. The court rejected appellant’s “attemp[t] to overcome that defect by alleging as conclusion-ary fact that each and every principal use and each and every multiple accessory use is no longer possible so that the property does have no value as zoned.” App. 115. It concluded that, irrespective of the insufficiency of appellant’s factual allegations, monetary damages for inverse condemnation are foreclosed by the California Supreme Court’s decision in Agins v. City of Tiburon, 24 Cal. 3d 266, 274-277, 598 P. 2d 25, 29-31 (1979), aff’d, 447 U. S. 255 (1980). App. 116, 118.
The California Court of Appeal affirmed. It “accepted] as true all the properly pled factual allegations of the complaint,” id., at 126, and did “not consider whether the complaint was barred by the failure to exhaust administrative remedies or by res judicata,” id., at 125-126. But it “f[ou]nd the decision in Agins to be controlling herein,” id., at 130:
“In that case the [California] Supreme Court specifically and clearly established, for policy reasons, a rule of law which precludes a landowner from recovering in inverse condemnation based upon land use regulation. We emphasize that the Court did not hold that regulation cannot amount to a taking without compensation, it simply held that in such event the remedy is not inverse condemnation. The remedy instead is an action to have the regulation set aside as unconstitutional. Plaintiff has filed a mandate action in the trial court which is currently pending. That is its proper remedy. The claim for inverse condemnation cannot be maintained.” Id., at 130-131 (citation and footnote omitted).
In the alternative, the California Court of Appeal determined that appellant would not be entitled to monetary relief even if California law provided for this remedy:
“In any event, even if an inverse condemnation action were available in a land use regulation situation, we would be constrained to hold that plaintiff has failed to state a cause of action. Pared to their essence, the allegations are that plaintiff purchased property for residential development, the property is zoned for residential development, plaintiff submitted an application for approval of development of the property into 159 residential units, and, in part at the urging of the City, the County denied approval of the application. In these allegations plaintiff is not unlike the plaintiffs in Agins ... [a case in which] both the California Supreme Court and the United States Supreme Court held that the plaintiffs had failed to allege facts which would establish an unconstitutional taking of private property.
“The plaintiff’s claim here must fail for the same reasons the claims in Agins failed. Here plaintiff applied for approval of a particular and relatively intensive residential development and the application was denied. The denial of that particular plan cannot be equated with a refusal to permit any development, and plaintiff concedes that the property is zoned for residential purposes in the County general plan and zoning ordinance. Land use planning is not an all-or-nothing proposition. A governmental entity is not required to permit a landowner to develop property to [the] full extent he might desire or be charged with an unconstitutional taking of the property. Here, as in Agins, the refusal of the defendants to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development. Accordingly, the complaint fails to state a cause of action.” Id,., at 132-133 (citation omitted).
The California Supreme Court denied appellant’s petition for hearing, and appellant perfected an appeal to this Court. Because of the importance of the question whether a monetary remedy in inverse condemnation is constitutionally required in appropriate cases involving regulatory takings, we noted probable jurisdiction. 474 U. S. 917 (1985). On further consideration of our jurisdiction to hear this appeal, aided by briefing and oral argument, we find ourselves unable to address the merits of this question.
I — I I — I
The regulatory takings claim advanced by appellant has two components. First, appellant must establish that the regulation has in substance “taken” his property — that is, that the regulation “goes too far.” Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415 (1922). See Kaiser Aetna v. United States, 444 U. S. 164, 178 (1979). Second, appellant must demonstrate that any proffered compensation is not “just.”
It follows from the nature of a regulatory takings claim that an essential prerequisite to its assertion is a final and authoritative determination of the type and intensity of development legally permitted on the subject property. A court cannot determine whether a regulation has gone “too far” unless it knows how far the regulation goes. As Justice Holmes emphasized throughout his opinion for the Court in Pennsylvania Coal Co. v. Mahon, 260 U. S., at 416, “this is a question of degree — and therefore cannot be disposed of by general propositions.” Accord, id., at 413. To this day we have no “set formula to determine where regulation ends and taking begins.” Goldblatt v. Hempstead, 369 U. S. 590, 594 (1962). Instead, we rely “as much [on] the exercise of judgment as [on] the application of logic.” Andrus v. Allard, 444 U. S. 51, 65 (1979). Our cases have accordingly “examined the ‘taking’ question by engaging in essentially ad hoc, factual inquiries that have identified several factors — such as the economic impact of the regulation, its interference with reasonable investment-backed expectations, and the character of the governmental action — that have particular significance.” Kaiser Aetna v. United States, 444 U. S., at 175. See Penn Central Transportation Co. v. New York City, 438 U. S. 104, 124 (1978) (“ad hoc, factual inquiries”); United States v. Central Eureka Mining Co., 357 U. S. 155, 168 (1958) (“question properly turning upon the particular circumstances of each case”). Until a property owner has “obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property,” “it is impossible to tell whether the land retain[s] any reasonable beneficial use or whether [existing] expectation interests ha[ve] been destroyed.” Williamson Planning Comm’n v. Hamilton Bank, 473 U. S. 172, 186, 190, n. 11 (1985). As we explained last Term:
“[T]he difficult problem [is] how to define “too far,” that is, how to distinguish the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession. . . . [Resolution of that question depends, in significant part, upon an analysis of the effect the Commission’s application of the zoning ordinance and subdivision regulations had on the value of respondent’s property and investment-backed profit expectation. That effect cannot be measured until a final decision is made as to how the regulations will be applied to respondent’s property.” Id., at 199-200 (footnote omitted).
Accord, id., at 191.
For similar reasons, a court cannot determine whether a municipality has failed to provide “just compensation” until it knows what, if any, compensation the responsible administrative body intends to provide. See id., at 195 (“[T]he State’s action here is not ‘complete’ until the State fails to provide adequate compensation for the taking” (footnote omitted)). The local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with the one hand they may give back with the other. In Penn Central Transportation Co. v. New York City, for example, we recognized that the Landmarks Preservation Commission, the administrative body primarily responsible for administering New York City’s Landmarks Preservation Law, had authority in appropriate circumstances to authorize alterations, remit taxes, and transfer development rights to ensure the landmark owner a reasonable return on its property. See 438 U. S., at 112-115, and n. 13. Because the railroad had “not sought approval for the construction of a smaller structure” than its proposed 50-plus story office building, id., at 137; see id., at 137, n. 34, and because its development rights in the airspace above its Grand Central Station Terminal were transferable “to at least eight parcels in the vicinity of the Terminal, one or two of which ha[d] been found suitable for the construction of a new office building,” id., at 137, we concluded that “the application of New York City’s Landmarks Law ha[d] not effected a ‘taking’ of [the railroad’s] property,” id., at 138. Whether the inquiry asks if a regulation has “gone too far,” or whether it seeks to determine if proffered compensation is “just,” no answer is possible until a court knows what use, if any, may be made of the affected property.
Our cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it. Thus, in Agins v. Tiburon, 447 U. S. 255 (1980), we held that zoning ordinances which authorized the development of between one and five single-family residences on appellants’ 5-acre tract did not effect a taking of their property on their face, and, because appellants had not made application for any improvements to their property, the constitutionality of any particular application of the ordinances was not properly before us. See id., at 260. Similarly, in San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621 (1981), we dismissed the appeal because it did not appear that the city’s rezoning and adoption of an open space plan had deprived the utility of all beneficial use of its property. See id., at 631-632, and n. 12. Because the California Court of Appeal had “not decided whether any taking in fact ha[d] occurred, . . . further proceedings [were] necessary to resolve the federal question whether there has been a taking at all.” Id., at 633. As a consequence, the judgment was not final for purposes of our jurisdiction under 28 U. S. C. § 1257. Ibid. Most recently, in Williamson Planning Comm’n v. Hamilton Bank, we held that the developer’s failure either to seek variances that would have allowed it to develop the property in accordance with its proposed plat, or to avail itself of an available and facially adequate state procedure by which it might obtain “just compensation,” meant that its regulatory taking claim was premature.
Here, in comparison to the situations of the property owners in the three preceding cases, appellant has submitted one subdivision proposal and has received the Board’s response thereto. Nevertheless, appellant still has yet to receive the Board’s “final, definitive position regarding how it will apply the regulations at issue to the particular land in question.” Williamson Planning Comm’n v. Hamilton Bank, 473 U. S., at 191. In Agins, San Diego Gas & Electric, and William son Planning Comm’n, we declined to reach the question whether the Constitution requires a monetary remedy to redress some regulatory takings because the records in those cases left us uncertain whether the property at issue had in fact been taken. Likewise, in this case, the holdings of both courts below leave open the possibility that some development will be permitted, and thus again leave us in doubt regarding the antecedent question whether appellant’s property has been taken. The judgment is therefore
Affirmed.
The Fifth Amendment provides “nor shall private property be taken for public use, without just compensation.” The Fifth Amendment prohibition applies against the States through the Fourteenth Amendment. See Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 236, 239, 241 (1897). See also Williamson Planning Comm’n v. Hamilton Bank, 473 U. S. 172, 175, n. 1 (1985); San Diego Gas & Electric Co. v. San Diego, 450 U. S. 621, 623, n. 1 (1981).
“25. In determining that Plaintiff’s land could only be used for agricultural purposes, notwithstanding its general planning and zoning designation for residential use and its suitability therefor, County determined that (i) the Property lacked access by means of suitable public streets, a condition resulting from City’s deliberate refusal to permit or approve available access; (ii) the [Property lacked sanitary sewer service, a condition resulting directly from the wrongful acts of City, County and District above alleged[;] (iii) the Property lacked adequate water supply, a finding directly contrary to the fact (in evidence before County) that there are proven sources of supply on the Property and in the vicinity thereof which serve the immediately adjacent residential areas[;] and (iv) that the Property lacked adequate fire and police services, conditions attributable in part to refusal on part of County and City to provide such services.” App. 51-52.
In California, “those factual allegations of the complaint which are properly pleaded are deemed admitted by defendant’s demurrer.” Thompson v. County of Alameda, 27 Cal. 3d 741, 746, 614 P. 2d 728, 730 (1980). “However,” a demurrer “does not admit contentions, deductions or conclusions of fact or law alleged therein.” Daar v. Yellow Cab Co., 67 Cal. 2d 695, 713, 433 P. 2d 732, 745 (1967) (citations omitted). See, e. g., Serrano v. Priest, 5 Cal. 3d 584, 591, 487 P. 2d 1241, 1245 (1971); Chicago Title Ins. Co. v. Great Western Financial Corp., 69 Cal. 2d 305, 327, 444 P. 2d 481, 495 (1968); Sych v. Insurance Co. of North America, 173 Cal. App. 3d 321, 326, 220 Cal. Rptr. 692, 695 (1985); Read v. City of Lynwood, 173 Cal. App. 3d 437, 442, 219 Cal. Rptr. 26, 28 (1985). Thus, one intermediate California appellate court has sustained a demurrer to a complaint alleging a regulatory taking on jurisdictional grounds, notwithstanding an “allegation in [appellants’] complaint that they ‘have exhausted their administrative remedies’”; for “while a demurrer admits all material facts which are properly pleaded, it does not admit conclusions of fact or law alleged therein. Appellants’ conclusionary statement that they exhausted their administrative remedies therefore cannot avail them.” Pan Pacific Properties, Inc. v. County of Santa Cruz, 81 Cal. App. 3d 244, 251, 146 Cal. Rptr. 428, 432 (1978) (citation omitted). Cf. Hecton v. People ex rel. Dept. of Transportation, 58 Cal. App. 3d 653, 657, 130 Cal. Rptr. 230, 232 (1976) (same; allegations of taking and damage).
We understand the Superior Court to have sustained the demurrer both because the complaint failed properly to plead facts amounting to a taking and because California law does not provide a monetary remedy for a regulatory taking. The Superior Court, after explaining these two reasons, concluded simply that “[t]he complaint fails to state a proper cause of action for inverse condemnation.” App. 116. Although Justice White’s dissent treats the first reason as dicta and the second as the actual basis of decision, see post, at 355-356, since the Superior Court did not rest its holding on only one of its two stated reasons, it is appropriate to treat them as alternative bases of decision.
In answer to appellant’s 42 U. S. C. § 1983 claim, the California Court of Appeal similarly held that a monetary judgment was foreclosed by Agins, and that “[e]ven if a cause of action for monetary damages could be stated under the Civil Rights Act based upon the regulation of the use of property, the allegations would be insufficient in this case:
“Plaintiff seeks compensation because the County refused approval of the intensive development it desires, but that refusal does not mean that other, less intensive uses would also be denied. Accordingly plaintiff has not alleged facts sufficient to establish an uncompensated taking of its property.” App. 135.
We accept for the purposes of deciding this case that any taking was for a public purpose, as alleged in the complaint. See id., at 50. See also id., at 51, 60.
A property owner is of course not required to resort to piecemeal litigation or otherwise unfair procedures in order to obtain this determination. See Williamson Planning Comm’n v. Hamilton Bank, 473 U. S., at 205-206 (Stevens, J., concurring in judgment); United States v. Dickinson, 331 U. S. 745, 749 (1947).
Appellant’s current complaint — as authoritatively construed by the California Court of Appeal — alleged the denial of only one intense type of residential development. Appellant does not contend that only improvements along the lines of its 159-home subdivision plan would avert a regulatory taking. Rather, the complaint alleged that appellant was deprived of all beneficial use of its property. See App. 51, 60, 65. The California Court of Appeal, whose opinion on matters of local law and local pleading we must respect, cf. Agins v. Tiburon, 447 U. S. 255, 259-260, n. 5 (1980), apparently rejected what the Superior Court labeled a “conclusionary” allegation of futility, and explained that appellant could seek an administrative application of the Yolo County General Plan and Zoning Ordinances to its property which, for aught that appears, would allow development to proceed.
Justice White’s dissent reluctantly concludes that our understanding of the Court of Appeal’s decision is “plausible” and “sensible,” but insists that the Court of Appeal’s decision is “most properly read as taking as true all of the allegations in the complaint, including the allegations of futility, and as rejecting those allegations as insufficient as a matter of substantive takings law.” Post, at 363. We disagree. Both state courts upheld ap-pellees’ demurrer on the ground that not all development had been foreclosed. Thus, the Superior Court apparently accepted appellant’s submission that its property was restricted to agricultural use but held that, even so, valuable use might still be made of the land. The Court of Appeal was unwilling to concede even this much: it noted that appellant’s property was zoned residential and held that valuable residential development was open to it. These holdings that there is no total prohibition against the productive use of appellant’s land cannot possibly be reconciled with the allegations in the complaint that “any beneficial use” is precluded, App. 46, and that future applications would be futile, id., at 58. In view of the fact that these allegations were necessarily rejected by the state courts, and that the parties’ briefs disclose a permissible basis for this disposition in settled California demurrer law, see n. 3, supra; see also Brief for Respondents in 3 Civil 22306 (Cal. Ct. App., Third App. Dist., July 10, 1984), pp. 25, 27; Memorandum of Points and Authorities in Support of Demurrer to Fourth Amended Complaint in No. 36655 (Cal. Super. Ct., Yolo County, Dec. 18, 1981), 4 Clerk’s Tr., pp. 888-889, 912, n. 2, 914, it does not matter that the state courts neglected to “expressly disapprove” the deficient allegations or to detail the particular reasons why, see post, at 357.
Remarkably, the dissent implies that the Court of Appeal accepted the complaint’s allegations that local regulations denied appellant all beneficial use of its property and that further regulatory proceedings would be fruitless, but nonetheless required it to file further “useless” applications to state a taking claim. Ibid. Whatever purpose such a requirement might serve, futile reapplications are not contemplated by the Court of Appeal. To begin with, this requirement is not, as the dissent maintains, suggested by the Court of Appeal’s reliance on the decisions of the California Supreme Court and of this Court in Agins. See App. 132. To the contrary, the Court of Appeal relied on the decisions in Agins to illustrate that the property owners there — as here — had not “attempt[ed] to obtain approval to . . . develop the land” in accordance with applicable zoning regulations and for this reason had “failed to allege facts which would establish an unconstitutional taking of private property.” Id., at 132-133. See 447 U. S., at 259-263; 24 Cal. 3d 266, 277, 598 P. 2d 25, 31 (1979). The implication is not that future applications would be futile, but that a meaningful application has not yet been made. The dissent’s supposition that the Court of Appeal accepted the allegations of taking and futility is further contradicted by the court’s express denial that submission of a less intensive application would be futile: “the refusal of the [appellees] to permit the intensive development desired by the landowner does not preclude less intensive, but still valuable development.” App. 133.
Appellant is thus in the same position Mr. and Mrs. Agins would have occupied if they had requested and been denied the opportunity to build five Victorian mansions for their single-family residences, or if San Diego Gas & Electric Co. had asked and been denied the option of building a nuclear powerplant. Rejection of exceedingly grandiose development plans does not logically imply that less ambitious plans will receive similarly unfavorable reviews. In this case, of course, we have statements from both courts below dispelling any doubt on this point.
Question: What is the issue of the decision?
A. due process: miscellaneous (cf. loyalty oath), the residual code
B. due process: hearing or notice (other than as pertains to government employees or prisoners' rights)
C. due process: hearing, government employees
D. due process: prisoners' rights and defendants' rights
E. due process: impartial decision maker
F. due process: jurisdiction (jurisdiction over non-resident litigants)
G. due process: takings clause, or other non-constitutional governmental taking of property
Answer:
|
songer_applfrom
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
The ATLANTIC REFINING COMPANY, Owner of the Tankship Atlantic Trader, Appellee, v. MATSON NAVIGATION COMPANY, Owner of the Steamship Hawaiian Retailer, Appellant.
No. 12340.
United States Court of Appeals Third Circuit.
Argued Feb. 3, 1958.
Decided April 3, 1958.
MacDorvild Deming, New York City (Springer H. Moore, Jr., Krusen, Evans & Shaw, Philadelphia, Pa., Richard G. Ashworth, Haight, Gardner, Poor & Havens, New York City, on the brief), for appellant.
Thomas F. Mount, Philadelphia,, Pa. (Rawle & Henderson, Harrison G. Kil-dare, Philadelphia, Pa., on the brief)'., for appellee.
Before GOODRICH, McLAUGHLIN and HASTIE, Circuit Judges.
McLAUGHLIN, Circuit Judge.
In this admiralty case the facts are stipulated. They show that the tanker Atlantic Trader, on December 16, 1950, proceeding in the Delaware River fouled her propeller and tailshaft on a buoy chain. A survey determined she had not been rendered unseaworthy and the repairs were deferred until her next dry-docking. On January 29, 1951, she suffered bottom damage arising out of a grounding as the result of appellant’s s/s Hawaiian Retailer overtaking her. After discharging her cargo the Atlantic Trader proceeded to the drydock where she arrived February 6, 1951, for the repairing of the bottom damage, the damages caused by the buoy, and for maintenance repairs, general overhaul and annual hull, boiler and machinery classification surveys which had been scheduled for March 14, 1951. All the work was performed concurrently without mutual interference and completed at the same time.
There was a consent decree awarding the appellee 75% of its provable damages. The parties had agreed on the cost of the grounding damage repairs and that appellant should pay 75% thereof. The admitted drydocking expense amounted to $18,459.07 which the Commissioner concluded should be borne by libelant. The district judge, sustaining the exception to that part of the Commissioner’s report, held that the drydocking cost should be included in the Atlantic Trader’s grounding damages.
The one appeal issue is whether, under the circumstances, appellee is entitled to its drydock expense from appellant. The latter argues that, though the repair of the tort damage was immediately necessary, Atlantic Refining cannot charge it for time and costs which had to be incurred in any event and therefore were not proximately caused by the grounding.
Appellant complains that although the Atlantic Trader was forced into dry-dock by the grounding damage, once there it had other repairs and routine overhauling attended to at the same time. It admits these caused no interference to the tort job and that there was no extra cost to it. Nevertheless, it, in effect, contends appellee should have held off the other work until after the tanker’s hull had been fixed. That this would have meant completely unnecessary extra expense and further loss of time to the Atlantic Trader is not commented upon by appellant who flatly claims appellee is receiving an unjustified windfall. We cannot accept this. Appellee’s ship had been rendered un-seaworthy through the major fault of appellant. The bottom condition could not be remedied without drydocking. The tanker discharged her cargo at Philadelphia at once, completing the task the next day, January 30, 1951 and then sailing for the drydock. While the ship was laid up for the tort repairs appel-lee had her seasonal checkup and other damage taken care of. There was no rush about these latter. As events turned out she went off drydock February 14, 1951 and left the shipyard the following day. This was a month prior to the date on which she had been expected to go in for her survey and'forty-three days after the accident. We see no reason for penalizing appellee because of the common sense practice it followed.
The proximate cause of the forced docking was the tort. The tanker was seaworthy otherwise. It had a March overhauling scheduled which was not mandatory and probably could have been postponed. Appellant urges that The Pocahontas, 2 Cir., 1940, 109 F.2d 929, supports its position. We disagree. The governing law set out in that case relevant to the situation at bar is restitutio in integrum which, under the present facts, includes the cost of necessary repairs. The court said on the particular point at page 931:
“If the collision damage is serious enough to necessitate an immediate lay-up for repairs, the owner may charge the tort-feasor with what the vessel would actually have earned during the detention period; and there will be no abatement of the amount because the owner chooses the occasion to accelerate his annual overhaul or to repair damage for owner’s account of a character not necessitating an immediate layup and not extending the detention period beyond the time required for collision repairs.”
Certainly if there is no abatement of earnings under the above Pocahontas doctrine which states an issue identical with the one before us, there should be no abatement of the expense of restoring the ship to seaworthy condition. From the stipulated facts, appellee’s action in seeing to it that the survey and the other repairs were disposed of during the Atlantic Trader’s lay up was in strict accord with Pocahontas. It in nowise conflicted with the proposition that even a tortfeasor is entitled to the benefit of the principle of avoidable damages. In the earlier Second Circuit decision of Clyde S. S. Co. v. City of New York, 1927, 20 F.2d 381, the damaged vessel was operated for seven months before being drydocked. Nor does Moore-McCormack, Lines Inc., v. The Esso Camden, 2 Cir., 1957, 244 F.2d 198, lend any real substance to appellant’s contention. The phase of it in which we are interested was a minor element of that suit and dealt with briefly. However, it is very clear from the Esso Camden opinion that the damaged vessel was in drydock seventeen days and that there was a commitment regarding it of two days drydock for general repairs. In other words there was a distinct separation of the total drydock time with the tort repairs covering fifteen days out of the total. We are confronted with no such cleavage problem. Concededly appellant has been charged for the use of the dock only while Atlantic Trader’s damage for which it was responsible was being worked on. The circumstance that simultaneously appellee was able to attend to the ship’s checkup and other repairs was merely a fortuitous event legitimately taken advantage of by appellee. Our own examination has not revealed, nor have we been referred to, any decision denying drydock cost under facts as here shown.
The decree of the district court will be affirmed.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
sc_casesourcestate
|
57
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the state or territory of the court whose decision the Supreme Court reviewed.
GORDON et al. v. LANCE et al.
No. 96.
Argued January 18, 1971
Decided June 7, 1971
Burger, C. J., delivered the opinion of the Court, in which Black, Douglas, Stewart, White, and Blackmun, JJ., joined. Harlan, J., filed a statement concurring in the result, post, p. 8. Brennan and Marshall, JJ., filed a dissenting statement, post, p. 8.
George M. Scott argued the cause and filed briefs for petitioners.
Charles C. Wise, Jr., argued the cause for respondents. .With him on the brief was J. Henry Francis, Jr.
Briefs. of amici curiae urging reversal were filed by Slade Gorton, Attorney General of Washington, and Philip H. Austin, Assistant Attorney General, for the State of Washington et al.; by Thomas M. O’Connor for the City and County of San Francisco; by Francis R. Kirkham and Francis N. Marshall for the California Taxpayers’ Association; and by George E. Svoboda for •Hayes Smith.
Briefs of amici curiae urging affirmance were filed by James R. Ellis for Seattle School District No. 1; by Stephen J. Poliak, William H. Dempsey, Jr., Ralph J. Moore, Jr., and Robert H. Chanin for the National Education Association et al.; by August W. Steinhilber and Robert G. Dixon, Jr., for the National School Boards Association; by David R. Hardy and Robert E. Northrup for the Missouri State Teachers Association; by William B. Beebe, Hershél Shanks, and Allan I. Mendelsohn for the American Association of School Administrators et al.; by Melvin L. Wulf for the American Civil Liberties Union et al.; and by Paul W. Preisler for the Committee for the Equal Weighting of Votes.
■ Briefs of amici curiae were filed by John W. Witt and Joseph Kase, Jr., for the City of San Diego et al., and by Chas. Clafiin Allen, pro se.
Me. Chief Justice Burger
delivered the opinion of the Court.
We granted certiorari to review a challenge to a 60% vote requirement to incur public debt as violative of the Fourteenth Amendment.
The Constitution of West Virginia and certain West Virginia statutes provide that political subdivisions of the State may not incur bonded indebtedness or increase tax rates beyond those established by the Constitution without the approval of 60% of the voters in a referendum election.
On April 29, 1968, the Board of Education of Roane County, West Virginia, submitted to the voters of Roane County a proposal calling for the issuance of general obligation bonds in the amount of $1,830,000 for the purpose of constructing new school buildings and improving existing educational facilities. At the same election, by separate ballot, the voters were asked to authorize the Board of Education to levy additional taxes to support current expenditures and capital improvements. Of the total votes cast, 51.55% favored the bond issues and 51.51% favored the tax levy. Having failed to obtain the requisite 60% affirmative vote, the proposals were declared defeated.
. Following the election, respondents appeared before the Board of Education on behalf of themselves and other persons who had voted in favor of the proposals and demanded that the Board authorize the bonds and the additional taxes. -The Board- refused.'
Respondents then brought this action, seeking a declaratory judgment that the 60% requirements were unconstitutional as violative of the Fourteenth Amendment. In their complaint they alleged that the Roane County^ schools had been basically unimproved since 1946 and fell far below the state average, both in classroom size and facilities. They further alleged that four similar proposals had been previously defeated, although each had received majorities of affirmative votes ranging from 52.51% to 55.84%. The West Virginia trial court dismissed the complaint. On appeal, the West Virginia Supreme Court of Appeals reversed, holding that the state constitutional and. statutory 60% requirements violated the Equal Protection Clause of the Fourteenth Amendment. 153 W. Va. 559, 170 S. E. 2d 783 (1969). We granted certiorari, 397 U. S. 1020 (1970), and for the reasons set forth below, we reverse.
The eourt below relied heavily on two of our holdings dealing with limitations on the right to vote and dilution of voting power. The first was Gray v. Sanders, 372 U. S. 368 (1963), which held that Georgia’s county-unit system violated the Equal Protection Clause, because the votes of primary electors in one county were accorded less weight than the votes of electors in other counties.' The second was Cipriano v. City of Houma, 395 U. S. 701 (1969), in which we held impermissible the limitation to “property taxpayers”' of the right to vote in a revenue bond referendum. From these cases the state court' concluded that West Virginia’s requirement was constitutionally defective, because the votes of those who favored the issuance of the bonds had a proportionately smaller impact on the outcome of the election than the votes of those who opposed issuance of the bonds.
We conclude that the West Virginia court’s reliance on the Gray and Cipriano cases was misplaced. The defect this Court found in those cases lay in the denial or dilution of voting power because of group characteristics — geographic location and property ownership — that bore no valid relation to the interest of those groups in the subject matter of the election; moreover, the dilution or denial was imposed irrespective of how members of those groups actually voted.
. Thus in Gray, supra, at 381 n. 12, we held that the county-unit system would have been defective even if unit votes were allocated strictly in proportion to population. We noted that if a candidate received 60% of the votes cast in a particular county he would receive that county’s entire unit vote, the 40% east for the other candidates being discarded. The defect, however, continued to be geographic discrimination. Votes for the losing candidates were discarded solely because of the county where the votes were cast. Indeed, votes for the winning candidate in a county were likewise devalued, because all marginal votes for him would be discarded and would have no impact on the statewide total.
Cipriano was no more than a reassertion of the principle, consistently recognized, that an individual may not be denied access to the ballot because of some extraneous condition, such as race, e. g., Gomillion v. Lightfoot, 364 U. S. 339 (1960); wealth, e. g., Harper v. Virginia Board of Elections, 383 U. S. 663 (1966); tax status, e. g., Kramer v. Union Free School Dist., 395 U. S. 621 (1969) ; or military status, e. g., Carrington v. Rash, 380 U. S. 89 (1965).
Unlike the restrictions in our previous cases, the West Virginia Constitution singles out no “discrete and insular minority” for special treatment. The three-fifths requirement applies equally to all bond issues for any purpose, whether for schools, sewers, or highways. We are not, therefore, presented with a case like Hunter v. Erickson, 393 U. S. 385 (1969), in which fair housing legislation alone was subject to an automatic referendum requirement.
The class singled out in Hunter was clear — “those-who would benefit from laws barring racial, religious, or ancestral discriminations,” supra, at 391. In contrast we can discern no independently identifiable group or category that favors bonded indebtedness over other forms of financing. Consequently no sector of the population may be said to be “fenced out” from the franchise because of the way they will vote. Cf. Carrington v. Rash, supra, at 94.
Although West Virginia has not denied any group access to the ballot, it has indeed made it more difficult for some kinds of governmental actions to be taken. Certainly any departure from strict majority rule gives disproportionate power to the minority. • But there is nothing in the language, of the Constitution, our history, or our cases that requires that a majority always prevail on every issue. • On the contrary, while we have recognized that state officials are normally chosen by a vote of the majority of the electorate, we have found no constitutional barrier to the selection of a Governor by a state legislature, after no candidate received a majority of the popular vote. Fortson v. Morris, 385 U. S. 231 (1966).
The Federal Constitution itself provides that a simple ■ majority vote is. insufficient on some issues; the provisions . on impeachment and ratification of treaties are but two examples. Moreover, the Bill of Rights removes entire areas of legislation from the. concept of majoritarian supremacy. The constitutions of. many States prohibit or severely limit the power of the legislature to levy new taxes or to create or increase bonded indebtedness, thereby insulating. entire areas from majority control. Whether these matters, of finance and taxation are to be considered as less “important” than matters of treaties, foreign policy, or impeachment of public officers is more properly left to the determination by the States and the people than to the courts operating under the broad mandate of the Fourteenth Amendment. It must be remembered that in voting to issue bonds voters are committing, in part, the credit of infants and of generations yet unborn; and some restriction on such commitment is not an unreasonable demand. That the bond issue may have the desirable objective of providing better education for future generations goes to the wisdom of an indebtedness limitation: it does not alter the basic fact that the balancing of interests is one for the State to resolve.
Wisely or not, the people of the State of West Virginia have long since resolved to remove from a simple majority vote the choice on certain decisions as to what indebtedness may be incurred and . what taxes their children will bear.
We conclude that so long as such provisions do not discriminate against or authorize discrimination against any identifiable class they do not violate the Equal Protection Clause. We see no meaningful distinction between such absolute provisions on debt,. changeable only by constitutional amendment, and provisions that legislative decisions on the same issues require more than a majority vote in the legislature. On the contrary, these latter provisions may, in practice, be less burdensome than the amendment process. Moreover, the same considerations apply whén the ultimate power, rather than being delegated to the legislature, remains with the people, by way of a referendum. Indeed, we see no constitutional distinction between the 60% requirement in the present- case and a state requirement that a given issue be approved by a majority of all registered voters.' Cf. Clay v. Thornton, 253 S. C. 209, 169 S. E. 2d 617 (1969), appeal dismissed sub nom. Turner v. Clay, 397 U. S. 39 (1970).
That West Virginia has adopted a rule of decision, applicable to all bond referenda, by which the strong consensus of three-fifths is required before indebtedness is authorized, does not violate the Equal Protection Clause or any other provision of the Constitution.
Reversed.
While Cipriano involved.a denial of the vote, a percentage reduction of an individual’s voting power in proportion to the amount of property he owned would be similarly defective. See Stewart v. Parish School Board, 310 F. Supp. 1172 (ED La.), aff’d, 400 U. S. 884 (1970).
E. g.,..Indiana Constitution, Art. 10, § 5; Ohio Constitution, Art. 8, § 3; Texas Constitution, Art. 3, § 49; Wisconsin Constitution, Art. 8, § 4.
Compare Reitman v. Mulkey, 387 U. S. 369 (1967).
Some 14 States require an amendment to be apbroved- by two sessions of the legislature, before submission to the people. West Virginia’s- Constitution, Art. 14, § 2, provides for approval by two-thirds of a single legislature and a majority of the voters.
In practice, the latter requirement would be far more burdensome than a 60% requirement. There were 8,913 registered voters in Roane County in 1968, of whom 5,600 voted in the referendum at issue. If a majority of all eligible voters had been required, approval would have required the affirmative votes of over 79% of those voting. See'State of West Virginia, Official Returns of 1970 Primary Election (including the 1968 registration figures).
We intimate no view on the constitutionality of a provision requiring unanimity or giving a veto power to a very small group. Nor do we decide whether a State may, consistently with the Constitution, require extraordinary majorities for the election of public officers. ;
Question: What is the state of the court whose decision the Supreme Court reviewed?
01. Alabama
02. Alaska
03. American Samoa
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. District of Columbia
11. Federated States of Micronesia
12. Florida
13. Georgia
14. Guam
15. Hawaii
16. Idaho
17. Illinois
18. Indiana
19. Iowa
20. Kansas
21. Kentucky
22. Louisiana
23. Maine
24. Marshall Islands
25. Maryland
26. Massachusetts
27. Michigan
28. Minnesota
29. Mississippi
30. Missouri
31. Montana
32. Nebraska
33. Nevada
34. New Hampshire
35. New Jersey
36. New Mexico
37. New York
38. North Carolina
39. North Dakota
40. Northern Mariana Islands
41. Ohio
42. Oklahoma
43. Oregon
44. Palau
45. Pennsylvania
46. Puerto Rico
47. Rhode Island
48. South Carolina
49. South Dakota
50. Tennessee
51. Texas
52. Utah
53. Vermont
54. Virgin Islands
55. Virginia
56. Washington
57. West Virginia
58. Wisconsin
59. Wyoming
60. United States
61. Interstate Compact
62. Philippines
63. Indian
64. Dakota
Answer:
|
songer_respond1_3_3
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
GOLD KIST, INC., Plaintiff-Appellant, v. U.S. DEPARTMENT OF AGRICULTURE, John R. Block, Secretary, Agricultural Stabilization & Conservation Service, Merrill D. Marxman and Commodity Credit Corporation, Defendants-Appel-lees.
No. 83-8386.
United States Court of Appeals, Eleventh Circuit.
Jan. 28, 1985.
Franklin R. Nix, Atlanta, Ga., for plaintiff-appellant.
Myles Eastwood, Asst. U.S. Atty., Atlanta, Ga., for defendants-appellees.
ON PETITION FOR REHEARING
(Opinion Sept. 6, 1984, 11 Cir., 1984, 741 F.2d 344).
Before GODBOLD, Chief Judge, HILL and THORNBERRY, Circuit Judges.
The portions of this opinion which amend the original opinion, found at 741 F.2d 344, were incorporated therein for bound volume.
Honorable Homer Thornberry, U.S. Circuit Judge for the Fifth Circuit, sitting by designation.
GODBOLD, Chief Judge:
On petition for rehearing the government contends that the following paragraph of the court’s opinion, Gold Kist, Inc. v. U.S. Department of Agriculture, 741 F.2d 344, 348-49 (11th Cir.1984), is incorrect:
Besides relying on the Secretary’s inherent authority to impose administrative sanctions, the Secretary also asserts that Gold Kist’s introduction into the domestic market of additional peanuts without first obtaining substitution credits is a violation of section 1359(g), which specifically authorizes imposition of marketing penalties. However, Gold Kist was never charged with having violated section 1359(g) or its companion regulations, 7 C.F.R. §§ 1446.8(a), 1446.9(d), both of which involve the handling and disposition of additional peanuts.
Gold Kist doggedly insists that it was not “charged” with violating § 1359(g) because, although there may have been references to this subsection, it was not charged with engaging in conduct that would constitute a violation. Assuming that Gold Kist was sufficiently “charged,” we find that it did not violate § 1359(g).
Former section 1359(g) provided as follows:
Upon a finding by the Secretary that the peanuts marketed from any crop for domestic edible use by a handler are larger in quantity or higher in grade or quality than the peanuts that could reasonably be produced from the quantity of peanuts having the grade, kernel content, and quality of the quota peanuts acquired by such handler from such crop for such marketing, such handler shall be subject to a penalty equal to 120 per centum of the loan level for quota peanuts on the quantity of peanuts that the Secretary determines are in excess of the quantity, grade, or quality of the peanuts that could reasonably have been produced from the peanuts so acquired.
Gold Kist contends that it did not violate this provision because, even though it mistakenly sold additional peanuts into the domestic market, it “had previously exported quota peanuts identical in type, grade, and screen size to those additional peanuts substituted into the domestic market.” Therefore it had “ample ‘substitution credits’ to cover all of the sales of inadvertently miscoded, additional peanuts into the domestic market.” Response to Petition for Rehearing at 5.
The government contends that the U.S. Department of Agriculture interprets § 1359(a) to mean that “quota peanuts exported simply reduce the total number of quota peanuts that can be sold in the domestic edible market until such time as the handler actually receives an approval, and at that time they become substitution peanuts____” Reply Brief on Petition for Rehearing at 7.
We cannot accept the government’s interpretation. U.S. v. Larionoff, 431 U.S. 864, 872, 97 S.Ct. 2150, 2155, 53 L.Ed.2d 48 (1977). Assuming, as the government implicitly does, that the grade and quality requirements of § 1359(g) have not been violated, the question is whether Gold Kist marketed peanuts “larger in quantity ... than the peanuts that could reasonably be produced from the quantity of ... quota peanuts acquired by [the] handler from [the] crop for such marketing____” 7 U.S.C. § 1359(g). Thus the quantity that cannot be exceeded is calculated with reference to the quantity of quota peanuts “acquired ... for such marketing.” The statute cannot be construed to reduce this quantity because some portion of the quota peanuts so acquired are thereafter exported.
We delete from our opinion the sentence: However, Gold Kist was never charged with having violated section 1359(g) or its companion regulations, 7 C.F.R. §§ 1446.8(a), 1446.9(d), both of which involve the handling and disposition of additional peanuts.
and in lieu thereof substitute the following:
Assuming that Gold Kist was charged with having violated § 1359(g) or its companion regulations, 7 C.F.R. §§ 1446.8(a), 1446.9(d), both of which involve the handling and disposition of additional peanuts, it did not commit a violation thereof.
In all other respects the Petition for Rehearing is DENIED.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer:
|
songer_genresp1
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
JAX ICE & COLD STORAGE CO., a Corporation, Trading as Jax Brewing Company, Appellant, v. Conway P. COE, United States Commissioner of Patents, and Jackson Brewing Company, a Corporation, Appellees.
No. 7554.
United States Court of Appeals for the District of Columbia.
Argued Nov. 12, 1940.
Decided Dec. 9, 1940.
Writ of Certiorari Denied April 7, 1941.
See 61 S.Ct. 837, 85 L.Ed.-.
Thomas L. Mead, Jr., of Washington, D. C., and Ernest P. Rogers, of Atlanta, Ga., for appellant.
W. W. Cochran, U. S. Patent Office, R. F. Whitehead, and Herbert H. Porter, all of Washington, D. C., for appellees.
Before STEPHENS, VINSON, and EDGERTON, Associate Justices.
PER CURIAM.
This case is governed by Coe v. Hobart Manufacturing Company, 70 App.D.C. 2, 102 F.2d 270, and J. C. Eno (U.S.) Limited v. Coe, 70 App.D.C. 337, 106 F.2d 858. We have carefully considered the earnest and thoughtful argument of appellant’s counsel that we should overrule those cases, but we are still of opinion that they were rightly decided.
The judgment appealed from is therefore affirmed.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_geniss
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
UNITED STATES of America, Plaintiff-Appellee, v. Lee R. JOHNSON, Defendant-Appellant.
No. 86-6192.
United States Court of Appeals, Sixth Circuit.
Argued July 30, 1987.
Decided Aug. 23, 1988.
Kemper B. • Durand, argued, Memphis, Tenn. (court-appointed), for defendant-appellant.
W. Hickman Ewing, Jr., U.S. Atty., Memphis, Tenn., Dan Newsom, argued, for plaintiff-appellee.
Before ENGEL, Chief Judge, and MERRITT and KRUPANSKY, Circuit Judges.
The Honorable Albert J. Engel assumed the duties of Chief Judge effective April 1, 1988.
KRUPANSKY, Circuit Judge.
Defendant-appellant, Dr. Lee R. Johnson (Johnson), appealed following a bench trial in which he was convicted upon one count of transmitting obscene materials through the mails in violation of 18 U.S.C. § 2252, and fifteen counts of receiving obscene materials through the mails in violation of 18 U.S.C. § 1461.
Johnson, an associate professor of history at Memphis State University, is a self-confessed pedophile. Beginning in the mid-1970’s and continuing until October of 1985, Johnson acquired and maintained a sizeable collection of pedophilic materials which included: 100 magazines, 58 books and booklets, 13 reels of film, and numerous drawings. The collection also included advertising brochures that contained sexually explicit photographs of children. Several of the items in the collection remained in the original postmarked envelopes in which they had been received by Johnson from commercial distributors in California, Denmark, Sweden and the Netherlands.
In a letter dated July 29, 1983, Johnson came to the attention of postal inspectors by responding to an advertisement contained in Screw Magazine, placed by Postal Inspector Daniel Mihalko (Mihalko) as part of an undercover investigation involving mail obscenity. The advertisement offered the sale of materials depicting “Youthful Interests,” “Fun Farm,” and “Latin Family Fun.” Johnson’s letter stated:
“I am interested in family fun and young girls. I will buy 8mm films, magazines and photo sets, (Hard core only). I am over the age of 21, and I am not affiliated with or acting for any censorship or law enforcement agency. All material is intended for my personal use.”
Upon receipt of the letter, Mihalko mailed a preprinted order form to Johnson, which he subsequently completed and returned to Mihalko on September 12, 1983.
The investigation of Johnson was thereafter assigned to Postal Inspector Dennis Wichterman (Wichterman). In a letter to Johnson postmarked December 14, 1984, Wichterman adopted the fictitious identity of “Jake Wichoff” who represented a company named “Young Tallent [sic] Enterprises.” Wichterman described the fictitious company as a group of entrepreneurs specializing in “the discovery and circulation of new young talent” and invited Johnson to permit the company to mail additional information. Johnson responded in a letter postmarked December 18, 1984, stating that Wichterman’s fictitious organization “sounds like just what I have been looking for ... and if your material is of good quality, I expect to be one of your best customers.... ” Thereafter, Wichterman requested Johnson to specify his needs. Johnson replied by advising Wichterman that he was interested “in purchasing drawings, photographs or films of young girls engaging in various activities with young men, or with their families.” Johnson also solicited from Wichterman the names of anyone in the Memphis area who could supply him with the desired pedophilic material and requested Wichterman to circulate his name to anyone capable of fulfilling his needs.
In further correspondence, Wichterman cautioned Johnson that “[p]ostal officials and law enforcement are everywhere.... ” Undeterred by Wichterman’s warning, Johnson responded by suggesting that he would be willing to exchange items from his collection of child pornography, with Wichterman or others, in return for similar materials. In addition, Johnson stated that he would “be interested in making personal contacts with families who share my interest.”
At this point, Wichterman changed his identity with Johnson and assumed the fictitious identity of “Daniel” who was held out to be a collector of pedophilic materials and was referred to Johnson by the fictitious “Jake Wicoff.” Johnson responded favorably by letter. In further correspondence, Johnson listed specific magazines and films contained in his collection which he desired to exchange for similar material. Johnson suggested that the two meet in Chattanooga, Tennessee to swap materials because “I don’t want to put anything in the mail,” and requested Wichterman to refer him to someone who would sell him pedophilic materials.
In his next letter, Wichterman listed the titles of several magazines in which he believed Johnson would have interest. In refusing Johnson’s suggestion to meet in Chattanooga, Wichterman stated “I don’t know about you but I can’t afford to travel to meet everybody I’m going to trade with.” In addition, Wichterman suggested that it would be safer for Johnson to rent a post office box instead of using his home address.
Within fourteen days, Johnson wrote to advise Wichterman that he had rented a post office box and that he possessed certain magazines that Wichterman sought. Agreeing with Wichterman’s claim that he could not financially afford to travel every time that he wished to exchange materials, Johnson stated he would travel to Chattanooga because he was “antsy about putting things in the mail.”
Rather than immediately answering Johnson’s letter, Wichterman delayed his next communication for several weeks. In further correspondence with Johnson, Wichterman stated that he had been vacationing in Florida and had reviewed the proposed exchange of pedophilic materials. Wichterman also related a fictitious expectation of a sexual liason with a young girl named “Julie” with whom he had recently become acquainted. In a reply dated June 23, 1985, Johnson stated “I was glad to hear that you were only in Florida [because] I was beginning to think that something was wrong.” In response to Wicht-erman’s . ficticious pursuits with “Julie,” Johnson wrote
“I’d like to make personal contact, but with the heat on the way it is I don’t dare to try here, and don’t know how to go about making contact elsewhere. (We have no children ourselves).”
Further, Johnson cautioned Wichterman that the child might “blow the whistle[.]” Lastly, Johnson reiterated his desire to expand the size of his collection by either purchasing or trading pedophilic materials, and again requested Wichterman to refer him to someone who would be willing to sell him child pornography.
In his following letter dated July 7, 1985, Wichterman described a video tape of a couple and their eight year old child that he hoped to obtain from a collector in Michigan. Wichterman also stated “[A]s far as magazines, yes, I would love to borrow some to photograph and enjoy.” Wichter-man also indicated that he was in the process of creating a video tape of certain magazines he possessed containing sexually explicit photography of children and inquired whether Johnson would be interested in contributing any material. At no time did Wichterman direct Johnson to use the mails to transmit the magazines requested.
Shortly thereafter, on July 18, 1985, Wichterman received a plain brown paper package that contained three magazines of sexually explicit photographs of children. The package listed Johnson’s post office box as a return address.
Wichterman posted a letter to Johnson wherein he acknowledged receipt of the package, and suggested that he would personally visit Johnson in Memphis during September of 1985. In response to Wicht-erman’s statement that he had received the package, Johnson wrote
“I’m glad you got the materials I sent you. I didn’t enclose a note because I didn’t know if that would be prudent — remember, I’m still new at this.”
Johnson also agreed to Wichterman’s suggestion that they personally meet at Johnson’s apartment. Further correspondence ensued in which Wichterman and Johnson mutually planned to meet in October of 1985.
Wichterman obtained a valid warrant authorizing a search of Johnson’s apartment and, accompanied by other postal inspectors, proceeded to his address on October 2, 1985. Upon meeting with Johnson and entering the apartment, Wichterman identified himself as a postal inspector and served Johnson with the warrant. The other postal inspectors then entered the apartment and a search was conducted that disclosed a substantial collection of child pornography. Johnson thereupon voluntarily admitted that he had mailed a package containing sexually explicit photographs of children to Wichterman, and had consented to a search of his office at Memphis State University which revealed additional pedo-philic materials.
On October 3, 1985, a criminal complaint charged Johnson with one count of transmitting child pornography through the mails in violation of 18 U.S.C. § 2252. Johnson was subsequently indicted on October 16, 1985, and entered a plea of “not guilty” on October 23, 1985. A superseding indictment was returned on January 7, 1986, which additionally charged Johnson with seventeen counts of receiving pornography through the mails in violation of 18 U.S.C. § 1461 and 18 U.S.C. § 2. Johnson was subsequently arraigned on January 2, 1986, and pled “not guilty” to all counts.
In an opinion filed on August 11, 1986, the district court determined that Johnson was guilty on all counts. Johnson was subsequently sentenced to a five year period of probation. He thereafter filed a timely notice of appeal to this court.
On appeal, Johnson raised four arguments. In regards to his conviction under 18 U.S.C. § 2252, Johnson contended that the government failed to prove beyond a reasonable doubt that he was predisposed to sending obscene material through the mails. Secondly, Johnson argued that the investigatory tactics of the postal inspectors were so outrageous as to constitute a deprivation of due process of law. As to his convictions under 18 U.S.C. § 1461, Johnson urged that the district court incorrectly concluded that this statute prohibited a person from causing obscene materials to be delivered to him through the mails. And lastly, Johnson alternatively argued that he lacked the requisite scienter to violate 18 U.S.C. § 1461.
Upon appellate review of the sufficiency of the evidence supporting a criminal conviction, this court must reverse, only if, based on the evidence, “a reasonable mind could not find guilt beyond a reasonable doubt.” United States v. Stull, 743 F.2d 439, 442 (6th Cir.1984), cert. denied, 470 U.S. 1062, 105 S.Ct. 1779, 84 L.Ed.2d 838 (1985). See also Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The evidence must be viewed in the light most favorable to the government. United States v. Robinson, 763 F.2d 778, 784 (6th Cir.1985); Jackson, 443 U.S. at 318-19, 99 S.Ct. at 2788-89.
Johnson first argued that the conduct of the Government constituted entrapment. Specifically, Johnson urged that the Government failed to establish that he was predisposed to violate 18 U.S.C. § 2252 beyond a reasonable doubt.
The defense of entrapment “focus[es] on the intent or predisposition of the defendant to commit the crime.” Hampton v. United States, 425 U.S. 484, 488, 96 S.Ct. 1646, 1649, 48 L.Ed.2d 113 (1976) (quoting United States v. Russell, 411 U.S. 423, 429, 95 S.Ct. 1637, 1641, 36 L.Ed.2d 366 (1973)). “It is only when the Government's deception actually implants the criminal design in the mind of the defendant that the defense of entrapment comes into play.” Russell, 411 U.S. at 436, 93 S.Ct. at 1645, 36 L.Ed.2d at 376.
If the lack of predisposition is apparent from the uncontradicted evidence, entrapment can be determined as a matter of law. United States v. Silva, 846 F.2d 352, 354-55 (6th Cir.1988). United States v. Thoma, 726 F.2d 1191 (7th Cir.1984), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). However, once the issue of predisposition is in dispute, the Government must prove beyond a reasonable doubt that the defendant was predisposed to commit the offense. United States v. McLernon, 746 F.2d 1098 (6th Cir.1984).
Predisposition has been defined as “the defendant’s state of mind before his initial exposure to government agents.” McLernon, 746 F.2d at 1112 (quoting United States v. Kaminski, 703 F.2d 1004, 1008 (7th Cir.1983)). Factors relevant in determining the defendant’s state of mind include;
the character or reputation of the defendant, including any prior criminal record; whether the suggestion of the criminal activity was initially made by the Government; whether the defendant was engaged in the criminal activity for profit; whether the defendant evidenced reluctance to commit the offense, overcome only by repeated Government inducement or persuasion; and the nature of the inducement or persuasion supplied by the Government.
McLernon, 746 F.2d at 1112, (quoting Kaminski, 703 F.2d at 1008). The immediate record was replete with evidence from which the district court could have reasonably concluded that the above factors had been proven beyond a reasonable doubt.
The evidence demonstrated that Johnson actively pursued his interest in expanding his collection of pedophilic materials, and that he used the mail in furtherance of this purpose. For approximately ten years, Johnson had used the mail to place his orders and receive child pornography. In fact, on one occasion, Johnson learned that the United States Customs Bureau had confiscated one of his overseas orders. However, this did not deter him from continuing to use the mails to expand his collection of child pornography.
Additional insight into Johnson’s character can be gleaned from his letters with Wichterman. Johnson expressed great interest in Wichterman’s fictitious relationship with a young girl named “Julie.” In fact, Johnson indicated that he would be interested in developing sexual contact with a minor similarly inclined. Johnson also cautioned Wichterman to be careful because the young girl could “blow the whistle” on Wichterman. Clearly, Johnson’s character and reputation revealed a complete disregard to abide by the law in pursuit of his passion for child pornography.
Furthermore, Johnson was not seduced to criminal activity by repeated government inducements. Johnson came to the attention of postal inspectors by voluntarily responding to an advertisement placed in Screw Magazine. Johnson also was the first to express a desire to exchange pedo-philic materials. In fact, Johnson disregarded the advice given by postal inspector Wichterman that law enforcement agents were everywhere who could discover their correspondence and any exchange of pedophilie materials. While Johnson presented some reluctance to place obscene material in the mail, the mere suggestion of a possible video cassette composed of pictures from various magazines was sufficient to prompt Johnson to voluntarily seek participation. This is unlike the type of repeated government inducement found in McLemon, 746 F.2d at 1113-14.
In McLemon, the government agent proposed a profitable business arrangement for marketing and distributing illegal drugs as an inducement for defendant’s assistance in organizing the proposed traffic in illegal drugs which defendant repeatedly refused prior to his consenting to participate in the conspiracy. The government agent also exploited the Indian heritage of the “blood brothers” relationship that had developed between the two prior to the proposed drug transaction and professed a death threat against him to further stimulate the defendant to participate in the conspiracy. See also Silva, at 354-58. The evidence, in the present case, reflected that far from being coerced by government agents, Johnson was driven by his own unyielding desire to expand his pedophilie collection. Although Johnson did not have a financial stake in the criminal activity, he was profiting from the expansion of his library of child pornography. It is clear that Johnson’s predisposition to enlarge his collection at any cost developed long before his correspondence with postal inspectors.
Accordingly, it is apparent from the record taken in its entirety that the district court could have rationally concluded beyond a reasonable doubt that Johnson was predisposed to violating 18 U.S.C. § 2252. As a result, Johnson’s defense of entrapment was misplaced.
Johnson’s charge that his conviction of violating 18 U.S.C. § 2252 was offensive to the Due Process Clause of the Fifth Amendment was equally without merit. Johnson urged that he was denied due process of law because the government employed fundamentally unfair investigative tactics which amounted to outrageous government conduct.
The Supreme Court in United States v. Russell, 411 U.S. 423, 431, 93 S.Ct. 1637, 1642, 36 L.Ed.2d 366 (1973) indicated that some conduct of law enforcement agents might be “so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. The Sixth Circuit has defined four factors to be taken into consideration when determining if police conduct impinged constitutional due process protections. These factors are: (1) the need for the type of government conduct in relationship to the criminal activity; (2) the preexistence of a criminal enterprise; (3) the level of the direction or control of the criminal enterprise by the government; (4) the impact of the government activity to create the commission of the criminal activity. United States v. Robinson, 763 F.2d 778, 785 (6th Cir.1985); United States v. Norton, 700 F.2d 1072, 1075 (6th Cir.1983), cert. denied, 461 U.S. 910, 103 S.Ct. 1885, 76 L.Ed.2d 814 (1983); United States v. Brown, 635 F.2d 1207, 1213 (6th Cir.1980).
On the facts presented by this record, there was clearly no violation of due process. Because the transmission of child pornography through the mails occurs within a shroud of secrecy, it is apparent that the use of an advertisement in Screw Magazine and personal correspondence by a postal inspector posing as a pedophilic collector was justified to detect and investigate violations of 18 U.S.C. § 2252. The record contained substantial evidence that Johnson was engaged in a preexisting enterprise to collect child pornography through the mail. Moreover, there is no evidence that Wichterman exercised any control over the criminal activity with which Johnson was charged, or that Wichter man’s tactics disproportionately increased the incidence of transmitting obscene materials through the mail. It was Johnson who first solicited Wichterman to exchange pedophilic material. Accordingly, the postal inspector’s conduct was not so fundamentally unfair and outrageous as to violate Johnson’s due process rights. See United States v. Thoma, 726 F.2d 1191 (7th Cir.1984) cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984); United States v. Kabala, 680 F.Supp. 1254 (N.D.Ill., 1988).
Turning to his convictions under 18 U.S.C. § 1461, Johnson argued that this statute did not apply to recipients of obscene material for use exclusively within the privacy of a recipient’s home; consequently, he committed no crime. Instead, Johnson contended that § 1461 applied only to individuals who intended to circulate the obscene material relying heavily upon the opinion of a district court in United States v. Sidelko, 248 F.Supp. 813 (M.D.Pa.1965), to support his proposition to disregard the clear language of the statute.
Johnson was convicted under the portion of 18 U.S.C. § 1461 which in pertinent part states:
Every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device or substance; ...
Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
Whoever knowingly uses the mails for the mailing, carriage in the mails, or delivery of anything declared by this section or section 3001(e) of title 39 to be nonmailable, or knowingly causes to be delivered by mail according to the direction thereon, ... shall be fined not more than $5,000 or imprisoned not more than five years, or both, for the first such offense, and shall be fined not more than $10,000 or imprisoned not more than ten years, or both, for each such offense thereafter.
Id. (emphasis added).
A well settled rule of statutory interpretation directs the court in the first instance to examine the language of the statute. “[0]nly the most extraordinary showing of contrary intentions from [the legislative history] would justify a limitation on the ‘plain meaning’ of the statutory language. When we find the terms of a statute unambiguous, judicial inquiry is complete, except in ‘rare and exceptional circumstances.’ ” Garcia v. United States, 469 U.S. 70, 75, 105 S.Ct. 479, 482, 83 L.Ed.2d 472 (1984) (citations omitted). See also United States v. Premises Known as 8584 Brown Road, 736 F.2d 1129 (6th Cir.1984). This court is of the opinion that the district court in Sidelko did not correctly apply this well established legal principle.
It is evident from a review of the plain language of the statute that the passage “whoever ... knowingly causes to be delivered by mail according to direction” is clearly broad enough to encompass persons who order and receive obscene material for personal use and consumption and is not limited to persons who only place obscene material in the mail. The statute is unambiguous as to this conclusion. Consequently, this court is precluded from further investigation into other possible interpretations of the statute, unless there is any extraordinary showing of contrary intentions in the legislative history.
In reviewing the legislative history of § 1461, this court has found no expressed legislative intent to exclude persons who order and receive obscene material in the mail from the dictates of the statute. Although the statute was amended in 1958 to replace the term “whoever knowingly deposits ” for “whoever knowingly uses ” to resolve jurisdictional problems, there is no indication in the conference or senate reports which suggests an intent contrary to the plain language of the statute. S.Rep. No. 1839 and H.R. Conf.Rep. No. 2624, 85th Cong., 2d Sess., reprinted in 1958 U.S.Code Cong. & Admin.News 4012-4018. This conclusion is consistent with the Ninth Circuit’s interpretation of § 1461. In United States v. Hurt, 795 F.2d 765 (9th Cir.1986), modified on other grounds, 808 F.2d 707 (1987), cert. denied, — U.S. -, 108 S.Ct. 69, 98 L.Ed.2d 33 (1987), the court determined the language “whoever knowingly uses the mails” to be intended to include persons who order and receive obscene material through the mail for their personal use and consumption. Consequently, Johnson’s conduct of ordering and receiving child pornography in the mail for his private use was within the plain language of the statute.
Lastly, Johnson suggested that he did not possess the requisite scienter to violate 18 U.S.C. § 1461 because the government failed to prove he had knowledge of the character or nature of the advertisements and brochures received by him in the mail.
Section 1461 makes it a crime if a person “knowingly causes to be delivered by mail” any obscene material. 18 U.S.C. § 1461. In Hamling v. United States, 418 U.S. 87, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974), the Court held that the defendant had the requisite scienter if he knew of the nature and character of the materials. See Hurt, 795 F.2d at 773; United States v. Marchant, 803 F.2d 174, 176 (5th Cir.1986).
Viewing the record in the light most favorable to the government, it is apparent that Johnson possessed sufficient knowledge to violate 18 U.S.C. § 1461. The record disclosed that Johnson was an experienced collector of pedophilia with an uncanny awareness of the practices and procedures employed by commercial distributors of obscene materials. For example, although claiming that he neither ordered nor expected to receive advertising brochures and pamphlets, Johnson testified that he was aware that: (1) commercial distributors of pornography were violating the law; (2) past orders placed by him with commercial distributors of child pornography would insure future receipt of mail advertisements promoting obscene materials, and the circulation of his name amongst other commercial distributors of obscenity; (3) absent his objection his name would remain upon those various mailing lists; and (4) the advertisement he was likely to receive would contain sexually explicit photographs of children. “When the receipt occurs at the invention or with the consent of the possessor, it is more difficult to camouflage the fulsome scent of forbidden knowledge.” Marchant, 803 F.2d at 177.
In combination with the fact that he avidly collected pedophilia for a period of approximately ten years prior to his apprehension, the direct evidence of Johnson’s knowledge of the practices and procedures commonly employed by commercial distributors of obscene materials in marketing their merchandise proved him to be a sophisticated and willing participant who was predisposed to violating the law to further his activities. Therefore the district court properly concluded that Johnson possessed the requisite scienter to have violated § 1461.
Accordingly, the judgment of the district court that Johnson was guilty of sending child pornography through the mails in violation of 18 U.S.C. § 2252, and guilty of fifteen counts of causing obscene materials to be delivered through the mails in violation of 18 U.S.C. § 1461 is AFFIRMED.
. In his communication with Johnson, Wichter-man always used a fictitious identity which was changed over the course of the investigation. Thus, for clarity, he will hereinafter be referred to as "Wichterman.”
. Two of the seventeen additional counts of receiving pornography in violation of 18 U.S.C. § 1461 and 18 U.S.C. § 2 were dismissed prior to the commencement of Johnson's trial.
. Section 2252 of Title 18 stated in pertinent part that:
(a) Any person who—
(1) knowingly ... mails any visual depiction, if—
(A) the production of such visual depiction involves the use of a minor engaging in sexually explicit conduct; and
(B) such visual depiction is of such conduct;
shall be [guilty of a criminal offense]. 18 U.S.C. § 2252.
. Johnson’s contention that pedophilie materials received by him did not demonstrate a predisposition to commit the crime of sending pedophilic materials was without merit. In United States v. Gantzer, 810 F.2d 349, 352 (5th Cir.1987), the court held that defendant’s "propensity to receive pornographic—though not necessarily legally obscene—materials through the mail is probative of his predisposition to send legally obscene photographs.”
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_appfed
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Charles C. WELCH, Plaintiff-Appellant, v. CARSON PRODUCTIONS GROUP, LTD., Defendant-Appellee.
No. 643, Docket 85-7774.
United States Court of Appeals, Second Circuit.
Argued Jan. 31, 1986.
Decided May 16, 1986.
Peter Campbell Brown, New York City (James P. Costello, New York City, of counsel), for plaintiff-appellant.
Stephen F. Huff, New York City (Andres J. Valdespino, Pryor, Cashman, Sherman & Flynn, New York City, of counsel), for defendant-appellee.
Before OAKES, WINTER and MINER, Circuit Judges.
MINER, Circuit Judge:
Charles Welch appeals from a judgment of the United States District Court for the Southern District of New York (Kram, J.) directing a verdict, Fed.R.Civ.P. 50(a), in favor of appellee Carson Productions Group, Ltd. (“Carson”) on claims arising from Carson’s allegedly unauthorized national television broadcast of two television commercials in which Welch performed. Welch claimed that the use of these commercials without his express written consent violated sections 50 and 51 of the New York Civil Rights Law. N.Y.Civ. Rights Law §§ 50-51 (McKinney 1976 & Supp. 1986). The district court concluded that the collective bargaining agreement between the Screen Actors Guild (“SAG”), Welch’s union, and various television producers, authorized Carson’s use of the commercials. For the reasons set forth below, we affirm.
I. BACKGROUND
Charles Welch is a professional actor, currently appearing as the “Pepperidge Farm Man” in television commercials advertising Pepperidge Farm baked goods. Throughout his career, Welch has appeared in over seventy commercials advertising a wide assortment of products and services. Pertinent to this litigation, he appeared in a 1967 commercial entitled “Disadvantages,” advertising Benson & Hedges cigarettes, and in a 1972 commercial entitled “Tap Dancer,” advertising United Airlines. His appearance in each commercial was fleeting, lasting only five seconds and one second, respectively.
In 1982, Carson began production of a television program entitled, “Television’s Greatest Commercials — Part II,” starring Ed McMahon and Mariette Hartley. The program was designed as a collection of well-known commercials shown on television over the past thirty years. “Disadvantages” and “Tap Dancer” were among the commercials to be used in the program.
As part of the preparation for the reuse of the commercials, Carson contacted SAG in order to determine the manner in which those actors who had appeared in the selected commercials should be compensated for the reuse of the footage. SAG advised Carson that it would have to comply with the terms of the 1977 Screen Actors Guild Television Agreement (“Green Book”). Section 36 of that agreement, entitled “Reuse of Photography or Sound Track,” provides that a producer may not reuse television film of an actor in a manner other than that for which the actor originally was employed “without separately bargaining with the player and reaching an agreement regarding such use....” Green Book § 36(a). The agreement further sets forth the day-player rate to be paid to the actor for the reuse, id., and provides that “[i]f the Producer is unable to find the player, it shall notify the Guild [SAG], and if the Guild is unable to find the player within a reasonable time, the Producer may use the photography ... without penalty id. § 36(b).
Consistent with the requirements of section 36, Carson attempted to identify those actors and actresses who had performed in the commercials it intended to use. This search proved unsuccessful in a number of cases, including the identification of Welch in “Disadvantages” and “Tap Dancer.” Carson then informed SAG of its inability to identify Welch and forwarded to SAG video copies of the commercials. Upon SAG’s request, Carson provided SAG with letters from the producers of the original commercials, corroborating Carson’s inability to identify the individual. Shortly thereafter, SAG informed Carson that it too was unable to identify Welch from the commercials. In accordance with section 36(b) of the Green Book, therefore, Carson included the two commercials in its November 7, 1982 program broadcast.
Welch, who had been in Europe at the time of the broadcast, learned of the commercials’ use several days later. He contacted SAG which, in turn, notified Carson of Welch’s identity and requested that Carson “process [its] usual payment” to Welch. On December 14, 1982, Carson forwarded to Welch a letter informing him that he had appeared on the program and requesting that he sign an attached consent form authorizing the use of the film and entitling him to the $596 minimum Green Book payment. Welch’s business manager notified Carson by letter that its payment was inadequate and warned that Carson’s use of the footage without Welch’s express authorization subjected Carson to possible legal liability.
When no agreement was reached with Carson, Welch commenced this action against Carson for compensatory and punitive damages, alleging that the use of the commercials without his written consent violated sections 50 and 51 of the New York Civil Rights Law, which proscribe the use of a person’s “name, portrait or picture ... for advertising purposes or for the purpose of trade without the written consent” of the individual. N.Y.Civ.Rights Law § 51 (McKinney Supp.1986). A jury trial was commenced on August 26, 1985. Upon conclusion of the proof, the district court granted Carson’s motion for a directed verdict, Fed.R.Civ.P. 50(a), on the ground that Welch had consented to the reuse of the commercials through his membership in SAG and that Carson had fulfilled the requirements of that union’s collective bargaining provisions governing reuse photography. In addition, the district court concluded that Welch’s remedy, if any, was limited to the provisions of section 36(c) of the Green Book, which provides that where a single actor and a producer are unable to agree on compensation for the reuse of film, the “Producer may submit the matter to the Guild’s [SAG’s] Board of Directors for determination and both Producer and player shall be bound by the determination so made....” Green Book § 36(c).
On appeal, Welch contends that, despite the provisions of the Green Book, section 51 requires the express written authorization of the individual, which Carson never obtained. He further argues that the Green Book did not serve to grant Carson the necessary consent, since that agreement applies only when there is an express contract between the actor and the producer who wishes to reuse the film. Consequently, Welch asserts that the issue of consent should have been submitted to the jury.
II. DISCUSSION
In determining whether the district court properly directed a verdict, we employ the same standard of review as applied by the district court in its initial review of Carson’s motion. C-Suzanne Beauty Salon, Ltd. v. General Insurance Company of America, 574 F.2d 106, 112 n. 10 (2d Cir.1978). That review requires affirmance of the verdict if “there is such an overwhelming amount of evidence in favor of the movant that [a] reasonable and fair minded [jury] could not arrive at a verdict against him.” Mattivi v. South African Marine Corp., “Huguenot", 618 F.2d 163, 168 (2d Cir.1980). Because we agree with the district court that a reasonable and fair minded jury could not have concluded that the collective bargaining agreement binding Welch did not supply the necessary consent to reuse the commercials, we affirm.
When an individual joins a labor union, he agrees, as a matter of law, to abide by that union’s constitution and by-laws “unless [the provisions] are contrary to good morals or public policy or otherwise illegal.” In re Willard Alexander, Inc., 31 N.Y.2d 270, 273, 338 N.Y.S.2d 609, 611, 290 N.E.2d 813, 814 (1972). Here, SAG’s own membership application, which Welch signed when he joined the union in 1953, provides that the member will “abide and be bound by the ... by-laws, rules and regulations of [SAG], as the same now are or may hereafter be amended, enlarged or diminished.” The SAG Constitution and By-Laws further provides that each member is “bound by the provisions of all collective bargaining contracts in effect between [SAG] and motion picture producers as the same are or may hereafter be amended.” SAG Const, art. XIV, § 6. Accordingly, it is indisputable that Welch, having freely joined SAG, now is bound by the collective bargaining agreements which SAG negotiated on behalf of its members.
The Green Book is one such collective bargaining agreement. Among other things, section 36 of that agreement establishes a comprehensive procedure for the identification and compensation of players where producers wish to reuse old footage of such players in new ventures. For the protection of SAG members, section 36 requires a producer to make a good faith effort to identify a film’s players prior to its reuse. Green Book § 36(a), (b). If the player is identified, the producer must negotiate with the player for the reuse of the film. Id. § 36(a). The player’s footage then may be used only if an agreement is reached. Id. If, however, after a good faith effort the producer is unable to identify that player, he must inform SAG, which in turn conducts its own investigation. Id. § 36(b). If SAG’s investigation also is unsuccessful in identifying the player, the producer may use the footage without penalty. Id. Testimony at trial by SAG’s business agent, Kat Krone, conclusively established section 36’s application to a situation like the one here, where a producer, not associated with the original filming of the commercial and with no contractual association with the players in that commercial, attempts to reuse the commercial in a different format.
Here, Carson properly complied with section 36 by attempting to identify Welch and by contacting SAG when it was unable to do so. Only after SAG itself also was unable to identify Welch did Carson use the footage. Given Carson’s strict adherence to the Green Book procedures and Welch’s covenant as a member of SAG to abide by the agreement’s provisions, it is clear that Welch must be viewed as having consented to the reuse of the commercials. As a member of SAG, Welch necessarily agreed to waive his statutory protection under section 51 in cases of reuse photography in exchange for the protection of section 36 of the Green Book. It is well settled under New York law that statutory benefits or protections otherwise available to individuals may be waived by union members under collective bargaining agreements where alternative protective measures, which do not conflict with the legislative purpose of the statute at issue, are agreed upon in negotiations. American Broadcasting Companies, Inc. v. Roberts, 61 N.Y.2d 244, 247, 473 N.Y.S.2d 370, 371, 461 N.E.2d 856, 857 (1984). The purpose behind section 51 simply is to prevent the commercial exploitation of an individual without his consent. Rand v. Hearst Corporation, 31 A.D.2d 406, 408, 298 N.Y.S.2d 405, 409 (1st Dep’t 1969). The provisions of section 36 are entirely consistent with this underlying legislative intent, since the very purpose of the collective bargaining provision is to assure the player the opportunity to approve or disapprove the reuse and further to assure him appropriate compensation for such reuse.
III. CONCLUSION
Having found that the collective bargaining agreement by which Welch was bound supplied the necessary consent for Carson’s reuse of the footage, the district court correctly directed a verdict in Carson’s favor. We carefully have reviewed all of Welch’s other contentions and find them to be without merit. Accordingly, the judgment of the district court is affirmed.
. Subsequent to the district court’s decision, Welch commenced an action in New York State Supreme Court against Philip Morris, Inc., the original producer of one of the commercials at issue, alleging similar violations of the New York Civil Rights Law. The state court granted summary judgment to the defendant on collateral estoppel grounds, holding that the issues before it had been fully litigated in the federal action. Welch v. Philip Morris, Inc., N.Y.L.J., March 20, 1986, at 7, col. 1 (Sup.Ct.N.Y. County March 19, 1986).
. Once notiñed of Welch’s dissatisfaction with its use of the footage, Carson voluntarily re-. moved Welch’s footage from the program prior to any rerun broadcasts.
. In light of this holding, we need not reach the district court's other basis for the directed verdict, namely, the remedies existing under • § 36(c) of the Green Book.
. Welch contends that the Green Book did not control this broadcast. Rather, he asserts, the broadcast came within the ambit of SAG's 1982 Commercials Contract (“Red Book”). Even if Welch is correct, which is unlikely in light of the testimony of SAG’s business manager, it makes little difference. Section 17B of the Red Book provides that "[i]f Producer is unable to find the principal performer within a reasonable time, it shall notify the Union, and if the Union is unable to find the principal performer within a reasonable time, Producer may reuse the photography or sound track without penalty.” Red Book § 17B. Consequently, the same result would be reached regardless of which collective bargaining agreement governs.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
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songer_geniss
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis. Consider the following categories: "criminal" (including appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence), "civil rights" (excluding First Amendment or due process; also excluding claims of denial of rights in criminal proceeding or claims by prisoners that challenge their conviction or their sentence (e.g., habeas corpus petitions are coded under the criminal category); does include civil suits instituted by both prisoners and callable non-prisoners alleging denial of rights by criminal justice officials), "First Amendment", "due process" (claims in civil cases by persons other than prisoners, does not include due process challenges to government economic regulation), "privacy", "labor relations", "economic activity and regulation", and "miscellaneous".
Homer L. BLACKWELL, Appellant, v. UNITED STATES of America, Appellee.
No. 15552.
United States Court of Appeals Eighth Circuit.
May 7, 1957.
James J. Waters, Kansas City, Mo., for appellant.
William O. Russell, Asst. U. S. Atty., Kansas City, Mo. (Edward L. Scheufler, U. S. Atty., Kansas City, Mo., was with him on the brief), for appellee.
Before WOODROUGH, VOGEL, and VAN OOSTERHOUT, Circuit Judges.
VAN OOSTERHOUT, Circuit Judge.
This is an appeal from judgment imposing sentences upon defendant after his conviction by a jury upon all counts of a 4-count indictment. Each count of the indictment charged defendant with filing a fraudulent income tax return with willful intent to evade income tax due, in violation of section 145(b), 26 U.S.C. Count I charged that defendant filed a false income tax return for 1948, wherein his stated income was $2,391.54 and the tax due thereon was $98.20, whereas, as defendant well knew, his net income was $18,270.83, upon which he owed an income tax of $3,550.48. Count II charged that defendant filed a false income tax return for 1949, wherein he stated that he suffered a loss of $10,603.41 and that no tax was due thereon, whereas, as defendant well knew, his net income was $3,651.91, upon which he owed an income tax of $407.02. Count III charged that defendant filed a false income tax return for 1950, wherein his stated income was $313.60 and no tax was due thereon, whereas, as defendant well knew, his net income was $10,993.-21, upon which he owed an income tax of $1,921.08. Count IV charged that defendant filed a false income tax return for 1951, wherein his stated income was $6,819.31 and the tax due thereon was $1,178.72, whereas, as defendant well knew, his net income was $16,657.65, upon which he owed an income tax of $3,829.30.
During the years involved in the indictment defendant was the sole proprietor of a wholesale furniture business at Kansas City, Missouri, and during such years this business was his only source of income except for a modest amount of interest and dividends. Defendant’s records consisted of an inventory file; a record of charge sales showing purchaser, amount of payment, date paid, and discount allowed; check stubs; cancelled checks; bank statements; and a “little black book.” Any merchandise not sold on credit was treated as a cash sale whether paid for in currency or by check. The only record of cash sales preserved was a monthly total entered in the little black book. Originally there was an order, invoice, or notation with reference to cash sales. After the monthly total of cash sales was taken and entered in the little black book, such records were destroyed. There was no safe in the office so any currency received was handled and taken care of by defendant.
The internal revenue agents investigating defendant’s returns determined that the defendant’s records did not properly reflect his income, and proceeded to determine defendant’s net income for the indictment years by the net worth method. The revenue agents also offered proof to the effect that the bank deposits during the period under investigation exceeded defendant’s reported receipts.
Defendant contends his books properly reflect his income and that he has fully reported his income and paid the tax due thereon. His explanation of the net worth increases claimed by the Government, and the excess of deposits over receipts, is that he had since 1936 a hoard of cash of $80,000 to $100,000, and that this was put into the business as needed.
Defendant was bom in 1900. In explanation of his cash hoard he testified! that he started earning money when he was in high school, at which time he was engaged in the “jitney” business, and that he engaged thereafter in various enterprises, including a trucking-business, an oil business, a theatre operation, an advertising business, a printing business, and a poster business. He concedes that a number of said ventures were not too successful, and claims his greatest success in the poster business in which he was engaged from about 1926 to 1940. He contends that by 1936 he had accumulated between $80,000 and $100,000 in currency which he kept in a bank deposit box, and that the hoard was still available on December 31, 1947.
In determining defendant’s opening-met worth, the Government did not credit him with the cash hoard claimed, but gave him credit only for such cash and bank deposits it was able to verify as being on hand on December 31, 1947.
Defendant asserts that the court com-mitted prejudicial error entitling him to •reversal in the following respects:
1. ' Overruling defendant’s motion for bill of particulars.
2. Overruling defendant’s motion for judgment of acquittal at the close of all the evidence and again overruling such motion when it was .renewed after verdict.
3. Errors in admission of Government evidence.
The errors asserted will be considered in^ the order stated.
In his pre-trial motion for a bill of ■particulars, which the court overruled, defendant asked that the Government be required to say whether it claimed understatement of “gross, income” and, if ■so; the items thereof, and when, where -and by whom, and in what manner, paid to defendant; that the Government be •required to say whether it claims overstatement or duplication of deductions and expenses and, if so, to state the amount, items, classes or types, and the dates thereof; and that the Government be required to say whether its determination of defendant’s “net income” for the years in question, is based-upon “the .net worth and expenditures method” and, if so, to state the amount of assets owned, and of the liabilities owing by, and the net worth of, defendant on January 1 of. each of the four years in question, and that the Government state “in what manner it is claimed” the questioned income tax returns “were false and fraudulent.”
The Government, in its suggestions in opposition to this motion, filed about seven months before trial, stated that the additional income in each of the years involved in the indictment had been determined by the net worth method. Thus, defendant had timely notice that the Government was employing the net worth method of computation. The indictment advised the defendant of the amount of income the Government was claiming for each of the years involved.
It is well settled that a motion for bill of particulars is addressed to the sound discretion of the court, and that the court’s ruling upon such a motion should not be disturbed in the absence of an abuse of discretion. Wong Tai v. United States, 273 U.S. 77, 82, 47 S.Ct. 300, 71 L.Ed. 545; McKenna v. United States, 8 Cir., 232 F.2d 431, 435. A number of courts have held that in a net worth prosecution the most that defendant is entitled to prior to trial is the disclosure of the theory or method used by the Government to compute net income. Remmer v. United States, 9 Cir., 205 F.2d 277, 281; United States v. Caserta, 3 Cir., 199 F.2d 905, 910; United States v. Chapman, 7 Cir., 168 F.2d 997, 999.
Defendant relies upon Singer v. United States, 3 Cir., 58 F.2d 74. The Singer case is not a net worth case. Taxpayer’s business there was very complicated and the facts presented are very unusual. The Singer case is distinguished in the Caserta case, supra, decided by the same circuit, and the Remmer case, supra. Defendant also relies upon United States v. O'Connor, 2 Cir., 237 F.2d 466, 475. There, the court indicates that the rule requiring a bill of particulars should be liberally construed in net worth cases, and in footnote 10 sets out a- number of cases in which a bill of particulars was required. The court, however, found it unnecessary to decide whether the trial court had abused its discretion in denying the bill of particulars.
Upon the record in the present case we do not deem it necessary to determine whether the rule for a bill of particulars should be liberally or strictly construed. Even if the rule is to be liberally construed, we are satisfied that the court did not abuse its discretion in overruling the motion for bill of particulars in the present case. We are not persuaded that the defendant was seriously handicapped in his defense by such ruling. The principal issue was whether the defendant was entitled to have his opening net worth increased by the amount of cash which he claimed he had accumulated and hoarded prior to the years here involved. Defendant was fully informed that the Government was proceeding on the net worth theory. He had many interviews with the investigating agents and had every reason to believe that the Government was not accepting his hoard-of-cash claim. At the trial defendant offered a witness from California who claimed to have seen the cash hoard in 1935. Defendant’s business was a modest one, wholly owned and controlled by him. His information as to the nature of his assets during the indictment years was at least equal to that of the Government. No prejudicial error was committed in overruling defendant’s motion for a bill of particulars.
Defendant made a motion for judgment of acquittal at the close of all the evidence and renewed such motion after verdict. Defendant contends the court erred in overruling these motions. Defendant first argues that the evidence establishes that his records are adequate and that no error in his records has been pointed out, and contends that his income as disclosed by his records must be accepted.
Many of the problems involved in this case are settled by Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150. The situation with reference to the adequacy of taxpayers’ books in the Holland case is quite similar to that confronting us here. In Holland the Court states (348 U.S. at pages 131-132, 75 S.Ct. at pages 133-134):
“* * * Petitioners’ accounting system was appropriate for their business purposes; and, admittedly, the Government did not detect any specific false entries therein. Nevertheless, if we believe the Government’s evidence, as the jury did, we must conclude that the defendants’ books were more consistent than truthful, and that many items of income had disappeared before they had even reached the recording stage. * * * To protect the revenue from those who do not ‘render true accounts’, the Government must be free to use all legal evidence available to it in determining whether the story told by the taxpayer’s books accurately reflects his financial history.”
In our present case, as previously stated, the defendant preserved only monthly totals of his cash sales. The memoranda upon which the monthly totals were based were not available for checking. The investigation also disclosed that the total deposits exceeded the total receipts. It is true, as defendant contends, that if his books were accurate and complete they would reflect his entire income. There is substantial evidence of an increase in defendant’s net worth during each of the years involved in an amount considerably in excess of his reported net income. Defendant’s explanation of this increase is the hoarded cash which he placed in the business. If the Government has proven that defendant did not have this hoarded cash, then the only source for the increased net worth above the reported income would be defendant’s furniture business. The court, several times in its instructions, advised the jury in effect that, if defendant’s records reflected substantially all transactions of importance on the question of income, such records are the best evidence, and in that event the Government could not establish income by the net worth method. The evidence presented a fact question for the jury, on the adequacy and truthfulness of defendant’s records.
' The Holland case, supra, also makes it clear that the opening net worth must be established with reasonable certainty. Defendant vigorously urges that the Government’s evidence has failed to meet this requirement. Particular attack is made upon failure to include defendant’s claimed cash hoard. Much of the evidence bearing upon this issue has been set- out heretofore. Most of the items upon the opening net worth statement are taken from the defendant’s records. The real controversy is over the hoarded currency claim of the defendant. Defendant is largely dependent upon his own testimony to support the cash hoard. One witness testified that the defendant owed him about $300 for a refrigerator, and in 1935 defendant took him to the bank and paid him out of defendant’s deposit box. The witness stated that he saw a lot of money in the box, but did not know what, if anything, the box contained besides money, and did not know the denominations of the bills. The witness stated that he would have nothing to substantiate any guess that he might make as to the amount of currency in the box. This evidence is remote and very vague as to the amount of hoarded currency. The bank records indicate that the defendant had made many trips to his deposit box. Evidence was also offered to the effect that defendant was well regarded in the community and that he enjoyed a good credit standing. The witnesses so testifying did not attempt to estimate defendant’s net worth. The opening net worth of $73,000 would be sufficient to entitle the defendant to a satisfactory credit rating.
The Government’s proof to negate defendant’s currency hoard claim is largely circumstantial. Defendant’s testimony is that he filed his first income tax return in about 1933. Defendant’s accountant, on the basis of workpapers in his possession, testified as to defendant’s income for the years 1934 to 1947. During the years 1934 to 1936 defendant suffered a loss. Defendant’s highest net income in the 1937-1940 period was $1,-706. His highest net income in the 1940-1947 period was $7,500. Defendant purchased a home in 1935 and shortly thereafter mortgaged it for $4,000. He also made a number of bank loans during the period he claimed to have the currency available. Defendant made various financial statements to the First National Bank of Kansas City, Missouri, for credit purposes. Exhibit 76, dated May 15, 1945, shows cash of $18,000 and a net worth of $38,900. Exhibit 77, dated July 3, 1946, shows cash of $15,-937.43, bank deposits of $16,754.58, and a net worth of $76,009.21. Exhibit 78, dated November 1, 1948, shows cash of $14,700, bank deposits of $6,830.39, and a net worth of $97,221.25. Exhibit 79, dated August 11, 1950, shows cash of $22,000, bank deposits of $5,764.43, and a net worth of $126,392.58. Exhibit 80, dated December 31, 1950, shows bank deposits of $1,317.26 and a net worth of $118,061.42. The Government’s net worth computations as of December 31 of each year are:
Year Net Worth
1947 .................... $ 73,078.57
1948 .................... 90,327.00
1949 .................... 91,855.72
1950 .................... 97,020.82
1951 .................... 113,124.44
During the period from July 3, 1946, to December 31, 1950, the defendant’s financial statements given his bank show a net worth increase from $76,000 to $118,-000, or approximately '$42,000. From December 31,1947, to December 31,1950, the increase in net worth, as computed by the Government, amounted to approximately $24,000. The periods covered are not identical, but the trend of increasing net worth is at least as great in defendant’s financial statements as in the Government’s net worth computations. The opening inventory in the Government’s net worth statement credits defendant with cash in bank under business assets in the sum of $9,631.59 and with personal and family deposits aggregating $4,195.48. The jury was properly instructed that it is necessary for the Government to establish opening net worth with reasonable certainty, There is adequate evidence to support the Government’s opening net worth statement.
Defendant also contends that the Government has failed to investigate leads. There is an obligation on the part of the Government in net worth cases to negate reasonable explanations of the taxpayer inconsistent with guilt, In the Holland case with reference to leads, the Court, among other things, states (348 U.S. at page 138, 75 S.Ct. at page 137):
“ * * * where relevant leads are not forthcoming, the Government is not required to negate every possible source of nontaxable income, a matter peculiarly within the knowledge of the defendant.”
See also Kampmeyer v. United States, 8 Cir., 227 F.2d 313, 316.
The leads furnished by the defendant were remote, vague, and indefinite. For the most part there was no reasonable way to check up on defendant’s earnings and savings from his multiple ventures, some dating back more than 35 years, Revenue Agent Bennett testified he made such inquiries as he could at the Better Business Bureau, banks, and of various people in the theatre business. Investí-gation was also made as to the income tax defendant had paid and financial statements given banks.
The court submitted to the jury the issue of whether the Government sufficiently investigated any leads furmshed by the defendant. The record m this case supports a finding that the ■Government did all it reasonably could under the circumstances of this case to investigate relevant leads.
Defendant next urges that there is no proof of willfulness. “Willfulness ‘involves a specific intent which must be proven by independent evidence and which cannot be inferred from the mere understatement of income.’ ” Holland v. United States, supra, 348 U.S. at page 139, 75 S.Ct. at page 137, 99 L.Ed. 150. The test of willfulness is quite fully discussed in Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418. Willfulness involves a state of mind. Direct proof of willfulness *s se^om available. A consistent Pattern of underreporting large amounts ^ncome °_r overclaiming deductions and no^ recording such items on the taxPayer s records is evidence from which willfulness may be inferred. Holland v. United States, supra; Zacher v. United States, 8 Cir., 227 F.2d 219, 224; Canton v. United States, 8 Cir., 226 F.2d 313, 321.
The record in this case contains evidence from which a jury could infer a consistent underreporting of substantial amounts of ^ income. Additionally, defendant admitted failure to report $9,000 sa^es i*1 1949 and $4,000 in 1950. Defendant explained that this was done . to ofiset some deductions which he had overlooked claiming in prior years. The weight to be given defendant’s explanation of why he did not report this in_ come was for the jury,
™0,ut fu,rther Prolonging the discussion of the voluminous evidence m case’ we tha\w? care‘ Mly examined the record, including the ongmal transcript of the evidence, and are cof “ced that f Jury queffa°n was Presented as to all the essential elements of the crime charged‘
Defendant contends that the court committed prejudicial error in receiving in evidence certain Government exhibits. Attack ig made upon the admission of Exhibit x_ ExWbit x is a chart proximately eight feet bigh and six feet wide> with red and bIack letterin en. títled «Summary of Net Worth In-creageg; Homer L> Blackwell» This ex. , hibit purports to be a chart summarizing the Government’s evidence bearing upon the various categories of assets and liabilities of the defendant involved in the computation of defendant’s net worth on December 31 of the years 1947 to 1951, inclusive. It is subdivided into 24 items. The chart was placed in the courtroom near the wall, across the room from the jury box. Each item on the chart was covered with a strip of brown paper. Immediately after the Government had offered proof to support an item on the chart, the strip covering such item was removed. After the Government had offered evidence as to all of the items on the chart, it introduced in evidence Exhibit 58 which contained the same information as Exhibit X. Defendant objected to the accuracy and completeness of the chart.
Net worth summaries, properly identified and supported by substantial evidence, are admissible in tax fraud prosecutions. Hanson v. United States, 8 Cir., 185 F.2d 61, 67; Canton v. United States, supra, 226 F.2d at page 317. The issue of whether the evidence presented established the net worth for the various years as claimed by the Government was properly submitted to the jury.
Defendant further contends Exhibit X was prejudicial because of its size and constant display in the courtroom. De-, fendant relies upon Lloyd v. United States, 5 Cir., 226 F.2d 9, and Holland v. United States, supra.
In the Holland case the Court, in speaking of the danger to be guarded against in net worth cases in order to insure an adequate appraisal of the evidence, states (348 U.S. at pages 127-128, 75 S.Ct. at page 131, 99 L.Ed. 150):
“* * * There is great danger that the jury may assume that once the Government has established the figures in its net worth computations, the crime of tax evasion automatically follows. The possibility of this increases where the jury, without guarding instructions, is allowed to take into the jury room the various charts summarizing the computations; bare figures have a way of acquiring an existence of their own, independent of the evidence which gave rise to them.”
The Lloyd case, after referring to the foregoing admonition in the Holland case, states the general rule to be that the admission of charts is discretionary with the trial court, and that its rulings are subject to review only under a clear showing of an abuse of discretion. The court concedes that the proper use of charts often makes the complex evidence upon which such charts are based more intelligible to the jury, but cautions that a trial court is charged with grave responsibility to insure that an accused is not unjustly convicted in a “trial by charts.” [226 F.2d 17.] The Lloyd case was reversed on other grounds, so the court found it unnecessary to determine whether there was an abuse of discretion in the admission of charts.
The chart in our present case has stronger evidentiary support than the one used in the Lloyd case and does not have the offensive subtitles used on the Lloyd chart. The court in our present case during the trial cautioned the jury on numerous occasions upon the consideration to be given Exhibit X, stating, among other things:
“ * * * an exhibit of this character is admissible but I caution the Jury that this is a Net Worth Statement constructed by Bureau of Internal Revenue personnel and that you are not to give any emphasis to the size of this exhibit any more than you would if you were examining it on a piece of paper of normal size. Undoubtedly the Government’s view in putting it on an easel and in this size is merely for the convenience of the Jury in seeing it.”
“But I don’t want the Jury to get any wrong idea about what this is. This is just a reflection up to now of what the witnesses have testified to, if you so believe, and you are to pay attention to and be governed by the evidence and not by what is on this exhibit, and if you don’t think the testimony sustains this exhibit, then you pay attention to the evidence and not to this exhibit, you understand ?”
The court did not permit the chart to be taken into the jury room. Under the circumstances disclosed by the record in this case, the court did not abuse its discretion in admitting Exhibit X.
Defendant also complains of the admission of Exhibits 85-88, which are Revenue Agent Concannon’s computations of tax due based upon an assumed net income. Upon objection to said exhibits, the court stated:
“I will admit these exhibits only if and providing it is clearly and definitely understood that the figures used are only assumptions; otherwise the objection will be sustained. But if it may be clearly understood that the figures used are assumptions and assuming those figures to be true, the tax would be so much, then that is proper.”
Government counsel accepted such condition. The court carefully insisted throughout Concannon’s examination that his computation of tax liability be based upon an assumed net income. The net income assumed was the amount of increase in net worth for each of the years as disclosed by Exhibit X. The issue of whether the Government had proven net income in the amount claimed was left to the jury’s determination. Thus the Government was doing no more than asking the witness a hypothetical question to the effect, “assuming the net income of so many dollars for the year in question, how much would the tax be?” It is within the trial court’s discretion to permit such expert testimony. United States v. Johnson, 319 U.S. 503, 519, 63 S.Ct. 1233, 87 L.Ed. 1546; Zacher v. United States, supra, 227 F.2d at page 228.
Finally, defendant claims error in the admission of Exhibit 90. This exhibit was a copy made by Agent Gable of a paper found in the files of defendant’s accountant. Gable discovered the instrument, which he copied, while examining, with defendant’s consent, defendant’s tax file in the accountant’s office. The exhibit purports to list at least some of the assets of the Independent Poster Company for the years 1936 to 1939, the assets totaling less than $2,000 in each year. No listing of inventory appears in the exhibit. No showing was made as to the origin or purpose of the instrument of which Exhibit 90 purports to be a copy or how such instrument got into accountant’s file or who made it. The instrument was not signed by defendant, and there is no evidence that he ever saw it. The offer of Exhibit 90 was objected to because of the indefiniteness of what was copied. The court by its remarks indicated that the question of proper identification of the exhibit had been raised.
We do not believe the instrument of which Exhibit 90 purports to be a copy was sufficiently identified to authorize the admission of Exhibit 90. See Olender v. United States, 9 Cir., 210 F.2d 795, 805, 42 A.L.R.2d 736.
The question now arises as to whether the erroneous admission of Exhibit 90 constituted prejudicial error. Errors which do not affect substantial rights shall be disregarded. Rule 52(a), Rules of Criminal Procedure, 18 U.S.C. The test for determining whether error is prejudicial is set out in Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557. The error is prejudicial unless the reviewing court can say with fair assurance that the judgment of the jury was not swayed by the error. In Davis v. United States, 8 Cir., 229 F.2d 181, we quote with approval from Williams v. United States, 8 Cir., 265 F. 625, as follows (229 F.2d at page 187):
“Whether prejudice results from the erroneous admission of evidence at a trial is a question that should not be considered abstractly or by way of detachment. The question is one of practical effect, when the trial as a whole and all the circumstances of the proofs are regarded.”
We now look to the facts and circumstances of this case in the light of the foregoing standards.
The basic fact issue for the jury was whether defendant had the $100,000 currency hoard which he claimed he had accumulated by 1936, and whether such hoard was still on hand on December 31, 1947. Defendant had claimed that the poster business was a most profitable business. The defendant had claimed on direct examination that in 1936 he had an inventory that cost him over $100,000. Upon cross-examination he was unable to estimate the net worth of the poster business in 1936, and couldn’t say whether such net worth was $50,000 or $5,000. Defendant conceded that after talking pictures came in in the late 1920’s the poster business was practically ruined and that by 1936 the business was unprofitable. Defendant’s income tax returns reflect that at least from 1934 until the sale of the poster business in 1940 the poster business was not profitable. In exchange for the poster business in 1940 defendant received a 5-year employment contract from the purchaser, calling for a salary of $8,000 a year.
To refute the cash hoard claim, the Government relied principally upon defendant’s income tax returns and the financial statements defendant had given to banks, and the fact that during the period defendant claimed the cash hoard he borrowed money in substantial amounts on numerous occasions and that he had mortgaged his home.
The amount of the inventory of the poster business in the 1936 to 1940 period had little, if any, bearing upon the determination of defendant’s net worth on December 31,1947. There was ample evidence to support the Government’s net worth computation without considering Exhibit 90. Upon the record before us we can say with reasonable assurance that the admission in evidence of Exhibit 90 had no substantial influence upon the verdict arrived at by the jury, and hence we conclude that the admission of Exhibit 90 could not constitute reversible error.
The court gave the jury elaborate instructions which were very fair to the defendant upon the net worth issue. An examination of the entire record convinces us that defendant had a fair trial and that the trial court has committed no prejudicial error.
The judgment appealed from is affirmed.
Question: What is the general issue in the case?
A. criminal
B. civil rights
C. First Amendment
D. due process
E. privacy
F. labor relations
G. economic activity and regulation
H. miscellaneous
Answer:
|
songer_district
|
H
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
ATLAS TRUCK LEASING, INC., Plaintiff, Appellee, v. FIRST NH BANKS, INC. (Formerly First Bancorp of New Hampshire, Inc.), Defendant, Appellant.
No. 86-1565.
United States Court of Appeals, First Circuit.
Argued Oct. 8, 1986.
Decided Jan. 12, 1987.
Mark Weaver with whom James E. Higgins and Sheehan, Phinney, Bass & Green Professional Association, Manchester, N.H., were on brief for defendant, appellant.
Gary S. Matsko with whom Judith Ash-ton and Davis, Malm & D’Agostine, Boston, Mass., were on brief for plaintiff, appellee.
Before COFFIN, BREYER and TORRUELLA, Circuit Judges.
BREYER, Circuit Judge.
Atlas Truck Leasing, Inc. (Atlas) sued First NH Banks, Inc. (FNH) for unlawfully terminating a Vehicle Lease Agreement. The jury found for the plaintiff, and awarded Atlas $50,000. FNH appeals. We affirm.
The facts of the case may be summarized briefly. Atlas is a corporation that leases vehicles. It is owned by the Trans-Lease Group, a Massachusetts Business Trust. FNH is a bank holding company that sends documents back and forth among its various offices. In contracting with Trans-Lease for a document courier service, FNH signed a Vehicle Lease and Service Agreement that governed the leasing of vehicles by Atlas to FNH. The Lease Agreement says that FNH, the lessee, “agrees to hire” from Atlas certain specified vehicles “for a term beginning on the date each such VEHICLE is ready for ... service ... and continuing until terminated, as hereinafter provided____” The termination provision of the Lease Agreement says:
This agreement may be terminated wholly or in part by either LESSOR or LESSEE on any anniversary date of the last vehicle installed in the customer service, upon sixty (60) days written notice thereof to the other party of its intent to terminate.
After Atlas had provided vehicles under the lease for about 17 months, FNH terminated the courier service with Trans-Lease and refused to accept cars from Atlas.
Atlas sued for breach. It argued that FNH terminated the lease nearly two months after the anniversary date indicated in the quoted provision; thus, the agreement, by its terms, should have remained in effect until the next anniversary. The jury found (contrary to FNH’s claims) that the Lease Agreement constituted a binding contract between the parties, and that FNH had breached that contract. Based on evidence of Atlas’ earnings during the last twelve months that it had leased vehicles to FNH, the jury found that Atlas had suffered $50,000 of lost profits.
FNH does not appeal the jury’s finding that the Lease Agreement constituted a binding contract. Rather, it makes three less central claims. It says the district court erred: 1) in denying FNH’s motion in limine to exclude certain exhibits and testimony, 2) in submitting the issue of damages to the jury, and 3) in instructing the jury on foreseeability of damages and on the effect of income taxes on the damage award. We consider each of these arguments in turn.
1. FNH claims that the district court abused its discretion when it denied FNH’s motion to exclude from evidence certain financial records and related testimony relevant to damage calculations. FNH says that the evidence should have been excluded because Atlas did not furnish the exhibits to the Clerk’s office at least one week before trial, as required by New Hampshire District Court Rule 16(a); instead it delivered them 5 days before trial. FNH adds that late delivery materially prejudiced its defense.
The trial court, however, has wide latitude in formulating pretrial orders and in imposing sanctions on parties who fail to comply with procedural rules. See Fed.R.Civ.P. 16; N.H.DistR. 2(a). We will reverse its determination only if the ruling results in clear injustice. See 8 C. Wright & A. Miller, Federal Practice and Procedure §§ 2006, 2284 (1970), and cases there cited. We can find no such injustice here because the exhibits in question were filed only two days late. The trial court granted FNH an additional half-day to review the late exhibits and Atlas provided FNH with work papers to assist FNH with its review. Under these circumstances, the trial court did not exceed the scope of its legal power to decide whether or not to exclude the evidence. Cf. Johnson v. H.K. Webster, Inc., 775 F.2d 1, 4-5 (1st Cir.1985) (upholding a ruling enabling a party to amend its list of expert witnesses seven days before trial); Clark v. Pennsylvania R.R. Co., 328 F.2d 591 (2d Cir.), cert. denied, 377 U.S. 1006, 84 S.Ct. 1943, 12 L.Ed.2d 1054 (1964) (upholding the admission of testimony by witnesses not named in the pre-trial order when the judge offered counsel an adjournment to prepare for cross-examination).
2. FNH also contends that the trial court should not have submitted the issue of damages to the jury because the amount of damages was not foreseeable. Cf. Hydraform Products Corp. v. American Steel & Aluminum Corp., 127 N.H. 187, 197, 498 A.2d 339, 345 (1985) (holding that one who breaches a contract is liable for reasonably foreseeable damages); Petrie-Clemons v. Butterfield, 122 N.H. 120, 124, 441 A.2d 1167, 1170 (1982) (same); Crawford v. Parsons, 63 N.H. 438, 444 (1885) (same). It says that damages were not reasonably certain to occur because the Lease Agreement, (which required Atlas to keep vehicles available for FNH’s use) provided for payment on the basis of per mile use, but it did not say how much FNH had to use the vehicles. FNH told the jury that it might have hired the vehicles from Atlas and just have left them sitting in the parking lot. Tr. 3-44—3-45. Left idle, the cars would produce no income for Atlas because FNH owed Atlas money only if the vehicles were used. If FNH could refuse to use the vehicles, then Atlas could not reasonably foresee damages from termination of the lease.
In fact, however, FNH was legally obliged to use the vehicles. Under New Hampshire law, every contract carries an implied covenant of good faith and fair dealing. See Albee v. Wolfeboro R.R. Co., 126 N.H. 176, 179, 489 A.2d 148, 151 (1985) (citing Seaward Constr. Co. v. Rochester, 118 N.H. 128, 383 A.2d 707, 708 (1978)). FNH would violate this covenant if it were unreasonably not to use the vehicles in order to deprive Atlas of the contract’s benefits. See Uproar Co. v. National Broadcasting Co., 81 F.2d 373, 377 (1st Cir.), cert. denied, 298 U.S. 670, 56 S.Ct. 835, 80 L.Ed. 1393 (1936). FNH therefore had to make reasonable good faith efforts to use Atlas’ vehicles to satisfy the banks’ ordinary needs. If FNH violated its obligation, Atlas would foreseeably suffer damages.
The jury could reasonably assess Atlas’ damages by looking to the time period when FNH lived up to its contractual obligation to act in good faith. It could have decided that Atlas would have earned profits roughly comparable to what it earned in that prior comparable period. It is, after all, common practice to estimate lost future profits by examining profits earned in the comparable past. See Van Hooijdonk v. Langley, 111 N.H. 32, 34, 274 A.2d 798, 799 (1971); 11 Williston on Contracts § 1346A (3d ed. 1968). The jury had ample evidence of the profits earned by Atlas during the 16 months before FNH said it wanted to terminate the contract. It also had evidence that FNH’s needs for courier services remained essentially unchanged. The jury could calculate probable lost profits with reasonable certainty. Therefore, the court was legally entitled to submit the issue of damages to the jury. See Hydraform, 127 N.H. at 197, 498 A.2d 345 (citing Whitehouse v. Rytman, 122 N.H. 777, 780, 451 A.2d 370, 372 (1982)); Van Hooijdonk, 111 N.H. at 34, 294 A.2d at 799-800.
3. Finally, FNH asserts that two of the court’s jury instructions were erroneous. It says that the court should have given the following requested instruction on damage foreseeability:
If Plaintiff Atlas is entitled to any damages in this case, they [sic] may only be granted compensation for those injuries the Defendant FNH had reason to foresee as a probable result of its breach of a contract with Atlas. Emery v. Caladonia Sand & Gravel Co., 117 N.H. 441, 446 [374 A.2d 929] (1977).
The court, however, actually instructed the jury as follows:
Profits that might reasonably be anticipated may be recovered as damages. You may determine lost profits based on evidence of the prior profits Atlas had under the agreement.
Damages ... including those of lost profits do not have to be proved with mathematical certainty, but they may not be wholly speculative. If profits were reasonably certain to result they may be awarded by the jury.
We can find no legally significant difference between the two instructions. We realize that the court spoke of damages that might “reasonably be anticipated” while FNH wanted it to use the words “reason to foresee” but, in the context of this case, that seems a distinction without a difference. FNH also tells us that the court instruction omitted details of the Emery holding, but FNH’s instruction also omitted those same details. In any event, we believe that the charge adequately reflects New Hampshire’s rule on contractual damages — at least insofar as the facts of this case are concerned. See, e.g., PetrieClemons, 122 N.H. at 125, 441 A.2d at 1171 (“We will uphold an award of damages for lost profits if sufficient data existed indicating that profits were reasonably certain to result.”); M.W. Goodell Construction Co. v. Monadnock Skating Club, Inc., 121 N.H. 320, 323, 429 A.2d 329, 331 (1981) (noting that “the law does not require ‘mathematical certainty’ in computing damages”); Zareas v. Smith, 119 N.H. 534, 538, 404 A.2d 599, 601 (1979) (holding that “consequential damages that ‘could have been reasonably anticipated by the parties as likely to be caused by the defendant’s breach’ ” may be awarded to plaintiff) (quoting Hurd v. Dunsmore, 63 N.H. 171, 174 (1884)).
FNH also complains about the fact that the trial court instructed the jury on the effect of income taxes on the damage award. The court told the jury:
In determining damages for lost profits you are not to consider income tax, because if there is an award of damages the plaintiff will have to pay taxes on that award.
This was a correct statement of the law. See Kennett v. Delta Air Lines, Inc., 560 F.2d 456, 462-63 (1st Cir.1977); McLaughlin v. Union-Leader Corp., 100 N.H. 367, 371, 127 A.2d 269, 273 (1956), cert. denied, 353 U.S. 909, 77 S.Ct. 663, 1 L.Ed.2d 663 (1957). And the judge might reasonably have believed the circumstances called for the instruction. FNH raised the tax issue when it asked witnesses several times whether or not tax consequences were considered in calculating profits. The instruction simply eliminated possible jury confusion about the role taxes should play in assessing damages. We find no legal error in any of the cited instructions.
The judgment of the district court is
Affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_decisiondirection
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the ideological "direction" of the decision ("liberal", "conservative", or "unspecifiable"). Use "unspecifiable" if the issue does not lend itself to a liberal or conservative description (e.g., a boundary dispute between two states, real property, wills and estates), or because no convention exists as to which is the liberal side and which is the conservative side (e.g., the legislative veto). Specification of the ideological direction comports with conventional usage. In the context of issues pertaining to criminal procedure, civil rights, First Amendment, due process, privacy, and attorneys, consider liberal to be pro-person accused or convicted of crime, or denied a jury trial, pro-civil liberties or civil rights claimant, especially those exercising less protected civil rights (e.g., homosexuality), pro-child or juvenile, pro-indigent pro-Indian, pro-affirmative action, pro-neutrality in establishment clause cases, pro-female in abortion, pro-underdog, anti-slavery, incorporation of foreign territories anti-government in the context of due process, except for takings clause cases where a pro-government, anti-owner vote is considered liberal except in criminal forfeiture cases or those where the taking is pro-business violation of due process by exercising jurisdiction over nonresident, pro-attorney or governmental official in non-liability cases, pro-accountability and/or anti-corruption in campaign spending pro-privacy vis-a-vis the 1st Amendment where the privacy invaded is that of mental incompetents, pro-disclosure in Freedom of Information Act issues except for employment and student records. In the context of issues pertaining to unions and economic activity, consider liberal to be pro-union except in union antitrust where liberal = pro-competition, pro-government, anti-business anti-employer, pro-competition, pro-injured person, pro-indigent, pro-small business vis-a-vis large business pro-state/anti-business in state tax cases, pro-debtor, pro-bankrupt, pro-Indian, pro-environmental protection, pro-economic underdog pro-consumer, pro-accountability in governmental corruption, pro-original grantee, purchaser, or occupant in state and territorial land claims anti-union member or employee vis-a-vis union, anti-union in union antitrust, anti-union in union or closed shop, pro-trial in arbitration. In the context of issues pertaining to judicial power, consider liberal to be pro-exercise of judicial power, pro-judicial "activism", pro-judicial review of administrative action. In the context of issues pertaining to federalism, consider liberal to be pro-federal power, pro-executive power in executive/congressional disputes, anti-state. In the context of issues pertaining to federal taxation, consider liberal to be pro-United States and conservative pro-taxpayer. In miscellaneous, consider conservative the incorporation of foreign territories and executive authority vis-a-vis congress or the states or judcial authority vis-a-vis state or federal legislative authority, and consider liberal legislative veto. In interstate relations and private law issues, consider unspecifiable in all cases.
FEDERAL POWER COMMISSION v. TEXACO INC. et al.
No. 386.
Argued March 25, 1.964.
Decided April 20, 1964.
Howard E. Wahrenbrock argued the cause for petitioner. With him on the brief were Solicitor General Cox, Ralph S. Spritzer, Richard A. Solomon, Josephine H. Klein and Peter H. Schiff.
Alfred C. DeCrane, Jr. argued the cause for respondent Texaco Inc. With him on the brief was Paul F. Schlicher. Carroll L. Gilliam argued the cause for respondent Pan American Petroleum Corp. With him on the brief were W. W. Heard, Wm. H. Emerson and William J. Grove.
J. Calvin Simpson and John T. Murphy filed a brief for the State of California and the Public Utilities Commission of California, as amici curiae, urging reversal.
Mr. Justice Douglas
delivered the opinion of the Court.
The Federal Power Commission in its regulation of independent producers of natural gas has required them to file their contracts as rate schedules. This was done by regulations which evolved as a result of a series of rule-making proceedings. The pertinent regulations presently provide that only certain pricing provisions in the contracts of independent producers are “permissible,” any other being “inoperative and of no effect at law.” The regulations go on to say that any contract executed on or after April 2, 1962, containing price-changing provisions other than the “permissible” ones, “shall be rejected” so far as producer rates are concerned, that a producer’s application for a certificate of public convenience and necessity under § 7 of the Natural Gas Act “shall be rejected” if any contract submitted in support of it contains any of the forbidden provisions, and that, so far as pipeline certificates are concerned, any producer contract executed after that date which has that infirmity “will be given no consideration in determining adequacy” of a pipeline company’s gas supply.
These regulations were adopted pursuant to the provisions of § 4 of the Administrative Procedure Act, 60 Stat. 238, 5 U. S. C. § 1003. General notice of the proposed rule making was published in the Federal Register as required by § 4 (a) of that Act. The Commission also gave interested parties a “hearing” under § 4 (b). No oral argument was had but an opportunity was afforded for all interested parties to submit their views in writing; and the two respondents in this case — Texaco and Pan American — along with others, did so.
Later, each respondent submitted an application for a certificate of public convenience and necessity under § 7 of the Natural Gas Act, to supply natural gas to a pipeline company. Section 7 provides, with exceptions not presently material, that the Commission “shall set” such an application “for hearing.” Since, however, the applications disclosed price clauses that are not “permissible” under the regulations, the Commission without a hearing rejected the applications. 28 F. P. C. 551; 29 F. P. C. 378. Petitions for review were filed with the Court of Appeals, which set aside the orders of the Commission. 317 F. 2d 796. It held that while the regulations are valid as a statement of Commission policy, they cannot be used to deprive an applicant of the statutory hearing granted those who seek certificates of public convenience and necessity. The two cases are here in one petition for certiorari which we granted because of an apparent conflict between that decision and Superior Oil Co. v. Federal Power Comm’n, 322 F. 2d 601, decided by the Court of Appeals for the Ninth Circuit. 375 U. S. 902.
I.
A preliminary question, which concerns Texaco Inc., alone, is whether venue to review these orders of the Commission was properly in the Tenth Circuit. The governing provision is § 19 (b) of the Natural Gas Act which provides:
“Any party to a proceeding under this Act aggrieved by an order issued by the Commission in such proceeding may obtain a review of such order in the court of appeals of the United States for any circuit wherein the natural-gas company to which the order relates is located or has its principal place of business, or in the United States Court of Appeals for the District of Columbia . . . .”
The term “is located” would have an ambivalent meaning if venue lay only in “any circuit” where the natural gas company “is located.” But in the context of § 19 (b) “any circuit” covers either the place where the company “is located” or where it “has its principal place of business.” Hence the main argument of Texaco derives from the fact that “is located” was substituted for “resides” in an early draft of the bill which later emerged as the Federal Power Act, from which § 19 (b) of the Natural Gas Act is derived. The Court of Appeals found that change decisive; but we can only conjecture as to why it was made, as no explanation appears. The bill in which “resides” was used gave review to “any person aggrieved” and the bill substituting “is located” for “resides” substituted “licensee or public utility” for “person aggrieved.” Since the latter language was changed from the personal to the impersonal it may be, as the Commission says, that the Congress was trying to use common legal parlance that a corporation “can have its legal home only at the place where it is located by or under the authority of its charter,” as stated in Ex parte Schollenberger, 96 U. S. 369, 377. And see Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 169. However that may be, we think that “is located” means more than having physical presence or existence in a place, since the alternate venue referred to in § 19 (b) is “principal place of business.” The Court of Appeals recognized the overlap between the two clauses inherent in its construction but resolved its doubts in favor of Tenth Circuit venue because the gas sold by Texaco under the contested contracts was produced in that circuit and the performance of the contract took place there.
The Act with which we deal was enacted August 26, 1935. At that time and down to the 1948 amendment of § 1391 of the Judicial Code, 28 U. S. C. § 1391 (c), the only residence of a corporation for purposes of federal venue was the State and district in which it had been incorporated. See 9 Fletcher, Cyclopedia Corporations (1931), § 4385. That theme runs through the cases. See, e. g., Shaw v. Quincy Mining Co., 145 U. S. 444, 449-450. We conclude that, although “located” sometimes is used as indicating a place of business (Mercantile Nat. Bank v. Langdeau, 371 U. S. 555), in the setting of this Act “is located” and “resides” are equated and that “is located” refers in the case of Texaco to its State of incorporation. There is symmetry in that construction as the choice, so far as circuits are concerned, is then left between that State, the “principal place of business” (with no penumbra of other places of business, as here), or the District of Columbia where the Commission sits.
Texaco is a Delaware corporation and there is no claim that its principal place of business is within the Tenth Circuit. The Court of Appeals therefore erred in failing to dismiss its petition for lack of venue. There is, however, another respondent, Pan American, whose principal place of business is within the Tenth Circuit. We therefore proceed to the merits of its application.
II.
The main issue in the case is whether the “hearing” granted under § 4 (b) of the Administrative Procedure Act is adequate, so far as the price clauses are concerned, for purposes of § 7 of the Natural Gas Act. We think the Court of Appeals erred, that the present case is governed by the principle of United States v. Storer Broadcasting Co., 351 U. S. 192, and that the statutory requirement for a hearing under § 7 does not preclude the Commission from particularizing statutory standards through the rule-making process and barring at the threshold those who neither measure up to them nor show reasons why in the public interest the rule should be waived.
In Storer the Federal Communications Commission, pursuant to its general rule-making authority, limited permissible multiple ownership for radio and television stations. Storer, which had seven radio stations and five television stations, was under that rule automatically disqualified for further licensing. To surmount that barrier it argued that the Act required a license to issue where the public interest would be served and that before an application could be denied, a hearing must be held. We said:
“We read the Act and Regulations as providing a ‘full hearing’ for applicants who have reached the existing limit of stations, upon their presentation of applications conforming to Rules 1.361 (c) and 1.702, that set out adequate reasons why the Rules should be waived or amended. The Act, considered as a whole, requires no more. We agree with the contention of the Commission that a full hearing, such as is required by § 309 (b) ... would not be necessary on all such applications. As the Commission has promulgated its Rules after extensive administrative hearings, it is necessary for the accompanying papers to set forth reasons, sufficient if true, to justify a change or waiver of the Rules. We do not think Congress intended the Commission to waste time on applications that do not state a valid basis for a hearing. If any applicant is aggrieved by a refusal, the way for review is open.” 351 U. S., at 205.
In the present case, as in Storer, there is a procedure provided in the regulations whereby an applicant can ask for a waiver of the rule complained of. Facts might conceivably be alleged sufficient on their face to provide a basis for waiver of the price-clause rules and for a hearing on the matter. Cf. Atlantic Refining Co., 28 F. P. C. 469 ; 29 F. P. C. 384. But no such attempt was made here by Pan American, the only respondent to which the present point has any immediate applicability.
The rule-making authority here, as in Storer, is ample to provide the conditions for applications under § 4 or § 7. Section 16 of the Natural Gas Act gives the Commission power to prescribe such regulations “as it may find necessary or appropriate to carry out the provisions of this Act.” We deal here with a procedural aspect of a rate question and with a certificate question that is important in effectuating the aim of the Act to protect the consumer interest. Federal Power Comm’n v. Hope Natural Gas Co., 320 U. S. 591, 610. In a rate case under § 5 (a) of the Act the Commission can pass on existing contracts affecting rates, can find that particular contracts are “unjust, unreasonable, unduly discriminatory, or preferential” and thereupon has power to determine the “just and reasonable” rate or contract and “fix the same.” And see United Gas Pipe Line Co. v. Mobile Gas Service Corp., 350 U. S. 332, 341. And where, as here, applications for certificates are made under § 7 of the Act, the Commission under § 7 (e) is required to control the terms and conditions under which natural gas companies, such as respondent, may initiate sales at wholesale of natural gas in commerce. Atlantic Refining Co. v. Public Service Comm’n, 360 U. S. 378, 389.
Pan American does not disagree on that score; it insists that those changes and adjustments can be made only after an adversary hearing. To that there are two answers. The present regulations do not pass on the merits of any rate structure nor on the merits of a certificate of public convenience and necessity; they merely prescribe qualifications for applicants. Those qualifications are in the category of conditions that relate to the ability of applicants to serve the consumer interest in this regulated field. They are kin to the kind of capital structure that an applicant has and to his ability by reason of the rate structure to serve the public interest. It must be remembered that under this Act rate increases are initiated by the natural gas company, the Commission having the burden by reason of § 4 (e) of the Act to initiate a hearing on their legality with only a limited power to suspend new rates. See United Gas Pipe Line Co. v. Mobile Co. Service Corp., supra. Natural gas companies that seek to enter the field with prearranged escalator clauses and the like have a built-in device for ready manipulation of rates upward. Protection of the consumer interests against that device may be best achieved if it is given at the very threshold of the enterprise. At least the Commission may so conclude; and the legislative history makes clear that its authority reaches that far. H. R. Rep. No. 1290, 77th Cong., 1st Sess., pp. 2-3, states:
. . The bill when enacted will have the effect of giving the Commission an opportunity to scrutinize the financial set-up, the adequacy of the gas reserves, the feasibility and adequacy of the proposed services, and the characteristics of the rate structure in connection with the proposed construction or extension at a time when such vital matters can readily be modified as the public interest may demand. . . .” (Italics added.)
And see S. Rep. No. 948, 77th Cong., 2d Sess., pp. 1-2.
To require the Commission to proceed only on a case-by-case basis would require it, so long as its policy outlawed indefinite price-changing provisions, to repeat in hearing after hearing its'conclusions that condemn all of them. There would be a vast proliferation of hearings, for as a result of Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, there are thousands of individual producers seeking applications. See Wisconsin v. Federal Power Comm’n, 373 U. S. 294, 300. We see no reason why under this statutory scheme the processes of regulation need be so prolonged and so crippled.
Pan American finally argues that the “hearing” accorded it under § 4 (b) of the Administrative Procedure Act did not comply with that Act nor with the Natural Gas Act. It points out that § 7 of the Natural Gas Act requires a hearing and that § 5 of the Administrative Procedure Act provides, with exceptions not relevant here, that a full-fledged adversary-type of hearing be held in “every case of adjudication required by statute to be determined on the'record after opportunity for an agency hearing. . . .” “Adjudication” is defined in § 2 (d) of the Administrative Procedure Act as “agency process for the formulation of an order”; “order” is defined as “the whole or any part of the final disposition . . . of any agency in any matter other than rule making but including licensing.” And “licensing” is defined as “agency process respecting the . . . denial ... of a license.” § 2 (e). What the Commission did in these cases, however, is not an “adjudication,” not “an order,” not “licensing” within the meaning of § 2. Whether Pan American can qualify for a certificate of public convenience and necessity has never been reached. It has only been held that its application is not in proper form because of the pricing provisions in the contracts it tenders. No decisions on the merits have been reached. The only hearing to which Pan American so far has been entitled was given when the regulations in question were adopted pursuant to § 4 (b) of the Administrative Procedure Act.
Reversed.
See Natural Gas Act, 52 Stat. 821-833, as amended, 15 U. S. C. §§717-717w; Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672.
See Order No. 174-B, 13 F. P. C. 1576, 18 CFR § 157.25; Order No. 232, 25 F. P. C. 379, 26 Fed. Reg. 1983, as amended by Order No. 232A, 25 F. P. C. 609, 26 Fed. Reg. 2850; Order No. 242, 27 F. P. C. 339, 27 Fed. Reg. 1356; Reg. §154.91 et seq., as amended, 18 CFR (Cum. Supp. 1963) § 154.91 et seq.
Section 154.93 defines the “permissible” provisions:
“(a) Provisions that change a price in order to reimburse the seller for all or any part of the changes in production, severance, or gathering taxes levied upon the seller;
“(b) Provisions that change a price to a specific amount at a definite date; and
“(c) Provisions that, once in five-year contract periods during which there is no provision for a change in price to a specific amount (paragraph (b) of this section), change a price at a definite date by a price-redetermination based upon and not higher than a producer rate or producer rates which are subject to the jurisdiction of the Commission, are not in issue in suspension or certificate proceedings, ■and, are in the area of the price in question . . . .”
Ibid. For a discussion of escalation clauses see Pure Oil Co., 25 F. P. C. 383, aff’d 299 F. 2d 370.
Ibid.
§ 157.25.
§157.14 (a) (10) (v).
Section 4 (b) provides:
“After notice required by this section, the agency shall afford interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity to present the same orally in any manner; and, after consideration of all relevant matter presented, the agency shall incorporate in any rules adopted a concise general statement of their basis and purpose. Where rules are required by statute to be made on the record after opportunity for an agency hearing, the requirements of sections 7 and 8 shall apply in place of the provisions of this subsection.”
Pan American’s contracts provide (1) for a one-cent escalation in 1968, 1973, and 1978, and (2) for a redetermination of a “fair market price” in each five-year period commencing October 1, 1983, but in no event for less than 20.5 cents per thousand cubic feet.
'Texaco’s contract contained price clauses to become effective at definite times or upon the happening of definite circumstances in the future, e. g., the passage of 5, 10, or 15 years, increased taxation on the production, severance, gathering, transportation, sale, or delivery of gas or as a result of renegotiations undertaken six months prior to the beginning of the third (1974) and fourth (1979) of the four five-year periods into which the contract term was divided.
See § 313 (b) of the Federal Power Act, 49 Stat. 860, 16 U. S. C. § 8251 (b); cf. S. 1725, 74th Cong., 1st Sess., with S. 2796 of the same session.
Regulation § 1.7 (b), 18 CFR (Cum. Supp. 1963) § 1.7 (b), provides in relevant part:
“A petition for the issuance, amendment, waiver, or repeal of a rule by the Commission shall set forth clearly and concisely petitioner’s interest in the subject matter, the specific rule, amendment, waiver, or repeal requested, and cite by appropriate reference the statutory provision or other authority therefor. If a rate filing is accompanied by a request for waiver pursuant to this section the thirty-day notice period provided in section 4 (d) of the Natural Gas Act and section 205 (d) of the Federal Power Act shall begin to run if and when the Commission grants the request. Such petition shall set forth the purpose of, and the facts claimed to constitute the grounds requiring, such rule, amendment, waiver, or repeal, and shall conform to the requirements of §§ 1.15 and 1.16. Petitions for the issuance or amendment of a rule shall incorporate the proposed rule or amendment.”
The Commission in making the last amendment to the regulation now challenged said:
“Protection of the public interest is the touchstone of our regulatory powers under the Natural Gas Act. The Commission’s obligation under the Act to the natural gas companies, as one segment of the public whose interest is to be protected, does not compel it to acquiesce in the use of contracts which carry provisions incompatible with a scheme of effective rate regulation. To be sure, the proposed rule will have impact upon contractual practices which have been fairly widespread. But the real issue is not one of ‘freedom of contract’; the question is whether the rule is rationally related to a condition which requires correction if regulatory objectives embraced by the statute are to be achieved. See American Trucking Associations v. United States, 344 U. S. 298. In our view, the rule we adopt fully meets this test.
“We held in the Pure Oil case [see note 4, supra] that indefinite escalation clauses are contrary to the public interest and restated this conclusion in Order No. 232A. Increases in producer prices, triggered by indefinite escalation clauses, have resulted in a flood of almost simultaneous filings. These filings bear no apparent relationship to the economic requirements of the producers who file them. The Natural Gas Act contemplates that prices, to be just and reasonable, be related to economic needs. The elimination of indefinite escalation provisions does not, of course, cut off other avenues by which a producer may make provision for filing for increased rates.
“Filings under indefinite escalation clauses have created a significant portion of the administrative burdens under which this Commission is laboring today. The Natural Gas Act contemplates that rate increases shall be sought when there is economic justification, but not that there shall be a chain reaction in a wide area whenever one producer in the area negotiates a contract at a new price level. The Act requires the Commission to give precedence to the hearing and decision of rate increases, but the complexity of indefinite price clauses requires it to spend an undue amount of time in their interpretation and application at the expense of making a prompt determination of the rate issues involved. Accordingly, in protecting the public against waves of increases which have no defensible basis, we also serve the need — which we believe we should take into account— of making the tasks of regulation more manageable.” 27 F. P. C. 339, 340, 27 Fed. Reg. 1356, 1357.
In one recent case seven years elapsed between the date of the new rate filing and the close of the review proceedings. Shell Oil Co., 18 F. P. C. 617, 19 F. P. C. 74, set aside sub nom.. Shell Oil Co. v. Federal Powér Comm’n, 263 F. 2d 223, rev’d sub nom. Texas Gas Transmission Corp. v. Shell Oil Co., 363 U. S. 263; on remand, aff'd sub nom. Shell Oil Co. v. Federal Power Comm’n, 292 F. 2d 149, cert. denied, 368 U. S. 915.
See note 8, supra.
Question: What is the ideological direction of the decision?
A. Conservative
B. Liberal
C. Unspecifiable
Answer:
|
songer_r_fed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. Austin Louis SMITH et al., Defendants-Appellants.
Nos. 71-1743 to 71-1746.
United States Court of Appeals, Tenth Circuit.
July 26, 1972.
W. Allen Spurgeon, Asst. U. S. Atty. (James L. Treece, U. S. Atty., with him on brief), for plaintiff-appellee.
Richard B. Bauer, Littleton, Colo., for defendants-appellants.
Before BREITENSTEIN, HILL, and DOYLE, Circuit Judges.
BREITENSTEIN, Circuit Judge.
A jury found the four defendants-appellants, inmates at the Federal Youth Center, Englewood, Colorado, guilty of sexually assaulting another inmate at the Youth Center in violation of 18 U.S. C. § 13 and 1963 Colo.Rev.Stat. § 40-2-31. They were sentenced to indeterminate terms under the Federal Youth Corrections Act, 18 U.S.C. § 5010(b).
The assault occurred on January 23, 1971, and on the same day the four defendants were placed in segregated confinement. No preliminary hearing was held on the criminal charge. An indictment was returned on July 9, 1971, and defendants were arraigned shortly thereafter. The indictment was technically defective and was superseded by an August 25 indictment. The first indictment was thereafter dismissed. Trial was held September 7-8.
Defendants were placed in segregated confinement for disciplinary reasons, for the protection of the victim, because of their previous harassment of other inmates, and to prevent the possibility of escape. Actions of prison officials in disciplining inmates are not subject to judicial review in the absence of arbitrariness or caprice. Graham v. Willingham, 10 Cir., 384 F.2d 367, 368. The actions taken here were prudent rather than arbitrary or capricious, and were violative of no Eighth Amendment rights. Ibid. The imposition by the court of indeterminate sentences under 18 U.S.C. § 5010(b) did not, when coupled with the segregated confinement, constitute double punishment for the same offense. The segregated confinement was for institutional reasons and not for punishment of the criminal offense which defendants had committed.
Defendants say that segregated confinement was an arrest and that they were not promptly taken before a magistrate as required by Rule 5, F.R. Crim.P. We do not agree. When they were placed in segregated confinement, they were already in custody for unrelated convictions which are not now under attack. Their liberty was validly restrained and they were subject to all the impediments of imprisonment. Seizure, confinement, and the interference with personal liberty attendant thereon had occurred. Segregated confinement for institutional reasons is not an arrest. Cf. United States v. Marion, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468, and Moran v. United States, 10 Cir., 404 F.2d 663, 666. Rule 5 does not apply when the person affected is in custody pursuant to an unrelated valid conviction. United States v. Reid, 7 Cir., 437 F.2d 1166, 1167.
The next contention is that defendants were denied speedy trial and due process because of delay between offense and trial. Pre-indictment delay was five and one-half months and post-indictment delay was two months. Defendants interposed numerous motions to the indictment and made no request for speedy trial. No claim is made that the government delayed to attain tactical advantage. The constitutional arguments hinge on whether the delay substantially prejudiced defendants. United States v. Marion, 404 U.S. 307, 324, 92 S.Ct. 455, 30 L.Ed.2d 468; Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, and United States v. Merrick, 10 Cir., 464 F.2d 1087. Defendants point to no exculpatory evidence which was lost to them. They had full power of subpoena. Three inmates of the Youth Center testified in their behalf. In our opinion they had a fair trial and were deprived of no constitutional rights.
Defendants, who are Indians, argue that they were denied equal protection because there were no Indians present when they were interrogated by government agents, because there were no Indians in administrative positions at the Youth Center, and because there were no Indians on the trial jury. Equal protection condemns arbitrary and invidious discrimination; it does not require exact equality. Andrus v. Turner, 10 Cir., 421 F.2d 290, 292. There is no apparent relation between the contentions and the validity of the convictions. No claim is made that the statements to the agents were involuntary. There is no showing that Indians were purposefully denied participation as jurors because of race. See Swain v. Alabama, 380 U.S. 202, 203-204, 85 S.Ct. 824, 13 L.Ed.2d 759. The record is devoid of anything which shows arbitrary or invidious discrimination.
The next arguments go to the appointment and competency of counsel. Defendants say that the court should have appointed an Indian lawyer. Selection of counsel “rests in the sound discretion of the court.” Tibbett v. Hand, 10 Cir., 294 F.2d 68, 73. An accused does not have the right to have a member of his own race appointed to represent him. Achtien v. Dowd, 7 Cir., 117 F.2d 989, 992.
Defendants also say that the court erred in appointing only one lawyer for their defense. Joint representation becomes improper only in those cases where prejudice results so as to deny a defendant the effective assistance of counsel. Fryar v. United States, 10 Cir., 404 F.2d 1071, 1073, cert. denied 395 U.S. 964, 89 S.Ct. 2109, 23 L.Ed.2d 751. Before trial there was no suggestion that more than one lawyer would be needed. The record does not indicate that any defendant was prejudiced by joint representation. The court found that defendants had competent and efficient representation and we agree.
The final claim is the denial of interpreters. The court held a thorough hearing on this point and found interpreters were unnecessary. The record convinces us that defendants understood and comprehended the proceedings. They did not need the help of interpreters.
Affirmed as to each defendant.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
sc_issue_9
|
12
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue of the Court's decision. Determine the issue of the case on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis.
THOMAS JEFFERSON UNIVERSITY, dba THOMAS JEFFERSON UNIVERSITY HOSPITAL v. SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES
No. 93-120.
Argued April 18, 1994
Decided June 24, 1994
Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Blackmun, Scalia, and Souter, JJ., joined. Thomas, J., filed a dissenting opinion, in which Stevens, O'Connor, and Ginsburg, JJ., joined, post, p. 518.
Ronald N. Sutter argued the cause for petitioner. On the briefs were James M. Gaynor, Jr., and Amy E. Hancock.
Amy L. Wax argued the cause for respondent. With her on the brief were Solicitor General Days, Assistant Attorney General Hunger, Deputy Solicitor General Kneedler, Robert V. Zener, Robert D. Kamenshine, Harriet S. Rabb, Darrel J Grinstead, Henry R. Goldberg, and Thomas W. Coons
Briefs of amici curiae urging reversal were filed for the State of Ohio et al. by Lee Fisher, Attorney General of Ohio, Diane M. Signoracci, Catherine M. Ballard, Richard A Cordray, and Simon B. Karas, and by the Attorneys General for their respective States as follows: Winston Bryant of Arkansas, Charles M. Oberly III of Delaware, Richard P. Ieyoub of Louisiana, Hubert H. Humphrey III of Minnesota, John P. Arnold of New Hampshire, G. Oliver Koppell of New York, Ernest D. Preate, Jr., of Pennsylvania, Jan Graham of Utah, and James S. Gilmore III of Virginia; and for the American Hospital Association et al. by Ronald N. Sutter, Mary Susan Philp, and Joseph A Keyes, Jr.
Justice Kennedy
delivered the opinion of the Court.
Although Medicare reimburses provider hospitals for the costs of certain educational activities, the program is forbidden by regulation from “participating] in increased costs resulting from redistribution of costs from educational institutions ... to patient care institutions.” 42 CFR § 413.85(c) (1993) (emphasis added). In denying reimbursement for the disputed costs in this case, the Secretary of Health and Human Services interpreted this provision to bar reimbursement of educational costs that were borne in prior years not by the requesting hospital, but by the hospital’s affiliated medical school. The dispositive question is whether the Secretary’s interpretation is a reasonable construction of the regulatory language. We conclude that it is.
I
A
Established in 1965 under Title XVIII of the Social Security Act, 79 Stat. 291, as amended, 42 U. S. C. § 1395 et seq. (1988 ed. and Supp. IV), Medicare is a federally funded health insurance program for the elderly and disabled. Subject to a few exceptions, Congress authorized the Secretary of Health and Human Services (Secretary) to issue regulations defining reimbursable costs and otherwise giving content to the broad outlines of the Medicare statute. § 1395x(v)(l)(A). That authority encompasses the discretion to determine both the “reasonable cost” of services and the “items to be included” in the category of reimbursable services. Ibid. Acting under the statute, the Secretary, by regulation, permits reimbursement for the costs of “approved educational activities” conducted by hospitals. 42 CFR § 413.85(a)(1) (1993). The regulations define “approved educational activities” as “formally organized or planned programs of study usually engaged in by providers in order to enhance the quality of patient care.” § 413.85(b).
Graduate medical education (GME) programs are one category of approved educational activities. GME programs give interns and residents clinical training in various medical specialties. Because participants learn both by treating patients and by observing other physicians do so, GME programs take place in a patient care unit (most often in a teaching hospital), rather than in a classroom. Hospitals are entitled to recover the “net cost” of GME and other approved educational activities, a figure “determined by deducting, from a provider’s total costs of these activities, revenues it receives from tuition.” § 413.85(g). A hospital may include as a reimbursable GME cost not only the costs of services it furnishes, but also the costs of services furnished by the hospital’s affiliated medical school. § 413.17(a).
That brings us to the regulation here in question. Section 413.85(c) sets forth conditions governing the reimbursement of educational activities. In a sentence referred to by the parties as the “anti-redistribution” principle, the regulation provides that “[although the intent of the [Medicare] program is to share in the support of educational activities customarily or traditionally carried on by providers in conjunction with their operations, it is not intended that this program should participate in increased costs resulting from redistribution of costs from educational institutions or units to patient care institutions or units.” Ibid. In a portion of the regulation known as the “community support” principle, § 413.85(c) also states that the costs of educational activities “should be borne by the community,” but that “[u]ntil communities undertake to bear these costs, the [Medicare] program will participate appropriately in the support of these activities.” Ibid.
B
Thomas Jefferson University Hospital (Hospital) is a 700-bed teaching hospital in Philadelphia, Pennsylvania. The Hospital has been a qualified Medicare provider since the program took effect in 1966. Petitioner Thomas Jefferson University (University) is a private, not-for-profit educational institution that operates the Hospital and other entities, including the Jefferson Medical College (Medical College). As a teaching facility, the Hospital provides Medicare-approved GME programs for postgraduate interns and residents in numerous medical specialties. The programs are conducted at the Hospital by Medical College faculty. Because of their common ownership by the University, the Hospital and the Medical College are considered affiliated or “related” organizations under Medicare regulations. 42 CFR § 413.17(a) (1993). As a result, the Hospital is entitled to reimbursement for all eligible patient-care, educational, and administrative costs carried on the books of the Medical College. Ibid.
Nevertheless, for reasons not clear from the record, the Hospital did not seek reimbursement for any GME costs during the first eight years of the Medicare program’s existence. During the next 10 years, however, from 1974 through 1983, the Hospital sought and received reimbursement for three categories of salary-related GME costs: (1) salaries paid by the Hospital to Medical College faculty for services rendered to the Hospital’s Medicare patients; (2) salaries paid by the Hospital to residents and interns; and (3) funds transferred internally from the Hospital to the Medical College as payment for faculty time devoted to the Hospital’s GME program. The Hospital did not seek reimbursement during that period for its other, non-salary-related GME costs (namely, the costs of administering the Hospital’s GME programs), and those costs were borne by the Medical College.
In 1983, Congress adopted a more restrictive method of reimbursing hospitals for inpatient medical services, see 42 U. S. C. § 1395ww(d) (1988 ed. and Supp. IV), but it retained the more lenient method of reimbursement for medical education costs. 42 U. S. C. § 1395ww(a)(4) (1988 ed., Supp. IV). In 1984, when the new cost reimbursement regime was implemented, the Hospital reviewed its claim for costs associated with its GME programs to determine whether it was identifying all costs eligible for reimbursement. This review resulted in an increased claim reflecting clerical costs incurred by the Medical College for activities associated with its GME programs.
The following year, in an effort to further refine its cost allocation techniques, the Hospital retained an accounting firm to compute the Hospital’s total GME costs for fiscal year 1985, the year here in question. Fiscal year 1985 later became especially significant because, under a new reimbursement scheme enacted in 1986, it is considered the Hospital’s base period, to which all later claims for GME cost reimbursement will be tied. See 42 U. S. C. § 1395ww(h). After completing the cost study, the accounting firm reported that the Hospital had incurred GME program costs totaling $8.8 million, a figure that included direct and indirect administrative costs not previously claimed by the Hospital. The report was submitted to petitioner’s assigned fiscal intermediary, whose function is to review petitioner’s annual cost reports and to calculate the appropriate level of reimbursement under applicable statutes and regulations. See 42 CFR §405.1803 (1993). Although petitioner sought reimbursement for the full $8.8 million, the fiscal intermediary allowed only those salary-related costs that had been reimbursed earlier (after adjustment for inflation). The fiscal intermediary disallowed reimbursement for all nonsalaryrelated GME costs that the report identified (amounting to approximately $2.9 million). App. to Pet. for Cert. 10a. Petitioner then appealed to the Provider Reimbursement Review Board, an intermediate appellate tribunal within the Department, which reversed the decision of the fiscal intermediary in part and allowed reimbursement for all of the GME costs documented in the cost study.
The Secretary, acting through the Administrator of the Health Care Financing Administration, modified the Board’s decision and reinstated the fiscal intermediary’s ruling. The Secretary concluded that the anti-redistribution clause of § 413.85(c) prohibits the shift of approved educational costs from an educational unit to a patient-care unit, even if the educational activities for which reimbursement is sought are the kind of activities traditionally engaged in by Medicare providers. Id., at 35a. Since the nonsalary GME costs here in issue were borne in prior years by the Medical College, the Secretary ruled that reimbursement of these costs would constitute an impermissible “redistribution of costs” under § 413.85(c). Ibid.
The Secretary also relied on the community support language in § 413.85(c) as an independent ground for denying the requested reimbursement. According to the Secretary, this language prohibits Medicare reimbursement for educational activities that “have been historically borne by the community.” Ibid. That the Hospital had failed to seek reimbursement for the disputed costs in previous years was, in the Secretary’s view, “evidence of the communit[y’s] support for these activities.” Ibid. “To allow the community to withdraw that support and pass these costs to the Medicare program” would violate the community support principle and would “encourage the community to abdicate its commitment to education to an insurance program intended to provide care for the elderly.” Ibid.
Petitioner filed a petition for review in the District Court seeking reimbursement for the $2,861,247 in GME costs that the Secretary had disallowed. Id., at 10a. On cross-motions for summary judgment, the court ruled in the Secretary’s favor, accepting her interpretation of the anti-redistribution and community support clauses as a reasonable construction of § 413.85(c). Thomas Jefferson Univ. v. Sullivan, CCH Medicare & Medicaid Guide ¶ 40,294, p. 30,959 (ED Pa. 1992). The Third Circuit affirmed without opinion, judgment order reported at 993 F. 2d 879 (1993), thereby creating a conflict with the decision of the Sixth Circuit in Ohio State Univ. v. Secretary, Dept. of Health and Human Services, 996 F. 2d 122 (1993), cert. pending, No. 93-696, concerning the validity of the Secretary’s interpretation of the anti-redistribution clause. We granted certiorari, 510 U. S. 1039 (1994), and now affirm.
II
Petitioner challenges the Secretary’s construction of § 413.85(c) under the Administrative Procedure Act (APA), 5 U. S. C. § 551 et seq. The APA, which is incorporated by the Social Security Act, see 42 U. S. C. § 1395oo(f )(1), commands reviewing courts to “hold unlawful and set aside” agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U. S. C. §706(2)(A). We must give substantial deference to an agency’s interpretation of its own regulations. Martin v. Occupational Safety and Health Review Comm’n, 499 U. S. 144, 150-151 (1991); Lyng v. Payne, 476 U. S. 926, 939 (1986); Udall v. Tallman, 380 U. S. 1, 16 (1965). Our task is not to decide which among several competing interpretations best serves the regulatory purpose. Rather, the agency’s interpretation must be given “‘controlling weight unless it is plainly erroneous or inconsistent with the regulation.’” Ibid, (quoting Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945)). In other words, we must defer to the Secretary’s interpretation unless an “alternative reading is compelled by the regulation’s plain language or by other indications of the Secretary’s intent at the time of the regulation’s promulgation.” Gardebring v. Jenkins, 485 U. S. 415, 430 (1988). This broad deference is all the more warranted when, as here, the regulation concerns “a complex and highly technical regulatory program,” in which the identification and classification of relevant “criteria necessarily require significant expertise and entail the exercise of judgment grounded in policy concerns.” Pauley v. BethEnergy Mines, Inc., 501 U. S. 680, 697 (1991).
Petitioner challenges the Secretary’s construction of both the anti-redistribution language and the community support language of § 413.85(c). Because we conclude that the Secretary’s interpretation of the anti-redistribution clause is neither “ ‘plainly erroneous [n]or inconsistent with the regulation,’ ” Tollman, supra, at 16-17, and because its application suffices to deny reimbursement of the disputed costs in this case, we need not pass upon the Secretary’s interpretation of the community support language.
The anti-redistribution clause is contained in the final sentence of § 413.85(c), which states:
“Although the intent of the [Medicare] program is to share in the support of educational activities customarily or traditionally carried on by providers in conjunction with their operations, it is not intended that this program should participate in increased costs resulting from redistribution of costs from educational institutions or units to patient care institutions or units.” (Emphasis added.)
The meaning of this sentence is straightforward. Its introductory clause defines the scope of educational activities for which reimbursement may be sought: To be eligible for reimbursement, the activity must be one that is “customarily or traditionally carried on by providers in conjunction with their operations.” It is the language that follows, however, that imposes the relevant restriction on cost redistribution. The second clause provides that, notwithstanding the activity for which reimbursement is sought, the Medicare program will not participate in the “redistribution of costs from educational institutions or units to patient care institutions or units.”
The Secretary’s interpretation gives full effect to both clauses of the relevant sentence. The Secretary interprets the regulation to allow reimbursement for costs of educational programs traditionally engaged in by hospitals, but, at the same time, to deny reimbursement for “cost[s] previously incurred and paid by a medical school.” Brief for Respondent 26 (emphasis deleted); see also § 413.85(b) (defining “approved educational activities” that are eligible for reimbursement as “programs of study usually engaged in by providers in order to enhance the quality of patient care”). The Secretary’s reading is not only a plausible interpretation of the regulation; it is the most sensible interpretation the language will bear.
The circumstance addressed by the anti-redistribution clause is a hospital’s submission of “increased costs” arising from approved educational activities. The regulation provides, in unambiguous terms, that the “costs” of these educational activities will not be reimbursed when they are the result of a “redistribution,” or shift, of costs from an “educational” facility to a “patient care” facility, even if the activities that generated the costs are the sort “customarily or traditionally carried on by providers in conjunction with their operations.” § 413.85(c). The Secretary’s reliance on a hospital’s own historical cost allocations, along with those of an affiliated medical school, is a simple and effective way of determining whether a prohibited “redistribution of costs” has occurred. Indeed, one would be hard pressed to come up with an alternative method to identify the shifting of costs from one entity to another.
Petitioner advances three separate arguments for not deferring to the Secretary’s interpretation of the anti-redistribution clause. None is persuasive.
First, petitioner asserts that the “clear meaning” of the anti-redistribution clause is to allow reimbursement for the costs of activities traditionally carried on by hospitals (e. g., clinical training of residents and interns), but to deny reimbursement for costs incurred in activities traditionally carried on by educational institutions (e. g., classroom training). Pet. for Cert. 14. In other words, according to petitioner, the redistribution that is prohibited is the redistribution of activities, not the redistribution of costs. Brief for Petitioner 20.
This argument is mistaken, for it ignores the second clause of the critical sentence, which refers, on its face, to the “redistribution of costs,” not the “redistribution of activities.” The term “costs,” moreover, is used without condition. Nothing in the plain language suggests that the prohibition on “redistribution of costs” is limited to the costs of certain activities (such as classroom instruction) carried on by an educational unit. The clear inference from the language is that the shift of any reimbursable costs from an “educational institutio[n] or uni[t]” to a “patient care institutio[n] or uni[t]” is prohibited. The Secretary’s interpretation of the anti-redistribution principle is thus far more consistent with the regulation’s unqualified language than the interpretation advanced by petitioner. But even if this were not so, the Secretary’s construction is, at the very least, a reasonable one, and we are required to afford it “controlling weight.” Bowles v. Seminole Rock & Sand Co., 325 U. S., at 414.
Second, petitioner argues that the Secretary has been inconsistent in her interpretation of the anti-redistribution provision. While it is true that an agency’s interpretation of a statute or regulation that conflicts with a prior interpretation is “ ‘entitled to considerably less deference’ than a consistently held agency view,” INS v. Cardoza-Fonseca, 480 U. S. 421, 446, n. 30 (1987) (quoting Watt v. Alaska, 451 U. S. 259, 273 (1981)), that maxim does not apply here because petitioner fails to present persuasive evidence that the Secretary has interpreted the anti-redistribution provision in an inconsistent manner.
In an attempt to find an inconsistency, petitioner points to a 1978 internal operating memorandum issued by the Health Care Financing Administration (HCFA) that addressed the reimbursement of costs incurred by medical schools affiliated with providers. Intermediary Letter No. 78-7 (Feb. 1978), App. to Pet. for Cert. 64a-66a. The intermediary letter detailed various categories and amounts of educational expenses incurred by affiliated medical schools that might be allowable to providers, but did not mention the anti-redistribution limitation. Petitioner’s attempt to infer from that silence the existence of a contrary policy fails because the intermediary letter did not purport to be a comprehensive review of all conditions that might be placed on reimbursement of educational costs. By its own terms, the intermediary letter attempted to review only a “number of situations” relating to the reimbursement of educational costs — namely, “situations raising] questions about the reasonableness of [medical school faculty] costs as allowable hospital costs and the appropriateness of the bases used in allocating them to the hospital.” Id., at 64a. It is not surprising, then, that the letter did not address the anti-redistribution principle, and the mere failure to address it here hardly establishes an inconsistent policy on the part of the Secretary.
Likewise, contrary to the dissent’s suggestion, post, at 520-522, the mere fact that in 1974 a fiscal intermediary may have allowed reimbursement to petitioner for GME costs that appear to have violated the anti-redistribution clause does not render the Secretary’s interpretation of that clause invalid. For even if petitioner could show that such allowance was approved by — or even brought to the attention of— the Secretary or her designate at the time, “[t]he Secretary is not estopped from changing a view she believes to have been grounded upon a mistaken legal interpretation.” Good Samaritan Hospital v. Shalala, 508 U. S. 402, 417 (1993). And under the circumstances of this case, “where the agency’s interpretation of [its regulation] is at least as plausible as competing ones, there is little, if any, reason not to defer to its construction.” Id., at 417.
Finally, petitioner contends that we should ignore the Secretary’s interpretation of the anti-redistribution clause because the language of the regulation is “precatory” and “aspirational” in nature, and thus lacking in operative force. See Brief for Petitioner 31-32. We do not lightly assume that a regulation setting forth specific limitations on the reimbursement of costs under a federal program is devoid of substantive effect. That is especially so when, as here, the language in question speaks not in vague generalities but in precise terms about the conditions under which reimbursement is, and is not, available. Whatever vagueness may be found in the community support language that precedes it, the anti-redistribution clause lays down a bright line for distinguishing permissible from impermissible reimbursement: Educational costs will not be reimbursed if they are the result of a “redistribution of costs from educational institutions or units to patient care institutions or units.” § 413.85(c). The Secretary was well within her discretion to interpret this language as imposing a substantive limitation on reimbursement.
In sum, the Secretary’s construction qf the anti-redistribution principle is faithful to the regulation’s plain language, and the application of this language suffices to bar reimbursement of the costs claimed in this case. For these reasons, we affirm the judgment of the Court of Appeals.
It is so ordered.
Justice Thomas,
with whom Justice Stevens, Justice O’Connor, and Justice Ginsburg join, dissenting.
The Court’s opinion reads as if this were a case of model agency action. As the Court views matters, 42 CFR § 413.85(c) (1993) is “unambiguous,” ante, at 514, and respondent Secretary of Health and Human Services (Secretary) has always been “faithful to the regulation’s plain language,” ante this page. That plain language, according to the Court, required the Secretary to disallow the reimbursement petitioner sought. The Court’s account is hardly an accurate portrayal of this case. When the case is properly viewed, I cannot avoid the conclusion that the Secretary’s construction of § 413.85(c) runs afoul of the plain meaning of the regulation and therefore is contrary to law, in violation of the Administrative Procedure Act, 5 U. S. C. § 706(2)(A). I therefore respectfully dissent.
I
The Court holds that § 413.85(c) has substantive content, reasoning that “the language in question speaks not in vague generalities but in precise terms about the conditions under which reimbursement is, and is not, available.” Ante, at. 517. In my view, however, § 413.85(c) is cast in vague aspirational terms, and it strains credulity to read the regulation as imposing any restriction on the reimbursability of the costs of graduate medical education (GME) or other approved educational expenses. On the contrary, subsection (c) appears to be nothing more than a precatory statement of purpose that imposes no substantive restrictions.
Subsection (c), in stark contrast to the remainder of §413.85, reads more like a preamble than a law. See ante, at 507-508, n. 1 (quoting § 413.85(c)). In the community support portion of § 413.85(c), the Secretary praises the benefits of approved educational programs and expresses a belief that communities “should” pay for such programs. The subsection then announces the Secretary’s intention to support such activities “appropriately,” limited only by the vague suggestion that at some point in the future a restructuring of fiscal priorities at the “community” level may obviate the need for federal support. The anti-redistribution principle is no less precatory than the community support principle. It states two “intent[ions]”: first, to pay for the “customar[y] and traditional]” educational activities of Medicare providers, and, second, to avoid reimbursing expenses that should be borne by educational institutions affiliated with teaching hospitals. I would not permit the Secretary to transform by “interpretation” what self-evidently are mere generalized expressions of intent into substantive rules of reimbursability. Cf. Stinson v. United States, 508 U. S. 36, 45 (1993) (an agency’s interpretation of its own regulation cannot be sustained if “ ‘plainly erroneous or inconsistent with the regulation’ ”) (quoting Bowles v. Seminole Rock & Sand Co., 325 U. S. 410, 414 (1945)). See also Udall v. Tallman, 380 U. S. 1, 16-17 (1965).
We rejected a similar attempted transformation of precatory language in Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). There, we addressed a claim that the “bill of rights” of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 42 U. S. C. § 6010 (1976 ed. and Supp. Ill), created substantive rights in favor of the mentally retarded. The bill of rights provided, in part, that such persons “have a right to appropriate treatment, services, and habitation” and that state governments “have an obligation to assure that public funds are not provided to any [noncomplying] institutio[n].” §§6010(1), (8). We held that the bill of rights did not have substantive effect: “§ 6010, when read in the context of other more specific provisions of the Act, does no more than express a congressional preference for certain kinds of treatment. It is simply a general statement of ‘findings’ and, as such, is too thin a reed to support the rights and obligations read into it by the court below.” 451 U. S., at 19. Even though Pennhurst did not involve an agency regulation, its textual analysis suggests that it is unreasonable to give substantive effect to precatory, aspirational language — as would the Secretary’s construction of 42 CFR § 413.85(c) (1993). Cf. EEOC v. Arabian American Oil Co., 499 U. S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in judgment) (explaining that “deference is not abdication, and it requires us to accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ”).
Interestingly enough, for the first two decades of the Medicare program’s operation, the Secretary’s fiscal intermediaries, with her acquiescence (if not approval), gave § 413.85(c) precisely the same substantive effect as I would — none. During that entire period, the Secretary never invoked the subsection to deny reimbursement for previously unreimbursed costs, and providers were actually reimbursed for such costs despite § 413.85(c). Indeed, contrary to the Court’s baffling assertion that “petitioner fails to present persuasive evidence that the Secretary has interpreted the anti-redistribution provision in an inconsistent manner,” ante, at 515, one need look no further than petitioner’s brief, see Brief for Petitioner 21-24, to find evidence of such interpretive inconsistency as to both the anti-redistribution and community support principles.
Petitioner received no Medicare reimbursement for any GME costs from 1966 to 1973. Even though the anti-redistribution and community support principles were in effect for that entire period, see ante, at 507-508, n. 1, petitioner was awarded reimbursement for the first time in 1974, for salary-related GME costs. Because those GME costs were not paid for by Thomas Jefferson University Hospital (Hospital) prior to 1974, even the Secretary’s opinion below finds, as a matter of fact, that they were borne, to a large extent, by Jefferson Medical College (Medical School) during that period. Cf. App. to Pet. for Cert. 32a (identifying public educational grants to the Medical School and Medical School tuition as sources for funding the Hospital’s pre-1974 GME activities). Also, the funding for those costs that came from sources other than the Medical School (namely, hospital fees from charges to non-Medicare beneficiaries, see ibid.) did not come from Medicare and therefore constituted “community support.” See App. to Pet. for Cert. 18a (the Secretary “views community support as any source of funding other than the Medicare program”).
Yet under the Secretary’s present interpretation of § 413.85(c), petitioner should never have received any GME cost reimbursement because it had not obtained such reimbursement from the beginning of the Medicare program. To the extent the Hospital’s GME costs were previously borne by the Medical School, providing petitioner reimbursement for those costs violated the anti-redistribution principle, as presently construed. See ante, at 513 (“The Secretary interprets the regulation ... to deny reimbursement for ‘costs previously incurred and paid by a medical school’”) (editorial revisions omitted). Indeed, the Provider Reimbursement Review Board (PRRB) explicitly recognized this fact, finding that, on the fiscal intermediary’s interpretation of “redistribution” (adopted by the Secretary below), “[i]n 1974, the [Hospital] commenced shifting costs ... to the Medicare program” and that “[additional cost shifting occurred in 1984 when certain clerical costs of the Medical School were included in the [Hospital’s] cost report.” App. to Pet. for Cert. 50a. Similarly, reimbursing petitioner for GME costs violated the community support principle, to the extent funding for such costs had been available previously from non-Medicare sources. See ante, at 511 (where community support has been received, § 413.85(c) “prohibits Medicare reimbursement”). Thus, the Court’s statement that there is no “evidence that the Secretary has interpreted the anti-redistribution provision in an inconsistent manner,” ante, at 515, appears to be wishful thinking: Petitioner has been routinely granted reimbursement which it should have been denied under § 413.85(c), if the Secretary’s current interpretation is correct.
I think it reasonable to conclude that in reimbursing petitioner since 1974 for GME costs not reimbursed from the inception of the Medicare program, the Secretary acted on the basis of an interpretation of § 413.85(c) that attached no significance to a Medicare provider’s failure in prior years to be reimbursed for, or to carry on its books, eligible educational costs. This conclusion has significant support in the Secretary’s roughly contemporaneous pronouncements. Cf. Lyng v. Payne, 476 U. S. 926, 939 (1986); M. Kraus & Bros., Inc. v. United States, 327 U. S. 614, 622 (1946) (opinion of Murphy, J.). In 1978, for example, the Secretary advised fiscal intermediaries that reasonable GME costs incurred by a related medical school are “allowable hospital costs,” Intermediary Letter No. 78-7 (Feb. 1978), without even mentioning either the community support or the anti-redistribution principle as potential limitations on its construction. App. to Pet. for Cert. 64a. The letter’s explicit statement that the Secretary therein addressed the “appropriateness” of “allocating [educational costs] to the
Question: What is the issue of the decision?
01. comity: civil rights
02. comity: criminal procedure
03. comity: First Amendment
04. comity: habeas corpus
05. comity: military
06. comity: obscenity
07. comity: privacy
08. comity: miscellaneous
09. comity primarily removal cases, civil procedure (cf. comity, criminal and First Amendment); deference to foreign judicial tribunals
10. assessment of costs or damages: as part of a court order
11. Federal Rules of Civil Procedure including Supreme Court Rules, application of the Federal Rules of Evidence, Federal Rules of Appellate Procedure in civil litigation, Circuit Court Rules, and state rules and admiralty rules
12. judicial review of administrative agency's or administrative official's actions and procedures
13. mootness (cf. standing to sue: live dispute)
14. venue
15. no merits: writ improvidently granted
16. no merits: dismissed or affirmed for want of a substantial or properly presented federal question, or a nonsuit
17. no merits: dismissed or affirmed for want of jurisdiction (cf. judicial administration: Supreme Court jurisdiction or authority on appeal from federal district courts or courts of appeals)
18. no merits: adequate non-federal grounds for decision
19. no merits: remand to determine basis of state or federal court decision (cf. judicial administration: state law)
20. no merits: miscellaneous
21. standing to sue: adversary parties
22. standing to sue: direct injury
23. standing to sue: legal injury
24. standing to sue: personal injury
25. standing to sue: justiciable question
26. standing to sue: live dispute
27. standing to sue: parens patriae standing
28. standing to sue: statutory standing
29. standing to sue: private or implied cause of action
30. standing to sue: taxpayer's suit
31. standing to sue: miscellaneous
32. judicial administration: jurisdiction or authority of federal district courts or territorial courts
33. judicial administration: jurisdiction or authority of federal courts of appeals
34. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from federal district courts or courts of appeals (cf. 753)
35. judicial administration: Supreme Court jurisdiction or authority on appeal or writ of error, from highest state court
36. judicial administration: jurisdiction or authority of the Court of Claims
37. judicial administration: Supreme Court's original jurisdiction
38. judicial administration: review of non-final order
39. judicial administration: change in state law (cf. no merits: remand to determine basis of state court decision)
40. judicial administration: federal question (cf. no merits: dismissed for want of a substantial or properly presented federal question)
41. judicial administration: ancillary or pendent jurisdiction
42. judicial administration: extraordinary relief (e.g., mandamus, injunction)
43. judicial administration: certification (cf. objection to reason for denial of certiorari or appeal)
44. judicial administration: resolution of circuit conflict, or conflict between or among other courts
45. judicial administration: objection to reason for denial of certiorari or appeal
46. judicial administration: collateral estoppel or res judicata
47. judicial administration: interpleader
48. judicial administration: untimely filing
49. judicial administration: Act of State doctrine
50. judicial administration: miscellaneous
51. Supreme Court's certiorari, writ of error, or appeals jurisdiction
52. miscellaneous judicial power, especially diversity jurisdiction
Answer:
|
songer_usc2sect
|
1601
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15. In case of ties, code the first to be cited. The section number has up to four digits and follows "USC" or "USCA".
John H. STEWART, Appellant, v. The TRAVELERS CORPORATION et al., Appellees.
No. 72-2457.
United States Court of Appeals, Ninth Circuit.
Sept. 9, 1974.
Hunsdon Cary Stewart (argued), Los Angeles, Cal., for appellant.
Kenneth W. Anderson (argued), of Gibson, Dunn & Crutcher, Los Angeles, Cal., for appellees.
OPINION
Before DUNIWAY and HUFSTEDLER, Circuit Judges, and KING, District Judge.
SAMUEL P. KING, District Judge:
Appellant, Stewart, was discharged by The Travelers Insurance Company on January 15, 1971. Stewart subsequently complained to the United States Department of Labor that his dismissal violated 15 U.S.C. § 1674(a) which forbids the discharge of an employee due to the garnishment of his wages for one indebtedness. When the Department of Labor refused to take action on his claim, Appellant filed a complaint in the district court for the Central District of California. Although private civil remedies are not expressly authorized for § 1674(a) violations, Stewart requested as relief reinstatement, backpay, punitive damages, and attorney’s fees. Judge Gray found that Congress did not intend such private actions for civil relief to be available under § 1674, and dismissed the complaint. On appeal from that ruling, this court must decide whether private civil remedies may be implied for § 1674(a) violations. We hold that such remedies must be implied; and accordingly, we reverse the district court’s dismissal of Stewart’s complaint.
Private civil remedies for violations of federal statutes have been implied, even when criminal sanctions and administrative enforcement are expressly authorized. In Burke v. Com-pania Mexicana de Aviación, supra note 4, this court held that under § 2 of the National Railway Act an individual discharged for union organizing could bring suit for reinstatement and damages, even though a criminal action by the U.S. attorney was expressly provided in the act. The Burke court stated:
In the absence of a clear congressional intent to the contrary, the courts are free to fashion appropriate civil remedies based on the violation of a penal statute where necessary to ensure the full effectiveness of the congressional purpose. See, e. g., Wyandotte Transportation Co. v. United States, 1967, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407; J. I. Case Co. v. Borak, 1964, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423; Texas & Pacific R. Co. v. Rigsby, 1916, 243 U.S. 33, 36 S.Ct. 482, 60 L.Ed. 874. Where the interest asserted by the plaintiff is within the class that the statute was intended to protect, the harm of the type the statute was intended to forestall and the statutory criminal penalty inadequate to fully protect the asserted interest, a civil action for damages arises by implication. Wyan-dotte Transportation Co. v. United States, supra.
Based upon the allegations in his complaint, Stewart’s interest as an employee is within the class that the statute was intended to protect, and his discharge due to one indebtedness is the type of harm which the statute was intended to forestall. The Appellees do not argue to the contrary. However, the Appellees do assert that there is ample evidence of a clear congressional intent against private actions for civil remedies for § 1674(a) violations, and further that the criminal sanctions and agency enforcement explicitly authorized in Subchapter II of the Act adequately protect Stewart’s statutory interest.
Appellees’ position that Congress clearly intended not to have private civil relief available for § 1674(a) violations is well argued, but unconvincing. First, although the passage of § 1674 was influenced by an analogous New York law containing a limited civil remedy for discharges due to “income execution,” the absence of such a limited provision in § 1674 indicates at most that Congress did not want a limited civil remedy provision. It does not clearly suggest that Congress meant to exclude all private actions for civil relief. Second, Appellees point to a Congressional debate on whether there should be a criminal penalty for § 1674(a) violations as proof that the authors of the statute assumed no civil remedies were to be available. See 114 Cong.Rec. 1839 (Feb. 1, 1968). While this debate manifests that Congress regarded criminal penalties as essential to effective enforcement, it does not evince a clear congressional intent to exclude civil remedies, which are not mentioned.
Finally, Appellees assert that because specific and limited civil remedies exist in § 1640 of Subchapter I of the Act, the absence of a similar provision in Subchapter II shows the intent to exclude a private civil remedy for § 1674. In fact, they are urging this Court to apply the doctrine of expressio unius est exclusio cdterius — the express authorization of a remedy in one section of a statute indicates that an omission of that remedy from other sections was intended by the legislature. While in the past some courts (including this one) have used this rule when denying implied actions under particular statutes, the rule has been criticized. Recently (as recognized by this court’s holdings) the tendency is to limit the expressio un-ius rule in favor of construing an act so as to effectuate its dominant purpose.
Appellees also argue that the criminal sanctions of § 1674(b) and the Department of Labor enforcement mandate of § 1676 adequately protect Stewart’s statutory interests, citing Breitwieser v. KMS Industries, Inc., 467 F.2d 1391 (5th Cir. 1972). In Breitwieser, the Fifth Circuit affirmed a lower court’s dismissal of a private action for damages under the Fair Labor Standards Act (FLSA) for the wrongful death of a child. While noting that the FLSA had elaborate criminal provisions which fulfilled the act’s purpose and that state law afforded the plaintiff a limited monetary remedy, the court indicated that remedies are implied if no remedy exists, or if the remedy provided is “grossly inadequate.” However, in this case, neither the existence of alternative remedies under the same statute or under state law, nor the fact that enforcement of the federal statute is expressly vested in an administrative agency overcomes the need to imply a private right of action for § 1674(a) violations.
Whatever may be the rule of “adequacy” elsewhere, we believe that when there is no clear congressional intent contrary to the implication of private civil remedies, the adequacy of a statute’s express remedies (or alternatively, the necessity of implied private ones) must be determined according to whether those express remedies ensure the full effectiveness of the congressional purpose underlying the statute. In this sense, when the statute in question seeks to protect an individual’s interest, it is not enough for it to have some enforcement mechanisms: the initial question is whether the statute’s protection might be enhanced by allowing private civil relief. Of course, “effectiveness” means more than deterrence, and the court must also consider whether implied private remedies might diminish the efficient and fair administration of the statute in question given the complexity of the act, and the interests of those regulated by it.
In this case, a primary purpose of § 1674(a) is to protect against the hardships and disruptions resulting from employee discharges due to but one garnishment of wages. The administrative and criminal remedies for § .1674 violations do not provide maximum enforcement. The criminal sanctions cover only wilful violations: negligent violations are not covered, and proving wilfulness may well be difficult in the context of large corporate employers where the locus of particular decision-making is often elusive. Whatever deterrence § 1674(b) creates, since it does not compensate the jobless and credit-stricken victim, it does not undo the very harm which the statute was intended to forestall. Enforcement by the Department of Labor is also problematic because any action by the Secretary is discretionary, not mandatory.
Furthermore, the implication of a private remedy under this statute will not upset the general administration of Sub-chapter II of the Act, or unfairly affect the interests of employers. § 1674(a) contains a relatively straightforward mandate covering virtually all employers and employees, and compliance with the statute is hardly onerous since discharges may occur after one garnishment of wages. The issues raised in § 1674(a) claim are simple ones, not requiring special knowledge of the economics or other intricacies of a particular industry or type of employer. To the extent that implying a private action for civil relief causes employers to be more careful before discharging individuals for one wage garnishment, it serves their own interests as well as those of creditors. As the court in Johnson v. Pike Corp. of America, 332 F.Supp. 490, 496 (C.D.Cal.1971), stated, “Discharging an employee solely because his wages have been garnished once or several times benefits no one; the employer loses an otherwise capable employee and must expend considerable time and effort to train a replacement; the employee loses his source of income and may become dependent upon unemployment compensation or welfare; and the creditor is less likely to recover his claim.”
Therefore, the implication of private civil remedies is necessary to ensure the full effectiveness of the congressional purpose behind § 1674(a), and we remand this case to the district court for trial on the merits.
The Honorable Samuel P. King, United States District Judge, for the District of Hawaii, sitting by designation.
. This case arises under Subchapter II (§§ 1671-1677, “Restrictions on Garnishment”) of the Consumer Credit Protection Act of 1968, 15 U.S.C.A. §§ 1601-1681 (Supp. I, 1974) (hereinafter “the Act”). § 1674(a) provides: “No employer may discharge any employee by reason of the fact that his earnings have been subjected to garnishment for any one indebtedness.” § 1674(b) authorizes criminal penalties for violations of subsection (a). Under § 1676, the Secretary of Labor, acting through t'.e Wage and Hour Division of the Department of Labor, is charged with the duty of enforcing Sub-chapter II.
. While nowhere in Subchapter II of the Consumer Credit Protection Act are private civil remedies expressly authorized, § 1640 contains detailed private civil relief for violations under Subchapter I of the Act.
. See, e. g., Wyandotte Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967) (allowing U. S. government to sue); J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964); Moses v. Burgin, 445 F.2d 369 (1st Cir.), cert. denied, 404 U.S. 994, 92 S.Ct. 532, 30 L.Ed.2d 547 (1971); Gomez v. Florida State Employment Service, 417 F.2d 569 (5th Cir. 1969); Ellis v. Carter, 291 F.2d 270 (9th Cir. 1961); Matheson v. Armbrust, 284 F.2d 670 (9th Cir. 1960). See generally, Farmland Industries, Inc. v. Kansas-Nebraska Natural Gas Co., Inc., 349 F.Supp. 670, 678 n. 1 (D.Neb.1972); A. Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U.Penn.L.Rev. 1 (1968); Symposium, Private Rights From Federal Statutes: Toward a Rational Use of Borak, 63 N.W.U.L.Rev. 454 (1968); R. O’Neil, Public Regulation and Private Rights of Action, 52 Cal.L.Rev. 231 (1964); Note, Implying Civil Remedies From Federal Regulatory Statutes, 77 Harv.L.Rev. 285 (1963).
Traditionally where there is a right, courts will fashion a remedy. See Bell v. Hood, 327 U.S. 678, 66 S.Ct. 773, 90 L.Ed. 939 (1946). Our decision is consistent with this rule in that the addition of implied remedies to express ones in this case will provide the most effective protection for employees’ statutory rights.
. Cases where private civil actions were implied from statutes containing criminal penalties include Burke v. Compania Mexicana de Aviacion, 433 F.2d 1031 (9th Cir. 1970); Common Cause v. Democratic National Committee, 333 F.Supp. 803 (D.C.D.C.1971); Fagot v. Flintkote Co., 305 F.Supp. 407 (E.D.La.1969); Wills v. Trans World Airlines, Inc., 200 F.Supp. 360 (S.D.Cal.1961). Cases where private civil actions were implied from statutes authorizing enforcement by a federal agency include Pearlstein v. Scudder & German, 429 F.2d 1136 (2d Cir. 1970); Fitzgerald v. Pan American Airways, 229 F.2d 499 (2d Cir. 1956); Fagot, supra; Wills, supra.
. Both sides apparently agree that 'the rationale of Burke, supra note 4, at 1033-1034, controls this case. Nevertheless, Appellant also argues that since § 1674(a) is at least partially remedial in nature, it falls within the rule that remedial statutes must be broadly construed to effectuate the purpose of the act in question. Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed. 2d 426 (1968); Jordan v. Acacia Mutual Life Insurance Co., 133 U.S.App.D.C. 224, 409 F.2d 1141, cert. denied, 395 U.S. 959, 89 S.Ct. 2101, 23 L.Ed.2d 746 (1969); Blau v. Rayette-Faberage, Inc., 389 F.2d 469 (2d Cir. 1968); Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209 (4th Cir. 1967). However, as the cases cited by Stewart suggest that canon of statutory construction applies when ambiguous statutory language must be applied to the facts of a given case, not when a civil remedy is requested in the total absence of any authorizing statutory language.
. Three district courts outside the Ninth Circuit have used arguments similar to Appellees’ while refusing to imply a private civil action for § 1674(a) violations. Western v. Hodgson, 359 F.Supp. 194 (S.D.W.Va.1973); Oldham v. Oldham, 337 F.Supp. 1039 (N.D.Iowa 1972) (court relied upon Jordan v. Montgomery Ward & Co., note 8, infra); Simpson v. Sperry Rand Corp., 350 F.Supp. 1057 (W.D.La.1972), vacated, 488 F.2d 450 (5th Cir. 1973). But see, Nunn v. City of Paducah, 367 F.Supp. 957 (W.D.Ky.1973) (private party permitted to sue under § 1674).
Appellees also assert that implied private remedies would be inadvisable here because the amount of damages would be limitless, and there would be no explicit statute of limitations. These arguments have not stopped other courts from implying private remedies under other statutes. Furthermore, the plaintiff’s relief may well be limited by his need to mitigate damages, and the doctrine of laches restricts the time in which a suit can be brought.
. While Appellees do not question the Burke rule of allowing implied remedies in the absence of a clear congressional intent to the contrary, other courts sometimes fashion civil remedies from federal regulatory statutes only where an affirmative intent of Congress to create such private remedies is manifest. Chavez v. Freshpict Foods, 456 F.2d 890 (10th Cir.), cert. denied, 409 U.S. 1042, 93 S.Ct. 535, 34 L.Ed.2d 492 (1972) (refusal to imply private right of action under the Immigration and Nationality Act, or under the Farm Labor Contractor Registration Act). See also, Symposium, supra note 3, at 458. However, the rule that rights of actions may be implied in the absence of clear congressional intent to the contrary is well-founded in the law. See Wyandotte Co., supra note 3, 389 U.S. at 200-201, 88 S.Ct. at 385:
But our reading of the Act does not lead us to the conclusion that Congress must have intended the statutory remedies and procedures to be exclusive of all others. There is no indication anywhere else — in the legislative history of the Act, in the predecessor statutes, or in nonstatutory law — that Congress might have intended that a party who negligently sinks a vessel should be shielded from personal responsibility. We therefore hold that the remedies and procedures specified by the Act for the enforcement of § 15 were not intended to be exclusive. Applying the principles of our decision in [United States v.] Republic Steel [362 U.S. 482, 80 S.Ct. 884], we conclude that other remedies, including those here sought, are available to the Government.
See also, Katz, The Jurisprudence of Remedies, supra note 3, at 31-32. Such a rule of congressional intent has the salutary effect of allowing the courts to act when the full effectiveness of a statute .might otherwise be in jeopardy. If Congress wishes to preclude judicial consideration of issues concerning the implication of a private action under a statute, it needs only to say so expressly in the act itself or in the legislative record.
. See T.I.M.E. Inc. v. United States, 359 U.S. 464, 79 S.Ct. 904, 3 L.Ed.2d 952 (1959); Jordan v. Montgomery Ward & Co., 442 F.2d 78 (8th Cir. 1971), cert. denied, 404 U.S. 870, 92 S.Ct. 78, 30 L.Ed.2d 114. Consolidated Freightways v. United Truck Lines, 216 F.2d 543 (9th Cir. 1954), cert. denied, 349 U.S. 905, 75 S.Ct. 582, 99 L.Ed. 1242 (1955). Of course, these cases are distinguishable from the one at hand, and the utilization of the expressio unius rule to construe congressional intent in each case was but one argument supporting the court’s holding. In T.I.M.E. Ino., the Court held that a shipper of goods by a certified motor carrier could not challenge in post-shipment litigation the reasonableness of the carrier’s charges alleged to be violative of the Motor Carrier Act of 1935. The Court’s view of congressional intent was buttressed by the fact that proposed statutory amendments on this issue had been defeated in Congress. In Jordan the court refused to imply a civil remedy for violation of the credit advertising provisions of the Federal Truth in Lending Act. The court, in Jordan, referred to the House Committee Report on the bill, which explicitly stated:
“‘[T]he bill specifically exempts credit advertising from the application of civil penalties. This exemption has been written into the bill by your committee to avoid the possibility that anyone . . . would attempt to seek civil penalties.’ U.S.Code Cong. & Admin.News, p. 1976.” 442 F.2d, at 81.
Twenty years ago, this court in Consolidated Freightways upheld a dismissal of a claim for damages under the Motor Carriers Act for lack of jurisdiction, using the expressio unius rule as one argument. A more compelling reason for the court’s ruling was that the claimant had no rights under the Act, but was only a permittee subject to the regulations of the I.C.C. The Court was also influenced by the fact that the violation could generally be brought to the I.C.C.’s attention before any harm would occur to the competitor.
. See, e. g., Hart & Sacks, The Legal Process 1173-74 (temp. ed. 1958); Note, Implying Civil Remedies, supra note 3, at 290.
. In illafheson, supra note 3, we explicitly refused to follow the expressio unius rule and found that there was an implied right of action for buyers under § 10(b) of the Securities Exchange Act of 1934 even though express remedies were provided for §§11 and 12 violations. See also, O’Neil, Public Regulation, supra note 3, at 259.
. The Breitwieser decision has been criticized. See Note, 26 Vand.L.Rev. 867 (1973) wherein the author at 873 argues that the recognition of a private right of action under the act “. . . would have supplemented effectuation of the Congressional policy favoring protection of child labor and would have compensated plaintiffs more satisfactorily.”
. See Note, Federal Restrictions of Wage Garnishments: Title III of the Consumer Credit Protection Act, 44 Ind.L.Rev. 267, 278-82 (1968) wherein the author advocates the implication of a private civil remedy for wrongful discharges under § 1674. See also, Note, The Implication of a Private Cause of Action Under Title III of the Consumer Credit Protection Act, 47 S.Cal.L.Rev. 383 (1974) wherein the author argues for the courts to recognize a private right of action for debtor-employees as a means of supplementing the Labor Department’s enforcement activities. Although it has been asserted that the existence of alternative state remedies lessens the need for implied ones (Note, Implying Civil Remedies, supra note 3, at 292-93) and some states do have laws restricting discharges for wage garnishments, the existence of state remedies has not prevented courts from implying private ones under federal statutes. See Borak, supra note 3; Wills, supra note 4.
. There are, for example, statutes which codify an intricate regulatory scheme of a particular industry, and implying a private civil action may well diminish the statute’s full effectiveness because violations may raise highly complex issues requiring a federal agency’s understanding of the intricate economic policies underlying the act. See generally, Fagot, supra note 4, at 413; O’Neil, Public Regulation, supra note 3, at 262-63. Violations based on rate-making under a regulatory statute may exemplify such a situation. Compare T.I.M.E. Inc. v. United States, supra note 8, with Hewitt-Robins, Inc. v. Eastern Freight-Ways, Inc., 371 U.S. 84, 83 S.Ct. 157, 9 L.Ed.2d 142 (1962). T.I.M.E. Inc. and Hewitt-Robins are distinguishable from the case at hand because there the issue of remedies involved a statutory savings clause; yet in IlewittRobins, the Court indicated that the test for deciding whether a particular pre-statutory remedy was “inconsistent” witli the act and therefore outside the savings clause was “the effect of the exercise of the remedy upon the statutory scheme of regulation.” 371 U.S. at 89, 83 S.Ct. at 160. Although a savings clause is . not here involved, the court’s determination of whether an implied private action would be inconsistent with achieving the full effectiveness of the congressional purpose underlying § 1674(a) accords with the rationale of Hewitt-Robins.
. § 1674 manifests congressional concern over the unscrupulous and unfair use of wage garnishments by creditors. In support of § 1674, Congresswoman Sullivan, Chairman of the House Subcommittee on Consumer Affairs, stated:
What we know from our study of this problem is that in a vast number of cases the debt is a fraudulent one, saddled on a poor ignorant person who is trapped in an easy credit nightmare, in which he is charged double for something he could not pay for even if the proper price was called for, and then hounded into giving up his pound of flesh, and being fired besides.
114 Oong.Ree. II688 (Feb. 1, 1968). Congress also sought to protect the general public from the adverse effects of discharges for wage garnishments. § 1671(a)(2) states: “The application of garnishment as a creditors’ remedy frequently results in loss of employment by the debtor, and the resulting disruption of employment, production, and consumption constitutes a substantial burden on interstate commerce.”
. See Note, The Implication of a Private Cause of Action, supra note 12, at 398. See also, Common Cause v. Democratic National Committee, 333 F.Supp. 803, 813 n. 35 (D.C.D.C.1971) (cause of action implied, and Justice Department enforcement said to be inadequate in part because prosecution was within Executive’s discretion). Appellant argues that enforcement of § 1674(a) by the Department of Labor is inadequate because of the agency’s insufficient manpower and resources; and in its amicus curiae brief in the Simpson case, supra note 6, the Department did advocate allowing private actions under § 1674. See also, Note, The Implication of a Private Cause of Action, supra note 12, at 399-401. Nevertheless, since evidence of any inability of the Department to carry out its § 1676 mandate was not presented to us in this case, we make no such finding here. Similarly, Appellee cites several cases wherein the Secretary of Labor has brought suit for violations of § 1674; but of course, absent evidence of the number of cases the Secretary might have filed, these cases do not indicate how effective an enforcement mechanism § 1676 is.
. See note 13, supra.
. Because the district court refused to find an implied private civil action for violation of § 1674, it did not consider the nature of relief to which a plaintiff will be entitled if successful on the merits. We reserve ruling on that question until the district court lias had an opportunity to consider the appropriate scope of relief in the context of the facts of a particular case.
Question: What is the number of the section from the title of the second most frequently cited title of the U.S. Code in the headnotes to this case, that is, title 15? Answer with a number.
Answer:
|
songer_counsel2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant and Appellee, v. D. D. HARRINGTON et al., Appellees and Appellants. D. D. HARRINGTON et al., Appellees and Appellants, v. NATURAL GAS PIPELINE COMPANY OF AMERICA, Appellant and Appellee.
No. 16206.
United States Court of Appeals Fifth Circuit.
July 9, 1957.
Clarence H. Ross, Chicago, 111., D. H. Culton, Amarillo, Tex., Warren T. Spies, Chicago, 111., Ross & O’Keefe, Chicago, 111., Culton, Morgan, Britain & White, Amarillo, Tex., of counsel, for appellants.
David T. Searls, Gene M. Woodfin, Houston, Tex., Hugh L. Umphres, Jr., Amarillo, Tex., J. Evans Attwell, Vinson, Elkins, Weems & Searls, Houston, Tex., Umphres & Umphres, Amarillo, Tex., Vinson, Elkins, Weems & Searls, Houston, Tex., Umphres & Umphres, Amarillo, Tex., of counsel, for appellee.
Before BORAH, RIVES and BROWN, Circuit Judges.
RIVES, Circuit Judge.
Restitution was sought by Natural from Harrington for the difference between the contract rate for the purchase of natural gas and the price paid in compliance with an order of the Oklahoma Corporation Commission which was later declared invalid by the United States Supreme Court. The district court found Natural entitled to restitution in the sum of $1,302,491.23. It deducted from the restitution claimed $321,279, being $237,000 paid by Panoma as increased royalties and $84,279 paid as increased gross production taxes, and allowed no interest prior to the date of the judgment. Both Harrington and Natural appeal.
Harrington insists that Natural is not entitled to any restitution; Natural contends that the court erred as to each of the several sums deducted, and in denying it full restitution plus interest. Since the district court rendered summary judgment, we must, in examining each of the questions, determine whether there was any genuine issue as to any material fact and whether the judgment was right as a matter of law.
Judge Estes’ excellent opinion, reported in 139 F.Supp. at 452, et seq., relieves us of the necessity for making more than a brief statement of the facts. Under the contract effective December 1, 1946, and to endure so long as gas is produced in paying quantities, Harrington had agreed to sell to Natural the gas produced from Harrington’s wells located in some 78,000 acres of gas reserves in the Guymon-Hugoton Field in Texas County, Oklahoma, at 7 cents per M. c. f. measured at 16.4 pounds per square inch, equivalent to 6.253 cents when measured at 14.65 pounds pressure and 60 degrees Fahrenheit. On December 9, 1946, a few days after the effective date of the contract, the Oklahoma Corporation Commission entered its first order fixing a minimum price of seven cents for all gas measured at 14.65 pounds and 60 degrees Fahrenheit removed from the Guymon-Hugoton Field. Natural refused to comply with this order, and, on May 17, 1951, the Oklahoma Commission directed Natural to pay the difference between the contract price and the seven cents minimum price. Natural posted bond and superseded the order. No payments were ever made under that first order.
On July 29, 1952, the Oklahoma Commission issued its second order increasing the minimum price to 9.8262 cents. The effective date of this order was delayed until September 10, 1952. On September 9, 1952, Natural notified Panoma, Harrington’s predecessor, that it would appeal from the order and would not supersede, but (repeated with each payment) that it would pay the 9.8262 cents under protest, and would, upon success in the appeal, seek restitution for the amounts paid in excess of the contract price with lawful interest thereon.
Without considering the Natural Gas Act enacted by Congress in 1938, 52 Stat. 833, 15 U.S.C. § 717v, the Supreme Court had in 1950 upheld the validity as against certain constitutional objections of the first Oklahoma minimum price order. Cities Service Gas Co. v. Peerless Oil & Gas Co., 340 U.S. 179, 71 S.Ct. 215, 95 L.Ed. 190. Following the landmark case of Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 74 S.Ct. 794, 98 L.Ed. 1035, the second order was declared invalid on April 11, 1955, because “such a sale and transportation cannot be regulated by a State but are subject to the exclusive regulation of the Federal Power Commission.” Natural Gas Pipeline Co. v. Panoma Corporation, et al., 349 U.S. 44, 75 S.Ct. 576, 99 L.Ed. 866.
Meanwhile, on July 1, 1954, pursuant to a plan for liquidation, Panoma transferred all its assets to its stockholders, Harrington, et al., the defendants below. The consent of Natural to certain assignments of the contract incident to such transfer was required, and, in consideration of Natural’s consent, Harrington, et al., executed a letter containing the following obligation:
“That we hereby jointly and severally agree on behalf of ourselves, our executors, administrators and assigns to pay you or cause to be paid you any sums of money with lawful interest thereon which you are entitled to have refunded or returned with respect to the payments to Panoma Corporation in excess of the contract price made under protest referred to in said letter of September 9, 1952. We do also jointly and severally, for ourselves, our heirs, executors, administrators and assigns agree to ami do hereby acknowledge and assume: any obligations imposed upon Panoma Corporation by virtue of the letter you addressed to it under date of September 9, 1952.”
Harrington, et al., resold the major portion of the assets to third persons, and received therefor $40,000,000 in cash plus other valuable considerations. The restitution here sought is for claimed overpayments for gas delivered between September 10, 1952, the effective date of the second Oklahoma minimum price order, and July 1, 1954, the date of sale of Harrington’s assets.
Harrington’s principal defense is based upon the equitable nature of the remedy of restitution so clearly expressed by Mr. Justice Cardozo in Atlantic Coast Line R. Co. v. State of Florida, 295 U.S. 301, 309, 310, 55 S.Ct. 713, 79 L.Ed. 1451. In that case, an order of the Interstate Commerce Commission requiring an increase of intrastate rates because discriminatory against intrastate commerce had been set aside “solely upon the ground that the facts supporting the conclusion were not embodied in the findings” (295 U.S. 311, 55 S.Ct 717). The Commission thereafter “looked into the past and ascertained the facts. In particular, it looked into the very years covered by the claims for restitution and found the inequality and injustice inherent in the Cummer rates during the years they were in suspense and during those they were in force.” 295 U.S. 312, 55 S.Ct. 718.
“By the time that the claim for restitution had been heard by the master and passed upon by the reviewing court, the Commission had cured the defects in the form of its earlier decision. During the years affected by the claim there existed in very truth the unjust discrimination against interstate commerce that the earlier decision had attempted to correct. If the processes
of the law had been instantaneous or adequate, the attempt at correction would not have missed the mark. It was foiled through imperfections of form, through slips of procedure * * * as the sequel of events has shown them to be.” 295 U.S. at pages 311, 312, 55 S.Ct. at page 717.
The Supreme Court directed that the claims for restitution be dismissed, holding that the federal court “discovers through the evidence submitted to the Commission and renewed in the present record that what was charged would have been lawful as well as fair if there had been no blunders of procedure, no administrative delays.” 295 U.S. at page 315, 55 S.Ct. at page 719. See also United States v. Morgan, 307 U.S. 183, 196, 59 S.Ct. 795, 83 L.Ed. 1211.
Harrington calls attention that in the instant case the order of the Oklahoma Commission was not invalidated on its merits, or because the rate of 9.8262 cents was unjust or unreasonable, but simply because exclusive jurisdiction was vested in the Federal Power Commission, and that that Commission, by its order of November 14, 1955, accepted as the present effective rate of Harrington’s successor in interest, the same 9.8262 cents.
It should further be noted, however, that the invalidity of the order of the Oklahoma Commission was not caused by any defect or imperfection of form or slip of procedure but resulted from a total lack of jurisdiction. Further, the Federal Power Commission by its order of November 14, 1955, spoke for the future only, and did not possess the power enjoyed by the Interstate Commerce Commission in the Atlantic Coast Line case, supra, of looking into the past and ascertaining the facts. Nor does any court possess such power for the purpose of fixing retroactively a just, reasonable, and lawful rate. Here the parties themselves had fixed the rate to be charged by their solemn and binding contract, and that contract rate could be changed only by the Federal Power Commission after a hearing conducted in accordance with Section 5(a) of the Natural Gas Act, 15 U.S.C.A. § 717d(a). United Gas Pipe Line Co. v. Mobile Gas Corporation, 350 U.S. 332, 76 S.Ct. 373, 100 L.Ed. 373. Moreover, in the Atlantic Coast lane case, supra, the railroad carrier -was entitled to the protection of the order of the Interstate Commerce Commission against being required to accept the unreasonably low intrastate rates, while here the primary aim of the Natural Gas Act was “protection of consumers against exploitation at the hands of natural-gas companies.” Phillips Petroleum Co. v. State of Wisconsin, 347 U.S. 672, 685, 74 S.Ct. 794, 800 (concurring opinion of Mr. Justice Frankfurter). Even the Federal Power Commission, which had exclusive jurisdiction, could increase the contract rate only because of considerations of the public interest and not on account of any claimed right of Harrington to relief from an improvident bargain. Federal Power Commission v. Sierra Pacific Power Co., 350 U.S. 348, 355, 76 S.Ct. 368, 100 L.Ed. 388.
True, in United Gas Pipe Line Co. v. Mobile Gas Corporation, supra, the contract was filed with the Federal Power Commission, and here it was not so filed. Section 4(c) of the Natural Gas Act, 15 U.S.C.A. § 717c(c), provides that:
“Under such rules and regulations as the Commission may prescribe, every natural-gas company shall file with the Commission, within such time (not less than sixty days from the date this act takes effect) and in such form as the Commission may designate, and shall keep open in convenient form and place for public inspection, schedules showing all rates and charges for any transportation or sale subject to the jurisdiction of the Commission, and the classifications, practices and regulations affecting such rates and charges, together with all contracts which in any manner affect or relate to such rates, charges, classifications, and services.”
Until the decision in Phillips Petroleum Co. v. State of Wisconsin, 1954, 347 U.S. 672, 74 S.Ct. 794, the parties, and indeed the Commission itself, had proceeded upon the assumption that the Commission had no regulatory jurisdiction over the rates of independent producers. After that decision, the Commission, by its Orders 174 and 174A, entered July 16,1954 and August 6,1954, respectively fixed the time within which such producers could file their rates. Since the Phillips decision, it has become clear to all of the parties that the contract should have been filed with the Commission. The failure to file it earlier, however, did not prevent the jurisdiction of the Commission from attaching. Interstate Natural Gas Co. v. Southern California Gas Co., 9 Cir., 209 F.2d 380, 384. There is nothing in the Natural Gas Act or in the orders of the Federal Power Commission to indicate that, under such circumstances, until the rates were filed there was no effective or lawful rate. To the contrary, the Act expressly provided for delay in such filing, and under the rationale of United Gas Pipe Line Co. v. Mobile Gas Corporation, supra, the contract rate, even though unfiled, became and remained the only lawful rate until changed by order of the Federal Power Commission. Any price in excess of the contract rate was then contrary to the spirit, if not the letter, of the Natural Gas Act.
Harrington insists, however, that the excess payments were voluntarily made by Natural, or at least that there was a genuine issue of fact as to whether they were involuntarily made under coercion of “business duress.” Natural, of course, concedes that restitution will not lie if the excess payments were voluntarily made. Further, duress or coercion must exist, and the written protest does not, by itself, make the payments involuntary. Union Pacific R. Co. v. Dodge County Commissioners, 98 U.S. 541, 544, 25 L.Ed. 196; Bank of United States v. Bank of Washington, 1832, 6 Pet. 8, 12, 8 L.Ed. 299.
The order of the Oklahoma Commission directed,
“That no gas shall be produced from' any well located in the Guymon-Hugoton Field of Oklahoma except at a price of not less than 9.8262c per thousand cubic feet if sold at the wellhead or on the lease or drilling unit from which produced, or a price equivalent to not less than 9.8262c per thousand cubic feet at the wellhead if sold off the lease or drilling unit or otherwise utilized.”
Assuming validity of the order, its violation carried criminal sanctions under an Oklahoma Statute (O.S., Title 52, See. 278) providing for a fine of not to exceed $5,000 or imprisonment in the county jail for not more than thirty days, or both such fine and imprisonment on those who violate its conservation laws. Mr. T. Murray Robinson, counsel for Panoma, Harrington’s predecessor, filed an affidavit in which he conceded:
“That after said order was entered, Mr. Coleman Hayes, who represented Natural Gas Pipeline Company of America in said proceedings, visited with me by telephone concerning the effect of said order on the relationship of Panoma and Natural. In the course of that conversation I told Mr. Hayes that in my opinion as a lawyer the order of the Commission would become binding unless superseded and that Panoma, like all others, would be compelled to abide thereby, and that in my opinion the order directed producers who were not receiving the minimum price to ceas.e deliveries.”
Scant respect would be accorded to the laws of the State of Oklahoma, if it were held that Natural had to go further and speculate on whether Panoma actually would have ceased delivering gas if Natural had refused to pay the increased price.
Natural candidly admits that it was motivated not to supersede the order by its desire to seek from the Federal Power Commission increases reflecting the prices paid under the order, and thus to pass on the increase rather than itself bearing the entire risk. We do not agree with Harrington that such motive converted Natural’s payment of the increased rate into a “calculated business maneuver.” If anything, the choice between bearing the entire risk of loss and trying to pass it on increased the business duress on Natural to make payments in accordance with the order. See Union Pacific R. Co. v. Public Service Commission, 248 U.S. 67, 70, 39 S.Ct. 24, 63 L.Ed. 131.
Further, Harrington urges that the duress was not imposed by it but was exerted by the Oklahoma Commission. We need not stop to consider whether duress of a third person will suffice (see Restatement of Restitution, Sec. 70b) for, under the circumstances, the Oklahoma Commission was a representative of Harrington and other producers similarly situated. Arkadelphia Milling Co. v. St. Louis S. W. Ry. Co., 249 U.S. 134, 146, 39 S.Ct. 237, 63 L.Ed. 517; see, also, United Gas Pipe Line Co. v. Mobile Gas Corporation, 350 U.S. 332, 347, 76 S.Ct. 373, 100 L.Ed. 373.
Harrington urges that an accord and satisfaction was effected by Panoma’s acceptance of Natural’s checks containing notations similar to that copied in the margin. It is elementary, however, that an accord and satisfaction can result only from an agreement, and, clearly, Natural made no offer of any agreement that would preclude it from seeking restitution when each of its checks was accompanied by a letter specifically renewing its protest as follows:
“Such payment is, as to any part thereof in excess of that payable under the price provisions of said contract, made involuntarily and under protest with full reservation of all rights to seek restitution thereof as is more particularly set forth in our letter to Panoma Corporation dated September 9, 1952, a copy of which is attached hereto for your information.”
We are in full agreement with the conclusion reached by the learned district judge that Natural is entitled to restitution.
The district court, however, denied Natural’s claim for restitution in the sum of $321,279 representing payments made by Panoma, Harrington’s predecessor, for increased royalties and increased production taxes. We have held that Panoma had no right to the increased price. It took the same with notice that the rights of all who were to share in such increase were disputed by Natural. It could not voluntarily pay its royalty owners and its taxes on the basis of the increased price at Natural’s expense, when the validity of the increase was in dispute Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 24, 40 S.Ct. 419, 64 L.Ed. 751.
We think that the state law provided adequate means by which Panoma could have withheld the increased payments from its royalty owners until the termination of the litigation, or could have paid under protest with a right of recovery, or could reserve the right to itself or its successors to take credit for any overpayment against future royalties. Panoma received the increase in price for the use and benefit of Natural, but it made no effort to protect Natural’s interest.
Like considerations are applicable to the payments of taxes on the basis of the increased price. Additionally, it may be noted that Title 68, Section 1475 of the Oklahoma Statutes, 1951, provides for the payment of taxes under protest and their subsequent recovery. Indeed, the Fourteenth Amendment itself would prevent the state from collecting unlawful taxes by coercive means without incurring any obligation to pay them back. Ward v. Board of County Com’rs of Love County, 253 U.S. 17, 24, 40 S.Ct. 419. We hold, therefore, that the district court erred in denying Natural’s claim for restitution to the extent of $321,279.00.
We agree with the district court that the clear intent of the letter of the stockholders, Harrington, et al., incident to Panoma’s liquidation (see page 4, ante) was to assume the same liability that rested upon Panoma. We think, however, that its use of the expression “with lawful interest” referred to interest from and after the time when Natural might become entitled to restitution from such stockholders in lieu of Panoma. Ordinarily, a person liable to make restitution is under a duty to pay interest from the time he commits a breach of duty in failing to make restitution. Restatement of Restitution, Sec. 156(b). The duty to make restitution arose on April 11, 1955, when the Oklahoma order was declared invalid by the Supreme Court of the United States. Previous to that date, Panoma’s acceptance of the increased price had been due, not to its fault or volition, but simply to the requirement that it comply with the order of the Oklahoma Commission, and for such period previous to April 11, 1955, we think that interest should not be allowed. See The Claim of Jacobs v. Adams, 1781, 1 Dall. 52, 1 L.Ed. 53.
The district court denied the recovery of any interest without seeking to take advantage of its discretionary power to refuse interest (Okeechobee County, Florida v. Nuveen, 5 Cir., 145 F.2d 684, 687), but fully and fairly stating the reasons for such denial. Each of those reasons was known- to the parties on July 1, 1954, when Harrington, et al. agreed to pay Natural “any sums of money with lawful interest thereon which you are entitled to have refunded or returned with respect to the payments to Panoma Corporation in excess of the contract price made under protest referred to in said letter of September 9, 1952.” Further, with deference, we disagree with the reasons assigned by the learned district judge. In our opinion, no duty rested on Natural to supersede the order, Natural’s suggestion of an escrow arrangement should not prejudice its right to interest, and though, it had received increased rates from its customers, such increase was granted subject to the provision recited in the order of the Federal Power Commission, that if Natural be successful in thé litigation, “ * * * it will refund to its utility customers, on a basis to be approved by the Commission, the sum or sums so recovered.”
Finally, we find that there was no genuine issue as to any material fact and that Natural was entitled to judgment as a matter of law. Rule 56(c), Federal Rules of Civil Procedure, 28 U.S.C.A. While the judgment might be affirmed in the part complained of in Harrington’s appeal and reversed in the part complained of in Natural’s appeal, it is simpler, we think, to vacate the entire judgment and remand the cause with directions to enter judgment in accordance with this opinion in favor of the plaintiff against the defendants for the sum of $1,623,770.23, together with interest at 6 per cent per annum from April 11, 1955 on such sum or any portions thereof remaining unpaid down to the date of payment, and with costs, and it is so ordered. The costs of this appeal are taxed against D. D. Harrington, et al.
Vacated and remanded.
. To avoid confusion, particularly from the cross-appeals, D. D. Harrington, ot al, and their predecessors in interest, I’anoma Corporation, will be collectively referred to as “Harrington”, and Natural Pipeline Company of America as “Natural”.
. F,or the basic reason of that rule, see 40 Am.Jur., Payment, Sec. 158.
. “Acceptance of this check constitutes full payment of and settlement for the account described on the statement attached * * *
“Payment of gas purchased on original and supplemental contracts from June 23, 1954 to 10:00 A.M. July 1, 1954.”
. “As to the matter of interest, I have concluded that it is just and equitable, under the circumstances of this case, to deny plaintiff’s claim for interest. In so concluding, I have taken into account all the facts and circumstances before me, including the fact that Natural could have superseded the operation of the order as to this gas, and kept the use of the money, by filing a mere undertaking without surety or penal amount (as did Northern Natural Gas Company); that it was willing to waive interest if Panoma would agree to the escrowing of the excess payments; and that for most of the period in question it has been able to recoup the excess payments by increased rates to its customers, so that it has not in fact been deprived of the use of the money.” [139 F.Supp. 463.]
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
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songer_direct1
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A
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What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for government tax claim; for person claiming patent or copyright infringement; for the plaintiff alleging the injury; for economic underdog if one party is clearly an underdog in comparison to the other, neither party is clearly an economic underdog; in cases pitting an individual against a business, the individual is presumed to be the economic underdog unless there is a clear indication in the opinion to the contrary; for debtor or bankrupt; for government or private party raising claim of violation of antitrust laws, or party opposing merger; for the economic underdog in private conflict over securities; for individual claiming a benefit from government; for government in disputes over government contracts and government seizure of property; for government regulation in government regulation of business; for greater protection of the environment or greater consumer protection (even if anti-government); for the injured party in admiralty - personal injury; for economic underdog in admiralty and miscellaneous economic cases. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
GILCHRIST-FORDNEY CO. v. RUSSELL.
(Circuit Court of Appeals, Fifth Circuit.
February 12, 1927.)
No. 4810.
1. Public lands <§=»157 — State held to have conveyed whatever title it had to land previous to deed to plaintiff.
A state held to have previously conveyed whatever title it had to land and a deed to plaintiff held to convey no title.
2. Public lands <S=»157 — Statute relating to “Issuance” of land patents by state held to include delivery (Hemingway’s Code, Miss. § 5282).
Under Hemingway’s Code Miss. § 5282, providing that, on an opinion of the Attorney General that land to which the state has issued a patent did not. belong to the state, the land commissioner shall cancel the patent and return the price received to the patentee “issuance” of the patent includes its delivery.
In Error to the District Court of the United States for the Southern District of Mississippi; Edwin R. Holmes, Judge.
Action by S. D. Russell against the Gilchrist-Fordney Company. Judgment for plaintiff, and defendant brings error.
Reversed and remanded.
Stone Deavours and Henry Hilbun, both of Laurel, Miss. (J. A. McFarland, of Bay Springs, Miss., on the brief), for plaintiff in error.
Robert L. Bullard, of Hattiesburg, Miss., for defendant in error.
Before WALKER, BRYAN, and FOSTER, Circuit Judges.
BRYAN, Circuit Judge.
This is a suit in ejectment. The title of the plaintiff, Russell, is based on a forfeited tax patent from the state of Mississippi, dated April 29, 1924, and issued because of the nonpayment of taxes for the year 1874. The defendant traced its title to the source, but also introduced in evidence a forfeited tax patent of the same land, dated October 14, 1904, to G. W. Holland, an application by Holland to cancel that patent, a letter from the land commissioner submitting that application to the Attorney General, and a letter from the latter in reply, stating that the land described in the patent did not belong to the state, an indorsement by the commissioner, dated March 15, 1906, canceling the patent, and a voucher to Holland for the purchase price. No deed or conveyance from Holland back to the state was shown. The trial court directed a verdict and entered judgment thereon for plaintiff, and defendant assigns error.
We are of opinion that the evidence is sufficient to show that the state conveyed whatever title it had to Holland in 1904, and therefore in 1924 had no title to convey to plaintiff. Whether the state’s title was valid or not is immaterial; if valid, it passéd to Holland; if invalid, plaintiff did not acquire any. It is argued on behalf of plaintiff that the judgment is correct, because the evidence fails to show delivery of the Holland patent. Hemingway’s Code, § 5282, provides that, if the state has issued or shall issue a patent for land to which it holds • no title, the land commissioner shall investigate and report to the Attorney General, and the latter, if he shall find that the land so patented did not belong to the state, shall so advise the former, who shall thereupon mark such patent canceled, and issue his voucher to the patentee for the amount received by the state.
In our opinion the issuance of the patent there referred to includes delivery, and it was not the intention of the Legislature to provide for the cancellation of patents that had merely been signed, but not delivered. If it had been discovered after signing, but before delivery, of a patent that the state had no title, the provision for cancellation would have been wholly unnecessary. The authorization to return the purchase price implies that the patentee had accepted title. The procedure prescribed by that statute was followed by the state’s officials in regard to Holland’s patent. Upon the execution of the patent in 1904 it was the duty of the land commissioner to deliver it to the patentee, and the presumption is that he performed that duty. That the purchase price had been paid is to be inferred from the fact that it was returned to the purchaser. To conclude that the patent to Holland was not delivered is to ignore the undisputed documentary evidence that it was issued. The cancellation of that patent did not have the effect of placing the title back in the state. To accomplish that, a deed from Holland was necessary (McAllister v. Mitchener, 68 Miss. 672, 9 So. 829); and none was shown.
The judgment is reversed, and the cause remanded for a new trial.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_appfiduc
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "fiduciaries". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Louis G. SHERMAN, Jr., and Randolph W. Commins, Executors of the Estate of Louis G. Sherman, Sr., under Last Will and Testament of Louis G. Sherman, Sr., Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
No. 73-3056.
United States Court of Appeals, Fifth Circuit.
April 19, 1974.
Hugh W. Gibert, David L. Ross, Atlanta, Ga., for plaintiffs-appellants.
Julian Longley, Asst. U. S. Atty., John W. Stokes, Jr., U. S. Atty., William D. Mallard, Jr., Asst. U. S. Atty., Atlanta, Ga., D. Wendell Barnett, Trial Atty., Jay R. Weill, Elmer J. Kelsey, Michael J. Roach, Attys., Scott P. Crampton, Meyer Rothwacks, Asst. Attys. Gen., Tax Div., Dept. of Justice, Washington, D. C., for defendant-appellee.
Before ALDRICH Senior Circuit Judge, and BELL and GEE, Circuit Judges.
Hon. Bailey Aldrich, Senior Circuit Judge of the First Circuit, sitting by designation.
ALDRICH, Senior Circuit Judge:
This action to recover an alleged overpayment of estate tax was previously before this court, 462 F.2d 577. At that time we affirmed a finding that there was a deductible obligation of the estate because of a support agreement between decedent and his wife from whom he had been separated, but we remanded for reconsideration of the amount. At the second trial the court took evidence, determined that the amount was immeasurable, and disallowed the deduction in its entirety. • The executors appeal.
The facts are relatively simple. Prior to their separation the decedent had created an inter vivos trust for the benefit of his wife for life, with a power in the trustees to invade principal. Thereafter the parties separated. A settlement agreement was entered into whereby decedent would pay his wife $1500 a month for life, or until she remarried, but it was provided that receipts from the trust should be credited towards its satisfaction. At decedent’s death the assets of the trust were $83,953. It was stipulated that as of that date, based upon actuarial tables showing the widow’s life expectancy and possibility of remarriage, the commuted value of the right to receive $1500 a month until her death or remarriage was $129,040. In spite of this liquidization, the government persuaded the district court that it was uncertain whether the widow would live or remain unremarried long enough to consume the assets of the inter vivos trust, and hence it was uncertain whether the estate would ever have to make payments on account of the separation agreement. The court concluded that the executors had not proven any allowable deduction.
This legerdemain whereby what would concededly have been a deductible obligation in the amount of $129,040 became worthless to the estate because $83,953 was available elsewhere to pay it, is sought to be explained by the government on the basis of an actuarial computation that we accept for present purposes subject to a comment, that there was a 30% chance that the widow would not live long enough to exhaust the trust. Our comment is that it would be equally appropriate, or, rather, equally inappropriate, to say that there may be, for example, a 30% possibility that the widow will live, unmarried, substantially longer than the normal expectancy date on which the $129,040 figure was computed; the government is rejecting the whole principle of actuarial evaluation. On the basis of that universally accepted practice, with an obligation whose stipulated value was $129,040 and a trust possessing $83,953, the estate was faced with a demonstrated deficiency of $45,087.
The government contends, however, that since there was a 30% possibility that the widow would not live beyond the capability of the trust, it is legally impermissible to take a deduction at all. For this it cites a number of cases holding that a testamentary charitable gift that is contingent may not be deducted if the chance that the contingency will not occur, viz., that the gift will not vest, is more than “negligible,” e. g., Commissioner of Internal Revenue v. Estate of Sternberger, 1955, 348 U.S. 187, 75 S.Ct. 229, 99 L.Ed. 246, and that a 30% chance meets that description, United States v. Dean, 1 Cir., 1955, 224 F.2d 26. The government discusses these cases at length to show their pertinency, but carefully avoids calling our attention to their express rationale, a Treasury Regulation specially, and solely, applicable to charitable gifts.
The government’s contention that we should follow these cases, without noting this distinguishing feature plainly relied on by the courts, see both the majority and dissenting opinions in Estate of Sternberger, ante, and the observations of the First Circuit in Dean, 224 F.2d at 28-29, we must regard as censurable; the court expects more forthrightness from government counsel. There is no comparable regulation limiting deductions on account of debts of the estate. Had there been no possibility of a contribution from the inter vivos trust, the estate would have been entitled to the full deduction of $129,040 in spite of the possibility that the widow would not have lived unmarried to normal expectancy. Commissioner v. Maresi, 2 Cir., 1946, 156 F.2d 929. This same possibility is not to be employed, in the absence of any compelling regulation, to permit the deduction to be wiped out by a trust whose assets are substantially inadequate on their face.
The executors argue that we should not assume as a fact that the trustees will elect to pay out, and that they, in turn, may have to pay a correspondingly even larger deficiency than $45,087. We do not face this problem in a theoretical area, however, but in one limited by realities. The executors and ultimate testamentary trustees, and the inter vivos trustees, are the same individuals. The burden of establishing a deduction is on the executors. We cannot permit them to increase the deduction by their own voluntary action as to choice of payment. Nor do we think it appropriate to review the difficulties allegedly facing the trustees under Georgia law, which, at most, do not seem insuperable.
Reversed and remanded for entry of judgment for appellants consistent with this opinion.
Question: What is the total number of appellants in the case that fall into the category "fiduciaries"? Answer with a number.
Answer:
|
songer_district
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
NATIONAL LABOR RELATIONS BOARD v. VIKING PUMP CO.
No. 470, Original.
Circuit Court of Appeals, Eighth Circuit
July 29, 1940.
Rchearing Denied Sept. 9, 1940.
A. Norman Somers. Atty., of Washington, D. C. (Charles Fahy, Gen. Counsel, Robert B. Watts, Associate Gen. Counsel, Laurence A. Knapp, Asst. Gen. Counsel, Allen Heald, Atty., and Harry Selekman, Atty., all of Washington, D. C., on the brief), for National Labor Relations Board.
James B. Newman, of Cedar Falls, Iowa, (George F. Newman, of Cedar Falls, Iowa, on the brief), for respondent.
Before GARDNER and SANBORN, Circuit Judges, and COLLET, District Judge.
GARDNER, Circuit Judge.
This case comes before us upon petition of the National Labor Relations Board to enforce its cease and desist order issued against respondent, pursuant to Section 10 (c) of the National Labor Relations Act, 29 U.S.C.A. § 160(c).
Charges and amended charges were filed on behalf of Lodge 1683, Amalgamated Association of Iron, Steel, and Tin Workers of North America (referred to hereinafter as “Union”). The complaint alleged that respondent had engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the National Labor Relations Act, 29 U.S.C.A. § 158(1, 3). A hearing was held and the trial examiner filed an intermediate report finding violations as alleged. Respondent filed exceptions to this report. Amended charges were then filed, alleging further unfair labor practices, and a further hearing was held before another trial examiner. In an intermediate report he also found violations as alleged. The Board filed its decision finding that respondent had engaged in unfair labor practices affecting commerce within the meaning of the Act by (1) interfering with, restraining and coercing its employees in their right to self-organization; and (2) discriminatorily discharging two of its employees because of their Union activity, and discharging a third because he gave testimony under the Act. It ordered respondent to cease and desist from these unfair labor practices and as an affirmative action to effectuate the policies of the Act, it ordered a reinstatement with back pay of the employees found to have been discriminated against, and it ordered appropriate notices to be posted.
Respondent has refused to comply with the order of the Board on the ground that it is not supported by, the evidence but “is opposed to aU the competent, credible and substantial. evidence in the record.”
Our review of the record is for the purpose of determining whether the findings of the Board are sustained by substantial evidence. We. need not concern ourselves with the question of the burden of proof, the credibility of the witnesses, nor the weight or preponderance of the evidence. Hamilton-Brown Shoe Co. v. National Labor Relations Board, 8 Cir., 104 F.2d 49; National Labor Relations Board v. Waterman Steamship Co., 309 U.S. 206, 60 S.Ct. 493, 84 L.Ed. 704; National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U.S. 261, 58 S.Ct. 571, 82 L.Ed. 831, 115 A.L.R. 307. We therefore note primarily the evidence which sustains or tends to sustain the findings.
The first question is as to the finding that respondent had interfered with, restrained and coerced its employees in their right of self-organization.
r, , , j- , , , , Respondent manufactures and markets . . .. , , , . , rotary pumps at its place of business at r' i A ii t <4, tt • u Cedar Falls, Iowa. The Union began its a , , . . , ,, , efforts to organize respondents employees , , a %o m-2-7 ax j , , ' about April 28, 1937. A few days later, , .i „ , >, May 4, there was a meeting of some twenty-eight of the employees held during working hours. Harry Petersen, foreman of the small pump department, addressed the meeting and, among other things, said: “This Union business has got to — has gone far enough. It is causing a lot of discord, * * * Mr. Wyth (president of respondent) has proxies enough to rule the Board of Directors, and * * * he is going to close the shop down if this Union business continues, f * * Mr. Wyth would-n’t recognize an outside labor organization in the plant. * * * Before Mr. Wyth would recognize any outside organization in the plant he would go home and sit on his front porch and lock the plant up.”
In this same address, he advised the employees “to drop out of the Union and to go down to Mr. Wyth’s office and talk it over with him.” He urged the employees to change the Viking Aid Society, an existing society, into a union, and thus they would have their own union; that there would be no dues to pay, other than the Viking Aid dues, 250 a month. He said that Mr. Wyth would recognize that and deal with them but not with an outside labor organization.
On the following day, during working hours, all of the employees assembled in the stock room, pursuant to instructions from their foremen and other supervisory officers. Three foremen were present. At the suggestion of Mr. Juhl, a “trouble shooter” of respondent, Mr. Gushard, was called in to speak. -He informed the meet-ing that Mr. Wyth would not have an out-side organization in the plant but would close the plant unless the men immediately elected a committee, which had been previously suggested as a proper method of agreement with the employer. The meeting then elected a committee, which held some conferences with Wyth. Mr. Wyth told the committee members that he had authority to close the shop if the men had not elected the committee, and on one occasion he said: ■ “This is the only body I will deal with. I will not deal with no C. I. O.” As a resub of these conferences, Mr. Wyth granted a wage increase, and Mr. Gushard told the men that the committee had ob-tained a good agreement. Foreman Peter-sen asked an employee if the raise in , , , v J ^ „ ,, wages had caused any of the men to sell j= ., . cn ■ ^ out, if the raise was sufficient to cause any-, ,’ ^ , ,, . body to drop their membership m the TT ' „ r ^ . í , Union. Foreman Eastman - advised some , ((il ^ ^ . , T T • employees, that we forget about the Union , ,, . , because we would never Set anywhere, We W0U , f • 6 le 0 cers our money and that it wouldn t amount an^
Following these incidents, certain employees who had been active in Union Work were discharged. Certain 'alleged acts 0f espionage are also cited by the Board as sustaining the finding of interference, re-straint and coercion. We put aside the testimony as to these acts as unnecessary for consideration because we are satisfied that ¿he evidence above detailed is abundantly sufficient to sustain the Board’s finding of interference, restraint and coercion. The president and superintendent availed them-selves of^ the efforts of the foremen to defeat any movement by the employees in the plant to join “an outside Union.” The evidence tends to show that supervisory em-ployees and officials were working to a common purpose. We must assume, in view ol the decision of the Board, that this evidence was believed by the Board, and it is sufficient to support a finding of employer participation. Montgomery Ward & Co., Inc. v. National Labor Relations Board, 7 Cir., 107 F.2d 555.
The second question is concerned with the discharge of employees found to have been discriminatory. Harold Poulson, a machine operator, had worked for respondent for eight years. He was unceremoniously discharged August 25, 1937. While he was.at work at his lathe a foreman came to him and handed him a pay check. Poulson asked why he was getting his check, to which inquiry the foreman replied that he didn’t know — “that Mr. Wyth sent it out from the office by one of the office girls.” The next day Poulson saw Gushard, the superintendent, and asked him why he was discharged from the job. Gushard referred to some incident which had occurred early in the spring of 1937, in connection with which Poulson had been asked by the foreman to take charge of the night shift, which Poulson declined to do because of the responsibility. Gushard accused him of trying to dictate to him as to how to run the shop. Another reason given by Gusharci for the discharge was that in April, 1937, Poulson had asked him for a raise. After his interview with Superintendent Gushard, Poulson then went to Mr. Wyth, who told him he was laid off for lack of work, and also that he talked too much. Poulson then asked Wyth what he talked too much about, to which Wyth replied, “Oh, you know, this thing that’s going on around, causing all of these strikes and everything.” Poulson was active in the Union.
Gushard, as a witness on behalf of respondent, testified that Poulson was discharged because he left his machine during working hours. Poulson’s work was satisfactory. He had served as night foreman once. On August 26, 'Gushard gave him a letter in which he said: “Harold Poulson has been in our employ continuously since May 17, 1929. He is temperate, very regular, and as to his ability as a machinist, I heartily recommend him on almost any type of machine.”
Poulson testified that whenever men met during this “organizing period,” the topic of conversation was representation of the workers. lie had never been reprimanded prior to his discharge. The evidence here, we think, is sufficient to sustain the finding of the Board that Poulson was discriminated against contrary to the provisions of Section 8 (1) (3). True, there is some evidence from which the Board might have found that he was discharged for incivility and insubordination because be did not want to accept a job as night foreman and because he asked for an increase in wages. But this evidence was not of such character as to compel a finding that his discharge was based upon these grounds.
On the day preceding Poulson’s discharge, F'erris Aldrich, a pump tester, was discharged. He too had been active in Union activities. He was discharged without preliminary notice of any kind, although he had worked seven years for respondent. When he asked for an explanation, his foreman said that Wyth “had not forgotten the Union.” He asked Gushard the reason for his discharge and was told that Wyth “just picked him out.” As in the case of Poulson, Gushard gave him a letter of recommendation. Wyth told him his work was satisfactory; that business was bad, and suggested that he go over to Deere’s but not to get mixed up in anything. It is urged that Aldrich was discharged “because he solicited memberships in the Union during working hours, threatening his associates that unless they joined they would lose their jobs, hiding their tools, and spending too much time away from his work in organizational activities during working hours in the plant, and although warned by his foreman to watch his step, persisted in such conduct.” A witness for respondent testified that Aldrich hid his tools and called him names because he would not sign up for the Union. A foreman testified with reference to Aldrich that:
“And judging from the other men in the plant, I would say that he was quite a hand to visit and talk with the other fellows and naturally, I say, it was natural for him to talk to the fellows. He liked to talk to one fellow and the rest of them. * * *
“Well, his work was of such nature that he would go — that he would finish a few special pumps, then he would have to go back over to one bench and pick tip the pumps and take them down to the test block and test them, and then each time he would come in contact with three or four different fellows and naturally, a conversation would take place.”
This- does not seem to be a very serious indictment as the basis for his discharge. The witness testified that Aldrich was a fair workmán, and a reading of his entire testimony, which is fairly summarized by the above quotation, fails to reveal anything serious in the conduct of Aldrich, and if his immediate superior could find nothing specifically wrong with his conduct, the Board was justified, under the circumstances disclosed by the record, in finding his discharge discriminatory.
Lloyd L. Siglin, who had been employed by respondent as a janitor since 1935, joined the Union April 26, 1937. He attended its meetings until May, 1937, but discontinued doing so when the son of the president of respondent advised him to be careful about going to the meetings of the Union. The president warned him that he would discharge anyone whfom he caught talking “C. I. O.” on the premises. He testified as a witness on the original complaint in this case to having found a piece of scrap paper about a week before the hearing in the directors’ room. This paper bore the words, “Find something on Poulson and' Aldrich,” and other writing. He made a copy of it, which he produced at the hearing. He could not identify the handwriting on the original. On the evening following his testimony, his keys were taken from him by a foreman at his home, and at a conference the following morn-, ing between representatives of respondent and the Board and the Union, respondent’s attorneys said that Siglin could not work as janitor again: Gushard remarked that he did not think Siglin would want a job in the office after what he had done, but told Siglin he would be given an opportunity to try for a job as a painter, caster, or worker in the shipping department, and was told to report for work several days later. On May 3, he returned to the plant, pursuant to instructions, where he heard one Frank Stevens report his arrival to the president, who called him a vulgar name and instructed Stevens to tell him to go home, “We will call him when we want him.” Siglin spoke to Gushard, who told him to go home until he was called, and promised he would be paid for the time he was off. The Board hearing ended May 4. On May 6, Siglin was given a job of cleaning tanks, which was temporary work. On May 13, he was laid off with sixteen other employees. He received no pay for the idle period, as promised. Gushard said the deal “fell through.” The Board found' that respondent had no intention to give-permanent employment to Siglin, or to reinstate him, but that it merely intended to> forestall action by the Board while the first hearing was in progress; that Siglin was-, discharged because of a desire to punish him for loyalty to the Union. We can not say that these inferences find no support in the evidence. The evidence reflects a manifest hostility to Siglin immediately-following his testimony before the Board'. He had been warned to refrain from Union activity. We conclude that the evidence was sufficient to' sustain the charge of discrimination under Section 8 (1) (3)' (4). The cease and desist order was therefore proper.
The reinstatement of Aldrich, Poulson and Siglin to their former positions-with back pay is a remedy specifically authorized by Section 10 (c) of the Act. Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126; National Labor Relations Board v. Fainblatt, 306 U.S. 601, 59 S.Ct. 668, 83 L.Ed. 1014; Hamilton-Brown Shoe Co. v. National Labor Relations Board, supra.
Being of the view that the Board’s order is valid, the petition for its enforcement is granted.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
sc_petitioner
|
156
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
ZOBEL et ux. v. WILLIAMS, COMMISSIONER OF REVENUE OF ALASKA, et al.
No. 80-1146.
Argued October 7, 1981
Decided June 14, 1982
Burger, C. J., delivered the opinion of the Court, in which Brennan, White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Brennan, J., filed a concurring opinion, in which Marshall, Blackmun, and Powell, JJ., joined, post, p. 65. O’Connor, J., filed an opinion concurring in the judgment, post, p. 71. Rehnquist, J., filed a dissenting opinion, post, p. 81.
Mark A. Sandberg argued the cause for appellants. With him on the briefs was Jonathon B. Chase.
Avrum M. Gross argued the cause for appellees. With him on the brief were Wilson L. Condon, Attorney General of Alaska, and Susan A. Burke, Assistant Attorney General.
Chief Justice Burger
delivered the opinion of the Court.
The question presented on this appeal is whether a statutory scheme by which a State distributes income derived from its natural resources to the adult citizens of the State in varying amounts, based on the length of each citizen’s residence, violates the equal protection rights of newer state citizens. The Alaska Supreme Court sustained the constitutionality of the statute. 619 P. 2d 448 (1980). We stayed the distribution of dividend funds, 449 U. S. 989 (1980), and noted probable jurisdiction, 450 U. S. 908 (1981). We reverse.
I
The 1967 discovery of large oil reserves on state-owned land in the Prudhoe Bay area of Alaska resulted in a windfall to the State. The State, which had a total budget of $124 million in 1969, before the oil revenues began to flow into the state coffers, received $3.7 billion in petroleum revenues during the 1981 fiscal year. This income will continue, and most likely grow for some years in the future. Recognizing that its mineral reserves, although large, are finite and that the resulting income will not continue in perpetuity, the State took steps to assure that its current good fortune will bring long-range benefits. To accomplish this, Alaska in 1976 adopted a constitutional amendment establishing the Permanent Fund into which the State must deposit at least 25% of its mineral income each year. Alaska Const., Art. IX, § 15. The amendment prohibits the legislature from appropriating any of the principal of the Fund but permits use of the Fund’s earnings for general governmental purposes.
In 1980, the legislature enacted a dividend program to distribute annually a portion of the Fund’s earnings directly to the State’s adult residents. Under the plan, each citizen 18 years of age or older receives one dividend unit for each year of residency subsequent to 1959, the first year of statehood. The statute fixed the value of each dividend unit at $50 for the 1979 fiscal year; a one-year resident thus would receive one unit, or $50, while a resident of Alaska since it became a State in 1959 would receive 21 units, or $1,050. The value of a dividend unit will vary each year depending on the income of the Permanent Fund and the amount of that income the State allocates for other purposes. The State now estimates that the 1985 fiscal year dividend will be nearly four times as large as that for 1979.
Appellants, residents of Alaska since 1978, brought this suit in 1980 challenging the dividend distribution plan as vio-lative of their right to equal protection guarantees and their constitutional right to migrate to Alaska, to establish residency there and thereafter to enjoy the full rights of Alaska citizenship on the same terms as all other citizens of the State. The Superior Court for Alaska’s Third Judicial District granted summary judgment in appellants’ favor, holding that the plan violated the rights of interstate travel and equal protection. A divided Alaska Supreme Court reversed and upheld the statute.
II
The Alaska dividend distribution law is quite unlike the durational residency requirements we examined in Sosna v. Iowa, 419 U. S. 393 (1975); Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); Dunn v. Blumstein, 405 U. S. 330 (1972); and Shapiro v. Thompson, 394 U. S. 618 (1969). Those cases involved laws which required new residents to reside in the State a fixed minimum period to be eligible for certain benefits available on an equal basis to all other residents. The asserted purpose of the durational residency requirements was to assure that only persons who had established bona fide residence received rights and benefits provided for residents.
The Alaska statute does not impose any threshold waiting period on those seeking' dividend benefits; persons with less than a full year of residency are entitled to share in the distribution. Alaska Stat. Ann. §43.23.010 (Supp. 1981). Nor does the statute purport to establish a test of the bona fides of state residence. Instead, the dividend statute creates fixed, permanent distinctions between an ever-increasing number of perpetual classes of concededly bona fide residents, based on how long they have been in the State.
Appellants established residence in Alaska two years before the dividend law was passed. The distinction they complain of is not one which the State makes between those who arrived in Alaska after the enactment of the dividend distribution law and those who were residents prior to its enactment. Appellants instead challenge the distinctions made within the class of persons who were residents when the dividend scheme was enacted in 1980. The distinctions appellants attack include the preference given to persons who were residents when Alaska became a State in 1959 over all those who have arrived since then, as well as the distinctions made between all bona fide residents who settled in Alaska at different times during the 1959 to 1980 period.
When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Generally, a law will survive that scrutiny if the distinction it makes rationally furthers a legitimate state purpose. Some particularly invidious distinctions are subject to more rigorous scrutiny. Appellants claim that the distinctions made by the Alaska law should be subjected to the higher level of scrutiny applied to the durational residency requirements in Shapiro v. Thompson, supra, and Memorial Hospital v. Maricopa County, supra. The State, on the other hand, asserts that the law need only meet the minimum rationality test. In any event, if the statutory scheme cannot pass even the minimal test proposed by the State, we need not decide whether any enhanced scrutiny is called for.
A
The State advanced and the Alaska Supreme Court accepted three purposes justifying the distinctions made by the dividend program: (a) creation of a financial incentive for individuals to establish and maintain residence in Alaska; (b) encouragement of prudent management of the Permanent Fund; and (c) apportionment of benefits in recognition of undefined “contributions of various kinds, both tangible and intangible, which residents have made during their years of residency,” 619 P. 2d, at 458.
As the Alaska Supreme Court apparently realized, the first two state objectives — creating a financial incentive for individuals to establish and maintain Alaska residence, and assuring prudent management of the Permanent Fund and the State’s natural and mineral resources — are not rationally related to the distinctions Alaska seeks to make between newer residents and those who have been in the State since 1959. Assuming, arguendo, that granting increased dividend benefits for each year of continued Alaska residence might give some residents an incentive to stay in the State in order to reap increased dividend benefits in the future, the State’s interest is not in any way served by granting greater dividends to persons for their residency during the 21 years prior to the enactment.
Nor does the State’s purpose of furthering the prudent management of the Permanent Fund and the State’s resources support retrospective application of its plan to the date of statehood. On this score the State’s contention is straightforward:
“[A]s population increases, each individual share in the income stream is diluted. .The income must be divided equally among increasingly large numbers of people. If residents believed that twenty years from now they would be required to share permanent fund income on a per capita basis with the large population that Alaska will no doubt have by then, the temptation would be great to urge the legislature to provide immediately for the highest possible percentage return on the investments of the permanent fund principal, which would require investments in riskier ventures.” Id., at 462.
The State similarly argues that equal per capita distribution would encourage rapacious development of natural resources. Ibid. Even if we assume that the state interest is served by increasing the dividend for each year of residency beginning with the date of enactment, is it rationally served by granting greater dividends in varying amounts to those who resided in Alaska during the 21 years prior to enactment? We think not.
The last of the State’s objectives — to reward citizens for past contributions — alone was relied upon by the Alaska Supreme Court to support the retrospective application of the law to 1959. However, that objective is not a legitimate state purpose. A similar “past contributions” argument was made and rejected in Shapiro v. Thompson, 394 U. S., at 632-633:
“Appellants argue further that the challenged classification may be sustained as an attempt to distinguish between new and old residents on the basis of the contributions they have made to the community through the payment of taxes. . . . Appellants’ reasoning would . . . permit the State to apportion all benefits and services according to the past tax [or intangible] contributions of its citizens. The Equal Protection Clause prohibits such an apportionment of state services.” (Emphasis added.)
Similarly, in Vlandis v. Kline, 412 U. S. 441 (1973), we noted that “apportionment of] tuition rates on the basis of old and new residency . . . would give rise to grave problems under the Equal Protection Clause of the Fourteenth Amendment.” Id., at 449-450, and n. 6.
If the states can make the amount of a cash dividend depend on length of residence, what would preclude varying university tuition on a sliding scale based on years of residence — or even limiting access to finite public facilities, eligibility for student loans, for civil service jobs, or for government contracts by length of domicile? Could states impose different taxes based on length of residence? Alaska’s reasoning could open the door to state apportionment of other rights, benefits, and services according to length of residency. It would permit the states to divide citizens into expanding numbers of permanent classes. Such a result would be clearly impermissible.
B
We need not consider whether the State could enact the dividend program prospectively only. Invalidation of a portion of a statute does not necessarily render the whole invalid unless it is evident that the legislature would not have enacted the legislation without the invalid portion. Buckley v. Valeo, 424 U. S. 1, 108 (1976); United States v. Jackson, 390 U. S. 570, 585 (1968); Champlin Refining Co. v. Corporation Comm’n of Oklahoma, 286 U. S. 210, 234 (1932). Here, we need not speculate as to the intent of the Alaska Legislature; the legislation expressly provides that invalidation of any portion of the statute renders the whole invalid:
“Sec. 4. If any provision enacted in sec. 2 of this Act [which included the dividend distribution plan in its entirety] is held to be invalid by the final judgment, decision or order of a court of competent jurisdiction, then that provision is nonseverable, and all provisions enacted in sec. 2 of this Act are invalid and of no force or effect.” 1980 Alaska Sess. Laws, ch. 21, §4.
However, it is of course for the Alaska courts to pass on the severability clause of the statute.
h-4 4 t — 4
The only apparent justification for the retrospective aspect of the program, “favoring established residents over new residents,” is constitutionally unacceptable. Vlandis v. Kline, supra, at 450. In our view Alaska has shown no valid state interests which are rationally served by the distinction it makes between citizens who established residence before 1959 and those who have become residents since then.
We hold that the Alaska dividend distribution plan violates the guarantees of the Equal Protection Clause of the Fourteenth Amendment. Accordingly, the judgment of the Alaska Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Alaska Dept, of Revenue, Revenue Sources FY 1981-1983 (Sept. 1981). (Includes General Fund unrestricted petroleum revenues of $3.3 billion and petroleum revenues directly deposited in the Permanent Fund in the amount of $400 million. An additional $900 million was transferred from the General Fund to the Permanent Fund in the 1981 fiscal year.) The 1980 census reports that Alaska’s adult population is 270,265; per capita 1981 oil revenues amount to $13,632 for each adult resident. Petroleum revenues now amount to 89% of the State’s total government revenue. Ibid.
The infusion of Permanent Fund earnings into state general revenues also led the Alaska Legislature to enact a statute giving residents a one-third exemption from state income taxes for each year of residence; this operated to exempt entirely anyone with three or more years of residency. The Alaska Supreme Court, again by a 3-2 vote, held that this statute violated the State Constitution’s equal protection clause. Williams v. Zobel, 619 P. 2d 422 (1980). Chief Justice Rabinowitz, the only justice in the majority in both cases, found that the tax exemption statute, but not the dividend distribution plan, could “be perceived as a penalty imposed on a person who chooses to exercise his or her right to move into Alaska.” 619 P. 2d, at 458.
In the durational residency cases, we examined state laws which imposed waiting periods on access to divorce courts, Sosna v. Iowa; eligibility for free nonemergency medical care, Memorial Hospital v. Maricopa County; voting rights, Dunn v. Blumstein; and welfare assistance, Shapiro v. Thompson.
Section 43.23.010(b) provides:
“For each year, an individual is eligible to receive payment of the permanent fund dividends for which he is entitled under this section if he
“(1) is at least 18 years of age; and
“(2) is a state resident during all or part of the year for which the permanent fund dividend is paid.”
The remainder of §43.23.010 establishes the number of dividend units residents are entitled to receive and the method of payment. Section 43.23.010(f) provides that a resident entitled to benefits under subsection (b) who was a resident for less than a full year is entitled to a dividend prorated on the basis of the number of months of state residence.
The Alaska statute does not simply make distinctions between native-born Alaskans and those who migrate to Alaska from other states; it does not discriminate only against those who have recently exercised the right to travel, as did the statute involved in Shapiro v. Thompson, 394 U. S. 618 (1969). The Alaska statute also discriminates among long-time residents and even native-born residents. For example, a person bom in Alaska in 1962 would have received $100 less than someone who was bom in the State in 1960. Of course the native Alaskan bom in 1962 would also receive $100 less than the person who moved to the State in 1960.
The statute does not involve the kind of discrimination which the Privileges and Immunities Clause of Art. IV was designed to prevent. That Clause “was designed to insure to a citizen of State A who ventures into State B the same privileges which the citizens of State B enjoy." Toomer v. Witsell, 334 U. S. 385, 395 (1948). The Clause is thus not applicable to this case.
The Alaska courts considered whether the dividend distribution law violated appellants’ constitutional right to travel. The right to travel and to move from one state to another has long been accepted, yet both the nature and the source of that right have remained obscure. See Jones v. Helms, 452 U. S. 412, 417-419, and nn. 12 and 13 (1981); Shapiro v. Thompson, supra, at 629-631; United States v. Guest, 383 U. S. 745, 757-759 (1966). See also Z. Chafee, Three Human Rights in the Constitution of 1787, pp. 188-193 (1956). In addition to protecting persons against the erection of actual barriers to interstate movement, the right to travel, when applied to residency requirements, protects new residents of a state from being disadvantaged because of their recent migration or from otherwise being treated differently from longer term residents. In reality, right to travel analysis refers to little more than a particular application of equal protection analysis. Right to travel cases have examined, in equal protection terms, state distinctions between newcomers and longer term residents. See Memorial Hospital v. Maricopa County, 415 U. S. 250 (1974); Dunn v. Blumstein, 405 U. S. 330 (1972); Shapiro v. Thompson, supra. This case also involves distinctions between residents based on when they arrived in the State and is therefore also subject to equal protection analysis.
These purposes were enumerated in the first section of the Act creating the dividend distribution plan, 1980 Alaska Sess. Laws, ch. 21, § 1(b):
“(b) The purposes of this Act are
“(1) to provide a mechanism for equitable distribution to the people of Alaska of at least a portion of the state’s energy wealth derived from the development and production of the natural resources belonging to them as Alaskans;
“(2) to encourage persons to maintain their residence in Alaska and to reduce population turnover in the state; and
“(3) to encourage increased awareness and involvement by the residents of the state in the management and expenditure of the Alaska permanent fund (art. IX, sec. 15, state constitution)."
Thus we need not speculate as to the objectives of the legislature.
In response to the argument that the objectives of stabilizing population and encouraging prudent management of the Permanent Fund and of the State’s natural resources did not justify the application of the dividend program to the years 1959 to 1980, the Alaska Supreme Court maintained that the retrospective aspect of the program was justified by the objective of rewarding state citizens for past contributions. 619 P. 2d, at 461-462, n. 37. See also dissenting opinion of Justice Dimond, id., at 469-471.
In fact, newcomers seem more likely to become dissatisfied and to leave the State than well-established residents; it would thus seem that the State would give a larger, rather than a smaller, dividend to new residents if it wanted to discourage emigration. The separation of residents into classes hardly seems a likely way to persuade new Alaskans that the State welcomes them and wants them to
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_counsel2
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D
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the respondent. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
In re J. David DOMINELLI, et al., Debtors. M. Larry LAWRENCE, Plaintiff-Appellant, v. STEINFORD HOLDING B.V., a Netherlands Corporation, Defendant-Appellee.
No. 86-5668.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 7, 1987.
Decided June 19, 1987.
Gibson E. Pratt, San Diego, Cal., Theresa R. Castagneto, San Diego, Cal., for plaintiff-appellant.
David A. Seeley, Los Angeles, Cal., for defendant-appellee.
Before PREGERSON and NORRIS, Circuit Judges, and BURNS, District Judge.
Honorable James M. Burns, United States District Judge, District of Oregon, sitting by designation.
PREGERSON, Circuit Judge:
Appellant M. Larry Lawrence (“Lawrence”), a junior lienholder on a jet owned by the bankruptcy estate of J. David Dominelli (“Dominelli”), brought suit against appellee Steinford Holding B.V. (“Steinford”), a senior lienholder on the jet. Lawrence objected to Steinford’s lien on the ground that the loan from which it derived was usurious. The bankruptcy court held that Lawrence could not attack the loan as usurious because the estate’s trustee had brought and then settled a usury claim against Steinford. The district court affirmed the bankruptcy court’s ruling. Lawrence appeals from the district court’s ruling. We affirm. The trustee’s court-approved settlement of the estate’s usury claim against Steinford operates as res judicata to bar Lawrence from again raising the usury claim on behalf of the estate. Moreover, California law does not provide Lawrence with the right to raise the usury defense on his own behalf.
FACTS
In June 1983, Steinford lent Dominelli $3,150,000. Steinford took as security a lien on Dominelli’s Grumman Gulfstream II jet. The loan agreement provided that Dominelli would pay interest at the rate of 22% per annum.
On February 7, 1984, Lawrence lent Dominelli $1,000,000 at the prime rate plus one percent per annum. Lawrence’s loan was secured by a second lien on the same jet. Lawrence’s security agreement specifically was subject to and expressly recognized Steinford’s senior lien.
On February 13, 1984, involuntary petitions in bankruptcy were filed against Dominelli and his various business entities. On June 13, 1984, Lawrence filed suit against Steinford and the estate’s trustee in bankruptcy. In the suit, Lawrence sought to have the interest provisions of Steinford’s note declared void under California law. On July 19, 1984, Steinford brought a motion to dismiss Lawrence’s complaint. Steinford argued, among other things, that Lawrence was not entitled to raise the usury defense.
On July 24, 1984, the trustee (co-defendant in Lawrence’s action against Steinford) filed a cross-complaint against Steinford. The trustee sought a declaration that the interest provision of Steinford’s loan was void under California law and that the interest portion of the debt was therefore not secured within the meaning of 11 U.S.C. §§ 502 and 506. In addition, the trustee sought treble damages, as provided by Cal. Const, art. 15, Sec. 1.
On September 14, 1984, the bankruptcy court denied Steinford’s motion to dismiss Lawrence’s complaint on the ground that Lawrence, as a party in interest, was entitled to object to Steinford’s claim under 11 U.S.C. § 502. On November 7, 1984, the trustee applied to the bankruptcy court for approval of a proposed settlement between the trustee (on behalf of the estate) and Steinford. Under the settlement, Steinford would pay the estate $100,000 from the proceeds of the jet sale and would abandon Steinford’s claim to a $346,500 letter of credit that Dominelli had posted. In return, the trustee would dismiss the cross-complaint and “raise no objection to the lien claimed by Steinford.” Over Lawrence’s strenuous objection, the bankruptcy court approved the settlement. On December 11, 1984, the court entered an order allowing the jet to be sold, with Lawrence and Steinford’s liens attaching to the proceeds. In January 1985, the jet was sold, resulting in net proceeds of $3,600,000.
On March 19, 1985, Steinford brought a motion for reconsideration of the court’s September 14 ruling denying Steinford’s motion to dismiss Lawrence’s complaint. Steinford argued that the settlement of the usury action between the trustee and Stein-ford constituted changed circumstances justifying a reversal of the court’s original ruling. The bankruptcy court granted the motion and dismissed Lawrence’s complaint against Steinford. Lawrence appealed that order to the United States District Court for the Southern District of California. On February 4, 1986, Judge Irving of that court issued an order affirming the bankruptcy court’s decision. Lawrence appeals from the district court’s affirmance.
DISCUSSION
A. Lawrence’s Bight to Assert the Usury Defense
The district court’s rulings on the bankruptcy law issues are subject to de novo review. Comer v. Comer (In re Comer), 723 F.2d 737, 739 (9th Cir.1984).
The Bankruptcy Code, at 11 U.S.C. § 502(a), provides that “[a] claim or interest ... is deemed allowed, unless a party in interest, including a creditor of a partner in a partnership that is a debtor in a case under Chapter 7 of this title, objects.” Under the Bankruptcy Code, at 11 U.S.C. § 323, the trustee is the representative of the estate. Therefore, the trustee is a party in interest who may object to a claim under section 502(a). A creditor can also be a party in interest under section 502(a). See In re Williamson, 43 B.R. 813, 820 (1984); Collier on Bankruptcy ¶ 1502.01 (1986).
Lawrence contends that his right to object to the usurious loan has two components: (1) his right to raise the usury defense on behalf of the estate, and (2) his right to raise the defense on his own behalf. As the following discussion indicates, neither right obtains in this case.
1. Lawrence’s Bights as Representative of the Estate
Lawrence argues that his right to object to Steinford’s claim on usury grounds is “derivative from his debtor.” Lawrence contends that under 11 U.S.C. § 558, which describes defenses available to the estate, Lawrence, as a secured creditor, may bring an action asserting the estate’s defense even when the trustee has already asserted the same defense. Lawrence’s contention is incorrect.
Section 558 of the Code provides: “The estate shall have the benefit of any defense available to the debtor as against any entity other than the estate, including statutes of limitation, statutes of frauds, usury, and other personal defenses.” The estate was entitled to raise the usury defense that had been available to Dominelli. Section 323 of the Code states that the trustee is the representative of the estate. In this case, the trustee, acting as the estate’s representative, properly asserted the estate’s usury defense. Had the trustee brought no action, Lawrence would, as a creditor of the estate, have been authorized to raise the estate’s usury defense in his own action. However, Steinford correctly argues that the court’s order dismissing the trustee’s action operates as res judicata to bar Lawrence’s action against Steinford.
Under the doctrine of res judicata, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 973, 59 L.Ed.2d 210 (1979). Res judicata only applies if the same primary right is involved in the two actions, Amaro v. Continental Can Co., 724 F.2d 747, 749 (9th Cir.1984), and if the party against whom the earlier decision is asserted had a “full opportunity and fair opportunity to litigate the claim,” Kremer v. Chemical Const. Corp., 456 U.S. 461, 480 & n. 22, 102 S.Ct. 1883, 1897 & n. 22, 72 L.Ed.2d 262 (1982).
We hold that the settlement and dismissal of the trustee’s action against Steinford operates as res judicata to bar Lawrence from bringing his own action. The trustee’s action, resulting in a settlement of the claim and the district court’s approval of the settlement and dismissal of the action, amounts to a final judgment on the merits. See Bradford v. Bonner, 665 F.2d 680 (5th Cir.1982) (dismissal of action with prejudice pursuant to settlement bars later action). The rules of res judicata apply to Lawrence’s present attempt to assert the estate’s usury claim because, while arguably a party in the trustee’s action against Steinford, Lawrence is certainly a privy. For purposes of res judicata, privity exists where two parties represent the interests of the same entity. 1 B J. Moore, J. Lucas & T. Currie, Moore’s Federal Practice H 0.411[1] (2d ed. 1984). Just as the trustee represented the estate in the first action, Lawrence seeks to represent the estate in this action. This privity bars Lawrence from bringing an independent action on behalf of the estate. In addition, the same primary right is involved in the trustee’s action and in Lawrence’s action: It is the estate’s right to assert the usury defense, which derives from the debtor’s right to have done so before bankruptcy.
The remaining requirement, that the estate have had a full opportunity to litigate the claim in the first action, presents a more complicated question. When the rights of a secured creditor are implicated, a trustee’s action on a claim belonging to the estate does not necessarily extinguish the claim. A trustee’s action on a claim belonging to the estate provides the estate a full opportunity to litigate only if all relevant estate interests are represented before the bankruptcy court.
Ordinarily, the- trustee is the optimal party in interest to raise objections on behalf of the estate. See, e.g., Fred Reuping Leather Co. v. Fort Greene Nat’l Bank, 102 F.2d 372, 373 (3d Cir.1939). As Collier states:
[T]he right of a creditor to object to the allowance of another creditor’s claim should be undisputed on principle. Yet the needs of orderly and expeditious administration do not permit the full and unfettered exercise of such right. The most important qualification attached to the right of a creditor to object is that it is the trustee who acts as the spokesman for all the creditors in discharge of the trustee’s duty unless the trustee refuses to take action.
Collier on Bankruptcy ¶ 1502.01.
The rule that the trustee’s action challenging one creditor’s claim preempts another creditor’s right to object is more clearly applicable to general creditors than to secured creditors like Lawrence. As Lawrence points out, the cases cited in Collier deal primarily with general creditors. The trustee, as representative of the estate, normally can represent each general creditor as effectively as could the creditor itself. The law recognizes, however, that the trustee has interests that on occasion conflict with those of an individual secured creditor. See, e.g., Hyde Park Lumber Co. v. West Norwood Bldg. & Loan (In re Braker), 127 F.2d 652, 653 (6th Cir.1942); Smith v. Mortgage & Debenture Co. (In re Roche), 101 F. 956, 958 (5th Cir.1900); J.C. Wyckoff & Assoc, v. Aetna Casualty & Surety Co. (In re Wyckoff), 41 B.R. 791 (1984). In cases of conflict, all interests should be represented in the bankruptcy court.
In this case, such a conflict may exist. Lawrence, as a junior lienholder contesting the validity of a senior lien, has interests that appear to be at odds with the trustee’s interests. The trustee might wish to avoid spending estate money to pursue the usury action, while Lawrence might wish to do whatever is necessary to invalidate Steinford’s lien.
The problems posed by this conflict are remedied, however, by Lawrence’s having participated in the trustee’s action against Steinford. The bankruptcy court, when presented with the proposed settlement, was obliged to give notice to all interested parties and to entertain their objections. See Bankruptcy Rule 9019. Lawrence entered an objection to the settlement, and the court expressly overruled the objection. Thus, Lawrence had an opportunity before the bankruptcy court to represent his interests in relation to the proposed settlement. After duly considering Lawrence’s position, the court approved the settlement and granted Steinford’s motion to dismiss Lawrence’s complaint. Lawrence was entitled to appeal from the court’s order under 28 U.S.C. § 158(c), which permits appeals from the orders of bankruptcy judges. Lawrence did not exercise his right to appeal. Because the bankruptcy court during the settlement proceedings was able to consider the interests of the estate as a whole, which included the interests of Lawrence, there was a full opportunity for the court to consider and rule on the estate’s claim of usury. Therefore, the settlement and dismissal of the trustee’s action is res judicata barring Lawrence from relitigating the estate’s usury claim.
2. Lawrence’s Personal Rights
The district court’s interpretation of state law is reviewable de novo. Churchill v. Fjord (In re McLinn), 739 F.2d 1395, 1397 (9th Cir.1984) (en banc).
If the law provided Lawrence with a personal right of action for usury, he might be able to maintain his usury action against Steinford notwithstanding the trustee’s settlement with Steinford. Lawrence contends that, as a junior lienholder, he has a right to raise the usury defense on his own behalf. Under California’s usury cases, his argument is incorrect.
The California constitution at Art. 15 § 1 sets maximum interest rates for various types of loans. Lawrence’s complaint against Steinford alleges that the usurious interest rate on Steinford’s loan to Dominelli violated this constitutional provision.
According to California case law, the usury defense is personal to the borrower. Moe v. Transamerica Title Insurance Co., 21 Cal.App.3d 289, 300, 98 Cal.Rptr. 547, 554 (1971). “[0]ne who is not a party to the usurious contract may not attack it.” Domarad v. Fisher & Burke, Inc., 270 Cal.App.2d 543, 560, 76 Cal.Rptr. 529, 540 (1969). The only apparent exception to this rule is that one who stands in the shoes of the original borrower and is injured by the usurious interest rate may also assert the usury defense. See, e.g., Western States Acceptances Corp. v. Tuttle, Inc, 210 Cal. 51, 290 P. 574 (1930) (corporation formed by borrowers may assert usury defense); Sosin v. Richardson, 210 Cal.App.2d 258, 26 Cal.Rptr. 610, 614 (1962) (guarantor of loan may use usury defense where guarantee is dependent on usurious transaction). There is no indication in the California cases that a junior lienholder, particularly one who made a loan with notice of the senior lienholder’s usurious loan, is entitled to assert the usury defense. Therefore, the bankruptcy court correctly held that Lawrence had no basis under California law to raise a usury claim.
B. EQUITABLE SUBORDINATION
The Bankruptcy Code at 11 U.S.C. § 510(c) provides that a court, after notice and a hearing, may “subordinate for purposes of distribution all or part of an allowed claim to all or part of another allowed claim or all or part of an allowed interest to all or part of another allowed interest.”
This section applies the principles of equitable subordination as developed in the courts. Three elements are generally required before equitable subordination will be granted:
(i) The claimant must have engaged in some type of inequitable conduct.
(ii) The misconduct must have resulted in injury to the creditors of the bankrupt or conferred an unfair advantage on the claimant.
(iii) Equitable subordination must not be inconsistent with the provisions of the Bankruptcy Act.
Benjamin v. Diamond (In re Mobile Steel Co.), 563 F.2d 692, 699-700 (5th Cir.1977); see also Trone v. Smith (In re Westgate-Califomia Corp.), 642 F.2d 1174, 1177-78 (9th Cir.1981).
Because the bankruptcy court held that Lawrence was not entitled to assert the usury defense, the court made no finding of inequitable conduct by Steinford. Thus, the district court did not err in failing to provide equitable subordination as a remedy. In any event, Lawrence neither requested equitable subordination nor argued the need for it to the bankruptcy court.
We uphold the district court’s dismissal of Lawrence’s complaint.
AFFIRMED.
. Section 502(b) of the Bankruptcy Code provides that, if a party in interest raises an objection to a claim,
the court, after notice and a hearing, shall determine the amount of such claim ... and shall allow such claim in such amount, except to the extent that — (1) such claim is unenforceable against the debtor, and unenforceable against property of the debtor, under any agreement or applicable law for a reason other than because such claim is contingent or unmatured.
Appellant Lawrence argues that the usurious interest provision is unenforceable, notwithstanding the settlement agreement between the trustee and Steinford. Appellee Steinford argues that the settlement agreement rendered his claim enforceable.
. Lawrence strenuously argues that the trustee’s settlement of its cross-claim with Steinford did not render Steinford’s claim against the jet enforceable within the meaning of 11 U.S.C. § 502(b)(1). This refers to the statement in § 502(b)(1) that, after an objection to a claim is made, the court shall determine the amount of the claim "except to the extent that ... such claim is unenforceable against the debtor.” Lawrence cites a Fifth Circuit case for the proposition that the term "unenforceable” means whether the claim was enforceable before bankruptcy proceedings commenced. Appellant’s Brief at 21, citing Reagan v. Austin Municipal Federal Credit Union (In re Reagan), 741 F.2d 95 (5th Cir.1984) (per curiam). Under Lawrence’s reading, bankruptcy courts would be unable to render effective adjudication on claims because claims would be rendered permanently unenforceable (regardless, for example, of the parties’ desire to settle) by their pre-bankruptcy status.
. Under California law, if a transaction is usurious, generally the interest provision of the loan is void, but the principal of the loan is unaffected. Rochester Capital Leasing Corp. v. K & L Litho Corp., 13 Cal.App.3d 697, 703, 91 Cal.Rptr. 827, 831 (1970). Under some special statutes regulating lending organizations, the entire loan contract is void, so that neither principal nor interest can be received. Cal.Fin.Code §§ 22651 and 22652 (West 1981).
Question: What is the nature of the counsel for the respondent?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
songer_opinstat
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
UNITED STATES of America, Appellee, v. Roy Rogers FAUNTLEROY, Appellant.
No. 73-1625.
United States Court of Appeals, Fourth Circuit.
Submitted Nov. 11, 1973.
Decided Dec 4, 1973.
Jay Tronfeld, Richmond, Va. [court-appointed], for appellant.
Brian P. Gettings, U. S. Atty., and Raymond A. Carpenter, Asst. U. S. Atty., for appellee.
Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
PER CURIAM.
Roy Rogers Fauntleroy appeals from his conviction by the district court sitting without a jury on two counts charging him with knowingly making false statements in the purchase of firearms in violation of 18 U.S.C. § 922(a)(6). Fauntleroy was sentenced to concurrent three-year prison terms on the two counts.
Fauntleroy contends on appeal that (1) the prosecution failed to adduce sufficient evidence showing that he possessed the requisite intent to knowingly make a false oral or written statement with regard to his prior felony conviction, and (2) § 922(a)(6) violates the due process clause of the Fifth Amendment in that it arbitrarily and unreasonably discriminates against convicted felons as a class.
The evidence is uncontradicted that on two separate occasions, May 27, 1972, and November 9, 1972, Fauntleroy purchased a .25 caliber automatic pistol from White’s Auto Store in Tappahan-nock, Virginia. It is also uncontradicted that Fauntleroy was convicted in a Virginia state court on January 23, 1969, of a crime punishable by imprisonment for a term exceeding one year. The record includes firearms transaction forms signed by Faultleroy on which negative answers were entered to the following question [8b]: “Have you been convicted in any court of a crime punishable by imprisonment for a term exceeding one year?” There is no question that the forms contain material false information and bear Fauntleroy’s signature.
Notwithstanding the forms, appellant contends that he was illiterate when he signed the forms and could not read the question pertaining to his criminal record. Even if he were unable to read the question, and the record does contain substantial evidence indicating that Fauntleroy was illiterate, his illiteracy did not preclude his understanding of the questions which were read aloud to him by the sales manager of the store, Thomas Chinault. Chinault, who sold both guns to Fauntleroy, stated that before asking Fauntleroy to sign the forms, he read them aloud in their entirety and told Fauntleroy that if he did not understand a question, he (Chinault) would explain it to him. According to Chinault, Fauntleroy indicated that he understood the questions. Chinault was satisfied that during both transactions Fauntleroy was able to freely communicate in the English language and did not appear to be under the influence of alcohol or any drug. Chinault’s testimony provided sufficient evidence on which the trier of fact could find that on two separate occasions Fauntleroy knowingly gave a false answer to the question concerning his previous conviction for a crime punishable by imprisonment exceeding one year. United States v. Brown, 458 F.2d 375 (6 Cir. 1972); United States v. Sherman, 421 F.2d 198 (4 Cir. 1970), cert. denied, 398 U.S. 914, 90 S.Ct. 1717, 26 L.Ed.2d 78 (1970).
Appellant argues that § 922(a)(6) violates the constitutional guarantee of due process in that it distinguishes felons from nonfelons. Section 922(a)(6) incorporates by reference other provisions of the Federal Gun Control Act, making it a crime for convicted felons to receive, possess, or transport in commerce any firearms. See 18 U.S.C. § 922(g); 18 U.S.C. § 922(b).
In United States v. Weatherford, 471 F.2d 47 (7 Cir. 1972), the court considered the constitutionality of 18 U.S.C. § 922(g) which prohibits the interstate shipment of firearms by previously convicted felons and held that § 922(g) did not arbitrarily discriminate against previously convicted felons as a class. The court observed that “[i]t seems crystal clear that the purpose of Congress in enacting this legislation was to eliminate firearms from the hands of criminals, while interfering as little as possible with the law abiding citizen.” 471 F.2d at 51.
We agree with the court in Weatherford that the classification distinguishing felons from nonfelons for purposes of gun control legislation is reasonable.
This court has held that the Federal Gun Control Act, including specifically 18 U.S.C. § 922(a)(6), under which Fauntleroy was convicted, is constitutional. United States v. Cabbler, 429 F. 2d 577, 578 (4 Cir. 1970).
Accordingly, we dispense with oral argument and affirm.
Affirmed.
. 18 U.S.C. § 922(a) (6) provides that:
(a) It shall be unlawful—
(6) for any person in connection with the acquisition or attempted acquisition of any firearm or ammunition from a licensed importer, licensed manufacturer, licensed dealer, or licensed collector, knowingly to make any false or fictitious oral or written statement or to furnish or exhibit any false, fictitious, or misrepresented identification, intended or likely to deceive such importer, manufacturer, dealer, or collector with respect to any fact material to the lawfulness of the sale or other disposition of such firearm or ammunition under the provisions of this chapter.
. The case of United States v. Brown, 458 F.2d 375 (6 Cir. 1972), is nearly identical to the one at bar. Brown was convicted for violating 18 U.S.C. § 922(a)(6). Gilbert, the store manager who sold the gun, testified that he asked Brown the questions [including 8(b)] from the firearms transaction form. Brown contended, as does appellant here, that he could not read and that the salesman did not read the questions to him. In upholding the conviction, the Sixth Circuit stated:
In finding appellant guilty .... the jury must have credited Gilbert’s testimony that he had asked Brown the required questions and that Brown had responded falsely. That determination of credibility was within the province of the jury. Accordingly, since there is substantial evidence to support the jury’s verdict, it will be sustained. Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680 (1942). [458 F.2d at 376.]
The only difference in the cases is that this appellant was tried by the court without a jury, a distinction that would have no effect on the result in Brown.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
|
songer_numresp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your specific task is to determine the total number of respondents in the case. If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES of America, Plaintiff-Appellee, v. James Michael BAKER, Defendant-Appellant.
No. 78-1883.
United States Court of Appeals, Ninth Circuit.
Jan. 18, 1979.
John C. Emerson, Special Atty., U. S. Dept. of Justice, San Francisco, Cal., for plaintiff-appellee.
Daniel A. Bacon, Fresno, Cal., for defendant-appellant.
Before BROWNING and CHOY, Circuit Judges, and CHRISTENSEN, District Judge.
The Honorable A. Sherman Christensen, Senior United States District Judge for the District of Utah, sitting by designation.
PER CURIAM:
James Michael Baker whose appeal is before us, was convicted with five other defendants in a bench trial before the district court of conducting an illegal gambling business in violation of 18 U.S.C. § 1955. Vital to Baker’s conviction were taps by federal agents of telephone lines which were used by the various defendants in connection with their gambling operations.
Overriding the question of the sufficiency of the evidence, also presented by Baker here, is his contention that issuance by the district court of the order authorizing the interceptions, and consequentially the admission into evidence of the overheard conversations, constituted error by reason of alleged failure of the supporting affidavits “to set forth facts adequately showing why for each separate wiretap traditional investigative techniques had been attempted, had failed, or were unlikely to succeed.”
It is beyond question that without the electronic interception of Baker’s conversations the government’s case against him would have failed. It is not so clear that the elimination of the fruits of any other one of the remaining three taps authorized by the same order upon the basis of the same affidavits, would have had similar effect. The significance, if any, of such differentiation is not addressed in the briefs, nor is the differentiation itself.
Short of the latter refinement which we have determined to be insignificant in this case for reasons later appearing, Baker’s counsel earnestly relies upon language found in United States v. Abascal, 564 F.2d 821 (9th Cir. 1977), cert. denied, 435 U.S. 953, 98 S.Ct. 1583, 55 L.Ed.2d 804 (1978), for insistence that interception of Baker’s conversation by means of one of the taps was invalid because all of them were not adequately supported by the affidavits upon which the court’s order was based.
I.
VALIDITY OF THE WIRETAPS
It would be a gratuitous retracing of lines already drawn by numerous decisions of this court, and a blinking out of the narrowness of appellant’s attack, to discuss in detail the considerations leading us to conclude that the foundation affidavit generally is adequate to support the district court’s order. It was not comprised of mere “boilerplate”, conclusionary language, circumstances that would apply to problems that could be expected in the investigation of ordinary gambling cases, the stretching of a single investigative episode into “a full and complete statement”, or undue reliance upon the investigator’s experience in other cases. It “etched the nature and contours” of this particular gambling business from the statements of reliable informants who had firsthand knowledge but who were afraid and would refuse to testify in court, as well as “the nature and extent of this investigation up- to the requesting point with enough particularity to allow a judge reasonably to ascertain that continued use of ordinary surveillance probably would be fruitless.” United States v. Abascal, 564 F.2d 821, 826 (9th Cir. 1977), supra, citing United States v. Spagnuolo, 549 F.2d 705 (9th Cir. 1977), supra.
Baker is in no position to complain because the affidavit on which the intercept order was based did not demonstrate as to himself particularly that traditional investigative techniques had been attempted and failed or were unlikely to succeed. Before the wiretap of the Judd telephone was accomplished, Baker’s participation in the illegal gambling business being investigated was not known so far as the record discloses.- The foundation affidavit named as suspects the other five defendants “and others yet unknown”. The government is not required to identify an individual in a wiretap authorization application unless it has probable cause to believe that the individual is engaged in criminal activity under investigation and that the individual’s conversation will be intercepted over the target telephone. 28 U.S.C. § 2518(l)(b)(iv). United States v. Alfonso, 552 F.2d 605, 613-615 (9th Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977). Cf. United States v. Scully, 546 F.2d 255, 259 (9th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1168, 50 L.Ed.2d 578 (1977) supra.
In any event, in the absence of a showing of bad faith or prejudice Baker’s intercepted conversations thus properly could be considered as those of a participant yet unknown at the time of the application and could be utilized for evidence, notwithstanding the absence of reference to him in the intercept application, providing that the showing was sufficient with respect to Judd and his telephone over which the interceptions questioned by Baker were made. Cf. U. S. v. Donovan, 429 U.S. 413, 97 S.Ct. 658, 50 L.Ed.2d 652 (1977). See also U. S. v. Santarpio, 560 F.2d 448, 454 (1st Cir.), cert. denied sub nom. Schepici v. United States, 434 U.S. 984, 98 S.Ct. 609, 54 L.Ed.2d 478 (1977); U. S. v. Sklaroff, 552 F.2d 1156, 1158 (5th Cir. 1977), cert. denied sub nom. Goldstein v. U. S., 434 U.S. 1009, 98 S.Ct. 718, 54 L.Ed.2d 751 (1978); U. S. v. De La Fuente, 548 F.2d 528, 538 (5th Cir.), cert. denied sub nom. Sierra et al. v. U. S., 434 U.S. 954, 98 S.Ct. 479, 54 L.Ed.2d 312 (1977); U. S. v. Joseph, 519 F.2d 1068 (5th Cir.), cert. denied, 424 U.S. 909, 96 S.Ct. 1103, 47 L.Ed.2d 312 (1975). See also United States v. Scully, 546 F.2d 255 (9th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1168, 60 L.Ed.2d 578, supra.
Yet there remains the question whether by reason of any flaw in the Jones affidavit peculiar to Judd the showing was insufficient to sustain interception of conversations over Judd’s telephone, including those of Baker. We do not here question the standing of Baker to raise this point. Abascal, 564 F.2d at p. 825.
If the foundations for a wiretap are established with regard to a particular, telephone, ordinarily it is not fatal to the order of interception for that telephone that the particularization with regard to another telephone or principal may be insufficient. Conversely, if there is no foundation for an interception of a wire communication over a telephone for want of a particularized showing of need, it will not suffice as to that telephone that there is a foundation for the wiretapping of other telephones. This is the teaching of Abascal and Santora So a showing that two or more principals are involved in one conspiracy as to one of which a sufficient affidavit has been filed is not alone sufficient to support an application as to all of the alleged principals or their telephones. But a particularized need for wiretaps may be established as to several principals and their telephones, depending upon the circumstances alleged, not only by a minutia of detail discretely directed, but by persuasive facts pertaining in common to all of the principals and their telephones.
The Jones affidavit, in addition to individually directed details, does allege circumstances pertaining to all of the tapped telephones and the putative participants that meet the tests laid down by this court. These included a factual showing of due consideration of the possibilities of infiltration, the infeasibility of locating gambling records, the reluctance of informants to testify in court, the probable unproductiveness of investigation through grand jury proceedings, the conducting of numerous physical surveillances of all of the principals listed in the affidavit, including Judd, and the discovery that they were particularly wary of surveillance. These general allegations were particularized by specific examples of difficulties and obstructions encountered in the process.
It is true that Judd’s situation unlike that of other suspects was not covered by specific examples of unsuccessful physical surveillance or infiltration. Yet we believe that the Jones affidavit read as a whole reasonably established as to Judd, as well as to the others named, that other or additional investigative procedures short of electronic surveillance if further pursued would be unlikely to succeed. Government investigators, subject to evaluation by the courts on similar bases, are entitled to use reason and common sense in the performance and documentation of their investigations to support applications for wiretaps. The statute does not mandate the indiscriminate pursuit to the bitter end of every non-electronic device as to every telephone and principal in question to a point where the investigation becomes redundant or impractical or the subjects may be alerted and the entire investigation aborted by unreasonable insistence upon forlorn hope. Upon the showing made, the district court could reasonably conclude, and did so, that alternative means of investigation had failed or likely would be unsuccessful as to Judd.
The order approving the interceptions being valid, the admission into evidence of the conversations participated in by Baker over Judd’s telephone was proper.
II
SUFFICIENCY OF THE EVIDENCE
Baker joined with the other defendants, without waiving objections to the wiretap order, in a stipulation of facts. The other defendants agreed that the information therein recited was sufficient to support findings of their guilt, but Baker declined to accede to the latter construction as pertaining to himself, and submitted a supplemental affidavit which he asked the court also to consider in his defense.
Revealed by the authorized interceptions were the operations of a gambling business which received wagers on college and professional sports, the majority of such wagers consisting of football bets placed by telephone. In all, more than $140,000 in bets were received from 86 persons during the 13-day period of the interceptions. The daily operations of the gambling business were conducted primarily at a residence in Fresno leased to defendant Robert Monopo-li. During the period in question, defendants Robert Monopoli, Julius Monopoli, Bruce Wilkins and David Hunt disseminated line information to, and accepted bets from, betters on a telephone at the Fresno office and two other locations.
John Judd was an independent bookmaker who accepted bets at his Bakersfield residence. Every few days during the indictment period, Wilkins called defendant Judd in Bakersfield and received the “line” from Judd on basketball and football games to be played in the coming week. No other source of line information was used by the gambling business. Wilkins also placed lay-off wagers with Judd by telephone. The gambling business did not use any other outlet for lay-off wagers. In addition, Judd was a one-third partner with Robert Monopoli and Wilkins in the profits or losses resulting from bets placed in Fresno with football cards.
Baker was an independent bookmaker who operated from a residence in Arroyo Grande, California. On five occasions on five separate days during the indictment period, he supplied line information to Judd, which Judd relayed to Wilkins or Monopoli; Wilkins and Monopoli disseminated such line information to their betters or agents in Fresno. On five occasions on five separate days during this period Baker accepted a total of $3,700 in lay-off wagers from Judd, which Judd had received as lay-off wagers from Wilkins or Monopoli.
After receiving this and other information through the wire interceptions, FBI agents executed search warrants. At James Baker’s residence they found numerous line sheets and betting slips and a settlement sheet reflecting 19 accounts. Transcripts of the detailed communication interceptions indicated a close relationship between the business Judd and Baker transacted over the telephone and the gambling business conducted by the other defendants.
Supplementing by affidavit the agreed statement of facts, Baker alleged that he or Judd received line information by calling J. K. Sports, Inc., in Los Angeles; that he did not furnish line information to Judd with knowledge that it would be relayed to Monopoli or Wilkins; that the wagers he received from Judd were on Judd’s personal account and were not lay-off bets; and that he was not aware at any time during the indictment period of the Fresno gambling operation. Although it appears that Baker had no knowledge of the Fresno operation as such, the stipulation does not support his claim that Judd received line information from J. K. Sports. The stipulation indicates that Baker knew that Judd’s wagers were lay-off bets because in one of the conversations Judd told Baker, “It’s a lay-off from a place up there. See under ‘me’.” (“Me” was the designation of an account referred to previously by Judd in relaying bets received from another member of the organization.) The trial court was not bound to accept defendant’s allegations at face value and could draw reasonable inferences from the stipulation of facts.
It was reasonable to conclude that Baker violated Section 1955 because he regularly and directly exchanged line information and lay-off bets with Judd as an integral part of the illegal gambling business. This conviction finds ample support in the record.
Affirmed.
. An “illegal gambling business” as defined by the statute is one which is a violation of the law of a State or political subdivision in which it is conducted, involves five or more persons who conduct, finance, manage, supervise, direct or own all or part of such business, and has been or remains in substantially continuous operation for a period in excess of thirty days or has a gross revenue of $2,000 in any single day.
. The Omnibus Crime Control and Safe Streets Act of 1968, § 2518(l)(c), in part provides that each application for an order authorizing or approving the interception of a wire or oral communication shall include “a full and complete statement as to whether or not other investigative procedures have been tried and failed or why they reasonably appear to be unlikely to succeed if tried or to be too dangerous.”
. The wiretap statute requires that § 2518(l)(c) be satisfied with regard to each separate wiretap. Thus a showing of need for the Batchelder wiretap would not necessarily justify the need for the Petroff wiretap. It is not enough that the agents believe the telephone subscribers they wish to tap are all part of one conspiracy. Less intrusive investigative procedures may succeed with one putative participant while they may not succeed with another. .
564 F.2d at p. 826.
See also United States v. Santora, 583 F.2d 453, 466 (9th Cir. 1978), which recognized that an initial intercept order was sufficiently specific to meet standards applied in other 9th Circuit cases but that “this does not mean that once the Government has established the inadequacy of investigative alternatives relating to certain subjects, it may then dispense with the required showing when applying to tap the telephone of other conspirators.”
. United States v. Santora, 583 F.2d 453 (9th Cir. 1978), supra; United States v. Abascal, 564 F.2d 821, 825 (9th Cir. 1977); United States v. Spagnuolo, 549 F.2d 705, 710 (9th Cir. 1977); United States v. Scully, 546 F.2d 255, 260-61 (9th Cir. 1976), cert. denied, 430 U.S. 970, 97 S.Ct. 1168, 50 L.Ed.2d 578 (1977); United States v. Feldman, 535 F.2d 1175, 1179 (9th Cir. 1976); United States v. Kalustian, 529 F.2d 585, 588-589 (9th Cir. 1975); United States v. Turner, 528 F.2d 143, 152 (9th Cir.), cert. denied sub nom. Grimes v. United States, 423 U.S. 996, 96 S.Ct. 426, 46 L.Ed.2d 371 (1975); United States v. Smith, 519 F.2d 516, 518 (9th Cir. 1975); United States v. Kerrigan, 514 F.2d 35, 38 (9th Cir.), cert. denied, 423 U.S. 924, 96 S.Ct. 266, 46 L.Ed.2d 249 (1975).
. The application was in the form of an affidavit by the Special Attorney for the Department of. Justice. While he set out the context and results of the investigative summary and ventured conclusions concerning satisfaction of the statutory requirements, the lower court had to look primarily to the affidavit of Robert Edward Jones, Special Agent of the Federal Bureau of Investigation, as do we, to determine whether the requisite factual showing had been made.
. Where proof of the jurisdictional number of participants is dependent upon the validity of the other wiretaps or where a particular wiretap otherwise valid constitutes the “fruits of an illegal wiretap”, a particular defendant who could claim no flaws in the tap of his own telephone may have standing to question the validity of other taps by reason of a failure of the foundational affidavit to set forth facts adequately showing for all of the wiretaps that traditional investigation techniques had been attempted, had failed or were unlikely to succeed. See 18 U.S.C. § 2515; United States v. Iannelli, 477 F.2d 999 (3d Cir. 1973), affd, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1974); United States v. Spagnuoio, 549 F.2d 705 (9th Cir. 1977), supra, at pp. 711-712. See also Abascal, supra, at 827. This is not the situation here, where all other taps were at least as clearly supported as the tap on Judd’s line.
. Two wiretaps were involved in Abascal. As to one, there was “little doubt of the sufficiency of the supporting affidavit.” The court held with regard to the second tap on the basis of a showing similar to the one made here that its supporting affidavit also was sufficient. In Santora, an affidavit purportedly supporting a second tap was held insufficient because it relied by reference upon an affidavit dealing with a prior tap and different suspects.
. The “line” or “point spread” is a number of points given to the weaker team in a particular contest to make it as likely to win as the stronger team. The bookmaker must utilize a line to assure that bets are attracted to each team in equal amounts. If a bookmaker can achieve equal wagers on each team, he assumes no risk on the outcome of the game but is guaranteed a profit he charges the losing betters. (Stipulation of the parties.)
. When betting action becomes heavy on one side, the bookmaker uses three principal devices to bring the betting volume into parity. He may refuse to accept bets on the heavy side hoping that continued betting on the other side will bring the game into balance. He may adjust the line making the underbet side a more attractive wager. More probably, however, particularly if game time is near, the bookmdker will bet the excess with another bookmaker. Known as a “lay-off’ bet this wager is placed as if the laying-off bookmaker is betting and he must make the wager at the second bookmaker’s line and must pay the prevailing profit if he loses. (Stipulation of the parties.)
. United States v. Sacco, 491 F.2d 995 (9th Cir. 1974); United States v. Santarpio, 560 F.2d 448 (1st Cir.), cert. denied sub nom. Schepici v. United States, 434 U.S. 984, 98 S.Ct. 609, 54 L.Ed.2d 478 (1977), supra; United States v. Alfonso, 552 F.2d 605 (5th Cir.), cert. denied, 434 U.S. 922, 98 S.Ct. 398, 54 L.Ed.2d 279 (1977), supra; United States v. DiMuro, 540 F.2d 503 (1st Cir. 1976), cert. denied, 429 U.S. 1038, 97 S.Ct. 733, 50 L.Ed.2d 749 (1977); United States v. Schaefer, 510 F.2d 1307 (8th Cir.), cert. denied, 421 U.S. 978, 95 S.Ct. 1980, 44 L.Ed.2d 470 (1975); United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), cert. denied, 416 U.S. 936, 94 S.Ct. 1934, 40 L.Ed.2d 286 (1974); United States v. Thaggard, All F.2d 626 (5th Cir. 1973); United States v. Iannelli, 477 F.2d 999 (3d Cir. 1973), affd, 420 U.S. 770, 95 S.Ct. 1284, 43 L.Ed.2d 616 (1974), supra.
Question: What is the total number of respondents in the case? Answer with a number.
Answer:
|
songer_weightev
|
B
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to issues that may appear in any civil law cases including civil government, civil private, and diversity cases. The issue is: "Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?" This includes discussions of whether the litigant met the burden of proof. Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".
SINCLAIR REFINING CO. v. JENKINS PETROLEUM PROCESS CO.
No. 3318.
Circuit Court of Appeals, First Circuit.
Sept. 27, 1938.
Nathan L. Miller, of New York City (Frank E. Barrows, of New York City, and Robert Hale, of Portland, Me., on the brief), for appellant.
Howard A. Hartman and David Fox, both of Milwaukee, Wis. (Henry Herrick Bond, of Boston, Mass., Philip G. Clifford and Richard S. Chapman, both of Portland, Me., John Howley, of New York City, Frederick Schafer and Russell C. Jewell, both of Washington, D. C., and John JT. McKeague, of Chicago, 111., on the brief), for appellee.
Before WILSON and MORTON, Circuit Judges, and McLELLAN, District Judge.
Writ of certiorari denied 59 S.Ct. 362, 83 L.Ed. —.
WILSON, Circuit Judge.
This is an appeal from the District Court of Maine in an action at law to recover for an alleged breach of a contract under date of. October 2, 1916, under which the defendant agreed to cause its employees to execute applications for patents for any improvements which it or its engineers and experts might develop in a certain apparatus or process claimed to have been invented by. the plaintiff for cracking crude petroleum oils for the recovery of the lighter oils, including.gasoline, and to assign said applications, together with the improvements they were intended to protect, to the plaintiff.
'A suit in equity was originally brought in January, .1921, to compel a specific performance of the contract. Specific performance was denied by the District Court for lack of sufficient evidence to warrant such a decree and the bill was dismissed, On appeal to this court the decree of the District Court was in part affirmed, but the appeal was dismissed without prejudice and the case was remanded to the District Court with directions to transfer it to the law side, and with permission to the plaintiff to amend its bill of complaint within thirty days by filing a declaration at law for a breach of contract.
The history of the litigation over this contract, prior to the judgment at law from which this appeal was taken, will be found in D.C., 273 F. 527; D.C., 32 F.2d 247; 1 Cir., 32 F.2d 252; D.C., 38 F2d 820; D.C., 56 F.2d 272; 1 Cir., 62 F.2d 663; 289 U.S. 689, 53 S.Ct. 736, 77 L.Ed. 1449, 88 A.L.R. 496; D.C., 6 F.Supp. 67.
Following the mandate in the equity suit, a declaration at law was filed, and a motion by the defendant to strike out and dismiss on the ground that the proposed declaration at law set forth a different cause of action from that described in the complaint in equity. The motion of the defendant was denied and an exception taken.
On May 15, 1930, a third count as an amendment to the declaration at law was proposed and objected to and exceptions taken to the allowance.
^ , , , . . Defendant then filed a plea of general issue with _ a brief statement of defense, on which issue was joined, and the case was continued from term to term until ferm> D)36. On Maich 29, 1937 the case went to trial before a jury. T t J C7, JCnCe onApr!1 23’ \937’ *e deJíenda“t. ®led a “otxon for a directed verdict, which was denied and exceptions taken. Whereupon the jury rendered a verdict for the plaintiff for $2,000,-qqq
A motion for a new trial by the defendant was overruled. From a judgment on the verdict the present appeal was taken to this court. The defendant filed twenty-five assignments of error.
The case was carefully tried during a trial of five weeks, but with astute and experienced counsel on both sides, by whom every point involving a question of law was strenuously contested, it would be unusual if some error did not appear, either in the admission or exclusion of evidence, or in instructions to the jury, either requested or refused. ’
An attempt to analyze the mass of evidence pro and con in the case would of necessity be futile within reasonable limits 0f an opinion,
_ . , .. * a ^cessary to consider assign“s of error numbered 4, 5, 8, 9, 10 and 12.
We find it unnecessary to discuss assignments 1, 2 and 3 which raise some doubtful questions of pleading under the state practice. We shall first consider assignments of error relating to the admission and exclusion of evidence, viz., 5, 8, 9, 10 and 12.
The District Judge excluded evidence of the Prl0r art bearing on the construction and scope of the Jenkins and Isom patents, and Qn the question of whether was an improvement in Jenkins, which was assigned as error under assignment No. 5; on the question of damages he excluded evidence bearing on the validity of the Isom patent, and its anticipation by the patent issued to the Russians, Schuchow and Gavrilow, in 1891, and received in the United States Patent Office on March 3, 1897, which was assigned as error under assignments 8 and 9; he also excluded the facts relating to an interference between the Isom patent and an application of one Dubbs, which was filed before the application of Isom and assigned as error under assignment No. 10. the testimony of R w_ Igom in the action o£ the sinclair Refini Company v. Globe Oil & Refining Company; D.C., 20 F.Supp. 681, was admitted, which related to the amount of Hne extracted during a given period ‘by the Isom stills, which was assigned as error under assignment No. 12.
, , We think the evidence relating to the SC0Pe and validity of the Isom patent should have been received, notwithstanding the stills constructed under the Isom pa^en^ }latl been in use by the defendant £or many years without objection or claim 0| infringement. Isom obtained the paterd; Qn jjjs still by claiming that vertical tubes were new. The Russian patent was not called to the attention of the Patent Office, when the application for the apparatas patent of Isom was pending, but when his divisional process patent was under consideration the Russian patent was
cited, and the process patent was refused on- the ground of anticipation by the Russian patent.
The jury was instructed that prima facie the Isom patent was a valid patent, and the jury must have weighed the evidence in view of this instruction. In cross-examination the plaintiff’s expert, Darnell, testified as follows: “Q. Then wouldn’t you think as an expert qualifying to pass judgment on the value of a patent that you would need to take into account whether or not the particular pat-tent- you1 were evaluating was one which would enable its owner to exclude other people from practicing the same thing? A. Certainly that would he a factor.” “ Q. But you didn’t do it.? A. No, I assumed this was a valid patent.”
The excluded evidence of the Russian patent of Schuchow and Gavrilow and the other prior art patents offered and. ex-eluded would have shown, if admitted, that Isom’s vertical tubes on which his patent was based and forced mechanical circulation were anticipated by more than twenty years, and- were in the public domain, Jenkins was free to use them as well as tkc defendant.
■ "This appeared when Isom applied for a. divisional process patent for oil cracking and. the Russian patent was cited against it. A process patent was denied, The Court of Appeals of the District of Columbia in the Dubbs interference case, Isom v. Dubbs, 58 App.D.C. 25, 24 F.2d 467, stated in its opinion that the Isom apparatus patent had been inadvertently issued, no doubt in view of the Russian patent, which was not cited when Isom’s application for an apparatus patent was considered.
This evidence, if it had been admitted, would have shown that Isom’s parallel vertical tubes and the mechanical forced circulation of oil through tubes and tank had all been anticipated. The two features in the Isom patent which were claimed by the plaintiff to be an improvement in Jenkins, viz., vertical tubes and a balanced stuffing bo^;, were both old and left nothing of value in the Isom patent to be assigned to the plaintiff under the letter-contract in suit hereinafter, referred to. Therefore, even if the improvements claimed by the plaintiff had been assigned in accordance with the letter-contract, they could have added nothing of value to- the Jenkins patent, and the. failure to assign them deprived the plaintiff of nothing of value. The effect of' the contract of October, 1916, was merely to assign any patent obtained by the defendant on improvements in the Jenkins process, if within the contract, for whatever it might be worth. Hence the actual damage suffered by the plaintiff through the failure to assign to it the Isom alleged improvements in accordance with the letter-contract of October, 1916, could not have been more ]han nominal, even assuming the so-called improvements claimed by the plaintiff were the result of the Isom engineers and experts familiarizing themselves with the Jenkins still under the contract of October> 1916.
The testimony of E. W. Isom in the case of Sinclair Refining Co. v. Globe Oil & Refining Co., 20 F.Supp 681, should have been excluded. The case against the Globe Oil & Refining Co. involved a claim of infringement of certain patents issued to one Bell and assigned to the defendant, by which continuous operation of the Sinclair still was greatly increased and consequently the production of gasoline. The District Court ruled in the law action that special profitable uses of the Isom patent could not be considered on the question of damages, but in the Globe Oil & Refining Co. Case evidence given by E. W. Isom as to the éfficiency of the Isom patent, with the addition of the Bell inventions, was admitted as bearing on its commercial use.
The defendant did not deny the usefulness of its invention, but utility and invention are not alone sufficient to warrant the issuance of a patent. There must also be novelty. Paramount Publix Corp. v. American Tri-Ergon Corp., 294 U.S. 464, 474, 55 S.Ct. 449, 453, 79 L.Ed. 997; Walker on Patents (6th Ed.), Sec. 91
The District Judge expressed doubt as to the admissibility of this evidence at the time it was offered. The plaintiff, however, was permitted to put in the testimony of E. W. Isom as to the output of the lsom stills in 1927. Judge Nields stated i*1 his opinion in that case:
“His (Bell’s) inventions are effective in surmounting the carbon carrier when used in practice, either (with) the batch process or the continuous process. The plaintiff (the Sinclair Company) turned at once to continuous cracking with the Bell patents. In the latter part of 1920 a battery of stills was equipped with the Bell inventions. For the first time in history continuous cracking to produce gasoline was practiced commercially. All subsequent commercial cracking has been continuous.”
Judge Nields found that these Bell inventions were finally embodied in all of the defendant’s commercial cracking stills, and that the large increased output of the defendant’s stills was due, not to the Isom patent alone, but to the added improvements by Bell.
The figures of the production of these stills in 1927 were used by the plaintiff’s expert, Darnell, in his estimates of the damages suffered by the plaintiff due to the defendant’s alleged breach of the letter-contract of October, 19.16. Such evidence of profitable use the District Judge and this court had ruled were inadmissible on the question of damages. Jenkins Petroleum Process Co. v. Sinclair Refining Co., supra, 62 F.2d page 665. The District Court, in accordance with the ruling of this court in Sinclair Refining Co. v. Sinclair Refining Co., supra, 62 F.2d page 665, instructed the jury: You are not authorized to consider any damages based on profits Sinclair might or could have made. These are recoverable only in infringement suits and not in this form of action.” No exception was taken by the plaintiff to this instruction. The jury was bound by it and its soundness under all circumstances is not before this court.
It further appeared that E. W. Isom was available as a witness. If it be assumed, without so deciding, that where a corporate officer is available as a witness, his testimony in a different case may ever be received as in the nature of a corporate admission, this is not such a case.
Unless the plaintiff has some effective reply, which we do not find in the record, to the defendant’s contention that the use of vertical tubes and forced mechanical circulation had long been anticipated by the Schuchow and Gavrilow patent and was in the public domain, the Isom patent must be held invalid. It also appeared in evidence that E. W. Isom, prior to October, 1916, was familiar with the several patents issued to Smith, Cross, Clark, Edwards, Waxier and Sapp, which related to the cracking of crude oils and the distillation of gasoline, and showed a tank and tubes with forced mechanical circulation, in which tubes the crude oil was subjected to cracking heat, though the tubes in the last named patents wefe not verti-' cal. The exception to the exclusion of this evidence of the prior art must be-sustained.
While some evidence of the prior art was admitted for the purpose of showing the state of the art in 1916, if all the evidence of the prior art offered by the defendant had been admitted showing anticipation of the vertical tubes and balanced stuffing box of the Isom patent, and to show the scope of the Isom patent, the prima facie evidence of validity of the Isom patent would have been destroyed and the District Court must then have instructed the jury tfmt _ the Isom patent' issued in 1918 was invalid,
The only reply the plaintiff makes to the defendant’s claim of admissibility of this evidence is that the defendant is estopped to set up invalidity of his patent. But this is not a case of assignor and assignee, or licensor and licensee, where the assignor or licensor is presumed to represent the validity of that which he assigns or licenses.
There is obviously no estoppel by deed, nor are elements present to constitute an estoppel in pais, or equitable estoppel, >p0 constitute such an estoppel all the essential elements must be present, among which is ignorance 0f the true facts on part 0f tjje person claiming the estoppej_ The generaj[ ruje js that one may not t0 the prejudice of the other party deny any position taken in a prior judicial proceeding between the same parties or their privies involving the same subject matter, if successfully maintained. Gordon v. Hutchins, 118 Me. 6, 105 A. 356; Pratt v. Paris Gas Light & Coke Co., 168 U.S. 255, 18 S.Ct. 62, 42 L.Ed. 458.
But m the_ event of a dismissal of the action in which the position was taken without any binding judgment, as in case °f a non-suit or dismissal without prejudice, the fact that such a position was taken in a prior action may be admissible as evidence between the parties, but is not conclusive. Waterman v. Merrow, 94 Me. 237, 47 A. 157; Pratt v. Paris Gas Light & Coke Co., supra; Carleton v. Bird, 94 Me. 182, 47 A. 154; Jackson v. Allen, 120 Mass. 64.
There is no claim that the plaintiff was ignorant of the prior art, and the legal presumption is that all patentees and all patent owners are presumed to be,familiar with the prior art. Adams v. Gabon Iron Works & Mfg. Co., 6 Cir., 42 F.2d 395, 397; John T. Riddell, Inc., v. P. Goldsmith Sons Co., 6 Cir., 92 F.2d 353, 356. There was no evidence that the plaintiff was injured by an unexpected claim' of Isom in the law case that his patent, in view of the prior art, was invalid.
The issue raised in the prior equity case was not one of valuation of the Isom patent and of damages, but whether the plaintiff was entitled to a specific performance of the contract of October 2, 1916. The District Court and this court held the evidence did not warrant such a decree. The issues not being the same, ence the issue of the validity of the Isom patent was not raised by the equity pleadings nor determined in that case, and the equity case being dismissed without prejudice, there was no estoppel in pais, or equitable estoppel, against the defendant raising the question of validity of the Isom patent on the question of damages in a law action for breach of the contract, Therefore, the evidence of the prior art bearing on the scope and validity of the Isom patent, and the facts and decision in the Dubbs interference case bearing on the validity of the two claims of the Isom patent, should have been received on the question of damages.
But notwithstanding these errors in the admission and .exclusion of evidence which would -alone require the granting of a new trial, the exception to the denial of the motion of the defendant for a directed verdict after the evidence was all in, which was assigned as error under assignment of error No. 4, goes deeper into the real issue of the case, namely, the proper construction of the contract entered into between these parties under date of October- 2, 1916, and whether there was any evidence of information obtained by or imparted to the defendant, or to any of its engineers and experts under the contract, which enabled ‘E. W. Isom to conceive the claimed improvements in the Jenkins patent.
In stating the facts bearing upon the question whether a verdict for the defendant should have been directed, we recognize a jury’s right to reject testimony as not entitled to credit, but it must also be understood that disbelief of testimony does not constitute affirmative evidence of the contrary.
The material part of the letter-contract of October 2, 1916, reads as follows:
“Pursuant to our , conversations and conferences relative to the Jenkins process of treating petroleum, it is understood that we (the plaintiff) are to loan you our experimental still to be shipped to Coffey-ville, Kansas, so that your experts and engineers may have apparatus immediately available upon which to carry out experiments uPon the Jenkins improved process uPon 70ur Petroleum products,
“It is further understood that Mr. Ulysses S. Jenkins, of Chicago will go to-Coffeyville, Kansas, to install the still and will remain in an advisory capacity throughout the entire course of experimental work carried on by your experts,, Mr. Jenkins’ salary being $150.00 a month,, and all expenses, including railroad ex-penses incurred by him in making trips to Chicago, rendered necessary by said ex-perimental work, this to be paid by you.
«it ;s further definitely understood and agreed between us that any improvements, whether of a mechanical nature, or in the-process, which may be -developed as the result of the work of your engineers and experts in familiarizing themselves with the jenkins apparatus and process, shall accrue to the Jenkins Petroleum Process Company, and that you shall, so far as y0U are af,je to do, cause your employees carrying on such experimental work to execute applications for patents for the United States and any other countries to protect any such improvements, blit at the expense of Jenkins Petroleum Process Company, and to assign said applications,, together with the improvements they are intended to protect, to the Jenkins Petroleum Process Company. This provision is of course rendered necessary by the fact that in development of a process of this character, and particularly in its application to particular oils, many short cuts and improvements necessarily are developed by the experts entrusted with the carrying out of the process, which belong by right to their employer, and under the-circumstances here involved, of course, to-the Jenkins Petroleum Process Company,, inasmuch as they are_ loaning you not only their experimental still, but also the services of Mr. Jenkins, the inventor himself,
* * * - * * *
“As soon as your engineers and experts have carried on sufficient work with this-still to thoroughly familiarize themselves. with the process and discover the best conditions under which to apply the proc~ ess to your petroleum products, the still will be returned in good condition to us.” (Italics supplied.)
The particular improvements in Jenleins claimed by the plaintiff’s witnesses as a result of the defendant’s engineers and experts familiarizing themselves with the Jenkins still under the contract of October, 1916, were the use of vertical tubes and a balanced stuffing box.
There was a difference of view between the parties as to the proper construction of the contract, which was for the court to determine.
In the equity case the court ruled that a broad construction was to be given the contract because of a claim by the plaintiff of confidential disclosures. D.C., 32 F.2d 247, 250, 251. The claim of confidential disclosures being abandoned in the law action, the broad construction contended for by the plaintiff m the equity case was not pressed m the law action.
The construction put upon the contract in the law action by the District Judge in his charge to the jury was that improvements resulting from disclosures prior to the date the contract was executed, which was sometime between October 2, 1916, and October 9, 1916, were not within the contract and also that any disclosures in connection with the negotiations for the sale of the stock of the Jenkins Company after October 2-9, 1916, were not covered by it; but he also instructed the jury “that any information gained by the defendant’s engineers and experts while so familiarizing themselves under the opportunity given them under the contract at Coffeyville, was proper to be shown in support of the plaintiff’s contention.” His instruction on this point «. ,, was as follows.
. At the outset the question arises as to construction of contract m respect of the source of information chargeable to the defendant and the time m ^ w uch it must have been received. Strictly construed the contract would be hrmted to information gained by experimentation. If that a one is covered by the contract, there could scarcely be any recovery because no experiments were ever made or witnessed by the defendant’s people after they received the still. However, I prefer to give more effect to the words ‘familiarizing themselves with the Jenkins apparatus and process’. And I rule that any information gained by defendant’s engineers and experts while so familiarizing themselves under the opportunity given them under the contract and as a result thereof is proper to be shown in support of the plaintiff’s contention. The defend-ant claims that disclosures made by the plaintiff to the defendant before the date °f the contract, that is, before October 2> 1916> cannot he considered as having been made under the contract; and that any disclosures made by plaintiff to defendant in the course of the negotiations baving ¿o do with the license or sale agreement were wholly unrelated to the contract and that, therefore, no improvements made by defendant as the result of its familiarity with the plaintiff’s process gained from such disclosures are covered by the contract.
eqf the Qnl information given the de_ fendant by the Iaint¡ff and the Qnl in. formation obtained by the defendant was that mentionedj that is before the contract was entered into and while negotiations for a license or sale and solely as a part 0f such negotiations, in the way information was freely given to others by the plaintiff in connection with proposed license agreements about that time, then it would be apparent that defendant gained no familiarity with the Jenkins apparatus and process through any action of the plaintiff under the contract, and it would have no ground for recovery in this suit.”
. , , , , , . an?“ “ t?.w^t m' te“ded *e ^ords fam^arizing themselves with the Jenkins apparatus and pro«jess*, and the District Court instructed íhe }ur7 ^ ,lfconstrued strictly as be-limited to information obtained by ex-Penmentation, the plaintiff could not recover, as no experiments were made at Coffeyville under the contract; but added: «j prefer t0 gjve more effect to the words ‘familiarizing themselves with the Jenkins apparatus and process.’ And I rule that any jnformati0n gained by defendant’s engjneers and experts while so familiarizing themselves under the opportunity given them under the contract and ag a result thereof is to be shown in support of the plaintiff’s contention.”
The contract is clear, at least, as to the purpose and the object of the shipment of the still to Coffeyville, and should ' be interpreted in the light of the circumstances under which it was entered into.
•Jenkins and his associates, A. 'G. Maguire, W. H. Black and T. S. Black, sometime in the summer of 1916, advanced a small amount of money to construct an experimental still to test out an idea of Jenkins for cracking crude petroleum oils and extracting therefrom gasoline, which, with the advent of automobiles and the demand caused by the great war, was much sought for by the refining and producing oil companies, especially in the period from 1912 to 1917. The chief difficulty encountered before had been' the deposit of carbon in the cracking .stills ■ through applying the heat necessary to break down the atoms of hydrocarbon contained in the crude oil. Jenkins’ theory was that rapid circulation £ i . z a . « . t. , f j •of oil, subjected to cracking heat, would ’ j r - . . ’ prevent .the deposit of carbon in any considerable quantity, and his experimental still consisted of a tank containing a sup- . £ .. j . j j* ply of oil and descending and ascending . L . .it_ 11 i • i- j A u pipes connected with parallel inclined tubes x.» . a . . 4 ■. ... _ 4 • T subjected to great heat, with a mechanical- . J£ j r 1 4.4 j ly forced circulation through tank and /. . £ * .. tubes by means of a screw propeller. J r r
E. W. Isom, a son of W. H. Isom, president of the Cudahy Refining Company, was a trained engineer, having graduated from a scientific mining school, and in 1912 became assistant to his father and at once took up the problem of the study of cracking crude oil for the purpose of increasing the production of gasoline in addition do other duties.
His studies of the subject and investígation extended from 19Í2 to 1917. During this time he investigated every patent issued which had any relation to the subject, read all the literature published in connection with it, including the Rittman Publication, so called, issued by the Bureau of Mines of the Department of the Interior, giving the state .of the prior art and from which Jenkins evidently received a suggestion for his claimed invention. In midsummer of 1916, one of the Blacks called W. H. Isom’s attention to the Jenkins process,-and Maguire, one of the organizers and promoters of the Jenkins Company, on July 7, 1916, wrote W. H. Isom that “W. C. Black will see you and explain the principles and show you the prints of our cracking process.!’ The prints which he referred to in this letter were the patent prints. i W. C. Black testilled that, during, the summer of 1916, '“I.; very frankly explained' to Mr. Isom everything T learned about the ’ operation from my visits to the little still. * * * Mr. Isom was anxious to have his son, Edward, come up and make his own investigation, make his own determinations, He wanted a real oil man up there that understood oil technology and oil refining, So after a few runs we felt that we had gotten far enough to where it would be interesting and we announced to him that our people were perfectly willing to let Edward (Isom) come up, go out and see for himself, make whatever determinations he cared to. That was sometime around the middle of August.”
,*• . , , ■.... , . . T 1 mi£ . Magmre also testified that m July, 1916, ' f exP M^e 0 • • som m ,e m e theory of the Jenkins patent and process. -A 4 „ , ^ v. W. H. Isom called his son s attention to y . • . , . . . Al_ - . e ^,.n .^a en , an , su®es,.e, ,a e as always did when a new idea was presented. E. W. Isom was ,, . ,. 5 . then investigating other processes and, m ..... . -y ^ ’ - addition, had charge of the erection of . . .... , ® ^ . . - , commercial stills for the cracking of crude .. . . oils: but, as the record shows, was even .4 ’ , . , . . . , . then making plans in his own mind from his investigation of the prior 'art for a process and still which was later perfected with the help of Professor John E. Bell, who also invented a so-called lobe pump for forcing circulation. Patents for Bell's improvements were issued and assigned to the defendant.
• Maguire ¡n mó assured w H_ ^ .* . ^ < . . , . ..4 ^ T that they had experimented w^ith the Jen— kins still and found that it did all they claimed for it, and before it had even . been demonstrated to the Isoms he had tried to interest W. H. Isom in the purchase of it, or to take licenses under the patent. W. H. Isom replied that his son would first want a demonstration of the Jenkins still and its ability, to produce gasoline from the products of the Cudahy Company, which Jenkins then undertook to do at his garage in Chicago. E. W. Isom came to Chicago in the latter part of August, 1916, to witness a demonstration of the Jenkins still and its operation, but apparently for lack of a proper stuffing " box, or some other defect, it failed to work. E. W.'Isom as an engineer saw at once this lack óf a proper stuffing, box, while watching the attempted demonstration, . and suggested that an-expert Stillman might 'remedy .the'trouble,'or could assist Jenkins in. the demonstration of his still, and agreed to .send an expert Stillman from the Cudahy plant at Coffeyville to Chicago to assist Jenkins in demonstrating his experimental still, which he did.
In making another attempt to operate the still, it caught fire from some defect in the apparatus and burned up the garage in which it was kept.
. . Prior to this time sketches, blueprints, and a copy of the specifications and cuts contained m his applications for his patent of the Jenlans still had been furnished the Isoms, showing in detail the construction of the Jenkins still and the theory on which it was supposed to work. lhe Isoms, however, wanted a practical demonstration of the Jenkins still and its ability to produce 100 percent gasoline from crude oil and to determine whether it would work with the oil produced by the defendant company. Black and Jenkins were in doubt as to its condition after going through the fire, but Maguire evidently did not think that the fire had damaged it beyond repair, and W. H. Isom told him that their expert welder at their plant at Coffeyville could probably weld any leak that had developed by reason of the fire. W. H. Isom suggested that the still be shipped to Coffeyville, where they had every convenience for making a test and their welder could repair any damage rancid hv thp fire
Maguire, however, after conferring with the Blacks and Jenkins, decided that some'agreement should first be drawn up that would protect them in case any improvements in the apparatus or process were made by the engineers or experts of the Cudahy Company while the experiments were going on, and would assure the Jenkins Company of the benefit of any such improvements. In consequence, it was agreed among the promoters that a contract should be drawn up setting forth the purpose for which the still was shipped to Coffeyville, and that any improvements due to the defendant’s engineers and experts familiarizing themselves with the Jenkins still should belong to the plaintiff, and that the engineers and experts conducting the experiments should apply for patents and assign such applications and improvements to the plaintiff company. Maguire, without further consultation with W. H. ‘Isom, had a lawyer draft the letter-contract in the case dated Octoher -2, 1916, which, sometime after its date, was signed and approved by W. H. Isom, president of the Cudahy Company.
The still was shipped on October 9, 1916, and was set up on foundations which kad been prepared for it. On a test with cold oil> but n°t under pressure, it was found to leak, and three or four attempts were made to weld it by an expert welder of the Cudahy Company; but he failed to tight, and no tests thereafter, with QÜ or even water> were or could be made under pressure_ It was fmally aban. jonecj jn November, 1916, and never scrved any usefu¡ pUrp0se except as a place in tbe b¡rds might build their nests,
. construction of this letter-contract °f October, 1916, therefore, becomes unPorta:nt- The plaintiff claims that, through opportunity thus furnished the Isoms to -familiarize themselves with the structure a^r Process involved fa the Jenkins still, ^som developed an improved still a on£ the same lines as the Jenkins still, whlch he later obtained a patent for aPParattls and which, in violation of “*e contract, he assigned to the defendant, defendant contends that Isom s patent ^as result of his engineering training, knowledge and familiarity with the prior art’ tbat he received no additional aid ^r01^ snch opportunity as he had to ex-amme t3ie Jenkins Still at Coffeyville under the contract, and that the character of the circulation in his still was quite different from tjmt 0f jenkins.
^ne purpose of the contract as expressed therem f°r tke breach of which this surt was broug'kt, was to provide the Isoms first wlth an opportunity to carry on experiments m order to determine the effectiveness of the Jenkins patent on their own Products- It is clear from the record tkat JJ° such experiments ^were made, or cou d have been made, at Coffeyville. lhe contract also further provided that, as soon as tke engineers had carried on sufficient work to familiarize themselves thoroughly wlth the Process and dlscovcr the best condltlons under which to apply the process to the Petroleum products of the Cudahy Corn-Pany> the still was to he returned to the Jenkms Company m good condition,
It is evident that neither of the purposes mentioned were
Question: Did the factual interpretation by the court or its conclusions (e.g., regarding the weight of evidence or the sufficiency of evidence) favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appfed
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
LUCAS, Collector of Internal Revenue, v. ALEXANDER.
Circuit Court of Appeals, Sixth Circuit.
June 30, 1928.
Nos. 4973, 4974.
1. Internal" revenue <®=>7(9) — Payment of endowment policy to insured held taxable (Revenue Act 1918, §§ 202, 213 [Comp. St. §§ 63361/sMj, 63361/sff]).
Payment on endowment policy, made in lifetime Of insured to himself, and which was a combination of life insurance and investment, resulted in a profit to insured, taxable under Revenue Act 1918, §§ 202, 213 (Comp. St. §§ 6336%bb, 6336%ff).
2. Internal revenue <®=»7(I7) — Deduction for income tax from proceeds of endowment life policies at maturity held determinable by market value of policies on March I, 1913, and not by surrender value; “market price” Revenue Act 1918, §§ 202(a), (I), 213(b), (2); Comp. St. §§ 6336'/sbb(a), (I), 6336'/8ff(b), (2).
Where plaintiff in 1899 took out two 10-payment 20 year endowment policies, payable at the end of 20 years, with accumulations at his option if he were then living or at his earlier death in the face amount if death occurred before the end of 10 years and in gradually increasing amounts if death occurred during the second 10 years and at the end of the term in 1919 he received payment of the face of the policies, with accumulated dividends,- held, that deduction for income tax purposes provided by Revenue Act 1918, § 213(b), (2), Comp. St. § 6336%ff(b), (2), was the market value of the policies on March 1, 1913, which was the discounted value of the amount in all probability payable on policies at maturity, and was not limited to the surrender value thereof, since that was not “market price,” within Revenue Act 1918, § 202(a), '(1), Comp. St. § 6336%bb (a), (1); Treasury Regulation 45, art. 72b, being inapplicable.
[Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Market Price.]
In Error and Cross-Error to the District Court of the United States for the Western District of Kentucky; Charles I. Dawson, Judge.
Action by A. J. A. Alexander against Robert H. Lucas, Collector of Internal Revenue for the District of Kentucky. To review the judgment (21 F.[2d] 68), defendant brings error, and plaintiff assigns cross-error.
Judgment affirmed.
Elwood Hamilton, of Louisville, Ky. (Beckham, Hamilton & Beckham, of Louisville, Ky., on the brief), for plaintiff.
Edward H. Horton, Sp. Atty., Bureau of Internal Revenue of Washington, D. C. (Thos. J. Sparks, U. S. Atty., of Greenville, Ky., A. W. Gregg, Gen. Counsel Bureau of Internal Revenue, of Washington, D. C., on the brief), for defendant.
Before DENISON, MACK, and MOOR-MAN, Circuit Judges.
MACK, Circuit Judge.
Error and cross-error from a judgment for plaintiff in the sum of $6,519.36, with interest, part of an additional assessment collected from him as income tax for the year 1919.
The New York Life Insurance Company, a mutual company, issued to plaintiff, then aged 24, two policies, effective May 19, 1899, in the aggregate face amount of $100,000 called “insurance bond, with guaranteed interest.” The annual premium was $7,810. In ease of death within the first 10 years, only the face amount $100,000 was to be paid; if death occurred within the second 10 years, the amount payable would be, in excess of $100,000, a guaranteed sum, increasing year by year, and reaching a maximum of $144,300 in the twentieth year. In case of death during the year which included March 1, 1913 — that is, the year ending May 19,1913 — $114,000 would thus have been payable. If the insured was alive at the end of the twentieth year — that is, on May 19,1919 — the face of the policy became payable, and in addition thereto a cash dividend then to be apportioned by the company. Certain optional rights were given at the end of the twentieth year, hut they are not important for the purposes of this case. The policy was payable to the estate of the insured; he had the right to change the beneficiary.
The guaranteed loan or cash surrender value, which began in the third year, amounted to $79,400, in the year ending May 19, 1913. In order fairly to determine the dividend apportionable at the end of 20 years, the company kept a record, called “Funds provisionally ascertained and held awaiting apportionment,” for each policy. This provisional fund increased yearly; to it were allocated the dividends that would otherwise have been paid annually, with the interest earned thereon, and the pro’ rata share of the similarly provisionally accumulated dividends of those policy holders in the same class who died before the end of the 20-year period. On March 1,1913, the company had thus provisionally set aside on its books $13,600 for plaintiff’s policies. As of that day, its accountants would have estimated that on the assumption of surplus increase during the ensuing 6 years at the same rate as during the past 14 years, the dividend payable to plaintiff if alive on May 19,1919, would be $19,428.57. The actual course of events was that the rate of increase of the surplus was accelerated during the next 6 years, so that the amount actually paid to plaintiff in 1919 was $20,797, in addition to the $100,000 face amount of the policies.
Of the amount plaintiff received, he reported $17,238.35 as income for the year 1919, claiming that the remaining $103,560.-65 represented the March 1, 1913, value of his policy. The Commissioner of Internal Revenue, reauditing his return, found the taxable gain to have been $42,697, the difference between the amount received, $120,-797, and the amount paid out in premiums during the 20 years, $78,100. Yalue as of March 1, 1913, was disregarded. Pursuant to demand, plaintiff paid an additional assessment of $8,750.91 and brought this action for its return.
The District Court found the taxable gain $27,209.19 over the March 1, 1913, valuation of $93,587.81, on this reasoning: As plaintiff on March 1, 1913, was normally healthy and 38 years old, the chances of his living out the full 20 years and then receiving $119,-428.57 in the policies were very good. Discounting that sum at the rate of 4 per cent, annually for the 6 years, 2 months, and 19 days, gave $93,587.81, the value on March 1, 1913, as found by the court.
The applicable statutory provisions are sections 202 and 213 of the Revenue Act of 1918, 40 Stat. 1060, 1065, as follows:
“Sec. 202. (a) That for the purpose of ascertaining the gain derived or loss sustained from the sale or other disposition of property, real, personal, or mixed, the basis shall be—
“(1) In the case of property acquired before March 1, 1913, the fair market price or value of such property as of that date. * * *” Comp. St. § 6336ysbb.
“See. 213. That for the purpose of this title (except as otherwise provided in section 233) the term ‘gross income’—
“(a) Includes gains, profits, and income derived from * * * sales, or dealings in property, whether real or personal, growing out of the ownership or use of or interest in such property; also from interest, rent, dividends, securities, or the transaction of any business carried on for gain or profit, or gains or profits and income derived from any source whatever. The amount of all such items shall be included in the gross income for the taxable year in which received by the taxpayer, unless, under methods of accounting permitted under subdivision (b) of section 212, any such amounts are to be properly accounted for as of a different period; but
“(b) Does not include the following items, which shall be exempt from taxation under this title:
“(1) The proceeds of life insurance policies paid upon the death of the insured to individual beneficiaries or to the estate of the insured;
“(2) The amount received by the insured as a return of premium or premiums paid by him under life insurance, endowment, or annuity contracts, either during the term or at the maturity of the term mentioned in the contract or upon surrender of the contract. * * * ” Comp. St. § 63361/gff-
Regulations 45 (1920 Edition) provide in article 72b: “During his life only so much of the amount received by an insured under life, endowment, or annuity contracts as represents a return, without interest, of premiums paid by him therefor is excluded from his gross income.”
It is contended by plaintiff that the proceeds of life insurance policies are not constitutionally taxable as income, but that, if they are, then the correct method of determining the taxable gain in the present ease is to subtract from the amount received a sum equal to the face of the policy plus the dividends which had been provisionally determined by March 1, 1913. Defendant contends that the policies are taxable, at the difference between the amount received and either the amount of premiums paid or the cash surrender value on March 1, 1913.
Plaintiff contends that the proceeds of life insurance policies do not constitute income within the Sixteenth Amendment. In United States v. Supplee-Biddle Hardware Co., 265 U. S. 189, 44 S. Ct. 546, 68 L. Ed. 970, the Supreme Court expressly refrained from deciding whether life insurance paid on the death of a corporate officer could constitutionally be taxed as income to the corporation which had insured him. The instant policy is an endowment; payment thereof was made in the lifetime of Alexander, to himself. The policy, like all endowment policies, was a combination of life insurance and investment. When paid, there inured a clear profit to the insured, a profit that is as much income, within the constitutional amendment, as any profit gained in a business transaction. The provisions of the 1918 act above quoted are clearly broad enough to include gains from insurance transactions other than the two specific exemptions.
The second question is as to the applicability of Treasury Regulation 45, article 72b, under which the Commissioner proceeded. Attempts to support it on the ground of settled administrative practice must fail, not only because the government relies for proof of the continuity of the practice upon later regulations promulgated after the assessment in dispute and under different statutes, but also because the regulation is contrary to l.aw in so far as it attempts to regulate income tax on proceeds of insurance policies having a fair market price or value on March 1, 1913. The act which it interprets says that to ascertain gain from the disposition of property, the excess over the March 1, 1913, fair market price or value of that property should be taken. ,An insurance policy is of course property within the statute. Its value as property is not necessarily equal to its cost; it may as well be more or less.
We come, then, to the question of the March 1,1913, value of the policies. Defendant contends for surrender value, on the ground that the only way the insured could have realized on his policies in 1913 was by surrendering them. Plaintiff contends for the then value to the insured because of the lack of a market price, due to their non-assignability to a stranger. That value, plaintiff further contends, was $113,600, the face of the policies plus $13,600 of surplus then provisionally credited to him on the company’s books, since it was reasonably certain that plaintiff would get at least that sum. He argues that the probability of further additions to surplus during the time plaintiff had to wait for the money neutralized the six years’ postponement of enjoyment, so that no discounting was necessary to find present value.
The only reported litigation involving the valuation of an insurance policy for federal income tax purposes which has been found is Appeal of Kline, 3 B. T. A. 1138. There, the taxpayer held a policy of the New York Life Insurance Company, in the amount of $10,000, issued in 1902 and fully paid up in 1912 by ten annual premiums of $965.20, on which policy no dividends or other distribution was to be made until 1922, when the insured exercised the option to receive $14,-830.10 in cash. The surrender value March 1, 1913, was $9,070. The Commissioner based the tax for 1922 upon the difference between the surrender value on March 1, 1913, and the total paid in 1922. He was sustained by the Board of Tax Appeals. However, the sole ground of the taxpayer's appeal was that the amount of premiums paid should have been subtracted rather than the surrender value. A method similar to that employed by the District Judge in the present ease was not urged, and would have been still more unfavorable to the taxpayer.
Kentucky Tobacco Products Co. v. Lucas (D. C.) 5 F.(2d) 723, involved the valuation as of March 1, 1913, for the purpose of measuring depreciation under the income tax, of a contract right to make future purchases of raw materials at highly advantageous prices. The method of valuation employed was to find how much profit would be received by the taxpayer under the contract during the years it had to run, and then to take the present value in 1913 of this amount by discounting on a 5 per cent, interest basis.
Plaintiff’s situation on March 1,1913, was as follows: If he lived until 1919, he could reasonably expect then to realize about $120,-000 on the policies. The present value of that sum we may take as $93,587.81, since the details of the trial judge’s calculations are unimpeaehed. The amount payable to the estate in case of death between March 1, 1913, and May 19, 1919, would have ranged from a minimum of $114,000 to a maximum of $144,0P0.
It follows, therefore, if the policy had been salable, its market value on March 1, 1913, would clearly have been nó less than $93,587.81, the then discounted value of the amount in all probability payable at maturity, inasmuch as the purchaser would have had an excellent investment, with the chance of a very heavy increase in ease the insured died before maturity.
If an assignable policy were worth this amount in the market, then the nonassignable policy was worth the same amount to the insured.
It is true that plaintiff could have realized only $79,400 from the policies by surrendering them. But he was under no obligation to make . this less advantageous disposition of his property. The statement in In re Newland, 18 Fed. Cas. 92, No. 10,171, approved in Hiscock v. Mertens, 205 U. S. 202, 212, 27 S. Ct. 488, 51 L. Ed. 771, that the present value of an insurance policy is its surrender value, was a dictum with reference to valuation for bankruptcy purposes. It involves wholly different considerations. The loan or surrender value of plaintiff’s policies was not a “market price.” Moreover, section 202 does not make market price the sole criteriorf; it permits deduction of fair market price or value, and since the latter phrase is set in opposition to the former value to the owner may be taken as the alternative to market price.
Plaintiff Alexander’s assignments of error in No. 4974 are without merit. The attempt is made, by reasoning not entirely clear, to take the face of the policy plus the provisionally apportioned dividends as the value in 1913. If the theory of this is that plaintiff was sure to get at least that amount in 1919, there is the obvious objection that plaintiff has lost sight of the fact that a future-accruing sum must be discounted to find its present value. If, on the other hand, plaintiff’s theory is that the provisionally credited dividends in 1913 represented in part the intrinsic value of the policy, this runs counter to New York Life Insurance Co. v. Edwards, 271 U. S. 109, 46 S. Ct. 436, 70 L. Ed. 859, affirming 8 F.(2d) 851, which made clear that holders of policies such as the one here in question have absolutely no interest in such dividends until the maturities of their policies.
Judgment affirmed.
Question: What is the total number of appellants in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_counsel1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine the nature of the counsel for the appellant. If name of attorney was given with no other indication of affiliation, assume it is private - unless a government agency was the party
Dr. David C. FARSHY, Plaintiff-Appellant, v. Irving G. KAGAN, etc., et al., Defendants-Appellees.
No. 76-2896.
United States Court of Appeals, Fifth Circuit.
Dec. 7, 1978.
David C. Farshy, pro se.
John W. Stokes, Jr., U. S. Atty., William D. Mallard, Jr., Asst. U. S. Atty., Atlanta, Ga., Carl H. Harper, Reg. Atty., Thomas A. Rice, Asst. Regional Atty., Dept. of HEW, Atlanta, Ga., for defendants-appellees.
Before BROWN, Chief Judge, TUTTLE and THORNBERRY, Circuit Judges.
PER CURIAM:
Dr. David Farshy sought to enjoin his employers at the Center for Disease Control (CDC) in Atlanta from terminating his employment pending resolution of his Title VII, discrimination-in-employment suit. The District Court denied his motion in a carefully deliberated Order and Dr. Farshy appeals. Cognizant of our somewhat limited role in reviewing denials of temporary injunctive relief, we affirm.
Dr. Farshy brought this Title VII suit alleging that his supervisors had retaliated against him for filing complaints with the Civil Service Commission, in violation of 42 U.S.C. § 20006-3. While this suit was pending before the District Court, Dr. Far-shy was given notice of his discharge from the CDC. Dr. Farshy then moved for a preliminary injunction until his Title VII suit was determined.
In ruling on Dr. Farshy’s motion, the District Court referred to the four prerequisites that have been established for the extraordinary relief of a preliminary injunction:
(1) a substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting the preliminary injunction will not disserve the public interest.
See Morgan v. Fletcher, 5 Cir., 1975, 518 F.2d 236, 239; Canal Authority v. Callaway, 5 Cir., 1974, 489 F.2d 567, 572. The Court carefully analyzed the second factor- — the question of irreparable harm — and expressed strong doubt whether Dr. Farshy had presented sufficient evidence to satisfy that prerequisite. But the ground upon which the District Court finally and explicitly denied the injunction was the first factor — likelihood of success on the merits: “Plaintiff has not introduced one shred of evidence that any of defendants’ actions resulted from a discriminatory animus on their part; and the evidence of possibly retaliatory treatment is slight at best * * * tt
The grant or denial of a preliminary injunction rests in the discretion of the District Court, and appellate review is limited to determining whether the District Court abused its discretion as bounded by the four prerequisites set forth above. E. g., Canal Authority v. Callaway, supra, 489 F.2d at 572.
In denying Dr. Farshy’s motion in this case, the District Court clearly acted within its discretion. Should it eventually be determined that Dr. Farshy was indeed discharged in violation of Title VII, he would be entitled to a complete restoration of pay under the Back Pay Act, 5 U.S.C. § 5596, and any harm could be remedied. See generally Sampson v. Murray, 1974, 415 U.S. 61, 94 S.Ct. 397, 39 L.Ed.2d 166. More significant, however, is the fact that on the record as it now exists, Dr. Farshy has not carried his burden of persuading us that the District Judge was in error in concluding that he is not likely to prevail on the merits. On these probabilities, we echo the conclusions of the District Court: the evidence thus far presented “reveals that the plaintiff, an otherwise competent scientist, is basically unable to achieve results in the CDC work environment. * * * [T]he evidence does not reveal that the discharge decision or other activity by defendants * * * resulted from any discriminatory or retaliatory animus on their part.”
AFFIRMED.
. In pertinent part, 42 U.S.C. § 2000e-3 provides:
It shall be an unlawful employment practice for an employer to discriminate against any of his employees * * * because [they have] opposed any practice made an unlawful employment practice by this subchapter, or because [they have] made a charge * * * under this subchapter.
Question: What is the nature of the counsel for the appellant?
A. none (pro se)
B. court appointed
C. legal aid or public defender
D. private
E. government - US
F. government - state or local
G. interest group, union, professional group
H. other or not ascertained
Answer:
|
sc_authoritydecision
|
D
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
SULLIVAN, SECRETARY OF HEALTH AND HUMAN SERVICES v. FINKELSTEIN
No. 89-504.
Argued April 24, 1990
Decided June 18, 1990
White, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Brennan, Marshall, Stevens, O’Connor, and Kennedy, JJ., joined, and in which Scalia, J., joined except as to n. 8. Scalia, J., filed an opinion concurring in part, post, p. 631. Blackmun, J., filed an opinion concurring in the judgment, post, p. 632.
Deputy Solicitor General Shapiro argued the cause for petitioner. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, and Edwin S. Kneedler.
Kenneth V. Handal argued the cause for respondent. With him on the brief were Dennis G. Lyons and Mary G. Sprague.
Justice White
delivered the opinion of the Court.
We granted certiorari to decide whether the Secretary of Health and Human Services may immediately appeal a district court order effectively declaring invalid regulations that limit the kinds of inquiries that must be made to determine whether a person is entitled to disability insurance benefits and remanding a claim for benefits to the Secretary for consideration without those restrictions. We hold that the Secretary may appeal such an order as a “final decision” under 28 U. S. C. § 1291.
I
Respondent Finkelstein is the widow of a wage earner who died in 1980 while fully insured under Title II of the Social Security Act, 49 Stat. 622, as amended, 42 U. S. C. § 401 et seq. (1982 ed.). In 1983, respondent applied to the Social Security Administration for widow’s disability benefits, claiming that her heart condition made her disabled within the meaning of the section of the Social Security Act providing for surviving spouses’ disability insurance benefit payments, § 223, as added, 70 Stat. 815, and as amended, 42 U. S. C. §§ 423(d)(1)(A), (d)(2)(B) (1982 ed. and Supp. V).
Section 423(d)(2)(B) states that a widow shall not be determined to be disabled unless her impairment is of a level of severity which, “under regulations prescribed by the Secretary,” is deemed sufficient to preclude an individual from engaging in any gainful activity. Under regulations promulgated by the Secretary, 20 CFR §§ 404.1577, 404.1578(a)(1) (1989), a surviving spouse is deemed disabled only if the spouse suffers from a physical or mental impairment meeting or equaling the severity of an impairment included in the Secretary’s Listing of Impairments located at Appendix 1 to 20 CFR pt. 404, subpt. P (1989). If the surviving spouse’s, impairment does not meet or equal one of the listed impairments, the Secretary will not find the spouse disabled; in particular, the Secretary will not consider whether the spouse’s impairment nonetheless makes the spouse disabled, given the spouse’s age, education, and work experience.
The Secretary’s practice for spouses’ disability insurance benefits thus differs significantly from the regulations for determining whether a wage earner is entitled to disability insurance benefits. For wage earners, the Secretary has established a “five-step sequential evaluation process for determining whether a person is disabled.” Bowen v. Yuckert, 482 U. S. 137, 140 (1987). Under that five-step process, even if a wage earner’s impairment does not meet or equal one of the listed impairments, the wage earner may nonetheless be entitled to disability insurance benefits if the Secretary determines that his “impairment in fact prevents him from working.” Sullivan v. Zebley, 493 U. S. 521, 535 (1990). The Secretary maintains that the difference between the wage earner regulations and the surviving spouse regulations is supported by a difference between the two pertinent statutory definitions of disability. Compare 42 U. S. C. § 423(d)(2)(A) with § 423(d)(2)(B) (1982 ed. and Supp. V).
Respondent’s application for benefits was denied on the ground that her heart condition did not meet or equal a listed impairment. After exhausting administrative remedies, respondent sought judicial review of the Secretary’s decision in the United States District Court for the District of New Jersey, invoking § 205(g) of the Social Security Act, as amended, 53 Stat. 1370, 42 U. S. C. § 405(g) (1982 ed.). The District Court sustained the Secretary’s conclusion that respondent did not suffer from an impairment that met or equaled a listed impairment. See App. to Pet. for Cert. 16a. The District Court nonetheless concluded that “the case must be remanded to the Secretary,” id., at 17a, because the record was “devoid of any findings” regarding respondent’s inability to engage in any gainful activity even though her impairment was not equal to one of the listed impairments, see ibid.
The Court of Appeals for the Third Circuit dismissed the Secretary’s appeal for lack of jurisdiction. Finkelstein v. Bowen, 869 F. 2d 215 (1989). The Court of Appeals relied on its past decisions holding that “'remands to administrative agencies are not ordinarily appealable.’ ” Id., at 217 (citation omitted). Although the Court of Appeals acknowledged an exception to that rule for cases “in which an important legal issue is finally resolved and review of that issue would be foreclosed ‘as a practical matter’ if an immediate appeal were unavailable,” ibid, (citation omitted), that exception was deemed inapplicable in this case because the Secretary might persist in refusing benefits even after consideration of respondent’s residual functional capacity on remand, and the District Court might thereafter order that benefits be granted, thereby providing the Secretary with an appealable final decision. Id., at 220. The Court of Appeals conceded that the Secretary might not be able to obtain review at a later point if he concluded on remand that respondent was entitled to benefits based on her lack of residual functional capacity, but it believed this argument for immediate appeal-ability to be foreclosed by a prior decision of the Circuit. Ibid. We granted certiorari, 493 U. S. 1055 (1990).
II
We begin by noting that the issue before us is not the broad question whether remands to administrative agencies are always immediately appealable. There is, of course, a great variety in remands, reflecting in turn the variety of ways in which agency action may be challenged in the district courts and the possible outcomes of such challenges. The question before us rather is whether orders of the type entered by the District Court in this case are immediately appealable by the Secretary. It is necessary therefore to consider precisely what the District Court held and why it remanded this case to the Secretary.
Although the District Court sustained the Secretary’s conclusion that respondent did not suffer from an impairment that met or equaled the severity of a listed impairment, it concluded that the Secretary’s ultimate conclusion that respondent was not disabled could not be sustained because other medical evidence suggested that respondent might not be able to engage in any gainful activity. Considering it “anomalous” that an impairment actually leaving respondent without the residual functional capacity to perform any gainful activity could be insufficient to warrant benefits just because it was not equal to one of the listed impairments, the District Court directed the Secretary “to inquire whether [respondent] may or may not engage in any gainful activity, as contemplated by the Act.” App. to Pet. for Cert. 18a. The District Court’s order thus essentially invalidated, as inconsistent with the Social Security Act, the Secretary’s regulations restricting spouses’ disability insurance benefits to those claimants who can show that they have impairments with “specific clinical findings that are the same as ... or are medically equivalent to” one of the listed impairments, 20 CFR § 404.1578(a)(1) (1989). Cf. Heckler v. Campbell, 461 U. S. 458, 465-466 (1983). The District Court stated that it was “remand[ing]” the case to the Secretary because the record contained no findings about the functional impact of respondent’s impairment; in effect it ordered the Secretary to address respondent’s ailment without regard for the regulations that would have precluded such consideration. The District Court’s order thus reversed the Secretary’s conclusion that respondent was not disabled and remanded for further consideration of respondent’s medical condition.
Once the nature of the District Court’s action is clarified, it becomes clear how this action fits into the structure of § 405 (g). The first sentence of § 405(g) provides that an individual denied benefits by a final decision of the Secretary may obtain judicial review of that decision by filing “a civil action” in federal district court. The use of the term “a civil action” suggests that at least in the context of § 405(g), each final decision of the Secretary will be reviewable by a separate piece of litigation. The fourth and eighth sentences of § 405(g) buttress this conclusion. The fourth sentence states that in such a civil action, the district court shall have the power to enter “a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing.” (Emphasis added.) This sentence describes the action that the District Court actually took in this case. In particular, although the fourth sentence clearly foresees the possibility that a district court may remand a cause to the Secretary for rehearing (as the District Court did here), nonetheless such a remand order is a “judgment” in the terminology of § 405(g). What happened in this case is that the District Court entered “a judgment . . . reversing the decision of the Secretary, with . . . remanding the cause for a rehearing.” The District Court’s remand order was unquestionably a “judgment,” as it terminated the civil action challenging the Secretary’s final determination that respondent was not entitled to benefits, set aside that determination, and finally decided that the Secretary could not follow his own regulations in considering the disability issue. Furthermore, should the Secretary on remand undertake the inquiry mandated by the District Court and award benefits, there would be grave doubt, as the Court of Appeals recognized, whether he could appeal his own order. Thus it is that the eighth sentence of § 405(g) provides that “[t]he judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions.” (Emphasis added.)
Respondent makes several arguments countering this construction of § 405(g) and of the District Court’s order, none of which persuade us. First, respondent argues that the remand in this case was ordered not pursuant to the fourth sentence of § 405(g), but under the sixth sentence of that section, which states in pertinent part that the District Court may “at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.” Respondent points out that the District Court stated that it was ordering a remand because the evidence on the record was insufficient to support the Secretary’s conclusion and that further factfinding regarding respondent’s ailment was necessary. We do not agree with respondent that the District Court’s action in this case was a “sixth-sentence remand.” The sixth sentence of § 405(g) plainly describes an entirely different kind of remand, appropriate when the district court learns of evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding.
For the same reason, we reject respondent’s argument, based on the seventh sentence of § 405(g), that the district court may enter an appealable final judgment upon reviewing the Secretary’s postremand “additional or modified findings of fact and decision.” The postremand review conducted by the District Court under the seventh sentence refers only to cases that were previously remanded under the sixth sentence. The seventh sentence states that the district court may review “[s]uch additional or modified findings of fact,” a reference to the second half of the sixth sentence of § 405(g), which requires that “the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision . . . The phrase “such additional evidence” refers in turn to the “additional evidence” mentioned in the first half of the sixth sentence that the district court may order the Secretary to take in a sixth-sentence remand. See supra, at 625-626. But as the first half of the sixth sentence makes clear, the taking of this additional evidence may be ordered only upon a showing that there is material new evidence. The postremand judicial review contemplated by the seventh sentence of § 405(g) does not fit the kind of remand ordered by the District Court in this case.
Respondent also argues that the eighth sentence of § 405(g), providing that the judgment of the district court “shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions,” does not compel the conclusion that a judgment entered pursuant to the fourth sentence is immediately appealable. In respondent’s view, Congress used the the term “final” in the eighth sentence only to make clear that a court’s decision reviewing agency action could operate as law of the case and res judicata. Cf. City of Tacoma v. Taxpayers of Tacoma, 357 U. S. 320, 336 (1958). But even if it is true that Congress used the term “final” to mean “conclusively decided,” this reading does not preclude the construction of “final” to include “appealable,” a meaning with which “final” is usually coupled. Nor does respondent consider the significance of Congress’ use of the term “judgment” to describe the action taken by the District Court in this case. Although respondent argues that the words “final decisions,” as used in 28 U. S. C. § 1291, encompass no more than what was meant by the terms “final judgments and decrees” in the predecessor statute to § 1291, respondent recognizes that “final judgments” are at the core of matters appealable under § 1291, and respondent does not contest the power of Congress to define a class of orders as “final judgments” that by inference would be appealable under § 1291. Cf. Sears, Roebuck & Co. v. Mackey, 351 U. S. 427, 434 (1956). This is what Congress has done in the fourth sentence of § 405(g).
More generally, respondent argues that a power in the district court to remand to an agency is always incident to the power to review agency action and that § 405(g) only expanded the district courts’ equitable powers; therefore, she insists, it is improper to construe § 405(g) as a limit on the district courts’ power to remand. This argument misapprehends what Congress sought to accomplish in § 405(g). The fourth sentence of § 405(g) does not “limit” the district courts’ authority to remand. Rather, the fourth sentence directs the entry of a final, appealable judgment even though that judgment may be accompanied by a remand order. The fourth sentence does not require the district court to choose between entering a final judgment and remanding; to the contrary, it specifically provides that a district court may enter judgment “with or without remanding the cause for a rehearing.”
Finally, respondent argues that we already decided last Term, in Sullivan v. Hudson, 490 U. S. 877 (1989), that a remand order of the kind entered in this case is not appealable as a final decision. Although there is language in Hudson supporting respondent’s interpretation of that case, we do not find that language sufficient to sustain respondent’s contentions here. In Hudson, we held that under the EAJA, 28 U. S. C. § 2412(d)(1)(A), a federal court may award a Social Security claimant attorney’s fees for representation during administrative proceedings held pursuant to a district court order remanding the action to the Secretary. We were concerned there with interpreting the term “any civil action” in the EAJA, not with deciding whether a remand order could be appealed as a “final decision” under 28 U. S. C. § 1291. We noted in Hudson that the language of § 2412(d)(1)(A) must be construed with reference to the purpose of the EAJA and the realities of litigation against the Government. The purpose of the EAJA was to counterbalance the financial disincentives to vindicating rights against the Government through litigation; given this purpose, we could not believe that Congress would “throw the Social Security claimant a lifeline that it knew was a foot short” by denying her attorney’s fees for the mandatory proceedings on remand. Hudson, supra, at 890. We also recognized that even if a claimant had obtained a remand from the district court, she would not be a “prevailing party” for purposes of the EAJA until the result of the administrative proceedings held on remand was known. 490 U. S., at 887-888. We therefore concluded that for purposes of the EAJA, the administrative proceedings on remand “should be considered part and parcel of the action for which fees may be awarded.” Id., at 888. We did not say that proceedings on remand to an agency are “part and parcel” of a civil action in federal district court for all purposes, and we decline to do so today.
Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Title 28 U. S. C. § 1291 provides that “[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.”
Title 42 U. S. C. § 405(g) (1982 ed.) provides:
“Any individual, after any final decision of the Secretary made after a hearing to which he was a party, irrespective of the amount in controversy, may obtain a review of such decision by a civil action commenced within sixty days after the mailing to him of notice of such decision or within such further time as the Secretary may allow. Such action shall be brought in the district court of the United States for the judicial district in which the plaintiff resides, or has his principal place of business, or, if he does not reside or have his principal place of business within any such judicial district, in the United States District Court for the District of Columbia. As part of his answer the Secretary shall file a certified copy of the transcript of the record including the evidence upon which the findings and decision complained of are based. The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing. The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary or a decision is rendered under subsection (b) of this section which is adverse to an individual who was a party to the hearing before the Secretary, because of failure of the claimant or such individual to submit proof in conformity with any regulation prescribed under subsection (a) of this section, the court shall review only the question of conformity with such regulations and the validity of such regulations. The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding; and the Secretary shall, after the case is remanded, and after hearing such additional evidence if so ordered, modify or affirm his findings of fact or his decision, or both, and shall file with the court any such additional and modified findings of fact and decision, and a transcript of the additional record and testimony upon which his action in modifying or affirming was based. Such additional or modified findings of fact and decision shall be reviewable only to the extent provided for review of the original findings of fact and decision. The judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions. Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Secretary or any vacancy in such office.”
For example, a district court may on occasion order a remand to an agency even though the district court action was filed by the agency, not someone seeking judicial review, e. g., United States v. Alcon Laboratories, 636 F. 2d 876 (CA1), cert. denied, 451 U. S. 1017 (1981). In other cases the district court may order a remand to the agency but the person seeking judicial review may seek to appeal on the ground that broader relief should have been granted by the district court, e. g., Bohms v. Gardner, 381 F. 2d 283 (CA8 1967), cert. denied, 390 U. S. 964 (1968). None of these situations are presented in this case, and we express no opinion about appealability in those circumstances.
Specifically, the District Court noted that an Administrative Law Judge “found that the ‘medical findings shown in the medical evidence of record establish the existence of mitral valve prolapse,’” App. to Pet. for Cert. 17a, which does not meet or equal one of the listed impairments but might, in the District Court’s view, prevent respondent from engaging in any gainful activity, ibid.
Neither party suggests that the Secretary’s decision denying respondent benefits without considering her mitral valve prolapse was not a “final decision of the Secretary” within the meaning of § 405(g).
See, e. g., Caulder v. Bowen, 791 F. 2d 872 (CA11 1986); Borders v. Heckler, 777 F. 2d 954, 955 (CA4 1985); Newhouse v. Heckler, 753 F. 2d 283, 287 (CA3 1985); Booz v. Secretary of Health and Human Services, 734 F. 2d 1378, 1381 (CA9 1984); Dorsey v. Heckler, 702 F. 2d 597, 604-605 (CA5 1983); Cagle v. Califano, 638 F. 2d 219, 221 (CA10 1981). Although all the Circuits recognize that new evidence must be “material” to warrant a sixth-sentence remand, it is not clear whether the Circuits have interpreted the requirement of materiality in the same way. See Dorsey, supra, at 605, n. 9 (criticizing “stricter position” of Fourth and Tenth Circuits); Godsey v. Bowen, 832 F. 2d 443, 444 (CA7 1987) (expressing skepticism about existence of conflict); Borders, supra, at 956 (also skeptical). We express no opinion on the proper definition of materiality in this context.
It is true, as respondent maintains, that the District Court did not caption its order as a “judgment,” much less a “final judgment.” The label used by the District Court of course cannot control the order’s appealability in this case, any more than it could when a district court labeled a non-appealable interlocutory order as a “final judgment.” See Liberty Mutual Ins. Co. v. Wetzel, 424 U. S. 737 (1976).
Respondent also makes two arguments based on subsequent legislative history to counter the conclusion that Congress intended orders entered under the fourth sentence of § 405(g) to be appealable final judgments. First, she relies on a committee print prepared by the Social Security Subcommittee of the House Ways and Means Committee which, in summarizing amendments to the Social Security Act, stated that under prior law, a district court could remand a case to the Secretary on its own motion and that the judgment of the district court would be final after the Secretary filed any modified findings of fact and decision with the court, and that no change had been made by the amendments. See The Social Security Amendments of 1977: Brief Summary of Major Provisions and Detailed Comparison With Prior Law, WMCP No. 95-72, p. 26 (1978) (Brief Summary). The committee print’s observations are entirely consistent with the construction we have placed on remands ordered under the sixth sentence of § 405(g). Moreover, leaving aside all the usual difficulties inherent in relying on subsequent legislative history, see, e. g., United States v. Mine Workers, 330 U. S. 258, 281-282 (1947), we note that the print specifically warned that it was prepared by the subcommittee staff for informational purposes only and was not considered or approved by the subcommittee, and that it was designed not to be a section-by-section analysis of the amendments but only a “narrative synopsis.” Brief Summary, at I, V. We therefore cannot assign this committee print any significant weight.
Second, respondent relies on a House Judiciary Committee Report on amendments to the Equal Access to Justice Act (EAJA), stating that a district court’s remand decision under § 405(g) is not a “final judgment.” H. R. Rep. No. 99-120, p. 19 (1985). Again, we cannot conclude that this subsequent legislative history overthrows the language of § 405(g). In the first place, this part of this particular Committee Report concerned the proper time period for filing a petition for attorney’s fees under EAJA, not appealability. Second, the Committee relied in particular on Guthrie v. Schweiker, 718 F. 2d 104 (CA4 1983), for the proposition that a remand order is not a final judgment, but Guthrie also concerned the time for filing an attorney’s fees petition, and it is far from clear that Guthrie did not involve a sixth-sentence remand. Guthrie, in turn, relied on Gilcrist v. Schweiker, 645 F. 2d 818, 819 (CA9 1981), which, quite unlike the present case, involved an appeal from a district court remand order that did “no more than order clarification of the administrative decision.”
Title 28 U. S. C. § 2412(d)(1)(A) provides in pertinent part:
“Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.”
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_applfrom
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court).
VON BRUNING v. SUTHERLAND, Alien Property Custodian, et al.
Court of Appeals of District of Columbia.
Submitted October 2, 1928.
Decided November 5, 1928.
No. 4646.
Tench T. Marye, of Washington, D. C., for appellant.
Peyton Gordon, Dean Hill Stanley, and Thos. E. Rhodes, all of Washington, D. C., for appellees.
Before MARTIN, Chief Justice, and ROBB and VAN" ORSDEL, Associate Justices.
MARTIN, Chief Justice.
This is án appeal from a final deeree of the lower court, entered upon motion of the appellees, dismissing a bill of complaint filed by appellant, as plaintiff, seeking a recovery against the Alien Property Custodian and the Treasurer of the United States under the provisions of section 9 of the Trading with the Enemy Act (chapter 106, 40 Stat. 411), as amended June 5, 1920 (chapter 241, 41 Stat. 977).
It appears from the allegations of the plaintiff’s bill of complaint that plaintiff was a natural-bom citizen of the United States, who prior to April 6, 1917, intermarried with one Adolph von Bruning, a German subject, and thereby acquired and has since retained German citizenship. In the year 1917, and at all times subsequent thereto, plaintiff was the owner of a life estate in a certain house and lot at 1758 N Street N. W., Washington, D. C., and in July, 1918, the Alien Property Custodian, having determined that plaintiff was an alien enemy under the Trading with the Enemy Act, seized the premises, and retained the custody thereof for a period of 28 months; whereupon, in November, 1920, the Custodian returned the property to plaintiff under the amendment to the Trading with the Enemy Act, approved June 5, 1920 (chapter 241, 41 Stat. 977), and again amended (chapter 285, 42 Stat. 1511).
It is charged by plaintiff that, during the occupation of the premises by the Custodian, the house, after having been altered for such purposes, was used for departmental offices, or as a bureau by the Custodian, and that thereby the property was damaged. to the extent approximately of $6,000, and was unrepaired when it was returned to plaintiff; also that the rental value of the property during this period was not less than $500 per month, whereas the Custodian fixed the same at $100 per month, and upon the return of the property paid plaintiff $900, and no more, although the property was occupied by the Custodian for the period of 28 months; and that no part of the damages aforesaid, nor of the balance due upon rent, has since been paid by the Custodian. The plaintiff prayed that the court should ascertain and fix the amount due her for the use of the buildings by the Custodian, and'fix the damages sustained by the property as aforesaid, and enter a decree against the Custodian and the Treasurer of the United States therefor.
The bill of complaint was met by a motion of defendants praying that it be dismissed on the ground that it sought to recover upon an obligation alleged to be owing to the plaintiff by the- United States, and that the United States had not consented that it or any of its officers might be sued in such case, and also that plaintiff had not stated facts sufficient to entitle her to equitable relief by decree of the lower court under the Trading with the Enemy Act, as amended or otherwise. The lower court sustained this motion, and dismissed the bill.
We think this ruling correct. Section 9 (a) of the Trading with the Enemy Act as amended, provides, among other things, that any person, not an enemy or ally of enemy, claiming any interest, right, or title in any property which may have been seized by the Alien Property Custodian and held by him under the act, may institute a suit in equity in the Supreme Court of the District of Columbia, to establish the interest, right, or title so claimed, and, if so established, the court shall order the conveyance or transfer to the claimant of the property so held by the Custodian, or the interest therein to which the court shall determine the claimant to be entitled. This is the only suit authorized by section 9 of the act, and the sole remedy afforded by it is the return of the seized property in proper case to the claimant.
In the present suit, however, the plaintiff does not seek the return of the property to her, for concededly that has already been accomplished. The relief sought by her is a judgment for debt and damages for the use of her property and injury to it while it was in the custody of the Custodian. This is an essentially different cause of action, and is not authorized by the act.
Such a suit is in effect a suit against the United States, and cannot be sustained without permission first given by the United States. In Banco Mexicano v. Deutsche Bank et al., 53 App. D. C. 266, 289 F. 924, 929, which was a suit against the Custodian for the recovery of money seized by him, this court said:
“This is in effect a suit against the United States. The rule is well established that, when the United States permits itself to be sued in its own courts, the terms of the permission must be strictly followed, and the suitor’s cause must come within the Government’s consent.”
This statement of the law was affirmed on appeal by the Supreme Court, in Banco Mexicano v. Deutsche Bank, 263 U. S. 591, 602, 44 S. Ct. 209, 212 (68 L. Ed. 465), where the court said:
“We are constrained to this because we agree with the Court of Appeals that this suit is in effect a suit against the United States and all of its conditions must obtain.”
These provisions are not unconstitutional. In United States v. Chemical Foundation, 272 U. S. 1, 11, 47 S. Ct. 1, 5 (71 L. Ed. 131), the Supreme Court said:
“Congress was untrammeled and free to authorize the seizure, use or appropriation of such properties without any compensation to the owners. There is no constitutional prohibition against confiscation of enemy properties.”
In our opinion the bill of complaint filed by plaintiff is plainly unmaintainable, for it is in effect a suit against the United States in a court and cause which the United States has not authorized.
The decree of the lower court is affirmed, with costs.
Question: What is the type of district court decision or judgment appealed from (i.e., the nature of the decision below in the district court)?
A. Trial (either jury or bench trial)
B. Injunction or denial of injunction or stay of injunction
C. Summary judgment or denial of summary judgment
D. Guilty plea or denial of motion to withdraw plea
E. Dismissal (include dismissal of petition for habeas corpus)
F. Appeals of post judgment orders (e.g., attorneys' fees, costs, damages, JNOV - judgment nothwithstanding the verdict)
G. Appeal of post settlement orders
H. Not a final judgment: interlocutory appeal
I. Not a final judgment: mandamus
J. Other (e.g., pre-trial orders, rulings on motions, directed verdicts) or could not determine nature of final judgment
K. Does not fit any of the above categories, but opinion mentions a "trial judge"
L. Not applicable (e.g., decision below was by a federal administrative agency, tax court)
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
UNITED STATES of America Plaintiff-Appellee, v. GASOLINE RETAILERS ASSOCIATION, INC., General Drivers, Warehousemen and Helpers Union No. 142, an affiliate of International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, and Michael Sawochka, Defendants-Appellants.
Nos. 13038-13040.
United States Court of Appeals Seventh Circuit.
Jan. 12, 1961.
Rehearing Denied Feb. 17, 1961.
Eugene D. Tyler, Hammond, Ind., Edward J. Calihan, Jr., Chicago, 111., Albert H. Gavit, Gary, Ind., for appellants.
Donald L. Hardison, Atty., U. S. Dept, of Justice, Washington, D. C., Earl A. Jinkinson, Chicago, 111., Robert A. Bicks, Asst. Atty. Gen., Joseph A. Prindaville, Jr., Harold E. Baily, Chicago, 111., Richard A. Solomon, Attys., Dept, of Justice, Washington, D. C., for appellee.
Before SCHNACKENBERG, ENOCH and CASTLE, Circuit Judges.
CASTLE, Circuit Judge.
This appeal is from a judgment of the United States Court for the Northern District of Indiana, Hammond Division, entered on a finding that the defendants, Gasoline Retailers Association, Inc., General Drivers, Warehousemen and Helpers Union No. 142, an affiliate of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, and Michael Sawochka, were guilty on a one count indictment charging the said defendants and others with conspiring to violate Section 1, Title 15 U.S. C.A. commonly known as the Sherman Act. The defendants waived a jury, and the judgment was entered upon findings made pursuant to rule 23(e) of the Federal Rules of Criminal Procedure, 18 U.S. C.A., after a bench trial by the Court. The indictment charged defendants and others with conspiring to stabilize the retail price of gasoline in the Calumet Region.
The defendant Gasoline Retailers Association, Inc., which was an unincorporated association of filling station operators was fined $5000; the defendant Local No. 142 was fined $5000; and the defendant Michael Sawochka was fined $3000 and sentenced to a term of imprisonment for six months, which term was suspended.
The one count indictment charged that beginning in 1954 and continuing to the date of the indictment the defendants and the co-conspirators and other persons to the grand jury unknown had “engaged in a combination and conspiracy to stabilize the retail gasoline prices throughout the Calumet Region”, an area described as including Lake County, Indiana and Calumet City, Illinois, in unreasonable restraint of interstate commerce. It was charged that there was a “continuing agreement among the defendants and co-conspirators” that the “major brand” and “independent brand” station operators would refrain from either advertising or giving premiums, including trading stamps, in connection with the retail sales of gasoline; and that major brand station operators would refrain from advertising the retail price of gasoline by any means other than the price computing mechanism that constitutes a part of the gasoline dispensing devices. It was further charged that the defendants and co-conspirators enforced their agreement by picketing and threatening to picket, and by cutting off and threatening to cut off the supplies of gasoline of station operators who advertised retail prices except as permitted or who advertised or issued premiums in connection with retail sales. It was alleged that the effects of the combination and conspiracy were (a) to stabilize retail gasoline prices; (b) to suppress price competition among gasoline retailers; (c) to burden and impede interstate commerce in gasoline; and (d) to restrain the freedom of gasoline retailers in the conduct of their business.
The Union and the station operators in the area, in an effort to eliminate price wars, have included in their labor contracts clauses which prohibit major brand station operators from displaying the retail price of gasoline on the station premises by any manner other than the price computing device on the gasoline pump, and banning the use of premiums or trading stamps by any station operator in connection with retail sales.
At least 95'% of all the labor contracts of Local 142 in existence at the return of the indictment had been personally negotiated by the defendant Sawochka, the Union’s chief negotiator and executive officer. Approximately 146 separate operators out of an association membership of 206 dealers had signed the service station contracts. There were 167 association members who were regular members of the Union. The operators who were not selling gasoline of the major oil companies such as Standard, Shell, etc. were not required to adhere to the price advertising ban since they needed to advertise their generally lower prices in order to compete with the major brand stations. The differential between the major oil companies and the so-called independents was approximately three cents per gallon and there was evidence that the Union and the Association had agreed that if this differential were maintained they would be permitted to display price signs. However, they were not allowed to give premiums with the sale of gasoline. On several occasions during the period covered in the indictment several stations began to advertise their prices by means of large price display signs and to initiate trading stamp programs. When this happened, regardless of whether the station was a party to the agreement, members of the Association and Union would visit the person who was using price signs or trading stamps and indicate unless the signs came down and the stamp and premium programs ended the station would be picketed and the delivery of gasoline halted. The evidence shows that at least one station was picketed by the Union and a tank wagon of gasoline was diverted from the intended destination when the driver refused to cross a Teamster picket line.
The contested issues are:
(1) Did the district court err in finding that an agreement among competitors to stabilize the local retail gasoline market, in an effort to prevent gasoline price wars, by the elimination of price advertising at the station sites and by the prohibition of the use of premiums and trading stamps constituted a price-fixing device in per se violation of the Sherman Act?
(2) Does a restraint in the form of a conspiracy to stabilize local gasoline retail prices, enforced by cutting off deliveries of gasoline and threats thereof, affect interstate commerce to an extent prohibited by the Sherman Act, or involve a conspiracy “in interstate commerce” in view of the continuous flow of gasoline from out of state into the local area through tanks of the retail dealer to the ultimate consumer?
(3) Is an indictment charging a conspiracy in restraint of trade fatally defective because it fails to specify the names of such co-conspirators whose identities were known to the grand jury ?
(4) Does a union official who responds to a grand jury subpoena duces tecum, although he is neither personally named or served, for the sole purpose of producing and identifying official union documents acquire personal immunity from prosecution under an indictment returned against him?
(5) Was there evidence to sustain the conviction against the Union?
Appellants do not deny that they agreed and acted in concert to eliminate price advertising at the stations and to prevent the stations from giving premiums, largely of the trading stamp variety. Nor do they dispute that these efforts, with some minor exceptions, have proved successful largely through the threats of picketing or of cutting off non-cooperating dealers from their source of supply, and occasionally making good on these threats. Instead, their argument is that suppression of the price advertising and the giving of premiums does not in itself constitute price-fixing and, therefore, to the limited extent, if any, it may have affected the ultimate price at which gasoline was sold in the area, the practices cannot properly be classified per se offenses, but instead come under the rule of reason. Considered as such, both of the prohibitions are alleged to have been justifiable efforts to eliminate allegedly harmful activities.
It is established “that the offense of conspiring under the Sherman Act [Section 1] is complete when the agreement or conspiracy is formed.” United States v. New York Great Atlantic & Pacific Tea Co., 5 Cir., 1943, 137 F.2d 459, 463. The Supreme Court expressly stated on this point in United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150, 224, n. 59, 60 S.Ct. 811, 845, 84 L.Ed. 1129 that Section 1 condemns concerted action to fix prices even though such activity “be wholly nascent or abortive.”
The basic objective of defendants’ conspiracy was the stabilization of retail gasoline prices. Witness Patton testified the Union representative Frank Potesak told him that the anti-price sign provision “was put in there to keep price wars out of Lake County”. The defendants similarly considered premium offers, and particularly trading stamps, as playing a similar role in initiating or continuing the price wars, and as such to be eliminated. The continuing agreement among the defendants and the co-conspirators that the “major brand” and “independent brand” station operators would refrain from either advertising or giving premiums, including trading stamps in connection with the retail sales of gasoline, and that “major brand” stations would refrain from advertising retail prices excepting at the sites of the stations by the regular price computing gasoline pumps is a per se violation of the Sherman Act. A similar situation was presented in the leading case of United States v. Socony-Vacuum Oil Company, 310 U.S. 150, 60 S.Ct. 811, which seems to settle this question. In that case there was an agreement among the large producers to purchase surplus, “distress gasoline” from smaller refiners which was flooding the so-called “spot market” and leading to price wars. The court rejected the argument that the “price fixing” it had found to be a per se offense in United States v. Trenton Potteries Co., 273 U.S. 392, 47 S.Ct. 377, 71 L.Ed. 700, was limited to an agreement that a specified price would be charged by each conspirator. The court held (310 U.S. at page 222, 60 S.Ct. at page 843):
"Nor is it important that the prices paid by the combination were not fixed in the sense that they were uniform and inflexible. Price-fixing as used in the Trenton Potteries case has no such limited meaning. An agreement to pay or charge rigid, uniform prices would be an illegal agreement under the Sherman Act. But so would agreements to raise or lower prices whatever machinery for price-fixing was used.”
In the Socony-Vacuum case the activities were not concerned with direct price fixing but were aimed rather at affecting ■ the market price and the court was there condemning as price fixing any concerted scheme designed to affect prices. We are of the opinion that the agreement and the activities in the present case are a per se violation of the Sherman Act.
There was a regular movement of substantial quantities of gasoline from producing areas outside the State of Illinois and Indiana to refineries and bulk plants in those States and thence to the individual station operators within the Calumet Region, which includes areas in both Indiana and Illinois. Therefore it is our opinion that the conspiracy to stabilize local gasoline retail prices affected Interstate Commerce and is a violation of the Sherman Act.
It is contended by appellants that the indictment was insufficient and should have been dismissed because it failed to list the names of some of the co-conspirators whose names were known to the government and the grand jury.
Rule 7(c) of the Federal Rules of Criminal Procedure provides that the indictment shall be “a plain, concise and definite written statement of the essential facts constituting the offense charged” and “need not contain * * * any other matter not necessary to such statement/' The indictment in this case did set forth “essential facts” constituting the offense •of conspiracy in restraint of trade, and there was no need to set out the particular names or identity of possible witnesses who at the trial might prove to have been co-conspirators. United .States v. Glasser, 7 Cir., 1941, 116 F.2d 690. We are of the opinion that it was not necessary for the indictment to specify the names of co-conspirators even though they were known to the grand jury.
Michael Sawochka appeared voluntarily before the grand jury to deliver Union documents and was informed that the questioning would be strictly limited to identification of the documents and to determination of compliance with the terms of the subpoena directed to Local 142, to which no immunity could be acquired. Even where the appearance is in response to a subpoena personally naming him a corporate or union official who appears only for such purposes as identification of corporate or union records or documents acquires no immunity under 15 U.S.C.A. §§ 32, 33. Cf. Heike v. United States, 1913, 227 U.S. 131, 33 S.Ct. 226, 57 L.Ed. 450. Certainly no immunity attached under the circumstances here presented.
We find no merit in the contention of Local 142 that the evidence does not sustain its conviction. Unlike the situation in Truck Drivers Local No. 421, etc. v. United States, 8 Cir., 128 F.2d 227, relied upon by this appellant, the conspiracy was here formalized in two clauses of the official labor contract entered into by and on behalf of the Union and negotiated by the Union representative authorized to negotiate all of its contracts with all industries. And it was enforced by the Union’s picketing. The activities here were neither unauthorized by nor unknown to the Union. That the Union included members other than those engaged in the service station industry does not under the circumstances here presented insulate it from liability. It was pointed out in United Brotherhood of Carpenters v. United States, 330 U.S. 395, 410, 67 S.Ct. 775, 783, 91 L.Ed. 973 that:
“The grant of authority to an officer of a union to negotiate agreements with employers regarding hours, wages, and working conditions may well be sufficient to make the union liable. An illustrative but not restrictive example might be where there was knowing participation by the union in the operation of the illegal agreement after its execution.”
We have considered all other arguments advanced by counsel in briefs or oral arguments in arriving at our conclusion that the District Court’s judgment must be affirmed.
Affirmed.
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
sc_petitioner
|
055
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
DYE v. HOFBAUER, WARDEN
No. 04-8384.
Decided October 11, 2005
Per Curiam.
Tried by a jury for the third time, petitioner Paul Allen Dye was convicted in the Recorders Court in Detroit, Michigan, on two counts of murder and one count of possession of a firearm during commission of a felony. His defense in each of his three trials was that the crimes were committed by one of the prosecution’s key witnesses, who was present at the scene of the crimes.
The Michigan Court of Appeals upheld the convictions on direct review, People v. Dye, No. 136707 (Nov. 28, 1995) (per curiam), App. to Pet. for Cert. 109, and further review was denied by the Supreme Court of Michigan, People v. Dye, 453 Mich. 852, 551 N. W. 2d 189 (1996). Petitioner sought relief in habeas corpus in the United States District Court for the Eastern District of Michigan, alleging various federal constitutional claims. Denied relief, petitioner appealed to the United States Court of Appeals for the Sixth Circuit.
Over the next five years, the Court of Appeals issued various orders and two opinions in the case. 45 Fed. Appx. 428 (CA6 2002) (Dye I); 111 Fed. Appx. 363 (CA6 2004) (Dye II). In Dye I, a majority of a divided three-judge panel ruled the state prosecutor had engaged in flagrant misconduct during the jury trial. On this ground it reversed the District Court’s order denying habeas relief. The panel did not address petitioner’s other claims. 45 Fed. Appx., at 428, n. 1.
Respondent moved for panel or en banc rehearing. In the time between this motion and its disposition one of the judges in the majority retired, and the record was returned to the District Court.
In Dye II, a reconstituted panel granted the petition for rehearing and ruled in favor of respondent. In an opinion authored by the original panel’s dissenting judge, the Court of Appeals held that, although Dye had raised a prosecutorial misconduct claim in state court, the record did not show that he presented it there as a violation of a federal right. “Because the brief filed by the petitioner in his direct appeal to the Michigan Court of Appeals is not in the record, we have no way of determining exactly how he framed the issue in state court.” 111 Fed. Appx., at 364. As further support for its conclusion, the panel noted the Michigan Court of Appeals’ decision analyzed the relevant claim only in terms of state law. The panel concluded, moreover, it would decline . to address the claim even if Dye had properly raised it in state court because the federal habeas corpus petition’s allegations were too vague and general to be considered fairly presented. Ibid. Stating that its previous opinion, Dye I, had disposed of any remaining claims, the Dye II panel vacated the prior judgment and affirmed the District Court’s denial of the habeas corpus petition.
Dye seeks review here. There are two errors in Dye II meriting reversal of the judgment.
First, the Court of Appeals was incorrect in Dye II to conclude that, when seeking review in the state appellate court, petitioner failed to raise the federal claim based on prosecutorial misconduct. The Court of Appeals examined the opinion of the state appellate court and noted that it made no mention of a federal claim. That, however, is not dispositive. Failure of a state appellate court to mention a federal claim does not mean the claim was not presented to it. “It is too obvious to merit extended discussion that whether the exhaustion requirement. . . has been satisfied cannot turn upon whether a state appellate court chooses to ignore in its opinion a federal constitutional claim squarely raised in petitioner’s brief in the state court. . . .” Smith v. Digmon, 434 U. S. 332, 333 (1978) (per curiam).
Contrary to the holding of the Court of Appeals, the District Court record contains the brief petitioner filed in state court, and the brief sets out the federal claim. The fourth argument heading in his brief before the Michigan Court of Appeals states: “THE PROSECUTOR DENIED DEFENDANT DUE PROCESS OF LAW AND A FAIR TRIAL BY NUMEROUS INSTANCES OF MISCONDUCT.” App. to Pet. for Cert. 80 (capitalization in original). Outlining specific allegations of prosecutorial misconduct, the text of the brief under this argument heading cites the Fifth and Fourteenth Amendments to the Constitution of the United States. It further cites the following federal cases, all of which concern alleged violations of federal due process rights in the context of prosecutorial misconduct: Donnelly v. DeChristoforo, 416 U. S. 637 (1974); Berger v. United States, 295 U. S. 78 (1935); United States v. Valentine, 820 F. 2d 565 (CA2 1987); United States v. Burse, 531 F. 2d 1151 (CA2 1976).
This is not an instance where the habeas petitioner failed to “apprise the state court of his claim that the ... ruling of which he complained was not only a violation of state law, but denied him the due process of law guaranteed by the Fourteenth Amendment.” Duncan v. Henry, 513 U. S. 364, 366 (1995) (per curiam). Nor is this a case where a state court needed to look beyond “a petition or a brief (or a similar document)” to be aware of the federal claim. Baldwin v. Reese, 541 U. S. 27, 32 (2004). The state-court brief was clear that the prosecutorial misconduct claim was based, at least in part, on a federal right. It was error for the Court of Appeals to conclude otherwise.
A second reason the Dye II panel denied relief was that the habeas petition filed in the United States District Court presented the prosecutorial misconduct claim in too vague and general a form. This alternative holding cannot rescue the Dye II judgment, for it, too, is incorrect. The habeas corpus petition made clear and repeated references to an appended supporting brief, which presented Dye’s federal claim with more than sufficient particularity. See Fed. Rules Civ. Proc. 81(a)(2), 10(c). As the prosecutorial misconduct claim was presented properly, it, and any other federal claims properly presented, should be addressed by the Court of Appeals on remand.
The motion to proceed informa pauperis and the petition for eertiorari are granted. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
|
songer_r_bus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
NORTHERN LIFE INS. CO. v. KING.
No. 6442.
Circuit Court of Appeals, Ninth Circuit.
Nov. 9, 1931.
Rehearing Denied Dec. 14, 1931.
Butler, Van Dyke, Desmond & Harris, of Sacramento, Cal., for appellant.
Alien & McNamara, of Yreka, Cal., and T. A. Farrell and Frank L. Murphy, both of Sacramento, Cal., for appellee.
Before WILBUR and SAWTELLE,‘Circuit Judges, and JAMES, District Judge.
JAMES, District Judge.
On the 25th day of September, 1928, plaintiff issued an insurance policy covering the life of Frank Mathew Kasshafer for the amount of $2,500. The poliey included additional provisions which covered the insured in the event of death by accident in the further sum of $2,500, and in the'additional sum of $2,500 in the event accidental death was caused while the insured was operating, driving, riding in, or waS struck by, an automobile. Application for this policy had been made on or about the 18th of August of the same year.
The insured died on February 25, 1930. On June 17,1930, and prior to any action being instituted to recover under the terms of the policy by the beneficiary, the insurance company brought this suit, wherein it sought to have rescission of the contract of insurance decreed. The ground of the action, as alleged, was that the insured had, in answer to questions set forth in his written application, fraudulently represented that he had not consulted any physician within the three years prior to the date of the application in respect to an illness arising from peptie ulcer, except Dr. Paul. Wright, who had treated him in 1925 for that physical disorder. It was alleged that, in fact, insured had not, at the time such representations were made, recovered from the illness mentioned, and, quoting from appellant’s bill: “The duration of said illness exceeded three weeks; said illness was severe and not moderate; he had consulted another physician in respect of said illness from peptie ulcer in November of 1927, and in September of 1928, at both of which times he had received treatments for pain and hemorrhage from duodenal, or peptie, ulcer; that in spite of the fact that intermediate the application for said poliey and examination of applicant and the delivery of said poliey to applicant, applicant had received medical treatment for duodenal or peptie ulcer, and hemorrhage and pain resulting therefrom, said applicant fraudulently concealed said facts from' plaintiff, and on the contrary, accepted said poliey, receipting therefor as hereinbefore alleged in violation of his agreement contained in said application * * * to the effect that said insurance should not become effective unless and until the poliey should be delivered to him during his lifetime and good health.”
Emma C. King, the beneficiary under the insurance policy, defendant in the action (appellee here), answered the complaint, denying the facts as alleged, and by way of cross-complaint prayed for judgment on the insurance poliey for the sum of $7,500; alleging that the death of the insured had occurred through accidental means and through the wrecking of an automobile in which he was riding on the 25th of February, 1930-. The case was heard before a district judge, who gave judgment for the cross-complainant.
The physician who made the examination of the insured for appellant (Dr. Wright) was the physician who had also in March, 1925, attended and treated the insured for peptie ulcer. The form used by appellant’s examining physician contained, first, a printed list of various diseases. The applicant was required to make answer as to whether he had suffered from any of them. The examining physician orally stated the question to the appellant and filled in the answers. The applicant signed the completed form at the bottom. On this list of diseases, the answers appear “No,” with the exception as to question “GL Dyspepsia or .indigestion? Yes,” and excepting the following:
“Illness — Peptie ulcer
“Number of Attacks — Dates, March 1925
“Duration — 3 Wks
“ S everity — Mo derate
“Complications — None
“Result and remaining effects — Recovery
“Physician — Paul Wright
“Address — -Mt. Shasta, .Calif.”
Following was this question, with the answers:
“7. Have you consulted any physician within past three years ? — Yes.
“If so, give particulars required under question 3, above. — Peptie Ulcer — see above.”
The medical examiner, in a statement-transmitted with the report of his examination, advised the company, referring to the applicant’s condition: “He seems to be entirely recovered from the ulcer of stomach. I have seen him frequently & am quite intimate with him & have not been consulted. He works hard on his ranch every day & to my best judgment is in good health at this exam.”
• Dr. H. A. Hess was called at the trial as a witness for appellant, and it is upon the facts as shown by his testimony that the appellant relies to show fraud and concealment used by the applicant. Dr. Hess testified that the insured called at his office in San Francisco on November 7, 1927 (which was more than two years after the attack of pep-tie ulcer for which Dr. Wright had treated him) and consulted him as a patient. A substantially completé statement of Dr. Hess’ testimony follows: “He gave a history of having had ulcer of the duodenum with quite a severe hemorrhage three years before he consulted me. He had some digestive disturbance and was afraid he might have a recurrence of the hemorrhage and ulcer. * * * He stated his reason for calling upon me was as a precaution, or for prophylactic treatment to prevent further trouble. He had no active disturbance at the time. I gave him the usual physical and chemical examination, x » * j marked down is that he had some gas and indigestion. I might explain more why he worried. He spoke of his wife dying the spring before and he had been nervous and afraid of recurrence since then. He gave his slight indigestion as an additional reason for that fear. I think he had no pain. He did have some gas. * * * The examination was somewhat superficial, due to the tact that he gave a definite history of duodenal ulcer, and we took his word for that. I prescribed a diet and medicine. The principal tablet that we use as a preventive was one composed of magnesium oxide, * * magnesium silicate, * ** soda bicarbonate, * * * and extract of nux vomica. " * The purpose of that medicine was to correct hyperacidity. For active ulcer we put tfiem to bed and keep them quiet. I would give the same medicine to correct hyperacidity of the system. Hyperacidity precedes ulcer. * * * I took X-rays of the abdomen, and they were negative. His first visit * * he was in the office probably two or throe times while he was in the city, over a course of several days. * * * I detailed a diet for his use. I always do that. I think most physicians now follow that policy, to prevent rather than cure. It is easier. If the ulcer was active we would put the patient to bed and give him a milk diet. * * He was not confined to his bed or room. * '* * He was down about his business when he came to see me. I told him to remain on this diet permanently. *' * * He took considerable medicine away with him and then he came hack the next year and got more.
“His next visit was September 11, 1928. The only symptom presented at that time, which I marked down, was gas. Ho stated he had been well during the year, quite well, which was why he came back for more medicine. * * * I gave him au additional supply of medicine. * * * He did not communicate with me between the first group of visits and the last group of visits. I had no correspondence with him. The last time he was probably in my office a couple of times. * * * Besides the tablets, he took some other liquid medicino. I did not give him a prescription from which he could purchase additional supplies. I gave him the medicines, themselves.
“I was prompted to give both the tablets and the diet from the history ho gave me and not from anything I found by examination. The history was the ulcer occurring three years before. He looked well when he came down the second time, and in fact he was very well.”
The proof made at the trial was that prior to his death, for a number of years, the insured had engaged actively in his business as a farmer and cattle raiser, and, as the wife of his stepson testified,' he “rode after his own cattle”; that on the day that an agent of the insurance company came to deliver the policy the insured was in “fine health”; that on that day he had ridden after the cattle from 7:30 a. m. until about 8 p. m., riding a spirited horse; that he had done the same thing for years; that on the 25 th of February, 1930, while riding in an automobile across a bridge, he met with an accident, receiving injuries from which he died.
A post mortem examination was held. Dr. Pius, county physician and health officer of Siskiyou county, performed the autopsy. In the course of his testimony at tho trial, he said: “There was no evidence of scar tissue in either the stomach or duodenum, and I was very careful to look for it, because there was an old history of ulcer from relatives. I found no evidence whatsoever. I found the other interior organs normal. Everything was normal.”
, Hr. Wright, the examining physician for the insurance company, hereinbefore referred to, was also present at the post mortem examination. ITe testified as follows:
“Q. Were there any scar tissues such as would follow the result of an ulcer from the stomach, that you saw?
“The Witness. Not that we could discover. We found no scar tissue in tho duodenum at the post-mortem. We could see no results of ulcer in, either the stomach or duodenum at that time. *' * • A peptic ulcer is tho destruction of the mucous membrane of either the stomach or intestino. We could find no evidence of either the duodenum or the stomach mucous membrane, having been destroyed, previous to the post-mortem. * * * Scar tissue would show if peptic ulcer or duodenal ulcer had occurred; if the ulcers are of long duration. It is perfectly possible to. have ulcer without the deep destruction of the walls, and in such case it will not leave scar tissue. My treatment of Kasshafer from March 21, 1925, to June 23,1925> was not all for peptic ulcer, partly I treated him for anemia, he was rather pale, and also for influenza. The first three weeks was for pep-tie ulcer, as I then thought it was.”
It was sufficiently established that the insured at the time of his death was not suffering from any bodily disease, and that his death was due alone to the accident occurring while he was driving his automobile.
And we may pause here to dispose of the exceptions which appellant reserved to the rulings of the trial court in allowing proof to be made of the findings of the autopsy. The evidence was competent and material: First, because appellant had alleged (bill of complaint, par. 1) that, when the insured visited Dr. Hess, he was then suffering from, and was treated for, “pain and hemorrhage from duodenal, or peptic, ulcer,” and this evidence was contradictory of that allegation; and secondly, it was competent and necessary for appellee, under his cross-complaint, to establish that death had resulted to the insured from bodily injury, effected “solely through external, violent and accidental means, * * * ” before recovery on the accident clauses of the.poliey could be allowed.
Having presented a résumé of the main facts which the trial developed, the question must be decided as to whether the insured withheld information from the insurer which was called for by the examining physician. The policy in this ease contained the following provision: “This policy and the application therefor, a copy of which is attached hereto, constitute the entire contract between the parties; and no statement made by the Insured shall avoid this policy or be used in defense against any claim unless contained in a written -application. All statements made by the Insured shall, in the absence of fraud, be considered representations 'and not warranties.” (Italics supplied.)
Section 2605, of the Civil Code of California, provides that: “Every express warranty, made at or before the execution of a policy, must be contained in the policy itself, or in another instrument signed by the insured and referred to in the policy, as making a part of it.”
Section 2610, of the same Code, reads as follows: “The violation of a material warranty, or-other material provision of a policy, on the part of either party thereto, entitles the other to rescind.” (Italics supplied.)
The Circuit Court of Appeals for the Eighth Circuit, in Bankers’ Reserve Life Co. V. Matthews, 39 F.(2d) 528, 537, considered policies of insurance which contained the precise provision above quoted, with the exception only that the sentences of the clause were differently arranged. The court there said: “Under these policies, the statements in the applications are not warranties. They are representations. * * * Being representations, they do not void the contract, even though untrue in fact, provided they were honestly made in the belief by insured that they were true. That is, they must be both untrue and knowingly falsely made by insured. Whether any one of them was both untrue and falsely made is a question of fact to be determined from the evidence.”
The insurer here expressly stipulated in its contract that all statements of the insured, in the absence of fraud, should be considered representations and not warranties. Under the conditions of the contract, the trial court had to determine as a fact, first, whether the insured purposely concealed the matter of his having consulted a physician not named by him at the time of the examination made by the medical officer who acted for the insurance company; and, second, whether the withholding of that information amounted to- a misrepresentation under the contract conditions, the law considered. The insured, of course, knew that he had visited Dr. Hess. He knew also that the physician then interrogating him in behalf of the company had attended him for what the physician thought was peptic ulcer, more than three years prior to the time he signed the statement. It is to be noted that the question appearing in type upon the form which Dr. Wright filled in is in the singular number, where that question refers to consultation with a physician. The answer (written by the doctor) was in the affirmative, and referred to indorsements on the form as they appeared above that question where the statement was written describing the attack of peptic ulcer. By comparison, we find that the form which was used is different and less clear than the form considered in some of the eases, such as in Wharton v. Ætna Life Ins. Co., 48 F.(2d) 37 (C. C. A. 8), where the decision was against the insurer. There, after the question as to whether any physician had been consulted, in the blank following, appears: “Name and address of each, date, reason for consultation, examination or treatment.”
Considering the fact that the insured had suffered from no active disease subsequent to the treatment given him by Dr. Wright for peptic ulcer in 1925, and that his answer in response to the question phrased in the singular number as to whether he had consulted any physician, being truthfully given, it might reasonably be inferred that he had not understood that a statement as to his visits to Dr. Hess were required to bo given at that time. We must keep in mind, too, that the very doctor acting for the company in filling in the answers on the blanks was the doctor who had treated the insured for the only active disease that he had had for a number of years prior to the date of the application. The fact lias been noted that this physician, in a special report to the company, stated, using without doubt the special information that he had obtained by reason of his treatment of the insured, that at the time of the insured’s examination he had, in the doctor's opinion, entirely recovered from his former ailment. To the question whether the insured had purposely, and with intent to deceive, failed to tell of his having visited Dr. Hess, the answer might reasonably be in the negative. The facts and circumstances considered, the findings of the trial judge on that issue should be sustained. The second question is thus reached:
Was it obligatory upon the insured to disclose to the medical examiner acting for the insurance company the facts regarding his visits to Dr. Hess, considering his condition at the time of such visits? We think it may bo deduced, as a rule governing insurance contracts of the kind considered, that, where it is clearly and explicitly so stipulated, every representation made by tlio applicant for a policy will be strictly considered as a warranty. In such a ease, a slate of forgetfulness, or a mistake, on the part of the applicant will not excuse the omission to furnish the information required; and this regardless of whether the withheld facts may appear to have affected the risk assumed. But, where the character of a warranty does not accompany the representations, and the fact appearing that the making of them could not reasonably have had material hearing to induce the insurer to enter into the contract, they will not affect the contract or give a right of rescission. Such is the trend of the many decisions found in the books. An answer from an applicant that he had never been rejected for insurance, when the fact was contrary, illustrates a case of the first kind, corresponding to the facts shown in the case of Mutual Life Ins. Co. v. Hilton-Green, 241 U. S. 613, 30 S. Ct. 676, 60 L. Ed. 1202. The decision of. this court recently made in U. S. Fid. & Guar. Co. v. Leong Dung Dye, 52 F.(2d) 567 (opinion rendered September 15, 1931), involved a similar question. That case turned upon the question as to whether the insured had received a notice of rejection which the testimony tended to show had been mailed to him. Such was the narrow question presented, which the court resolved in favor of the beneficiary. It has been held by this court and others of the federal Courts of Appeals that an applicant for insurance,' in answer to the question as to whether he has consulted a physician, is not required, at the risk of voiding his insurance for false representations if he fails so to do, to tell of consultation or treatment for slight or temporary indispositions, such a.s colds, insomnia, headache, constipation, or the like. Bankers’ Life Co. v. Hollister, 33 F.(2d) 72 (C. C. A. 9); Wharton v. Ætna Life Ins. Co., 48 F.(2d) 37 (C. C. A. 8). And other decisions cited by the late Judge Rudkin in the case first above named.
In Connecticut Mut. Life Ins. Co. v. Union Trust Co., 112 U. S. 250, 5 S. Ct. 119, 123, 28 L. Ed. 708, an applicant for insurance had answered to a question as to whether he had suffered from diseases, including “affection of liver,” “No.” The trial court had refused an instruction to the jury that, if it believed the insured ever had had an affection of the liver, his policy would be void. The trial court did instruct as follows: “That disease implied a substantial attack of illness, or a malady, which had some bearing on the general health of the insured, not a slight illness, or temporary derangement of the functions of some organ.”
The Supreme Coui-t of the United States found that the offered instruction was properly refused, saying: “Upon its appearing simply that the insured, prior to his application, had experienced a slight, temporary affection of the liver which had no tendency to shorten life, and all the symptoms of which had disappeared, leaving no trace whatever of injury to health.” Adding: “It was not contemplated that an insured would recall every instance of illness affecting the liver which lasted only for a brief period, and was unattended by. substantial injury, or inconvenience, or prolonged suffering. Unless he had an affection of the liver that amounted to disease, that is, of a character so well-defined and marked as to materially derang-e for a time the functions of that organ, the answer that he had never had the disease called ‘affection of tire liver’ was a ‘fair and true’ one; for, such an answer involved neither fraud, misrepresentation, evasion, nor concealment, and withheld- no information as to his physical condition with which the company ought to have been made acquainted.”
At the time of insured’s first visit to Dr. Hess, he was, as the doctor testified, not suffering from peptic ulcer, and there were no sjunptoms of that disease present. He complained of indigestion and gas in the abdominal region, and the doctor’s'remedies, given to him at the office, were, as the physician said, preventive only; they were of rather simple form, and were such as he would have given to correct a commonly found overacid condition. The insured had stated, the answer appearing on the form which the examining physician filled in, that he had had .dyspepsia and indigestion. So ike company was not misled as to those matters at all. At the time Dr. Wright treated the insured in 1925, the symptoms which prompted his diagnosis of peptic ulcer were pronounced; there was pain and hemorrhage from the intestinal tract. None of these symptoms existed when Dr. Hess made his examination, and at the post mortem examination of the body of the insured no evidence was found of any ulcerous condition; neither was there a trace or sear of any ulcer that had previously existed. The case presented was very different from those cases where the applicant for insurance failed to disclose the fact of his having consulted with a physician for a disease which such consulting physician found to be of an active nature. Receiving preventive treatment to forestall the possible recurrence of a disease from which a man has apparently recovered is entirely different from consulting a physician on account, of a malady then actively present.
We conclude that the trial judge did not err in his rulings made during the trial, nor in his decision of the ease.
Judgment affirmed.
Question: What is the total number of respondents in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_genresp1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
DURA SYSTEMS, INC., A Pennsylvania Business Corporation, Appellant in 89-3005, v. ROTHBURY INVESTMENTS, LTD., A Canadian Corporation, Appellant in 89-3023.
Nos. 89-3005, 89-3023.
United States Court of Appeals, Third Circuit.
Argued July 17, 1989.
Decided Sept. 19, 1989.
Rehearing and Rehearing In Banc Denied Oct. 13, 1989.
As Amended Oct. 16, 1989.
John D. Eddy (argued), Eddy & Oster-man, Pittsburgh, Pa., for appellant-cross-appellee Dura Systems, Inc.
Hunter A. McGeary, Jr. (argued) and Charles W. Kenrick, Dickie, McCamey & Chilcote, P.C., Pittsburgh, Pa., for appellee-cross-appellant Rothbury Investments, Ltd.
Before STAPLETON, SCIRICA and ROSENN, Circuit Judges.
OPINION OF THE COURT
SCIRICA, Circuit Judge.
Plaintiff Dura Systems, Inc., the law firm of Eddy & Osterman and its members Thomas R. Eddy, John D. Eddy and Thomas G. Eddy, individually, appeal the district court’s imposition of Rule 11 sanctions. We will reverse the order of the district court.
I.
This is an appeal from an order of the United States district court awarding $12,-275.00 in attorneys fees and expenses to the defendant Rothbury Investments, Ltd. under Rule 11 of the Federal Rules of Civil Procedure.
The underlying lawsuit from which these Rule 11 proceedings developed arose from a written franchising agreement between Dura Systems and Rothbury Investments dated January 29, 1984. The franchising agreement granted Dura Systems the right to act as exclusive agent for Rothbury to sell franchises in the United States for the manufacture and distribution of certain patented concrete products developed by Rothbury, and established performance standards to be met by Dura Systems. On April 23, 1986, Rothbury attempted to terminate the franchising agreement on the grounds that Dura Systems had failed to meet the performance standards. In response, Dura Systems sued for a declaratory judgment establishing its right to act as exclusive franchising agent and to enjoin Rothbury from granting to any third party the right to manufacture, distribute, or sell the products. The district court granted summary judgment for Rothbury and this court affirmed. Dura Systems, Inc. v. Rothbury Investments Ltd,., 866 F.2d 1409 (3d Cir.1988).
Rothbury Investments, Ltd. is a Canadian corporation which owns certain United States patents and trademarks on a concrete retaining wall system invented by Angelo and Anthony Risi, Canadian citizens. These patents and trademarks were originally applied for and transferred to Rothbury by another Canadian corporation, Risi Stone, Ltd. Both Rothbury and Risi Stone are owned and managed by the Risis. Seeking to market and distribute the Risi retaining wall system in the United States, Rothbury entered into the franchising agreement described above with Thomas R. Eddy, an attorney, Kenneth Dehus, a former client of the Eddy’s law firm, Eddy & Osterman, and the Risis. Pursuant to the franchising agreement, the individuals agreed to form another corporation (Dura Systems) to act as Rothbury’s exclusive agent for franchising the right to manufacture and sell Risi products in the United States.
Dura Systems was thereafter incorporated on October 22, 1984 in Pennsylvania by Thomas R. Eddy. The shares of Dura Systems were to be owned one-third by the Risis, one-third by Dehus, and one-third by Thomas R. Eddy. On June 10, 1985, Thomas R. Eddy, as permitted by Pennsylvania business corporation law “elected” a board of directors for Dura Systems, which included himself and his two sons, John D. Eddy, and Thomas G. Eddy, all members of the law firm of Eddy & Osterman. The board then met and elected officers: Thomas R. Eddy, President; Kenneth Dehus, Vice-President; Angelo Risi, Vice-President; and John D. Eddy, Secretary.
In the meantime, differences arose between the franchisee and Rothbury Investments concerning the performance of the terms of the franchising agreement, ultimately resulting in the litigation referred to above. As a consequence, on May 13, 1987, the shareholders of Dura Systems met at the request of the Risis and Dehus. At the meeting, the shareholders voted, in this sequence, to (1) amend the by-laws; (2) dismiss the law firm of Eddy & Osterman as legal counsel to the corporation and hire Randal E. McCamey, Esq. as counsel to the corporation; (3) withdraw the lawsuit against Rothbury concerning the franchising agreement; (4) elect a new Board of Directors; (5) elect new officers; and (6) dissolve the corporation. As a result, McCamey filed his appearance as counsel for Dura Systems and moved to dismiss the lawsuit against Rothbury with prejudice. Thomas R. Eddy, as minority shareholder, objected to the May 13 shareholder resolutions on the grounds that they were ultra vires and unlawful. Despite the May 13 resolutions, Eddy & Osterman continued to prosecute the law suit against Rothbury by filing pleadings in the name of the corporation. Consequently, Rothbury has been obliged to retain and compensate counsel to defend the suit.
Rothbury filed its motion for Rule 11 sanctions the day after the May 13 shareholders’ meeting, alleging that:
(1) neither Dura Systems nor the law firm of Eddy & Osterman has “legal authority to institute and prosecute suit in the above matter;” and (2) Eddy & Osterman “knew or should have known that no valid basis existed for instituting a lawsuit, but nevertheless persisted in maintaining the above action without a well-grounded basis in law or fact.”
After considering both parties memoranda, the district court granted Rothbury’s motion for Rule 11 sanctions on October 11, 1988, pending Rothbury’s submission of an accounting of attorney’s fees and expenses. On January 3, 1989, the court amended its earlier order to include Plaintiff Dura Systems, the law firm of Eddy & Osterman, and attorneys Thomas R. Eddy, John D. Eddy, and Thomas G. Eddy as the parties subject to the order, and granted Rothbury $12,250.00 in attorney’s fees and expenses. Dura Systems appeals the award of counsel fees and expenses under Rule 11. Rothbury cross-appeals, seeking an increase in the amount of the awarded attorney’s fees and expenses to $30,325.00.
II.
Before we can address the merits of the district court’s decision to grant Rule 11 sanctions in this case, we must first determine whether Eddy & Osterman, and the Eddy brothers individually, may be considered parties to this appeal because they were not specifically named in the notice of appeal. The content of a notice of appeal is prescribed by Fed.R.App.P. 3(c) of the Federal Rules of Appellate Procedure:
(c) Content of the Notice of Appeal The notice of appeal shall specify the party or parties taking the appeal; shall designate the judgment, order or part thereof appealed from; and shall name the court to which the appeal is taken.... An appeal shall not be dismissed for informality of form or title of the notice of appeal.
Fed.R.App.P 3(c). Compliance with Fed.R. App.P. 3(c) is a jurisdictional prerequisite. Failure to file a notice of appeal in accordance with the specificity requirement of Fed.R.App.P. 3(c) presents a jurisdictional bar to the appeal. Torres v. Oakland Scavenger Co., — U.S.-, 108 S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988); Kowaleski v. Dep’t of Labor, 879 F.2d 1173, 1175 (3d Cir.1989).
Dura Systems was the only party named in the notice of appeal from the district court’s order imposing Rule 11 sanctions, an order which specifically named Dura Systems, the law firm of Eddy & Oster-man, and the Eddys individually, as the parties subject to the order to pay attorney’s fees and expenses. Appellees contend that this discrepancy violates the requirements of Fed.R.App.P. 3(c).
The Eddys and the law firm make several arguments in response. First, they contend that the requirements of Fed. R.App.P. 3(c) may be deemed satisfied by a Consent Order of January 31, 1989, entered by this court granting stay of the district court judgment pending appeal, in which the judgment was secured by the accounts receivable of the law firm of Eddy & Osterman. The Consent Order specifically names, in addition to Dura Systems, the law firm of Eddy & Osterman and Thomas R. Eddy, John D. Eddy and Thomas G. Eddy, individually, as parties against whom Rothbury may confess judgment in the event that this court affirms the award of attorney’s fees, and was entered within the period required for timely notice of appeal under Fed.R.App.P. 4(a)(1). Second, they claim that they could reasonably have read Fed.R.App.P. 3(c) to have required only that the named “party or parties” to the underlying action be included in the notice of appeal. This interpretation would have led them to conclude that only Dura Systems was properly named in the notice of appeal, since neither Eddy & Osterman nor the Eddys individually were originally named “parties” to the underlying action.
The sufficiency requirements of a notice of appeal under Fed.R.App.P. 3(c) were recently addressed by the United States Supreme Court in Torres v. Oakland Scavenger Co., — U.S.-, 108 S.Ct. 2405, 101 L.Ed.2d 285 (1988), in which the petitioner, as one of sixteen plaintiffs seeking to appeal the district court’s dismissal of the complaint, was not named in the notice of appeal because of a clerical error. The Court granted certiorari “to resolve a conflict in the Circuits over whether a failure to file a notice of appeal in accordance with the specificity requirement of Fed.R.App.P. 3(c) presents a jurisdictional bar to the appeal.”
In formulating its holding, the Court made clear that Rules 3 and 4 of the Federal Rules of Appellate Procedure create a jurisdictional threshold, and that the requirements of the two rules may not be abrogated for “good cause shown” under Fed.R.App.P. 2. Id. 108 S.Ct. at 2409. Moreover, the fact that Rule 3 excuses “informality of form or title” in a notice of appeal does not forgive compliance with the Rule’s requirements: “[permitting imperfect but substantial compliance with a technical requirement is not the same as waiving the requirement altogether as a jurisdictional threshold.” Id. at 2408; see also Kowaleski, 879 F.2d at 1176 (citing Allen Archery, Inc. v. Precision Shooting Equip., Inc., 857 F.2d 1176, 1177 (7th Cir.1988)) (court must insist on “punctilious, literal, and exact compliance with the requirement in Fed.R.App.P. 3(c) that the notice of appeal ‘shall specify the party or parties taking the appeal’ ”). Although the Torres Court mandated compliance with the specificity requirement of Fed.R.App.P. 3(c), it recognized that
the requirements of the rules of procedure should be liberally construed and that ‘mere technicalities’ should not stand in the way of consideration of a case on its merits. Thus, if a litigant files papers in a fashion that is technically at variance with the letter of a procedural rule, a court may nonetheless find that the litigant has complied with the rule if the litigant’s action is the functional equivalent of what the rule requires.
Id. at 2408-09 (citing Houston v. Lack, — U.S.-, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988)). This approach mirrors the practice sanctioned in the Advisory Committee Notes to the 1979 amendment to Fed.R. App.P. 3(c), which cites with approval cases holding that, “so long as the function of notice is met by the filing of a paper indicating an intention to appeal, the substance of the rule has been complied with.” Fed. R.App.R. 3(c) advisory committee’s note (citing Cobb v. Lewis, 488 F.2d 41 (5th Cir.1974); Holley v. Capps, 468 F.2d 1366 (5th Cir.1972)).
In this case, we hold that the Consent Order serves as the “functional equivalent” of what the rule requires. The Consent Order was filed within the time for filing an appeal under Fed.R.App.P. 4, and, by naming the law firm and the Eddys as the parties securing the district court judgment pending appeal, served to notify the court and the opposing parties of their intention to appeal. Given these factors, the Consent Order satisfies the underlying purpose of the rule of “provid[ing] notice both to the opposition and to the court of the identity of the appellant or appellants,” Torres, 108 S.Ct. at 2409, and thus serves the same function as would a notice of appeal executed in the more technically proper manner. Because the Consent Order specifies “the party or parties taking the appeal,” it conforms to this court’s requirement in Kowaleski that Fed.R.App.P. 3(c) be complied with in a “punctilious, literal, and exact” manner. Kowale-ski, 879 F.2d at 1176. Moreover, by upholding the Consent Order as sufficient notice of appeal, we follow the Court’s directive to construe the rule “liberally,” and to avoid a construction that would allow “mere technicalities” to bar consideration of a ease on the merits. Torres, 108 S.Ct. at 2408; see also Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 229, 9 L.Ed.2d 222 (1962).
Finally, because we have concluded that the Consent Order operates as an effective notice of appeal, we need not address the Eddy defendants’ additional argument that, because they were not named parties to the underlying action, they could reasonably have assumed that they did not fall within the wording of the rule requiring “the party or parties” to be named in the notice of appeal. Cf. Torres, 108 S.Ct. at 2409 (jurisdictional requirements may not be waived, even for “good cause shown” under Rule 2).
III.
We now turn to the merits of the district court’s decision to impose Rule 11 sanctions in this case. “Our review of the imposition or denial of sanctions under Rule 11 is limited to determining whether the district court has abused its discretion.” Teamsters Local Union No. 430 v. Cement Exp., Inc., 841 F.2d 66, 68 (3d Cir.1988); Gaiardo v. Ethyl Corp., 835 F.2d 479, 485 (3d Cir.1987). Our court has said that “the question is not whether the reviewing court would have applied the sanction, but whether the district court abused its discretion in doing so.” Snow Machines, Inc. v. Hedco, Inc., 838 F.2d 718, 724 (3d Cir.1988); Eavenson, Auchmuty & Greenwald v. Holtzman, 775 F.2d 535, 540 (3d Cir.1985). Under the circumstances in this case, we find an abuse of discretion.
A.
Rule 11 provides, in part:
[t]he signature of an attorney or party constitutes a certificate by the signer that the signer has read the pleading, motion, or other paper; that to the best of the signer’s knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.
Fed.R.Civ.P. 11. Rule 11 sanctions may be imposed “ ‘in the exceptional circumstance’ where the claim or motion is patently un-meritorious or frivolous.” Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir.1988) (citing Gaiardo v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir.1987)). Although the Rule imposes a duty of reasonable inquiry as to both facts and law, it is “not intended to chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories.” Fed.R. Civ.P. 11 (advisory committee notes). The standard is one of “reasonableness under the circumstances.” Id.; Gaiardo, 835 F.2d at 482. The court must evaluate the signer’s conduct “by inquiring what was reasonable to believe at the time the pleading, motion, or other paper was submitted,” an evaluation which should depend on a variety of factors, including “whether the pleading, motion, or other paper was based on a plausible view of the law.” Fed.R.Civ.P. 11 (advisory committee note). In Gaiardo, we cautioned that “[ljitigants misuse the Rule when sanctions are brought against a party whose only sin was being on the unsuccessful side of a ruling or judgment.” 835 F.2d at 483; see also Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531, 1540-41 (9th Cir.1986) (district court may not impose sanctions simply because party’s nonfrivo-lous argument is found by the district court to be unjustified).
Eddy & Osterman argue that their conduct is not properly subject to Rule 11 sanctions because the firm’s decision to disregard the May 13 shareholder resolutions was based on a plausible view of the law. Citing § 1401 of the Pennsylvania Business Corporation Law and In re Penn Central Securities Litigation, 367 F.Supp. 1158 (E.D.Pa.1973), the Eddy defendants claim that the May 13 shareholder resolutions were not binding on the corporation because, under Pennsylvania law, only a corporation’s board of directors may manage the affairs of the corporation. Under this view, the shareholder resolutions of May 13 dismissing former counsel, retaining new counsel, and authorizing dismissal of the suit were actions taken ultra vires, a view which the law firm claims is supported in both statutory and case law and which is not “unmeritorious or frivolous.” See Doering, 857 F.2d at 194. Because the board of directors of Dura Systems did not initiate or authorize the removal of Eddy & Osterman as counsel to the corporation, the firm claims that it had reasonable grounds to believe that it had continuing authority to pursue the law suit against Rothbury.
The district court found the firm’s legal theory “dubious.” Dura Systems v. Rothbury, No. 86-2621, mem. op. at 6 (W.D.Pa. October 11, 1988). “What concerns us, for the purposes of this motion, is the critical and indisputable fact that the shareholders, whether voting as shareholders (as they did) or as a board of directors (as Eddy & Osterman allege they should have done), decided by a two-thirds vote that this lawsuit, which was nominally brought on behalf of the corporation, should be dismissed.” Mem. op. at 5-6. Because the district court concluded that the law suit against Rothbury, initiated and maintained by Eddy & Osterman, was unauthorized and “apparently unfounded in law and fact,” the court held that “Eddy & Oster-man ... abused the litigative process to such a degree that the imposition of sanctions [was] warranted.” Id. at 24.
The district court also noted, and Roth-bury stresses in its brief, that the law firm’s decision may have been motivated by self-interest. The district court concluded that, despite the firm’s ostensible representation of Dura Systems, it pursued the law suit to protect the interests of Thomas Eddy, minority shareholder in Dura Systems, and/or of his two sons, who were members of the Dura Systems board. In addition, Rothbury accuses the law firm of exercising deliberate and intentional eon-trol over the Dura Systems Corporation to the exclusion of the majority shareholders, claiming that (1) Thomas R. Eddy incorporated Dura Systems and named himself and his two sons directors without notice to the other shareholders; (2) the Eddy family board of directors ran Dura Systems to the complete exclusion of the other shareholders; and (3) the Eddy Board filed the complaint against Rothbury with the knowledge that the majority of shareholders had neither authorized the suit nor had been notified of its filing. Based on these allegations, Rothbury submits that Rule 11 sanctions were not only justified, it cross-appeals on the grounds that sanctions should have been imposed as of the date of the filing of the complaint against Roth-bury.
B.
We cannot find that the Eddy defendants’ conduct, either in filing the original complaint against Rothbury or in pursuing that cause of action on behalf of Dura Systems after the May 13 shareholders’ meeting, justified the imposition of Rule 11 sanctions. Rather, we are constrained to conclude that the Eddy defendants’ conduct, albeit arguably self-serving, was based on a “plausible view of the law” that is not “patently unmeritorious or frivolous.”
First, with respect to the initial filing of the complaint, the Eddy-installed Board of Directors, as the lawfully appointed board under 15 Pa.Stat.Ann. § 1210 (Purdon Supp.1988), ostensibly had the authority to file suit. Indeed, under the Dura Systems By-Laws, “[t]he business and affairs of the corporations shall be managed by its Board of Directors[,]” which “may exercise all such powers of the corporation and do all such lawful acts as are not by statute or by the Articles of Incorporation, or by these By-Laws directed or required to be exercised or done by the shareholders.” App. 152a-53a. See also 15 Pa.Stat.Ann. § 1401 (Purdon Supp.1988) (“The business and affairs of every business corporation shall be managed by the board of directors_”). In contrast, Rothbury cites no authority for the proposition that the Dura Systems Board lacked the authority to institute the underlying suit. Thus, Rothbury has not demonstrated on the cross-appeal that the Eddy defendants’ initiation of suit against it, on behalf of Dura Systems, was based on an implausible view of the law or was unreasonable under the circumstances. Therefore, we find no justification for imposing Rule 11 sanctions as of the date of the filing of the complaint.
Further, we are unable to conclude that the Eddy defendants’ perpetuation of the underlying law suit after the May 13 meeting constituted conduct so lacking in legal basis as to be “patently unmeritorious or frivolous.” The Eddy defendants claim that the shareholder resolutions dismissing former counsel, retaining new counsel and authorizing dismissal of the suit were not binding on the corporation because they violated § 1401 of the Pennsylvania Business Corporation Law, which mandates that “[t]he business and affairs of the corporation shall be managed by the corporation. ...” See note 7 supra. In support, they cite In re Penn Central Securities Litigation, 367 F.Supp. 1158 (E.D.Pa.1973), for the proposition that the board of directors, rather than the shareholders, control the conduct of litigation on behalf of the corporation. While this case more generally addresses, inter alia, the requirement that a shareholder seeking to press a claim on behalf of the company must first demand that the directors take the action desired, it also contains language that the directors, and not the shareholders, ordinarily conduct litigation on the corporation’s behalf. 367 F.Supp. at 1163.
Whether we or the district court would decide in favor of the Eddy defendants is not relevant to the issue before us. Even if the Eddys’ legal arguments may be tenuous, the district court need only determine whether their positions are “patently un-meritorious or frivolous,” see Doering, 857 F.2d at 194. It appears to us that in this case, the district court evaluated the Eddy defendants’ position in terms of its potential for success on the merits. Under the circumstances in this case, we believe this constitutes an abuse of discretion.
We will reverse the judgment of the district court. Each side to bear its own costs.
. On July 11, 1989, Dura Systems, Eddy & Oster-man, and the Eddys moved this court for leave to amend the Notice of Appeal to name the omitted parties. We will deny the motion under Fed.R.App.P. 26(b), which explicitly prohibits the court from enlarging the time for filing a notice of appeal. See Carter v. Rafferty, 826 F.2d 1299, 1304 (3d Cir.1987) (quoting West v. Keve, 721 F.2d 91, 95 (3d Cir.1983)) (“Where the litigant fails to file a timely notice of appeal within the prescribed period, the litigant loses the right to an appeal on the merits of the predicate controversy."); cert. denied, 484 U.S. 1011, 108 S.Ct. 711, 98 L.Ed.2d 661 (1988).
. 108 S.Ct. at 2407 & n. 1 (comparing Farley Transportation Co. v. Santa Fe Trail Transportation Co., 778 F.2d 1365, 1368-70 (9th Cir.1985) (failure to specify party to appeal is jurisdictional bar); Covington v. Allsbrook, 636 F.2d 63, 64 (4th Cir.1980) (same); Life Time Doors, Inc. v. Walled Lake Door Co., 505 F.2d 1165, 1168 (6th Cir.1974) (same) with Ayres v. Sears, Roebuck & Co., 789 F.2d 1173, 1177 (5th Cir.1986) (appeal by party not named in notice of appeal is permitted in limited circumstances); Harrison v. United States, 715 F.2d 1311, 1312-13 (8th Cir.1983) (same); Williams v. Frey, 551 F.2d 932, 934 n. 1 (3rd Cir.1977) (same)).
.Under Fed.R.App.P. 2, for good cause shown, “a court of appeals may, except as otherwise provided in Rule 26(b), suspend the requirements or provisions of any of these rules in a particular case on application of a party or on its own motion and may order proceedings in accordance with its direction.”
. Appellees conceded at oral argument that, in light of the Consent Order, they were aware that the law firm and the Eddys intended to appeal the district court’s order.
. See Gwaltney of Smithfield v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 108 S.Ct. 376, 385, 98 L.Ed.2d 306 (1987) ("Rule 11 ..., which requires pleadings to be based on a good-faith belief, formed after reasonable inquiry, that they are well grounded in fact, adequately protects defendants from frivolous allegations.”).
. Rule 11 was amended in 1983. The “reasonableness standard” of the amended rule "is more stringent than the original good faith requirement because it represents an objective, rather than a subjective, standard.” Wright, Miller & Kane, 5 Federal Practice and Procedure § 1333 at 177 (Supp.1987).
.Section 1401 states that “[t]he business and affairs of every business corporation shall be managed by a board of directors_” 15 Pa. Stat.Ann. § 1401 (Purdon Supp.1988).
. Section 1210 of the Pennsylvania Business Corporation Law states:
§ 1210 Organization Meeting
After the filing of the articles of incorporation, an organization meeting of the board of directors named in the articles or of the incorporators if no directors are named in the articles, shall be held, either within or without this Commonwealth, at the call of a majority of directors or incorporators for the purpose of adopting by-laws, which they shall have the authority to do at such meeting, of electing directors if no directors are named in the articles, and in the case of a meeting of the board of directors, of electing officers, and of transacting such other business as may come before the meeting. The directors or incorpo-rators calling the meeting shall give at least five days notice of the time and place of the meeting.
15 Pa.Stat.Ann. § 1210 (Purdon Supp.1988) (emphasis added).
. If the Eddy family board of directors was motivated by self-interest in its management of Dura Systems, then presumably the shareholders may have a remedy.
. As we have noted, John Eddy made the same objections at the May 13, 1987 shareholders meeting. At that meeting, the newly elected directors did not vote on these matters.
.The merits of the underlying case regarding the franchising agreement have been considered by this court on appeal. Dura Systems v. Rothbury Investments Inc., 866 F.2d 1409 (3d Cir.1988). In the opinion, we assumed arguendo that the law firm had the authority to bring the lawsuit on behalf of Dura Systems.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_appnatpr
|
2
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Victoria VAN NIEUWENHOVE and Jeanne Van Nieuwenhove, Plaintiffs-Appellants, v. The CUNARD STEAM-SHIP CO., Limited, etc., Defendant-Appellee.
No. 11130.
United States Court of Appeals, Seventh Circuit.
Oct. 19, 1954.
George C. Rabens, Isadore I. Feinglass, Chicago, Ill., for appellants.
Daniel M. Healy, Walter C. Healy, Chicago, for appellee.
Before MAJOR, FINNEGAN and SCHNACKENBERG, Circuit Judges.
FINNEGAN, Circuit Judge.
In this appeal plaintiffs ask us to reverse an order, entered below, setting aside a jury verdict awarding damages of $5,000 to Victoria Van Nieuwenhove and $1,000 to Jeanne Van Nieuwenhove, respectively. At the close of plaintiffs’ evidence and after all the evidence, defendant, The Cunard Steam-Ship Co., Limited, a foreign corporation, moved for a directed verdict. In his order, setting aside that verdict and entering judgment for the defendant, the trial judge stated that defendant’s motion for a directed verdict should have been granted. We agree.
During a rough sea, Jeanne Van Nieuwenhove and Victoria Van Nieuwenhove sustained injuries when a ladder came out of slots in the bulkhead of their stateroom and fell on Jeanne who was pitched with the ladder and a chair on to Victoria. Prior to this episode, Victoria had moved the same ladder from its position adjacent to the double-decker berths, where she had previously used it to reach her upper berth. Victoria shifted this ladder from bedside to bulkhead at Jeanne’s request; that she, Jeanne, could get out of the lower bed. There were prongs on the ladder top for the purpose of hanging it in slots on the bulkhead. No evidence that the ladder, metal prongs or hooks, clip, or slots were unsafe or defective appears in this record.
Certainly in the state of this record the trial judge was not bound to send plaintiffs’ flimsy case to the jury. Yet he followed allowable practice by reserving his decision under Rule 50, Fed.Rules Civ.Proc., 28 U.S.C.A., on defendant’s motion for a directed verdict. By taking post-verdict action he saved these parties expense of another trial if we had disagreed with the entry of judgment for the defendant. But this judgment, and trial judge’s action, can be verified by a survey of the evidence since it utterly fails to show that plaintiff were injured by defendant’s negligence. Even when we construe this evidence in a light most favorable to plaintiffs, accept as true all of their evidence, together with all reasonable inferences reasonably deducible therefrom, one conclusion emerges diametrically opposed to plaintiffs’ right to recover. Galloway v. United States, 1943, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458. In our opinion this verdict was not predicated upon substantial evidence.
We think it was correct for the trial judge to deny plaintiffs’ motion to amend their complaint after verdict and judgment. Their proposed amendment would simply supply opinions of the pleader and his conclusions of law in an effort to bridge the hiatus in the non-existent chain of causation. Such an amendment is neither invited, nor authorized under the liberality manifested by Fed.R.Civ.Proc. 15, 28 U.S.C.A. Apex Smelting Co. v. Burns, 7 Cir., 1949, 175 F.2d 978, 981.
The judgment appealed is affirmed.
Affirmed.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
UNITED STATES ex rel. STEFFNER v. CARMICHAEL, District Director.
No. 13098.
United States Court of Appeals, Fifth Circuit.
June 21, 1950.
Writ of Certiorari Denied Oct. 9,1950.
See 71 S.Ct. 67.
Louis A. Sabatino, Miami, Fla., for appellant.
Ernest L. Duhaime, Asst. U. S. Atty., Miami, Fla., for appellee.
Before HOLMES, WALLER, and BORAH, Circuit Judges.
HOLMES, Circuit Judge.
This appeal is from an order dismissing appellant’s writ of habeas corpus, wherein he sought to be discharged from the custody of the District Director of Immigration and Naturalization in Miami, Florida.
Appellant is a native of Sweden. He first came to the United States in 1920, and was legally admitted as a resident of New York. In 1932, he was convicted of the crime of petit theft in California. In 1933, he became .a member of the Communist Party, and remained in the party for about four months. In 1934, he was convicted of larceny in Illinois. In 1935, he was convicted of knowingly transporting a stolen car from Iowa to California, in violation of Section 408, Title 18 U.S.C.A. In 1936, deportation proceedings were instituted by the District Director of Immigration and Naturalization at San Francisco, California, charging appellant with a violation of 8 U.S.C.A. § 155(a), in that he was an alien who was a member of an organization which believed in the over-' throw, by force or violence, of the United-States Government. He was given a hearing, which resulted in a finding that he was a member of ' an organization denounced by the statute, and ordered deported. He took no steps to test the validity of the deportation proceedings.
Appellant remained in Sweden from. 1936 to 1941. In 1941, he began shipping in and out of the United States as a seaman. On September 26, 1945, he reentered the United States at the port of Boston, Massachusetts, as a member of the crew of a Swedish liner. He deserted his ship, and remained in the United States without a valid immigration visa, and without having secured permission from the Attorney General to apply for readmission. A warrant was issued for his arrest, and deportation hearings thereon were held on June 20, and July 23, 1947, by the Immigration Inspector. The hearings resulted in the issuance of a warrant of deportation, whereby it was concluded that appellant was subject to deportation, in that he was an alien who admitted having committed a felony, or other crime involving moral turpitude, prior to his entry into the United States; that he was an alien who had been arrested and deported in pursuance of law, and to whom proper authority had not been given to reapply for permission to reenter the United States; and that he was an alien who, at the time of his entry into the United States, was not in possession of a valid visa and not exempted from the presentation thereof.
On November 22, 1949, appellant filed a petition for writ of habeas corpus, alleging that the appellee was about to take him into custody and cause his illegal. imprisonment. Order to show cause was issued to appellee; he answered on. November 23, 1949, stating that he was to take custody of appellant under the above-mentioned warrant of deportation; and he attached to his answer the official record of the deportation hearings. On December 5, 1949, the court ruled that appellant was subject to deportation, and on ■ December 9, 1949, entered a final judgment denying his petitioh for writ of habeas corpus. ' Appellant is now at large on bond pending his appeal to this court.
Appellant concedes in his brief that, if his deportation in 1936 was' legal and proper, then he is chargeable with violation of the Immigration Act of 1917, as amended, and deportable thereunder, because the law specifically states that an alien must enter the United States with an immigration -visa; if deported, he must have permission from the Attorney General to reenter; and he must not have committed a crime involving moral turpitude prior to his entry. Appellee concedes in his brief- that appellant’s 1947 hearing was not conducted by a hearing examiner appointed under the Administrative Procedure Act, 5 U.S.C.A. § 1001 et seq.
The question of primary concern to us is whether or not appellant should be allowed to make a collateral attack in this proceeding on his 1936 deportation order, which he: contends was illegal and void ab initio. If we do allow such an attack, we must then examine the order ourselves to determine its validity.
Where an alien has been deported from the United- States pursuant to a war-, rant of deportation, we do not think it permissible to allow a collateral. attack on the previous deportation order in a subsequent deportation proceeding, unless we are convinced that there was a gross miscarriage of justice in the former proceedings. There are numerous cases where aliens have been deported several times, and if in each subsequent case the validity of the previous deportation order had to be determined, there would be no end to the proceedings cast upon administrative agencies.
Appellant did not elect to test the validity of his 1936 deportation order. He had his day before'the immigration authorities, who decided that he should be deported. There is no showing that his failure to test the validity of this order was due to any cause other than his desire not to do so. Even if we were to concede that we should examine the order entered in his 1936 deportation proceeding, appellant would not be in any better position than he is now, because we are of the opinion that such order was valid when entered, and, since it has not been set aside in any way, it remains valid. At the time appellant was ordered deported, the most authoritative interpretation of the statute in question was a decision rendered by .the Court of Appeals for the Second Circuit, in 1933, to the effect that past membership in the Communist Party would support an order of deportation under the Act of October 16, 1918, as amended by the Act of June 5, 1920. A petition for certiorari asking the United States Supreme Court to review this decision was denied in 287 U.S. 607, 53 S.Ct. 11, 77 L.Ed. 528. In 1939, the United States Supreme Court, in Kessler v. Strecker, 307 U.S. 22, 59 S.Ct. 694, 83 L.Ed. 1082, held contra to the Second Circuit’s 1933 decision, deciding that the statute required present membership in such a subversive organization, and declined to sanction an order of deportation for Strecker, because his membership had terminated prior to the institution of deportation proceedings. Appellant contends that, since this was the first pronouncement by the Supreme Court on the law under this statute, it must be considered to have been the law in 1936, at the time appellant was first ordered deported. We cannot accede to this contention. If it were true that a change in the interpretation of the law applicable to a cause prosecuted to judgment entitled the party who had been affected by such change to reopen the controversy, lawsuits would not be settled with finality. We are of the opinion that the law as interpreted by the Second Circuit in United States ex rel. Yokinen v. Commissioner, 57 F.2d 707, was the controlling law until thg Supreme Court declared it to be different in 1939. This béing true, appellant’s deportation order was valid when entered in 1936. Cf. Section 137 of Title 8 U.S.C.A., as amended June 28, 1940.
Appellant insists that the Administrative Procedure Act was applicable to his deportation hearing, and that said hearing was not in compliance with the Act. Appellee admits that the hearing was not conducted by a hearing examiner appointed under the Act. Under the Supreme Court’s holding in Wong Yang Sung v. McGrath, 339 U.S. 33, 70 S.Ct. 445, compliance with the Administrative Procedure Act is necessary in deportation cases. Since the Act was not complied with by the immigration authorities in the determination of the proceedings against the appellant, we find it necessary to reverse the lower court’s order and remand the appellant to the custody of the Director of Immigration and Naturalization at Miami, Florida, for the resumption of deportation proceedings in accordance with the requirements of the Federal Administrative Procedure Act. See Miller v. U. S. ex rel. Hunt, 5 Cir., 181 F.2d 363.
Reversed and remanded.
. 1948 Revised Criminal Code, 18 U.S.C.A. §§ 2311-2313.
. United States ex rel. Koehler v. Corsi, 2 Cir., 60 F.2d 123; Daskaleff v. Zurbrick, 6 Cir., 103 F.2d 579.
. United States ex rel. Yokinen v. Commissioner, 57 F.2d 707.
. 8 U.S.C.A. § 137(a) to (e).
. 5 U.S.C.A. §§ 1001-1011.
. United States ex rel. Frisch v. Miller, 5 Cir., 181 F.2d 360.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_authoritydecision
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
BAKER et. al. v. GENERAL MOTORS CORP.
No. 96-653.
Argued October 15, 1997
Decided January 13, 1998
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist, C. J., and Stevens, Souter, and Breyer, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, post, p. 241. Kennedy, J., filed an opinion concurring in the judgment, in which O’Connor and Thomas, JJ., joined, post, p. 243.
Lawrence H. Tribe argued the cause for petitioners. With him on the briefs were Jonathan S. Massey, James W. Jeans, Sr., David L. Shapiro, Robert L. Langdon, and J. Kent Emison.
Paul T. Cappuccio argued the cause for respondent. With him on the brief were Kenneth W. Starr, Richard A. Cor-dray, Jay P. Lefkowitz, Thomas A. Gottschalk, and James A. Durkin.
Briefs of amici curiae urging reversal were filed for the State of Missouri et al. by Jeremiah W. (Jay) Nixon, Attorney General of Missouri, and Karen King Mitchell, Richard Blumenthal, Attorney General of Connecticut, Thomas J. Miller, Attorney General of Iowa, Scott Harshbarger, Attorney General of Massachusetts, Mike Moore, Attorney General of Mississippi, Christine 0. Gregoire, Attorney General of Washington, and James E. Doyle, Attorney General of Wisconsin; for the Association of Trial Lawyers of America by Jeffrey Robert White, Cheryl Flax-Davidson, and Howard F. Twiggs; and for the Center for Auto Safety.
Briefs of amici curiae urging affirmance were filed for the National Association of Manufacturers et al. by Mark B. Helm, Kristin A Linsley, Jan S. Amundson, Quentin Riegel, and Todd S. Brilliant; and for the Product Liability Advisory Council, Inc., by Stephen M. Shapiro, Andrew L. Frey, Kenneth S. Getter, and John J. Sullivan.
A brief of amid curiae was filed for the State of Ohio et al. by Betty D. Montgomery, Attorney General of Ohio, Jeffrey S. Sutton, State Solicitor, and Elise Porter, Assistant Attorney General, Gale A Norton, Attorney General of Colorado, Jan Graham, Attorney General of Utah, and Richard Cullen, Attorney General of Virginia.
Justice Ginsburg
delivered the opinion of the Court.
This ease concerns the authority of one State’s court to order that a witness’ testimony shall not be heard in any court of the United States. In settlement of claims and counterclaims precipitated by the discharge of Ronald El-well, a former General Motors Corporation (GM) engineering analyst, GM paid Elwell an undisclosed sum of money, and the parties agreed to a permanent injunction. As stipulated by GM and Elwell and entered by a Michigan County Court, the injunction prohibited Elwell from “testifying, without the prior written consent of [GM], ... as ... a witness of any kind ... in any litigation already filed, or to be filed in the future, involving [GM] as an owner, seller, manufacturer and/or designer....” GM separately agreed, however, that if Elwell were ordered to testify by a court or other tribunal, such testimony would not be actionable as a violation of the Michigan court’s injunction or the GM-Elwell agreement.
After entry of the stipulated injunction in Michigan, El-well was subpoenaed to testify in a product liability action commenced in Missouri by plaintiffs who were not involved in the Michigan case. The question presented is whether the national full faith and credit command bars Elwell’s testimony in the Missouri ease. We hold that Elwell may testify in the Missouri action without offense to the full faith and credit requirement.
I
Two lawsuits, initiated by different parties in different States, gave rise to the full faith and credit issue before us. One suit involved a severed employment relationship, the other, a wrongful-death eomplaint. We describe each controversy in turn.
A
The Suit Between Elwell and General Motors
Ronald Elwell was a GM employee from 1959 until 1989. For 15 of those years, beginningin 1971, Elwell was assigned to the Engineering Analysis Group, which studied the performance of GM vehicles, most particularly vehicles involved in product liability litigation. Elwell’s studies and research concentrated on vehicular fires. He assisted in improving the performance of GM products by suggesting changes in fuel line designs. During the eourse of his employment, Elwell frequently aided GM lawyers engaged in defending GM against product liability actions. Beginning in 1987, the Elwell-GM employment relationship soured. GM and Elwell first negotiated an agreement under which Elwell would retire after serving as a GM consultant for two years. When the time came for Elwell to retire, however, disagreement again surfaced and continued into 1991.
In May 1991, plaintiffs in a product liability action pending in Georgia deposed Elwell. The Georgia case involved a GM pickup truck fuel tank that burst into flames just after a collision. During the deposition, and over the objection of counsel for GM, Elwell gave testimony that differed markedly from testimony he had given when serving as an in-house expert witness for GM. Specifically, Elwell had several times defended the safety and crashworthiness of the pickup’s fuel system. On deposition in the Georgia action, however, Elwell testified that the GM pickup truck fuel ’ system was inferior in comparison to competing products.
A month later, Elwell sued GM in a Michigan County Court, alleging wrongful discharge and other tort and contract claims. GM counterclaimed,, contending that Elwell had breached his fiduciary duty to GM by disclosing privileged and confidential information and misappropriating documents. In response to'GM’s motion for a preliminary injunction, and after a hearing, the Michigan trial court, on November 22,1991, enjoined Elwell from
“consulting or discussing with or disclosing to any person any of General Motors Corporation’s trade secrets[,] confidential information or matters of attorney-client work product relating in any manner to the subject matter of any products liability litigation whether already filed or [to be] filed in the future which Ronald Elwell received, had knowledge of, or was entrusted with during his employments with General Motors Corporation.” Elwell v. General Motors Corp., No. 91-115946NZ (Wayne Cty.) (Order Granting in Part, Denying in Part Injunctive Relief, pp. 1-2), App. 9-10.
In August 1992, GM and Elwell entered into a settlement under which Elwell received an undisclosed sum of money. The parties also stipulated to the entry of a permanent injunction and jointly filed with the Michigan court both the stipulation and- the agreed-upon injunction. The proposed permanent injunction contained two proscriptions. The first substantially repeated the terms of the preliminary injunction; the second comprehensively enjoined Elwell from
“testifying, without the prior written consent of General Motors Corporation, either upon deposition or at trial, as an expert witness, or as a witness of any kind, and from consulting with attorneys or their agents in any litigation already filed, or to be filed in the future, involving General Motors Corporation as an owner, seller, manufacturer and/or designer of the produet(s) in issue.” Order Dismissing Plaintiff’s Complaint and Granting Permanent Injunction (Wayne Cty., Aug. 26, 1992), p. 2, App. 30.
To this encompassing bar, the consent injunction made an exception: “[This provision] shall not operate to interfere with the jurisdiction of the Court in ... Georgia [where the litigation involving the fuel tank was still pending].” Ibid. (emphasis added). No other noninterference provision appears in the stipulated decree. On August 26,1992, with no further hearing, the Michigan court entered the injunction precisely as tendered by the parties.
Although the stipulated injunction contained an exception only for the Georgia action then pending, Elwell and GM included in their separate settlement agreement a more general limitation. If a court or other tribunal ordered Elwell to testify, his testimony would “in no way” support a GM action for violation of the injunction or the settlement agreement:
“ ‘It is agreed that [Elwell’s] appearance and testimony, if any, at hearings on Motions to quash subpoena or at deposition or trial or other official proceeding, if the Court or other tribunal so orders, will in no way form a basis for an action in violation of the Permanent Injunction or this Agreement.’ ” Settlement Agreement, p. 10, as quoted in 86 F. 3d 811, 820, n. 11 (CA8 1996).
In the six years since the Elwell-GM settlement, Elwell has testified against GM both in Georgia (pursuant to the exception contained in the injunction) and in several other jurisdictions in which Elwell has been subpoenaed to testify.
B
The Suit Between the Bakers and General Motors
Having described the Elwell-GM employment termination litigation, we next summarize the wrongfiil-death complaint underlying this ease. The decedent, Beverly Garner, was a front-seat passenger in a 1985 Chevrolet S-10 Blazer involved in a February 1990 Missouri highway accident. The Blazer’s engine caught fire, and both driver and passenger died. In September 1991, Garner’s sons, Kenneth and Steven Baker, commenced a wrongful-death product liability action against GM in a Missouri state court. The Bakers alleged that a faulty fuel pump in the 1985 Blazer caused the engine fire that killed their mother. GM removed the case to federal court on the basis of the parties’ diverse citizenship. On the merits, GM asserted that the fuel pump was neither faulty nor the cause of the fire, and that collision impact injuries alone caused Garner’s death.
The Bakers sought both to depose Elwell and to call him as a witness at trial. GM objected to Elwell’s appearance as a deponent or trial witness on the ground that the Michigan injunction barred his testimony. In response, the Bakers urged that the Michigan injunction did not override a Missouri subpoena for Elwell’s testimony. The Bakers further noted that, under the Elwell-GM settlement agreement, El-well could testify if a court so ordered, and such testimony would not be actionable as a violation of the Michigan injunction.
After in camera review of the Michigan injunction and the settlement agreement, the Federal District Court in Missouri allowed the Bakers to depose Elwell and to call him as a witness at trial. Responding to GM’s objection, the District Court stated altérnative grounds for its ruling: (1) Michigan’s injunction need not be enforced because blocking Elwell’s testimony would violate Missouri’s “public policy,” which shielded from disclosure only privileged or otherwise confidential information; (2) just as the injunction could be modified in Michigan, so a court elsewhere could modify the decree.
At trial, Elwell testified in support of the Bakers’ claim that the alleged defect in the fuel pump system contributed to the postcollision fire. In addition, he identified and described a 1973 internal GM memorandum bearing on the risk of fuel-fed engine fires. Following trial, the jury awarded the Bakers $11.3 million in damages, and the District Court entered judgment on the jury’s verdict.
The United States Court reversed the District Court’s judgment, ruling, inter alia, that Elwell’s testimony should not have been admitted. 86 F. 3d 811 (1996). Assuming, arguendo, the existence of a public policy exception to the full faith and credit command, the Court of Appeals concluded that the District Court erroneously relied on Missouri’s policy favoring disclosure of relevant, nonprivileged information, see id., at 818-819, for Missouri has an “equally strong public policy in favor of full faith and credit,” id., at 819.
The Eighth Circuit also determined that the evidence was insufficient to show that the Michigan court would modify the injunction barring Elwell’s testimony. See id., at 819-820. The Court of Appeals observed that the Michigan court “has been asked on several occasions to modify the injunction, [but] has yet to do so,” and noted that, if the Michigan court did not intend to block Elwell’s testimony in cases like the Bakers’, “the injunction would . . . have been unnecessary.” Id., at 820.
We granted certiorari to decide whether the full faith and credit requirement stops the Bakers, who were not parties to the Michigan proceeding, from obtaining Elwell’s testimony in their Missouri wrongful-death action. 520 U. S. 1142 (1997).
H
A
The Constitution’s Full Faith and Credit Clause provides:
“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.” Art. IV, § 1.
Pursuant to that Clause, Congress has prescribed:
“Such Acts, records and judicial proceedings or copies thereof, so authenticated, shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” 28 U. S. C. § 1738.
The animating purpose of the full faith and credit command, as this Court explained in Milwaukee County v. M. E. White Co., 296 U. S. 268 (1935),
"was to alter the status of the several states as independent foreign sovereignties, each free to ignore obligations created under the laws or by the judicial proceedings of the others, and to make them integral parts of a single nation throughout which a remedy upon a just obligation might be demanded as of right, irrespective of the state of its origin.” Id., at 277.
See also Estin v, Estin, 334 U. S. 541, 546 (1948) (the Full Faith and Credit Clause "substituted a command for the earlier principles of comity and thus basically altered the status of the States as independent sovereigns”).
Our precedent differentiates the credit owed to laws (legislative measures and common law) and to judgments. “In numerous eases this Court has held that credit must be given to the judgment of another state although the forum would not be required to entertain the suit on which the judgment was founded.” Milwaukee County, 296 U. S., at 277. The Full Faith and Credit Clause does not compel “a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 501 (1939); see Phillips Petroleum Co. v. Shutts, 472 U. S. 797, 818-819 (1985). Regarding judgments, however, the full faith and credit obligation is exacting. A final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land. For claim and issue preclusion (res judicata) purposes, in other words, the judgment of the rendering State gains nationwide force. See, e. g., Matsushita Elec. Industrial Co. v. Epstein, 516 U. S. 367, 373 (1996); Kremer v. Chemical Constr. Corp., 456 U. S. 461, 485 (1982); see also Reese & Johnson, The Scope of Full Faith and Credit to Judgments, 49 Colum. L. Rev. 153 (1949).
A court may be guided by the forum State’s “public policy” in determining the law applicable to a controversy. See Nevada v. Hall, 440 U. S. 410, 421-424 (1979). But our decisions support no roving “public policy exception” to the full faith and credit due judgments. See Estin, 334 U. S., at 546 (Full Faith and Credit Clause “ordered submission... even to hostile policies reflected in the judgment of another State, because the practical operation of the federal system, which the Constitution designed, demanded it.”); Fauntleroy v. Lum, 210 U. S. 230, 237 (1908) (judgment of Missouri court entitled to fall faith and credit in Mississippi even if Missouri judgment rested on a misapprehension of Mississippi law). In assuming the existence of a ubiquitous "public policy exception” permitting one State to resist recognition of another State’s judgment, the District Court in the Bakers’ wrongful-death action, see supra, at 230, misread our precedent. “The full faith and credit clause is one of the provisions incorporated into the Constitution by its framers for the purpose of transforming an aggregation of independent, sovereign States into a nation.” Sherrer v. Sherrer, 334 U. S. 343, 355 (1948). We are “aware of [no] considerations of local policy or law which could rightly be deemed to impair the force and effect which the full faith and credit clause and the Act of Congress require to be given to [a money] judgment outside the state of its rendition.” Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 438 (1943).
The Court has never placed equity faith and credit domain. Equity decrees for the payment of money have long been considered equivalent to judgments at law entitled to nationwide recognition. See, e. g., Barber v. Barber, 323 U. S. 77 (1944) (unconditional adjudication of petitioner’s right to recover a sum of money is entitled to full faith and credit); see also A. Ehrenzweig, Conflict of Laws § 51, p. 182 (rev. ed. 1962) (describing as “indefensible” the old doctrine that an equity decree, because it does not “merge” the claim into the judgment, does not qualify for recognition). We see no reason why the preclusive effects of an adjudication on parties and those “in privity” with them, i. e., claim preclusion and issue preclusion (res judicata and collateral estoppel), should differ depending solely upon the type of relief sought in a civil action. Cf. Barber, 323 U. S., at 87 (Jackson, J., concurring) (Pull Faith and Credit Clause and its implementing statute speak not of “judgments” but of “‘judicial proceedings’ without limitation”); Fed. Rule Civ. Proc. 2 (providing for “one form of action to be known as ‘civil action,’ ” in lieu of discretely labeled actions at law and suits in equity).
Full faith and credit, however, does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments. Enforcement measures do not travel with the sister state judgment as preclusive effects do; such measures remain subject to the evenhanded control of forum law. See McElmoyle ex rel. Bailey v. Cohen, 13 Pet. 312, 325 (1839) (judgment may be enforced only as “laws [of enforcing forum] may permit”); see also Restatement (Second) of Conflict of Laws § 99 (1969) (“The local law of the forum determines the methods by which a judgment of another state is enforced.”).
Orders commanding action or inaction have been denied enforcement in a sister State when they purported to accomplish an official act within the exclusive province of that other State or interfered with litigation over which the ordering State had no authority. Thus, a sister State’s decree concerning land ownership in another State has been held ineffective to transfer title, see Fall v. Eastin, 215 U. S. 1 (1909), although such a decree may indeed preelusively adjudicate the rights and obligations running between the parties to the foreign litigation, see, e. g., Robertson v. Howard, 229 U. S. 254, 261 (1913) (“[I]t may not be doubted that a court of equity in one State in a proper case could compel a defendant before it to convey property situated in another State.”)- And antisuit injunctions regarding litigation elsewhere, even if compatible with due process as a direction constraining parties to the decree, see Cole v. Cunningham, 133 U. S. 107 (1890), in fact have not controlled the second court’s actions regarding litigation in that court. See, e. g., James v. Grand Trunk Western R. Co., 14 Ill. 2d 356, 372, 152 N. E. 2d 858, 867 (1958); see also E. Scoles & P. Hay, Conflict of Laws § 24.21, p. 981 (2d ed. 1992) (observing that antisuit injunction “does not address, and thus has no preclu-sive effect on, the merits of the litigation [in the second forum]”). Sanctions for violations of an injunction, in any event, are generally administered by the court that issued the injunction. See, e. g., Stiller v. Hardman, 324 F. 2d 626, 628 (CA2 1963) (nonrendition forum enforces monetary relief portion of a judgment but leaves enforcement of injunctive portion to rendition forum).
B
With these background principles in view, we turn to the dimensions of the order GM relies upon to stop Elwell’s testimony. Specifically, we take up the question: What matters did the Michigan injunction legitimately conclude?
As earlier recounted, see supra, at 228-229, the parties before the Michigan County Court, Elwell and GM, submitted an agreed-upon injunction, which the presiding judge signed. While no issue was joined, expressly litigated, and determined in the Michigan proceeding, that order is claim preclusive between Elwell and GM. Elwell’s claim for wrongful discharge and his related contract and tort claims have “merged in the judgment,” and he cannot sue again to recover more. See Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326, n. 5 (1979) (“Under the doctrine of res judicata, a judgment on the merits in a prior suit bars a second suit involving the same parties or their privies based on the same cause of action.”); see also Restatement (Second) of Judgments §17 (1980). Similarly, GM cannot sue Elwell elsewhere on the counterclaim GM asserted in Michigan. See id., § 23, Comment a, p. 194 (“A defendant who interposes a counterclaim is, in substance, a plaintiff, as far as the counterclaim is concerned, and the plaintiff is, in substance, a defendant.”).
Michigan’s judgment, however, cannot reach beyond the Elwell-GM controversy to control proceedings against GM brought in other States, by other parties, asserting claims the merits of which Michigan has not considered. Michigan has no power over those parties, and no basis for commanding them to become intervenors in the Elwell-GM dispute. See Martin v. Wilks, 490 U. S. 755, 761-763 (1989). Most essentially, Michigan lacks authority to control courts elsewhere by precluding them, in actions brought by strangers to the Michigan litigation, from determining for themselves what witnesses are competent to testify and what evidence is relevant and admissible in their search for the truth. See. Restatement (Second) of Conflict of Laws §§ 137-139 (1969 and rev. 1988) (forum’s own law governs witness competence and grounds for excluding evidence); cf. Société Nationale Industrielle Aérospatiale v. United States Dist. Court for Southern Dist. of Iowa, 482 U. S. 522, 544, n. 29 (1987) (foreign “blocking statute” barring disclosure of certain information “do[es] not deprive an American court of the power to order a party subject to its jurisdiction to produce [the information]”); United States v. First Nat. City Bank, 396 F. 2d 897 (CA2 1968) (New York bank may not refuse to produce records of its German branch, even though doing so might subject the bank to civil liability under German law).
As the District Court recognized, Michigan’s decree could operate against Elwell to preclude him from volunteering his testimony. See App. to Pet. for Cert. 26a-27a. But a Michigan court cannot, by entering the injunction to which Elwell and GM stipulated, dictate to a court in another jurisdiction that evidence relevant in the Bakers’ ease — a controversy to which Michigan is foreign — shall be inadmissible. This conclusion creates no general exception to the full faith and credit command, and surely does not permit a State to refuse to honor a sister state judgment based on the forum’s choice of law or policy preferences. Rather, we simply recognize that, just as the mechanisms for enforcing a judgment do not travel with the judgment itself for purposes of full faith and credit, see McElmoyle ex rel. Bailey v. Cohen, 13 Pet. 312 (1839); see also Restatement (Second) of Conflict of Laws § 99, and just as one State’s judgment cannot automatically transfer title to land in another State, see Fall v. Eastin, 215 U. S. 1 (1909), similarly the Michigan decree cannot determine evidentiary issues in a lawsuit brought by parties who were not subject to the jurisdiction of the Michigan court. Cf. United States v. Nixon, 418 U. S. 683, 710 (1974) (“[EJxceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.”).
The language of the consent decree is informative in this regard. Excluding the then-pending Georgia action from the ban on testimony by Elwell without GM’s permission, the decree provides that it “shall not operate to interfere with the jurisdiction of the Court in . . . Georgia.” Elwell v. General Motors Corp., No. 91-115946NZ (Wayne Cty.) (Order Dismissing Plaintiff’s Complaint and Granting Permanent Injunction, p. 2), App. 30 (emphasis added). But if the Michigan order, extended to the Georgia case, would have “interfer[ed] with the jurisdiction” of the Georgia court, Michigan’s ban would, in the same way, “interfere with the jurisdiction” of courts in other States in cases similar to the one pending in Georgia.
In line with its recognition of the interference potential of the consent decree, GM provided in the settlement agreement that, if another court ordered Elwell to testify, his testimony would “in no way” render him vulnerable to suit in Michigan for violation of the injunction or agreement. See 86 F. 3d, at 815, 820, n. 11. The Eighth Circuit regarded this settlement agreement provision as merely a concession by GM that “some courts might fail to extend full faith and credit to the [Michigan] injunction.” Ibid. As we have explained, however, Michigan’s power does not reach into a Missouri courtroom to displace the forum’s own determination whether to admit or exclude evidence relevant in the Bakers’ wrongful-death ease before it. In that light, we see no altruism in GM’s agreement not to institute contempt or breach-of-eontract proceedings against Elwell in Michigan for giving subpoenaed testimony elsewhere. Rather, we find it telling that GM ruled out resort to the court that entered the injunction, for injunctions are ordinarily enforced by the enjoining court, not by a surrogate tribunal. See supra, at 236.
In sum, Michigan has no authority to shield a witness from another jurisdiction’s subpoena power in a case involving persons and causes outside Michigan’s governance. Recognition, under full faith and credit, is owed to dispositions Michigan has authority to order. But a Michigan decree cannot command obedience elsewhere on a matter the Michigan court lacks authority to resolve. See Thomas v. Washington Gas Light Co., 448 U. S. 261, 282-283 (1980) (plurality opinion) (“Full faith and credit must be given to [a] determination that [a State’s tribunal] had the authority to make; but by a parity of reasoning, full faith and credit need not be given to determinations that it had no power to make.”).
For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.
It is so ordered.
A judge new to the case, not the judge who conducted a hearing at the preliminary injunction stage, presided at the settlement stage and entered the permanent injunction.
In conflict with the Eighth Circuit, many other lower courts have permitted Elwell to testify as to nonprivileged and non-trade-secret matters. See Addendum to Brief for Petitioners (citing cases).
Predating the Constitution, the Articles of Confederation contained a provision of the same order: “Full faith and credit shall be given in each of these States to the records, acts and judicial proceedings of the courts and magistrates of every other State.” Articles of Confederation, Art. IV. For a concise history of full faith and credit, see Jackson, Full Faith and Credit — The Lawyer’s Clause of the Constitution, 45 Colum. L. Rev. 1 (1945).
The first Congress enacted the original full faith and credit statute in May 1790. See Act of May 26, 1790, ch. 11, 1 Stat. 122 (codified as amended at 28 U. S. C. § 1738) (“And the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”). Although the text of the statute has been revised since then, the command for full faith and credit to judgments has remained constant.
“Res judicata” is the term traditionally used to describe two discrete effects: (1) what we now call claim preclusion (a valid final adjudication of a claim precludes a second action on that claim or any part of it), see Restatement (Second) of Judgments §§ 17-19 (1982); and (2) issue preclusion, long called “collateral estoppel” (an issue of fact or law, actually litigated and resolved by a valid final judgment, binds the parties in a subsequent action, whether on the same or a different claim), see id., §27. On use of the plain English terms claim and issue preclusion in lieu of res judicata and collateral estoppel, see Migra v. Warren City School Dist. Bd. of Ed., 465 U. S. 75, 77, n. 1 (1984).
See also Paulsen & Sovem, “Public Policy” in the Conflict of Laws, 56 Colum. L. Rev. 969, 980-981 (1956) (noting traditional but dubious use of the term “public policy” to obscure “an assertion of the forum’s right to have its [own] law applied to the [controversy] because of the forum’s relationship to it”).
See supra, at 233, n, 5; 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4467, p. 635 (1981) (Although “[a] second state need not directly enforce an injunction entered by another state . . . [it] may often be required to honor the issue preclusion effects of the first judgment.”).
Congress has provided for the interdistrict registration of federal-court judgments for the recovery of money or properly. 28 U. S. C. § 1963 (upon registration, the judgment “shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner”). A similar interstate registration procedure is effective in most States, as a result of widespread adoption of the Revised Uniform Enforcement of Foreign Judgments Act, 13 U. L. A. 149 (1986). See id., at 13 (Supp. 1997) (Table) (listing adoptions in 44 States and the District of Columbia).
This Court has held it impermissible for a state court to enjoin a party from proceeding in a federal court, see Donovan v. Dallas, 377 U. S. 408 (1964), but has not yet ruled on the credit due to a state-court injunction barring a party from maintaining litigation in another State, see Ginsburg, Judgments in Search of Full Faith and Credit: The Last-in-Time Rule for Conflicting Judgments, 82 Harv. L. Rev. 798, 823 (1969); see also Reese, Full Faith and Credit to Foreign Equity Decrees, 42 Iowa L. Rev. 183, 198 (1957) (urging that, although this Court “has not yet had occasion to determine [the issue],.... full faith and credit does not require dismissal of an action whose prosecution has been enjoined,” for to hold otherwise “would mean in effect that the courts of one state can control what goes on in the courts of another”). State courts that have dealt with the question have, in the main, regarded antisuit injunctions as outside the full faith and credit ambit. See Ginsburg, 82 Harv. L. Rev., at 823
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_appnatpr
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
HERZOG & STRAUS, a partnership organized under the laws of the State of New York, Plaintiff-Appellant, v. GRT CORPORATION, Defendant-Appellee.
No. 337, Docket 76-7357.
United States Court of Appeals, Second Circuit.
Argued Jan. 5, 1977.
Decided April 14, 1977.
Jerold Oshinsky, New York City (Arthur S. Olick, Leon B. Kellner, Scott B. Lunin, Anderson Russell Kill & Olick, P. C., New York City, of counsel), for plain tiff-appellant.
L. Peter Parcher, New York City (Peter A. Herbert, Leonard Ware, Palo Alto Cal., Robert Russell, Arrow Silverman & Parch-er, P. C., New York City, of counsel), for defendant-appellee.
Before MOORE, OAKES and TIMBERS, Circuit Judges.
OAKES, Circuit Judge:
This appeal is from a sua sponte grant of summary judgment against appellant by the United States District Court for the Southern District of New York, Whitman Knapp, Judge. The grant immediately followed appellant’s unsuccessful attempt, at a hearing, to obtain a preliminary injunction. So swiftly did the door of justice revolve in this instance that appellant filed suit in state court on a Friday (June 18,1976), was removed to federal court on the following Thursday (June 24), and found itself out on the street, with summary judgment granted to its opponent on the court’s own motion, the very next Monday (June 28). We reverse the judgment.
Appellant is a New York partnership of certified public accountants. Its state court complaint alleged four causes of action, premised factually on the claim that appellee, a California music tape manufacturer, refused to permit appellant access to appellee’s books and records for audits on behalf of three of appellant’s clients. Each of the clients was a song publisher who either contracted with appellee to manufacturer and distribute prerecorded magnetic tapes of master recordings, the rights to which were owned by the publisher, or issued appellee licenses entitling it to sell such tapes, and each contract entitled the publisher to conduct an independent audit of appellee’s books and records for purposes of verifying royalty payments thereunder. One of the contracts named appellant as the auditing firm, and the other two clients requested appellant to make their contractually authorized audits. Appellee, however, notified each of the clients, as well as appellant, that it would not permit appellant to do so.
Each of the first three “causes of action” in appellant’s state court complaint referred to one of the three clients; the complaint as to each spoke of “malicious interference by defendant . . . done with the sole purpose of causing injury to plaintiff [that] cannot . . . inure to the benefit of or create a profit for GRT. . . The fourth state court “cause of action” referred to appellee’s “course of conduct to prevent plaintiff from performing work for its clients” and to appellee’s “engaging in acts and practices which have damaged plaintiff in its business.”
At the time of the scheduled hearing on appellant’s request for a preliminary injunction, the court below immediately commenced to “explore” the issue whether appellant had “a cause of action at all.” Before appellant’s counsel was able to address himself to this question, the judge ventured the view that the affidavit supporting the request for a preliminary injunction indicated that appellee was denying appellant access “to protect itself from [appellant’s] expertise,” because appellant had found “derelictions” in other audits. The judge went on to say that, if this were true, appellant had no cause of action because appellee was serving its own self-interest. Despite arguments by appellant’s counsel to the effect that the complaint stated a cause of action for interference with advantageous business relations, the court was of the view that, because appellant made an “admission” that appellee “did this in order to keep your client from proving him a crook,” there could be no “cause of action” under the New York law of “prima facie tort.” See Advance Music Corp. v. American Tobacco Co., 296 N.Y. 79, 83-84, 70 N.E.2d 401, 402-03 (1946); Benton v. Kennedy-Van Suan Mfg. & Eng. Corp., 2 A.D.2d 27, 28-29, 152 N.Y.S.2d 955, 957-58 (1st Dep’t 1956).
Whatever the merits of Judge Knapp’s holding as to the New York law on prima facie tort, we think appellant should have been given an opportunity to develop its alternative theory based on interference with business or contractual relations. The rush to judgment here was so rapid that appellant did not have a chance to develop the New York case law or brief the question whether New York law was even applicable, see note 2 supra; to amend its pleadings if necessary; or to develop the facts sufficiently to enable it to sustain its case on any legal theory other than “prima facie tort.” Because such an opportunity is vital if the court is to make an informed decision whether to grant summary judgment, Fed.R.Civ.P. 56(c) requires that a motion for summary judgment be served at least ten days before a hearing is held. While this rule applies expressly only to summary judgment motions by a party, “[w]e think the spirit of the rule requires the same notice and hearing where the court contemplates summary dismissal on its own motion.” Bowdidge v. Lehman, 252 F.2d 366, 368-69 (6th Cir. 1958).
Appellee argues that one who seeks a preliminary injunction, as appellant did here, must be ready to show he is more likely than not to prevail on the merits and therefore must be fully armed with his legal theory and supporting factual premises. The Fifth Circuit, however, has rejected this proposition, and we agree with its reasoning:
[Ljoss of a motion for preliminary injunction means only temporary lethality. Final judgment is not then a possibility. When such a limited adjudication is the order of the day, we cannot say with assurance that the parties will present everything they have. The very intimation of mortality when summary judgment is at issue assures us that the motion will be rebutted with every factual and legal argument available.
Georgia, Southern & Florida Railway v. Atlantic Coast Line Railroad, 373 F.2d 493, 498 (5th Cir.), cert. denied, 389 U.S. 851, 88 S.Ct. 69, 19 L.Ed.2d 120 (1967). Cf. Capital City Gas Co. v. Phillips Petroleum Co., 373 F.2d 128, 131 (2d Cir. 1967) (error to grant permanent injunction following hearing on motion for preliminary injunction, because parties not aware prior to hearing that final relief was to be granted).
The judgment is reversed, without prejudice to the right of either party to move for summary judgment at a later, more appropriate stage of the litigation.
Reversed and remanded.
. The judgment commences, “A motion having been made by defendant for summary judgment dismissing the complaint . . . but there is no indication appellee made such a motion. Appellee’s counsel did not speak at all during the hearing, according to the transcript, until after the court said to appellant’s counsel: “I just heard your opponent make a motion for summary judgment, and that motion is granted.”
. Perhaps because the suit began in state court, the parties and the court below spoke of legal “causes of action.” This phraseology, which harks back to the days of David Dudley Field, has a tendency to cause “unfortunate rigidity and confusion.” 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, at ,115 (1969). In federal court, a plaintiff need only state facts showing he is entitled to relief. Fed. R.Civ.P. 8(a)(2). A case removed to federal court is thenceforth governed by federal procedural rules. Granny Goose Foods, Inc. v. Brotherhood of Teamsters Local 70, 415 U.S. 423, 437, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974).
. At this early stage of the proceedings it is by no means certain that New York law governs. Appellant’s clients, like appellee, are California-based, and the contracts between the clients and appellee, as well as those between appellant and the clients, may be California contracts.
. Unlike a prima facie tort claim, the contractual interference claim under New York law does not require that the defendant’s motivation be to injure the plaintiff; it requires only an intent to interfere with the performance of a contract. See Hornstein v. Podwitz, 254 N.Y. 443, 447, 173 N.E. 674, 675 (1930); Wegman v. Dairylea Cooperative, Inc., 50 A.D.2d 108, 113-114, 376 N.Y.S.2d 728, 735-36 (4th Dep’t 1975), motion for leave to appeal dismissed, 38 N.Y.2d 918, 382 N.Y.S.2d 979, 346 N.E.2d 817 (1976); Benton v. Kennedy-Van Suan Mfg. & Eng. Corp., 2 A.D.2d 27, 29, 152 N.Y.S.2d 955, 958 (1st Dep’t 1956); Avon Products, Inc. v. Berson, 206 Misc. 900, 903, 135 N.Y.S.2d 867, 871 (Sup.Ct.1954).
. The extended period for service of the motion is especially important in the Rule 56 context because it provides an opportunity for the opposing party to prepare himself as well as he can with regard to whether summary judgment should be entered. In theory, the additional time ought to produce a well-prepared and complete presentation on the motion to facilitate its disposition by the court. In addition, since opposition to a summary judgment motion often is a difficult task, usually involving preparation of both legal and factual arguments as well as affidavits, and since the results of failure are drastic, it is felt that the additional time is needed to assure that the summary judgment process is fair.
10 C. Wright & A. Miller, supra, § 2719, at 451 (1973).
. The implication of the “special concurrence” of Judge Timbers, to the effect that the majority has some doubt as to Judge Knapp’s “conscientious determination to see that justice is done,” is entirely unwarranted.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
songer_const1
|
0
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited provision of the U.S. Constitution in the headnotes to this case. Answer "0" if no constitutional provisions are cited. If one or more are cited, code the article or amendment to the constitution which is mentioned in the greatest number of headnotes. In case of a tie, code the first mentioned provision of those that are tied. If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
N. C. LEE, Individually and for the Use and Benefit of himself and the children of Nellie Lee, deceased, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant. R. R. GRIGSBY, Jr., Administrator of the Estate of Ruby Carolyn Lee, deceased, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellant.
Nos. 14706, 14707.
United States Court of Appeals Sixth Circuit.
June 13, 1962.
A. B. Bowman and Harry N. Fortune, Johnson City, Tenn., Phillips & Hale, Rogersville, Tenn., Simmonds, Bowman & Herndon, Johnson City, Tenn., of counsel, for defendant-appellant.
H. E. Wilson, Kingsport, Tenn., Tom Rogan, Rogersville, Tenn., on brief; Wilson, Worley & Gamble, Kingsport, Tenn., of counsel, for plaintiffs-appellees.
Before MILLER, Chief Judge, and McALLISTER and O’SULLIVAN, Circuit Judges.
McALLISTER, Circuit Judge.
In these cases, brought to recover damages for the death of appellees’ decedents, resulting from the alleged negligence of appellant, jury verdicts were returned in favor of appellees, on which judgments were entered.
A review of the record discloses that the evidence presented a case for the jury on the question of appellant’s liability for negligence.
Appellant claims that the trial court erred in refusing to charge the jury, as requested by appellant, that “if contributory negligence appears during the plaintiffs’ evidence, then the burden of proof of contributory negligence remains on the plaintiffs.”
In Stewart v. Nashville, 96 Tenn. 50, 33 S.W. 613, 614 (1896) the court said that if, in proving the injury, and, in proving that defendant’s neglect is the proximate cause of it, “there is anything in the evidence from which concurring negligence on the plaintiff’s part may be inferred, then the burden would be on him to rebut or explain this. But, if the plaintiff can make out his case without such disclosure, and the defendant relies on contributory negligence, either to defeat or mitigate recovery, as to this defense, he becomes the actor, and his duty is to make it good by evidence, occupying with regard to it, the same attitude as does the party who relies on a release or payment when sued on a contract. * * *
“When to these considerations is added the force of the presumption, which is in accord with common experience * * *, that any man of sound mind will ordinarily avoid personal injuries, it seems to us that the rule which imposes upon the plaintiff the burden of showing care when there is nothing to suggest the want of it, in such a case as this, is unsound, and not in harmony with the general rules of evidence. And this is the view taken by a great number of courts. In these courts the rule obtains that the plaintiff has discharged his full duty when he has shown his injury and that the negligence of the defendants was its proximate cause. It then devolves upon the defendants to show contributory negligence as a matter of defense, the presumption being in favor of the plaintiff, that he was, at the time of the accident, in the exercise of due care, and that the injury was caused wholly by the defendant’s negligent conduct.” The court went on to say that the proper rule was that where the plaintiff’s contributory fault does not appear upon his own testimony, the burden of proof to establish it rests upon defendant; and that the plaintiff is not bound to prove affirmatively that he was himself free from negligence. However, the court did say that where the duty of showing contributory negligence rested upon defendant, plaintiff must make out his case in full; and, where the circumstances attending the injury were such as to raise a presumption against him in respect to the exercise of due care, the law requires him to establish affirmatively his freedom from contributory negligence.
There are certain expressions in the foregoing opinion that are susceptible of the construction placed upon them by appellant, notably, the statement that where contributory negligence may be inferred from the evidence adduced by plaintiff, the burden is on the plaintiff to rebut or explain this.
However, in Memphis Street Railway Company v. Aycock, 11 Tenn.App. 260-268 (cert. denied by Tennessee Supreme Court, 1930) the Tennessee Court of Appeals held that if plaintiff’s proof made out a case of contributory negligence, defendant might be relieved of the necessity of introducing any proof in order to carry the burden, but that nevertheless the burden of proof was upon the defendant. The court said:
“[The] whole contention of defendant * * * is set out as follows :
“ ‘The error herein committed is that the court did not properly charge the jury with reference to the burden of proof on the issue of contributory negligence, where the plaintiff’s own proof shows that he is guilty of such negligence. The court had charged the jury that the burden was on the defendant, and totally failed in any place to charge the jury that the burden was not on the defendant, if the plaintiff’s own proof showed that he was guilty of contributory negligence which proximately caused the accident.’ * * *
“This burden of proof may be made out from plaintiff’s own negligence or otherwise. If plaintiff’s proof makes out a case of contributory negligence, the defendant may be relieved of the necessity of introducing any proof in order to carry the burden, but this does not at all change the rule that the burden of proof is upon the defendant.”
From the foregoing, it appears that, in Tennessee, the burden of proving contributory negligence is upon the defendant, and that this burden does not shift.
Whatever may be said of the force of appellant’s argument as to the legal proposition it advances, the requested instruction was inapplicable, since it is our conclusion, from a review of the record, that there was nothing in plaintiffs’ proof, from which contributory negligence of the decedents might be inferred, and nothing in the evidence to raise a presumption against decedents’ exercise of due care. The trial court was therefore not in error in failing to give the instruction requested by appellant.
Appellant submits that the trial court erred in refusing to strike a paragraph in the complaint which alleged that appellant’s engine was not equipped as required by law in that it failed to furnish the fireman an emergency brake that was accessible to him, and failed to instruct him prior to the accident, on the use of such brake.
In its instructions to the jury, the court mentioned this allegation in the complaint and appellant’s denial that it was guilty of any negligence therein. From the appendices, constituting the record before us, there seems to have been little importance attached to this particular claim of negligence. The trial court merely mentioned the claim and appellant’s denial. At the conclusion of the instructions to the jury, after objections were made by appellant’s counsel to certain of them, the trial court asked counsel for all parties if there were any other objections to the charge, or any special requests for further instructions. None were mentioned or suggested with regard to the matter of the equipment of the engine, with which we are here concerned, and counsel for appellant stated that there were no objections, other than those previously addressed to the court.
We are, therefore, of the view that appellant’s claim that it was reversible error on the part of the trial court to refuse to strike the specified portion of the complaint is without merit.
In accordance with the foregoing, the judgment of the district court is affirmed.
Question: What is the most frequently cited provision of the U.S. Constitution in the headnotes to this case? If it is one of the original articles of the constitution, code the number of the article preceeded by two zeros. If it is an amendment to the constitution, code the number of the amendment (zero filled to two places) preceeded by a "1". Examples: 001 = Article 1 of the original constitution, 101 = 1st Amendment, 114 = 14th Amendment.
Answer:
|
songer_genresp1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed respondent.
Agnes BERGEN, et al., Plaintiffs-Appellees, v. F/V ST. PATRICK, et al., Defendants-Appellants.
No. 86-3900.
United States Court of Appeals, Ninth Circuit.
Feb. 2, 1989.
Before GOODWIN, SCHROEDER and FARRIS, Circuit Judges.
ORDER
The appellee’s petition for rehearing of this case asked in part that we reconsider our reversal of the award of damages for parental loss of services. We stated in our opinion filed May 7, 1987 that there was no evidence in the record to support that award for any of the appellees other than the Stigalls. Bergen v. F/V/St. Patrick, 816 F.2d 1345, 1350 (9th Cir.1987). We said:
While there is evidence from which the court could have made findings regarding parental dependency of the Stigalls, no evidence was introduced from which the trial court could find that any of the other parents were dependent on their deceased children or expected to receive significant services from them. We must therefore hold that the other findings of dependency and services are clearly erroneous.
816 F.2d 1345, 1350 (9th Cir.1987). On rehearing, the appellees maintained, however, that certain deposition evidence had been considered by the district court and provided support for the findings of dependency and services with respect to the parents other than the Stigalls. Appellant disputed appellees’ contention that the district court considered such depositions.
The record on appeal indicated that the district court may have considered deposition evidence in support of the claims, but was not clear on the point. We therefore granted a limited remand of the case in order to permit the district court to amplify its findings with regard to dependency and services.
The district court has now done so, and on the basis of the district court’s supplemental findings and the supplemental mem-oranda submitted by the parties, we conclude that the district court did consider the deposition testimony as evidence supporting its findings. The appellants’ contentions in this appeal that the district court did not consider any such evidence are therefore incorrect.
Accordingly, we grant the appellee’s petition for rehearing in part and modify our original disposition. The award of damages for parental loss of support and services entered on behalf of each appellee is hereby affirmed.
The petition for rehearing is in all other respects denied.
The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R.App.P. 35.
Except as provided in this order, the petition for rehearing is denied and the suggestion for rehearing en banc is rejected.
Question: What is the nature of the first listed respondent?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
sc_lcdisposition
|
B
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the treatment the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed, that is, whether the court below the Supreme Court (typically a federal court of appeals or a state supreme court) affirmed, reversed, remanded, denied or dismissed the decision of the court it reviewed (typically a trial court). Adhere to the language used in the "holding" in the summary of the case on the title page or prior to Part I of the Court's opinion. Exceptions to the literal language are the following: where the Court overrules the lower court, treat this a petition or motion granted; where the court whose decision the Supreme Court is reviewing refuses to enforce or enjoins the decision of the court, tribunal, or agency which it reviewed, treat this as reversed; where the court whose decision the Supreme Court is reviewing enforces the decision of the court, tribunal, or agency which it reviewed, treat this as affirmed; where the court whose decision the Supreme Court is reviewing sets aside the decision of the court, tribunal, or agency which it reviewed, treat this as vacated; if the decision is set aside and remanded, treat it as vacated and remanded.
ROBERTS v. SEA-LAND SERVICES, INC., et al.
No. 10-1399.
Argued January 11, 2012
Decided March 20, 2012
Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Thomas, Breyer, Alito, and Kagan, JJ., joined. Ginsburg, J., filed an opinion concurring in part and dissenting in part, post, p. 113.
Joshua T. Gülelan II argued the cause for petitioner. With him on the briefs were Michael F. Pozzi and Charles Robinowitz.
Joseph R. Palmore argued the cause for the federal respondent. With him on the brief were Solicitor General Verrilli, Deputy Solicitor General Kneedler, and M. Patricia Smith. Peter D. Keisler argued the cause for respondent Sea-Land Services, Inc. With him on the brief were Carter G. Phillips, Eric D. McArthur, and Frank B. Hugg.
Jeffrey R. White filed a brief for the American Association for Justice as amicus curiae urging reversal.
Justice Sotomayor
delivered the opinion of the Court.
The Longshore and Harbor Workers’ Compensation Act (LHWCA or Act), ch. 509, 44 Stat. 1424, as amended, 33 U. S. C. § 901 et seq., caps benefits for most types of disability at twice the national average weekly wage for the fiscal year in which an injured employee is “newly awarded compensation.” § 906(c). We hold that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf.
I
A
The LHWCA “is a comprehensive scheme to provide compensation ‘in respect of disability or death of an employee ... if the disability or death results from an injury occurring upon the navigable waters of the United States.’ ” Metropolitan Stevedore Co. v. Rambo, 515 U. S. 291, 294 (1995) (quoting § 903(a)); An employee’s compensation depends on the severity of his disability and his preinjury pay. A totally disabled employee, for example, is entitled to two-thirds of his preinjury average weekly wage as long as he remains disabled. • §§ 908(a)-(b), 910.
Section 906, however, sets a cap on compensation. Disability benefits, “shall not exceed” twice “the applicable national average weekly wage.” § 906(b)(1). The national average weekly wage — “the national average weekly earnings of production or nonsupervisory workers on private non-agricultural payrolls,” §902(19) — is recalculated by the Secretary of Labor each fiscal year. § 906(b)(3). For most types of disability, the “applicable” national average weekly wage is the figure for the fiscal year in which a beneficiary is “newly awarded compensation,” and the cap remains constant as long as benefits continue. § 906(c).
Consistent with the central bargain of workers’ compensation regimes — limited liability for employers; certain, prompt recovery for employees — the LHWCA requires that employers pay benefits voluntarily, without formal administrative proceedings. Once an employee provides notice of a disabling injury, his employer must pay compensation “periodically, promptly, and directly . . . without an award, except where liability to pay compensation is controverted.” § 914(a). In general, employers pay benefits without contesting liability. See Pallas Shipping Agency, Ltd. v. Duris, 461 U. S. 529, 532 (1983). In the mine run of cases, therefore, no compensation orders issue.
If an employer controverts, or if an employee contests his employer’s actions with respect to his benefits, the dispute advances to the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). See 20 CFR §§702.251-702.262 (2011). The OWCP district directors “are empowered to amicably and promptly resolve such problems by informal procedures.” §702.301. A district director’s informal disposition may result in a compensation order. § 702.315(a). In practice, however, “many pending claims are amicably settled through voluntary payments .without the necessity of a formal order.” Intercounty Constr. Corp. v. Walter, 422 U. S. 1, 4, n. 4 (1975). If informal resolution fails, the district director refers the dispute to an administrative law judge (ALJ). See 20 CFR §§702.316, 702.331-702.351. An ALJ’s decision after a hearing culminates in the entry of a compensation order. 33 U. S. C. §§ 919(c)-(e).
B
In fiscal year 2002, petitioner Dana Roberts slipped and fell on a patch of ice while employed at respondent Sea-Land Services’ marine terminal in Dutch Harbor, Alaska. Roberts injured his neck and shoulder and did not return to work. On receiving notice of his disability, Sea-Land (except for a 6-week period in 2003) voluntarily paid Roberts benefits absent a compensation order until fiscal year 2005. When Sea-Land discontinued voluntary payments, Roberts filed an LHWCA claim, and Sea-Land controverted. In fiscal year 2007, after a hearing, an ALJ awarded Roberts benefits at the statutory maximum rate of $966.08 per week. This was twice the national average weekly wage for fiscal year 2002, the fiscal year when Roberts became disabled.
Roberts moved for reconsideration, arguing that the “applicable” national average weekly wage was the figure for fiscal year 2007, the fiscal year when he was “newly awarded compensation” by the ALJ’s order. The latter figure would have entitled Roberts to $1,114.44 per week. The ALJ denied reconsideration, and the Department of Labor’s Benefits Review Board (or BRB) affirmed, concluding that “the pertinent maximum rate is determined by the date the disability commences.” App. to Pet. for Cert. 20. The Ninth Circuit affirmed in relevant part, holding that an employee “is ‘newly awarded compensation’ within the meaning of [§ 906(c)] when he first becomes entitled to compensation.” Roberts v. Director, OWCP, 625 P. 3d 1204, 1208 (2010) (per curiam). We granted certiorari, 564 U. S. 1066 (2011), to resolve a conflict among the Circuits with respect to the time when a beneficiary is “newly awarded compensation,” and now affirm.
II
Roberts contends that “awarded compensation” means “awarded compensation in a formal order.” Sea-Land, supported by the Director, OWCP, responds that “awarded compensation” means “statutorily entitled to compensation because of disability.” The text of § 906(c), standing alone, admits of either interpretation. But “our task is to fit, if possible, all parts into an harmonious whole.” FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389 (1959). Only the interpretation advanced by Sea-Land and the Director makes §906 a working part of the statutory scheme; supplies an administrable rule that results in equal treatment of similarly situated beneficiaries; and avoids gamesmanship in the claims process. In light of these contextual and structural considerations, we hold that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to benefits under the Act, no matter whether, or when, a compensation order issues on his behalf.
A
We first consider “whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case.” Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997). The LHWCA does not define “awarded,” but in construing the Act, as with any statute, “‘we look first to its language, giving the words used their ordinary meaning.’ ” Ingalls Shipbuilding, Inc. v. Director, Office of Workers’ Compensation Programs, 519 U. S. 248, 255 (1997) (quoting Moskal v. United States, 498 U. S. 103, 108 (1990)). At first blush, Roberts’ position is appealing. In ordinary usage, “award” most often means “give by judicial decree” or “assign after careful judgment.” Webster’s Third New International Dictionary 152 (2002); see also, e. g., Black’s Law Dictionary 157 (9th ed. 2009) (“grant by formal process or by judicial decree”).
But “award” can also mean “grant,” or “confer or bestow upon.” Webster’s Third New International Dictionary, at 152; see also ibid. (1971 ed.) (same). The LHWCA “grants” benefits to disabled employees, and so can be said to “award” compensation by force of its entitlement-creating provisions. Indeed, this Court has often said that statutes “award” entitlements. See, e. g., Astrue v. Ratliff, 560 U. S. 586, 591 (2010) (referring to “statutes that award attorney’s fees to a prevailing party”); Barber v. Thomas, 560 U. S. 474, 493 (2010) (appendix to majority opinion) (statute “awards” good-time credits to federal prisoners); New Energy Co. of Ind. v. Limbach, 486 U. S. 269, 271 (1988) (Ohio statute “awards a tax credit”); Pacific Employers Ins. Co. v. Industrial Accident Comm’n, 306 U. S. 493, 500 (1939) (California workers’ compensation statute “award[s] compensation for injuries to an employee”); see also, e. g., Connecticut v. Doehr, 501 U. S. 1, 28 (1991) (Rehnquist, C. J., concurring in part and concurring in judgment) (“Materialman’s and mechanic’s lien statutes award an interest in real property to workers”). Similarly, this Court has described an employee’s survivors as “having been ‘newly awarded’ death benefits” by virtue of the employee’s death, without any reference to a formal order. Director, Office of Workers’ Compensation Programs v. Rasmussen, 440 U. S. 29, 44, n. 16 (1979) (quoting § 906(c)’s predecessor provision, 33 U. S. C. § 906(d) (1976 ed.)).
In short, the text of § 906(c), in isolation, is indeterminate.
B
Statutory language, however, “cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). In the context of the LHWCA’s comprehensive, reticulated regime for worker benefits — in which § 906 plays a pivotal role — “awarded compensation” is much more sensibly interpreted to mean “statutorily entitled to compensation because of disability.”
1
Section 906 governs compensation in all LHWCA cases. As explained above, see supra, at 98, the LHWCA requires employers to pay benefits voluntarily, and in the vast majority of cases, that is just what occurs. Under Roberts’ interpretation of § 906(c), no employee receiving voluntary payments has been “awarded compensation,” so none is subject to an identifiable maximum rate of compensation. That' result is incompatible with the Act’s design. Section 906(b)(1) caps “[c]ompensation for disability or death (other than compensation for death required ... to be paid in a lump sum)” at twice “the applicable national average weekly wage, as determined by the Secretary under paragraph (3).” Section 906(b)(3), in turn, directs the Secretary to “determine” the national average weekly wage before each fiscal year begins on October 1 and provides that “[s]uch determination shall be the applicable national average weekly wage” for the coming fiscal year. And § 906(c), in its turn, provides that “[d]eterminations under subsection (b)(3) . . . with respect to” a fiscal year “shall apply to ... those newly awarded compensation during such” fiscal year. Through a series of cross-references, the three provisions work together to cap disability benefits.
By its terms, and subject to one express exception, § 906(b)(1) specifies that the cap applies globally, to all disability claims. But all three provisions interlock, so the cap functions as Congress intended only if § 906(c) also applies globally, to all such cases. See, e. g., FDA v. Brown & Williamson Tobacco Corp., 529 U. S. 120, 133 (2000) (“A court must... interpret the statute ‘as a symmetrical and coherent regulatory scheme’” (quoting Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995))). If Roberts’ interpretation were correct, § 906(c) would have no application at all in the many cases in which no formal orders issue, because employers make voluntary payments or the parties reach informal settlements. We will not construe § 906(c) in a manner that renders it “entirely superfluous in all but the most unusual circumstances.” TRW Inc. v. Andrews, 534 U. S. 19, 29 (2001).
Recognizing this deficiency in his reading of § 906(c), Roberts proposes that orders issue in every case, so that employers can lock in the caps in effect at the time their employees become disabled. This is a solution in search of a problem. Under settled LHWCA practice, orders are rare. Roberts’ interpretation would set needless administrative machinery in motion and would disrupt the congressionally preferred system of voluntary compensation and informal dispute resolution. The incongruity of Roberts' proposal is highlighted by his inability to identify a vehicle for the entry of an order in an uncontested case. Section 919(c), on which Roberts relies, applies only if an employee has filed a claim. Likewise, 20 CFR § 702.315(a) applies only in the case of a claim or an employer’s notice of controversion. See §702.301. We doubt that an employee will file a claim for the sole purpose of assisting his employer in securing a lower cap. And we will not read § 906(c) to compel an employer to file a baseless notice of controversion. Cf. 33 U. S. C. §§ 928(a), (d) (providing for assessment of attorney’s fees and costs against employers who controvert unsuccessfully). Roberts suggests that employers could threaten to terminate benefits in order to induce their employees to file claims, and thus initiate the administrative process. Construing any workers’ compensation regime to encourage gratuitous confrontation between employers and employees strikes us as unsound. .
2
Using the national average weekly wage for the fiscal year in which an employee becomes disabled coheres with the LHWCA’s administrative structure. Section 914(b) requires an employer to pay benefits within 14 days of notice of an employee’s disability. To do so, an employer must be able to calculate the cap. An employer must also notify the Department of Labor of voluntary payments by filing a form that indicates, inter alia, whether the “maximum rate is being paid.” Dept, of Labor, Form LS-206, Payment of Compensation Without Award (rev. Aug. 2011), online at http://www.dol.gov/owcp/dlhwc/ls-206.pdf. On receipt of this form, an OWCP claims examiner must verify the rate of compensation in light of the applicable cap. See Dept, of Labor, Longshore (DLHWC) Procedure Manual §2-n201(3)(b)(3) (hereinafter Longshore Procedure Manual), online at http://www.dol.gov/owcp/dlhwe/lspm/lspm2-201.htm. It is difficult to see how an employer can apply or certify a national average weekly wage other than the one in effect at the time an employee becomes disabled. An employer is powerless to predict when an employee might file a claim, when a compensation order might issue, or what the national average weekly wage will be at that later time. Likewise for a claims examiner.
Moreover, applying the national average weekly wage for the fiscal year in which an employee becomes disabled, advances the LHWCA’s purpose to compensate disability, defined as “incapacity because of injury to earn the wages which the employee was receiving at the time of injury.” 33 U. S. C. §902(10) (emphasis added). Just as the LHWCA takes “the average weekly wage of the injured employee at the time of the injury” as the “basis upon which to compute compensation,” § 910, it is logical to apply the national average weekly wage for the same point in time. Administrative practice has long treated the time of injury as the relevant date. See, e.g., Dept, of Labor, Longshore Act Coverage and Benefits, Pamphlet LS-560 (rev. Dec. 2003) (“Compensation payable under the Act may not exceed 200% of the national average weekly wage, applicable at the time of injury”), online at http://www.dol.gov/owcp/dIhwc/ LS-560pam.htm; Dept, of Labor, Workers’ Compensation Under the Longshoremen’s Act, Pamphlet LS-560 (rev. Nov. 1979) (same); see also, e. g., Dept, of Labor, LHWCA Bulletin No. 11-01, p. 2 (2010) (national average weekly wage for particular fiscal year applies to “disability incurred during” that fiscal year).
Applying the national average weekly wage at the time of onset of disability avoids disparate treatment of similarly situated employees. Under Roberts’ reading, two employees who earn the same salary and suffer the same injury on the same day could be entitled to different rates of compensation based on the happenstance of their obtaining orders in different fiscal years. We can imagine no reason why Congress would have intended, by choosing the words “newly awarded compensation,” to differentiate between employees based on such an arbitrary criterion.
8
Finally, using the national average weekly wage for the fiscal year in which disability commences discourages gamesmanship in the claims process. If the fiscal year in which an order issues were to determine the cap, the fact that the national average weekly wage typically rises every year with inflation, see n. 2, supra, would become unduly significant. Every employee affected by the cap would seek the entry of a compensation order in a later fiscal year. Even an employee who has been receiving compensation at the proper rate for years would be well advised to file a claim for greater benefits in order to obtain an order at a later time. Likewise, an employee might delay the adjudicatory process to defer the entry of an order. And even in an adjudicated case where an employer is found to have paid benefits at the proper rate, an ALJ would adopt the later fiscal year’s national average weekly wage, making the increased cap retroactively applicable to all of the employer’s payments. Roberts candidly acknowledges that his position gives rise to such perverse incentives. See Tr. of Oral Arg. 58-59. We decline to adopt a rule that would reward employees with windfalls for initiating unnecessary administrative proceedings, while simultaneously punishing employers who have complied fully with their statutory obligations.
III
We find Roberts’ counterarguments unconvincing.
A
First, Roberts observes that some provisions of the LHWCA clearly use “award” to mean “award in a formal order,” and contends that the same must be true of “awarded compensation” in § 906(c). We agree that the Act sometimes uses “award” as Roberts urges. Section 914(a), for example, refers to the payment of compensation “to the person enti-tied thereto, without an award,” foreclosing the equation of “entitlement” and “award” that we adopt with respect to § 906(c) today. But the presumption that “identical words used in different parts of the same act are intended to have the same meaning . . . readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent.” General Dynamics Land Systems, Inc. v. Cline, 540 U. S. 581, 595 (2004) (internal quotation marks omitted); see also, e. g., United States v. Cleveland Indians Baseball Co., 532 U. S. 200, 213 (2001). Here, we find the presumption overcome because several provisions of the Act would make no sense if “award” were read as Roberts proposes. Those provisions confirm today’s holding because they too, in context, use “award” to denote a statutory entitlement to compensation because of disability.
For example, § 908(c)(20) provides that “[p]roper and equitable compensation not to exceed $7,500 shall be awarded for serious disfigurement.” Roberts argues that § 908(e)(20) “necessarily contemplates administrative action to fix the amount of the liability and direct its payment.” Reply Brief for Petitioner 11. In Roberts’ view, no disfigured employee may receive benefits without invoking the administrative claims process. That argument, however, runs counter to §908’s preface, which directs that “[compensation for disability shall be paid to the employee,” and to § 914(a), which requires the payment of compensation “without an award.” It is also belied by employers’ practice of paying § 908(c)(20) benefits voluntarily. See, e. g., Williams-McDowell v. Newport News Shipbuilding & Dry Dock Co., No. 99-0627 etc., 2000 WL 35928576, *1 (BRB, Mar. 15, 2000) (per curiam); Evans v. Bergeron Barges, Inc., No. 98-1641, 1999 WL 35135283, *1 (BRB, Sept. 3, 1999) (per curiam). In light of the LHWCA’s interest in prompt payment and settled practice, “awarded” in § 908(c)(20) can only be better read, as in § 906(c), to refer to a disfigured employee’s entitlement to benefits.
Likewise, § 908(d)(1) provides that if an employee who is receiving compensation for a scheduled disability dies before receiving the full amount of compensation to which the schedule entitles him, “the total amount of the award unpaid at the time of death shall be payable to or for the benefit of his survivors.” See also § 908(d)(2). Roberts’ interpretation of “award” would introduce an odd gap: Only survivors of those employees who were receiving schedule benefits pursuant to orders — not survivors of employees who were receiving voluntary payments — would be entitled to the unpaid balances due their decedents. There is no reason why Congress would have chosen to distinguish between survivors in this manner. And the Benefits Review Board has quite sensibly interpreted § 908(d) to mean that “an employee has a vested interest in benefits which accrue during his lifetime, and, after he dies, his estate is entitled to those benefits, regardless of when an award is made.” Wood v. Ingalls Shipbuilding, Inc., 28 BRBS 27, 36 (1994) (per curiam).
Finally, § 933(b) provides: "For the purpose of this subsection, the term ‘award’ with respect to a compensation order means a formal order issued by the deputy commissioner, an administrative law judge, or Board.” Unless award may mean something other than “award in a compensation order,” this specific definition would be unnecessary. Roberts contends that this provision', enacted in 1984, “was indeed ‘unnecessary’ ” in light of Pallas Shipping. Brief for Petitioner 29; see 461 U. S., at 534 (“The term ‘compensation order’ in the LHWCA refers specifically to an administrative award of compensation following proceedings with respect to the claim”). Roberts’ argument offends the canon against superfluity and neglects that § 933(b) defines the term “award,” whereas Pallas Shipping defines the term “compensation order.” Moreover, Congress’ definition of “award,” which tracks Roberts’ preferred interpretation, was carefully limited to § 933(b). Had Congress intended to adopt a universal definition of “award,” it could have done so in § 902, the LHWCA’s glossary. Read in light of the “duty to give effect, if possible, to every clause and word of a statute,” Duncan v. Walker, 533 U. S.. 167, 174 (2001) (internal quotation marks omitted), § 933(b) debunks Roberts’ argument that the Act always uses “award” to mean “award in a formal order” and confirms that “award” has other meanings.
B
Next, Roberts notes that this Court has refused to read the statutory phrase “person entitled to compensation” in § 933(g) to mean “person awarded compensation.” See Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 477 (1992) (“[A] person entitled to compensation need not be receiving compensation or have had an adjudication in his favor”). In Roberts’ view, the converse must also be true: “[A]warded compensation” in § 906(c) cannot mean “entitled to compensation.” But Cowart’s reasoning does not work in reverse. Cowart did not construe § 906(c) or the term “award,” but relied on the uniform meaning of the phrase “person entitled to compensation” in the LHWCA. See id., at 478-479. As just explained, the LHWCA contains no uniform meaning of the term “award.” Moreover, Cowart did not hold that the groups of “employees entitled to compensation” and “employees awarded compensation” were mutually exclusive. The former group includes the latter: The entry of a compensation order is a sufficient but not necessary condition for membership in the former, ¿fee id» at 477.
c
Finally, Roberts contends that his interpretation furthers the LHWCA’s purpose of providing' employees with prompt compensation by encouraging employers to avoid delay and expedite administrative proceedings. But Roberts’ remedy would also punish employers who voluntarily pay benefits at the proper rate from the time of their employees’ injuries. These employers would owe benefits under the higher cap applicable in any future fiscal year when their employees chose to file claims. And Roberts’ remedy would offer no relief at all to the many beneficiaries entitled to less than the statutory maximum rate.
The more measured deterrent to employer tardiness is interest that “accrues from the date a benefit came due, rather than from the date of the ALJ’s award.” Matulic v. Director, OWCP, 154 F. 3d 1052, 1059 (CA9 1998). The Director has long taken the position that “interest is a necessary and inherent component of 'compensation’ because it ensures that the delay in payment of compensation does not diminish the amount of compensation to which the employee is entitled.” Sproull v. Director, OWCP, 86 F. 3d 895, 900 (CA9 1996); see also, e. g., Strachan Shipping Co. v. Wedemeyer, 452 F. 2d 1225, 1229 (CA5 1971). Moreover, “[t]imely [cjontroversion does not relieve the responsible party from paying interest on unpaid compensation.” Longshore Procedure Manual §8-201, online at http://www.dol.gov/owcp/ dlhwc/lspm/lspm8-201.htm. Indeed, the ALJ awarded Roberts interest “on each unpaid installment of compensation from the date the compensation became due.” App. to Pet. for Cert. 108, Order ¶⅛.
* * *
We hold that an employee is “newly awarded compensation” when he first becomes disabled and thereby becomes statutorily entitled to benefits, no matter whether, or when, a compensation order issues on his behalf. The judgment of the Court of Appeals for the Ninth Circuit is affirmed.
It is so ordered.
Section 906 provides, in pertinent part:
“(b) Maximum rate of compensation
“(1) Compensation for disability or death (other than compensation for death required ... to be paid in a lump sum) shall not exceed an amount equal to 200 per centum of the applicable national average weekly wage, as determined by the Secretary under paragraph (3).
“(3) As soon as practicable after June 30 of each year, and in any event prior to October 1 of such year, the Secretary shall determine the national average weekly wage for the three consecutive calendar quarters ending June 30. Such determination shall be the applicable national average weekly wage for the period beginning with October 1 of that year and ending with September 30 of the next year....
“(c) Applicability of determinations
“Determinations under subsection (b)(3) . . . with respect to a period shall apply to employees or survivors currently receiving compensation for permanent total disability or death benefits during such period, as well as those newly awarded compensation during such period.”
For those “currently receiving compensation for permanent total disability or death benefits,” §906(c), the cap is adjusted each fiscal year — and typically increases, in step with the usual inflation-driven rise in' the national average weekly wage. See Dept, of Labor, Division of Longshore and Harbor Workers’ Compensation (DLHWC), NAWW Information, online at http://www.dol.gov/owcp/dlhwc/NAWWinfo.htm (all Internet materials as visited Mar. 16, 2012, and available in Clerk of Court’s case file). Section 906(e)’s “currently receiving compensation” clause is not at issue here.
In fiscal year 1971, only 209 cases out of the 17,784 in which compensation was paid resulted in orders. Hearings on S. 2318 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 92d Cong., 2d Sess., 757-758 (1972). Congress enacted §906⅛ predecessor provision, which included the “newly awarded compensation” clause, in 1972. Longshoremen’s and Harbor Workers’ Compensation Act Amendments of 1972, § 5, 86 Stat. 1253.
Compare 625 F. 3d 1204 (time of entitlement) with Wilkerson v. Ingalls Shipbuilding, Inc., 125 F. 3d 904 (CA5 1997) (time of order), and Boroski v. DynCorp Int'l, 662 F. 3d 1197 (CA11 2011) (same).
Justice Ginsburg’s view, not advanced by any party, is that an employee is “awarded compensation” when his employer “voluntarily pays compensation or is officially ordered to do so.” Post, at 115 (opinion concurring in part and dissenting in part). But reading “awarded compensation” as synonymous with “receiving compensation” is further from the ordinary meaning of “award” than the Court’s approach: A person who slipped and fell on a negligently maintained sidewalk would not say that she had been “awarded money damages” if the business responsible for the sidewalk voluntarily paid her hospital bills. Cf. post, at 115-116.
Moreover, if Congress had intended “awarded compensation” to mean “receiving compensation,” it could have said so — as, in fact, it did in § 906(c)’s parallel clause, which pertains to beneficiaries “currently receiving compensation for permanent total disability or death.” See nn. 1-2, supra. Justice Ginsburg’s reading denies effect to Congress’ textual shift, and therefore “runs afoul of the usual rule that ‘when the legislature uses certain language in one part of the statute and different language in another, the court assumes different meanings were intended.’ ” Sosa v. Alvarez-Machain, 542 U. S. 692, 711, n. 9 (2004).
Nor is Justice Ginsburg’s reliance on a single sentence of legislative history persuasive. See post, at 116-117. True, a Senate Committee Report described those “newly awarded compensation” as those “who begin receiving compensation.” S. Rep. No. 92-1125, p. 18 (1972). But a subsequent House Committee Report did not. Cf. H. R. Rep. No. 92-1441, p. 15 (1972) (statute provides a “method for determining maximum and minimum compensation (to be applicable to persons currently receiving compensation as well as those newly awarded compensation)”). The legislative materials are a wash.
Justice Ginsburg ⅛ approach is either easily circumvented or unworkable. For example, Justice Ginsburg determines that Roberts is entitled to the fiscal year 2002 maximum rate from March 11, 2002, to July 15, 2003, because Sea-Land was making voluntary payments during that time. Post, at 118. But SeaTLand was paying Roberts $933.82 per week, less than the $966.08 that the ALJ found Roberts was entitled to receive. Compare App. to Pet. for Cert. 101 with id., at 107, Order ¶1. If any voluntary payment suffices, regardless of an employee’s actual entitlement, then
Question: What treatment did the court whose decision the Supreme Court reviewed accorded the decision of the court it reviewed?
A. stay, petition, or motion granted
B. affirmed
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. modify
K. remand
L. unusual disposition
Answer:
|
songer_jurisdiction
|
D
|
What follows is an opinion from a United States Court of Appeals. You will be asked a question pertaining to some threshold issue at the trial court level. These issues are only considered to be present if the court of appeals is reviewing whether or not the litigants should properly have been allowed to get a trial court decision on the merits. That is, the issue is whether or not the issue crossed properly the threshhold to get on the district court agenda. The issue is: "Did the court determine that it had jurisdiction to hear this case?" Answer the question based on the directionality of the appeals court decision. If the court discussed the issue in its opinion and answered the related question in the affirmative, answer "Yes". If the issue was discussed and the opinion answered the question negatively, answer "No". If the opinion considered the question but gave a mixed answer, supporting the respondent in part and supporting the appellant in part, answer "Mixed answer". If the opinion does not discuss the issue, or notes that a particular issue was raised by one of the litigants but the court dismissed the issue as frivolous or trivial or not worthy of discussion for some other reason, answer "Issue not discussed". If the opinion considered the question but gave a "mixed" answer, supporting the respondent in part and supporting the appellant in part (or if two issues treated separately by the court both fell within the area covered by one question and the court answered one question affirmatively and one negatively), answer "Mixed answer". If the opinion either did not consider or discuss the issue at all or if the opinion indicates that this issue was not worthy of consideration by the court of appeals even though it was discussed by the lower court or was raised in one of the briefs, answer "Issue not discussed".If the opinion discusses challenges to the jurisdiction of the court to hear several different issues and the court ruled that it had jurisdiction to hear some of the issues but did not have jurisdiction to hear other issues, answer "Mixed answer".
UNITED STATES of America, Plaintiff-Appellee, v. Raymond O. SOPHER, John Kerestes, John A. Ramza, Michael F. Ryan and Matthew J. Tibbles, Defendants-Appellants.
Nos. 15057, 15061.
United States Court of Appeals Seventh Circuit.
June 20, 1966.
Rehearing Denied July 19, 1966.
Frank Oliver, Maurice J. Walsh, Edward J. Calihan, Harry J. Busch, Jason E. Bellows, Sherman C. Magidson, Chicago, 111., for appellants.
Edward Y. Hanrahan, U. S. Atty., John Peter Lulinski, John Powers Crowley, D. Arthur Connelly, Douglas G. Brown, Lawrence Jay Weiner, Asst. U. S. Attys., Chicago, 111., for appellee.
Before DUFFY, SCHNACKENBERG and KNOGH, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Raymond 0. Sopher, John Kerestes, John A. Ramza, Michael F. Ryan and Matthew J. Tibbies, defendants, appeal from their convictions of a violation of 18 U.S.C. § 1951. They were tried by a jury and the court sentenced them to prison terms.
Sopher was the mayor of Streator, Illinois, and his co-defendants were commissioners thereof.
Count I of the indictment charged defendants with having obstructed interstate commerce by extortion and count II charged them with conspiracy to commit the offense alleged in count I, all in violation of the Hobbs Act, 18 U.S.C. § 1951.
There was evidence tending to prove the following facts:
On November 7, 1960, Charles H. Boender, a sales representative of Stan-nard Power Equipment Company, which was agent in Streator for Smith & Loveless, made a sales talk to said defendants on a proposed sewer project in that city. Whereupon Sopher asked Boender “what it was worth” to him to get the job. An unidentified commissioner stated that “it must be in cash”.
On January 5, 1961, independent engineers Warren & Van Praag, Inc., submitted plans and specifications for the project, wherein Smith & Loveless was designated as the base bid supplier for the package lift stations.
On March 28, 1961, in Boender’s presence, president Bowlby of Stannard thanked Sopher for the consideration being given Smith & Loveless equipment and expressed the hope that the company was going to be successful in doing business with the contratcor. Sopher replied that this was possible, provided they received in cash 10% of the contract or bid price in connection with such an agreement. In addition Sopher suggested that the price could be increased by $3,000 to take care of the internal revenue tax. However, Bowlby told Sopher that Stan-nard Company could not participate but that he would relate the proposition to Smith & Loveless.
On April 10, 1961, Boender and Smith, managing director of Smith & Loveless, met in Streator. Being unable to locate Sopher, they called on defendant Keres-tes, who said he had explained to Boen-der previously that “we wanted 10 percent of your bid price to the contractor to have the city approve” the use of Smith & Loveless equipment. When Smith asked how “we might accomplish the matter of providing this money” Kerestes explained: “ * * * we want the cash, we want it tax paid, and it is your problem how you get it. * * * ”
Finding Mayor Sopher at the city hall, Boender and Smith were told by him: “We want 10 percent of the bid price in cash.” While Smith made no commitment, he testified that he left Sopher with the impression that “I probably would [go along with the deal]”, thus leaving the matter in abeyance so that the Federal Bureau of Investigation could be contacted, which was done on April 11, 1961.
On April 17, 1961, Farthing Brothers, general contractors, after having received bids from the subcontractors, made sealed bids on pump stations manufactured by Smith & Loveless, Chicago Pump Company and Tex-Vit. Farthing Brothers was the lowest bidder on the total sewage project.
On April 19, 1961, Boender telephoned Sopher and asked whether he was satisfied with the arrangements made between Sopher and Smith. Sopher said that he was and that he would have to satisfy “the commissioners”.
On June 7, 1961, a contract was entered into between the city and Farthing Brothers in which Smith & Loveless was the only subcontractor specifically named. Both Boender and Smith believed that Smith & Loveless received the contract because of the agreement to pay the 10% of its contract price of $30,868.
On February 15, 1963, Smith & Loveless received its final payment from Farthing Brothers and three days later So-pher called Boender to arrange a meeting.
On May 7, 1963, Smith, Sopher and his twelve-year-old daughter met in a room in a Chicago hotel. On Smith’s person federal agents had a hidden recording device, and $3,087 in identified money. The recorded conversation thereon is in conformity with the facts herein enumerated, culminating in Smith’s statement “ * * * well, I might as well give you the money,” (which he did). Federal agents then appeared, arrested Sopher and recovered the listed money. Whereupon Sopher contended the money received was a political contribution.
1. We hold that the evidence supports the charges in the indictment and that the indictment includes all elements of the offenses charged.
As the Supreme Court said in Stirone v. United States, 361 U.S. 212, at 215, 80 S.Ct. 270, at 272, 4 L.Ed.2d 252 (1960):
“ * * * It was to free commerce from such destructive burdens that the Hobbs Act was passed. United States v. Green, 350 U.S. 415, 420 [76 S.Ct. 522, 525, 100 L.Ed. 494].”
and 361 U.S. at 218, 80 S.Ct. at 274, the court added:
“ * * * there are two essential elements of a Hobbs Act crime: interference with commerce, and extortion. * * *»
We agree with government counsel when they say that the conduct of defendants necessarily produced a fear of economic loss by Smith & Loveless. United States v. Kramer, 7 Cir., 355 F.2d 891, 897 (1966).
We hold that the violations of the Hobbs Act charged in the indictment were supported by the proof in the record.
2. However, defendants contend that the transcript and tape recording of the conversation on May 7, 1963 between Smith and Mayor Sopher were statements producible under 18 U.S.C.A. § 3500. There were motions by the defense to strike the testimony of Smith, grant a mistrial, and to produce said statements, which were respectively denied.
While the record indicates that the government turned over to the defendants various statements of witnesses in compliance with § 3500, it took the position below and also in this court that the court did not err in denying defendants’ motion for the production of the tape recording of the May 7, 1963 conversation and the transcript thereof. The district court took the position that § 3500 does not encompass the tape recording of that conversation.
A § 3500 statement is a recorded recital of past occurrences made by a prospective prosecution witness. From its very nature, necessarily it is made after those events have taken place. If a prosecutor, in reliance on the statement, uses as a witness the maker thereof as a part of the government’s case, the statement must be produced for the use of defense counsel. But a concurrent tape recording of a conversation between the payer and the recipient of an alleged cash bribe is obviously of contemporaneous sounds. The result is a preservation of a conversation just as it was spoken. It is direct evidence relevant on the issue of the alleged guilt of the defendants on trial. Made when the allegedly extorted bribe money was being paid, the tape recording in this case is of the actual voices of the briber and the bribee. It is therefore not a recital of a past occurrence by a prospective witness and is not within the general purview of § 3500, Moreover, it does not fall within the technical requirements of paragraph (e) thereof, because it is not a written statement made and signed by a government witness or adopted or approved by him, nor is it a recording or transcription thereof which is a substantially verbatim recital of an oral statement by said witness to an agent of the government, contemporaneously recorded with the making of such oral statement.
We hold that there was no error committed in the denial of the motions of defendants to strike Smith’s testimony and for an order for production of said statements, or to grant a mistrial.
3. During the government’s case in chief, Smith testified as to the May 7, 1963 conversation with Sopher at the Water Tower Inn. Sopher, as a defense witness, under cross-examination answered evasively when asked about statements contained in the recording attributed to him by Smith, who testified that he recognized Sopher’s voice when the playing of the tape was repeated.
A transcript of the tape had been delivered by the government to defense counsel at their suggestion. The tape was played in their presence, but outside the presence of the jury and of any spectators, after the defendants severally and personally agreed to the procedure.
Counsel for Sopher assumes in this court that “certain parts of the conversation as testified to by Sopher, were not on the tape” and he points out as “a possible explanation” that he reminded the jury that Smith controlled the operation of the recording device “and could” delete statements by Sopher which were not to his liking, by pushing the “off” button. Sopher’s counsel points out that the Federal Bureau of Investigation agent had instructed Smith in the mechanical use of the recording device.
On rebuttal by the government, Smith testified that the tape recording fully, truly and accurately portrayed the conversation with Sopher on the occasion in question. He further testified that only general instructions regarding the operation of the device were given. Moreover, the lack of a basis for the attack on the reliability of the tape was acknowledged by counsel for Sopher, when he then stated:
“Vis-á-vis my comments just before the recess, I should like the jury to understand that in my opinion the record will not sustain the inference that the machine which Mr. Smith had fastened to his body on May 7, 1963, was in fact turned on or off by Smith during that conversation, and I think it also will not sustain the inference that there was matter on that tape which tended to corroborate Mayor So-pher’s version of the conversation but which was not stipulated to.”
As a matter of fact, our attention has not been directed to any conversation on the occasion in the Water Tower Inn which the tape failed to record. It is therefore improper for us to speculate what would be missing from the record if Smith had arrested the operation of the machine temporarily at any time.
4. Defendant Kerestes contends that the court erred in failing to grant him a severance from Sopher, on the ground that the latter had made admissions and statements tending to implicate Kerestes, and also that he was unable in a joint trial with Sopher to compel effective testimony from his co-defendant. We fail to find sufficient basis in the record for reversing, especially as all defendants were charged as members of a conspiracy under count II of the indictment. Certainly the matter of a severance was within the sound discretion of the district judge and there is nothing in the record to indicate an abuse of such discretion when the motion for severance was overruled. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954).
We find no other ground advanced by Kerestes for a reversal sufficient to justify that action.
5. Under all the circumstances shown by the record, we hold that the court properly denied the respective motions for severance, judgment of acquittal, mistrial and a new trial by defendants Ram-za, Ryan and Tibbies.
We have considered their contentions that there was a fatal variance between the indictment and the proof. Their counsel reason that the indictment alleged defendants threatened Smith & Loveless, Inc. that its bid would not be accepted unless it agreed to make a payment to them, whereas the evidence showed that Smith & Loveless only made a proposal to the general contractor for the work. We find there was evidence tending to prove that defendants’ conduct necessarily produced a fear of economic loss by Smith & Loveless. This evidence is sufficient to support the jury’s verdict, on the theory that money had been extorted by defendants by fear, induced by threats that a bid of the contractor would not be accepted unless Smith & Loveless agreed to pay 10% of the bid price, thereby affecting interstate commerce.
6. We have examined the instructions and considered the objections thereto raised by defendants in this court. We find the objections not well taken.
7. While there is a criticism of the action of the trial court in what counsel for defendants Ramza, Ryan and Tibbies say was a reprimand of Sopher’s trial counsel, our reading of the entire transcript convinces us that it was not prejudicial to the defendants in any way.
8. Defendants Ramza, Ryan and Tibbies contend that the court committed error in admitting in evidence conversations at the May 7, 1963 meeting between Sopher and Smith which were made “after the completion of the conspiracy.” However, we do not agree that the con-, spiracy had ended when these conversations took place. The conspiracy was still in effect when the meeting took place, the money was obtained by Sopher, and each of the participating persons (Sopher and Smith) continued in their discussion as to the payment of the money to Sopher and its subsequent disbursement to the other defendants in their respective shares. The conspiracy did not terminate until the arrest of Sopher.
For all these reasons, the judgments from which these appeals were taken are affirmed.
Judgments affirmed.
. 24 Ill.Rev.Stat.1965, art. 4.
. § 3500(e) The term “statement”, as used in subsections (b), (c), and (d) of this section in relation to any witness called by the United States, means—
(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement. * * *
Question: Did the court determine that it had jurisdiction to hear this case?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_adminrev
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the federal agency (if any) whose decision was reviewed by the court of appeals. If there was no prior agency action, choose "not applicable".
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. R. S. FOSTER and J. B. Lee, Surviving Members of a Partnership; d/b/a Foster-Grayson Lumber Company.
No. 14786.
United States Court of Appeals Eighth Circuit.
March 5, 1953.
David P. Findling, Associate General Counsel, National Labor Relations Board and A. Norman Somers, Asst. Gen. Counsel, National Labor Relations Board, Washington, D. C., for petitioner.
PER CURIAM.
Order of National Labor Relations Board enforced, on petition for enforcement, and stipulation filed with Board.
Question: What federal agency's decision was reviewed by the court of appeals?
A. Benefits Review Board
B. Civil Aeronautics Board
C. Civil Service Commission
D. Federal Communications Commission
E. Federal Energy Regulatory Commission
F. Federal Power Commission
G. Federal Maritime Commission
H. Federal Trade Commission
I. Interstate Commerce Commission
J. National Labor Relations Board
K. Atomic Energy Commission
L. Nuclear Regulatory Commission
M. Securities & Exchange Commission
N. Other federal agency
O. Not ascertained or not applicable
Answer:
|
songer_appbus
|
0
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
William McBEE, Petitioner-Appellant, v. Archie WEAVER, Sheriff of Knox County, Tennessee, et al., Respondent-Appellee.
No. 16254.
United States Court of Appeals Sixth Circuit.
Feb. 1, 1966.
Ed R. Davies, Nashville, Tenn., and William E. Badgett, Knoxville, Tenn., for appellant.
Henry C. Foutch, Asst. Atty. Gen., Nashville, Tenn., for appellee. David W. McMackin, Special Counsel, Nashville, Tenn., on brief, George F. McCanless, Atty. Gen., and Reporter, Nashville, Tenn., of counsel.
Before EDWARDS, Circuit Judge, CECIL, Senior Circuit Judge, and BROWN, District Judge.
Honorable Bailey Brown, Judge, United States District Court for the Western District of Tennessee, sitting by designation.
PER CURIAM.
Petitioner was convicted of first degree murder in a trial in Knox County, Tennessee in 1954. In 1961, this court determined that such conviction was void because petitioner had been deprived of effective assistance of counsel in violation of the Fourteenth Amendment in that he was forced to trial on the same day that his lawyer was employed. Mc-Bee v. Bomar, 296 F.2d 235 (6th Cir. 1961).
Petitioner was retried in 1962 (represented by the employed lawyer who had represented him at the first trial) and was convicted of murder in the second degree. At this trial, the testimony of two witnesses for the State, who had-testified at the first trial but who had since died, was read in evidence over the objection of petitioner’s lawyer. This conviction was affirmed by the Supreme Court of Tennessee (McBee v. State, 213 Tenn. 15, 372 S.W.2d 173 (1963) ) and the Supreme Court of the United States denied certiorari. 377 U.S. 955, 84 S.Ct. 1633, 12 L.Ed.2d 499 (1964).
In 1964, petitioner filed another habeas corpus petition in the District Court for the Eastern District of Tennessee, alleging that his Fourteenth Amendment rights had been violated by the admission in evidence of the transcript of the testimony of the two witnesses who had testified at the first trial. The District Judge denied the petition without a hearing and petitioner has appealed.
Subsequent to the denial of the second petition for habeas corpus, the Supreme Court of the United States decided Pointer v. State of Texas, 380 U.S. 400, 85 S. Ct. 1065, 13 L.Ed.2d 923 (1965). In Pointer, the majority holding is that the Sixth Amendment right to confrontation includes the right to a “complete ■ and adequate opportunity to cross-examine” and that this right is made obligatory upon the States by the Fourteenth Amendment.
In its opinion in the prior habeas corpus proceeding (296 F.2d 235), this court refers to actual prejudice to petitioner in the inability of his counsel to effectively cross-examine the witness Stewart, who was one of the witnesses whose testimony was read at the second trial. We conclude that this language in the opinion is dictum. We so conclude because it was not necessary to the decision of this court that petitioner had been unconstitutionally denied effective assistance of counsel and that therefore petitioner’s conviction was void.
In the instant case, as stated, the District Judge held no evidentiary hearing and did not have the benefit of the decision in Pointer. Whether an accused has had “complete and adequate opportunity to cross-examine” is a question of fact in the first instance. Under Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963), issues of fact in habeas corpus proceedings must first be heard by District Judges and their findings are binding upon appellate courts unless “clearly erroneous.” Rule 52(a), F.R.Civ.P. On remand, the district Judge can hold a hearing on this issue of fact with the standards of Pointer in mind.
Reversed and remanded for further consideration in the light of Pointer v. State of Texas, supra.
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
sc_casedisposition
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G
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed. The information relevant to this variable may be found near the end of the summary that begins on the title page of each case, or preferably at the very end of the opinion of the Court. For cases in which the Court granted a motion to dismiss, consider "petition denied or appeal dismissed". There is "no disposition" if the Court denied a motion to dismiss.
Jefferson B. SESSIONS, III, Attorney General, Petitioner
v.
Luis Ramón MORALES-SANTANA.
No. 15-1191.
Supreme Court of the United States
Argued Nov. 9, 2016.
Decided June 12, 2017.
Edwin S. Kneedler, Washington, DC, for Petitioner.
Stephen A. Broome, Los Angeles, CA, for Respondent.
Ian Heath Gershengorn, Acting Solicitor General, Department of Justice, Washington, DC, for Petitioner.
Ian Heath Gershengorn, Acting Solicitor General, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Edwin S. Kneedler, Deputy Solicitor General, Sarah E. Harrington, Assistant to the Solicitor General, Donald E. Keener, Andrew C. MacLachlan, Attorneys, Department of Justice, Washington, DC, for Petitioner.
Kathleen M. Sullivan, Todd Anten, Justin T. Reinheimer, Ellyde R. Thompson, Quinn Emanuel Urquhart, & Sullivan, New York, NY, Stephen A. Broome, Quinn Emanuel Urquhart, & Sullivan, LLP, Los Angeles, CA, for Respondent.
Justice GINSBURG delivered the opinion of the Court.
This case concerns a gender-based differential in the law governing acquisition of U.S. citizenship by a child born abroad, when one parent is a U.S. citizen, the other, a citizen of another nation. The main rule appears in 8 U.S.C. § 1401(a)(7) (1958 ed.), now § 1401(g) (2012 ed.). Applicable to married couples, § 1401(a)(7) requires a period of physical presence in the United States for the U.S.-citizen parent. The requirement, as initially prescribed, was ten years' physical presence prior to the child's birth, § 601(g) (1940 ed.); currently, the requirement is five years prebirth, § 1401(g) (2012 ed.). That main rule is rendered applicable to unwed U.S.-citizen fathers by § 1409(a). Congress ordered an exception, however, for unwed U.S.-citizen mothers. Contained in § 1409(c), the exception allows an unwed mother to transmit her citizenship to a child born abroad if she has lived in the United States for just one year prior to the child's birth.
The respondent in this case, Luis Ramón Morales-Santana, was born in the Dominican Republic when his father was just 20 days short of meeting § 1401(a)(7)'s physical-presence requirement. Opposing removal to the Dominican Republic, Morales-Santana asserts that the equal protection principle implicit in the Fifth Amendment entitles him to citizenship stature. We hold that the gender line Congress drew is incompatible with the requirement that the Government accord to all persons "the equal protection of the laws." Nevertheless, we cannot convert § 1409(c)'s exception for unwed mothers into the main rule displacing § 1401(a)(7) (covering married couples) and § 1409(a) (covering unwed fathers). We must therefore leave it to Congress to select, going forward, a physical-presence requirement (ten years, one year, or some other period) uniformly applicable to all children born abroad with one U.S.-citizen and one alien parent, wed or unwed. In the interim, the Government must ensure that the laws in question are administered in a manner free from gender-based discrimination.
I
A
We first describe in greater detail the regime Congress constructed. The general rules for acquiring U.S. citizenship are found in 8 U.S.C. § 1401, the first section in Chapter 1 of Title III of the Immigration and Nationality Act (1952 Act or INA), § 301, 66 Stat. 235-236. Section 1401 sets forth the INA's rules for determining who "shall be nationals and citizens of the United States at birth" by establishing a range of residency and physical-presence requirements calibrated primarily to the parents' nationality and the child's place of birth. § 1401(a) (1958 ed.) ; § 1401 (2012 ed.). The primacy of § 1401 in the statutory scheme is evident. Comprehensive in coverage, § 1401 provides the general framework for the acquisition of citizenship at birth. In particular, at the time relevant here, § 1401(a)(7) provided for the U.S. citizenship of
"a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph."
Congress has since reduced the duration requirement to five years, two after age 14. § 1401(g) (2012 ed.).
Section 1409 pertains specifically to children with unmarried parents. Its first subsection, § 1409(a), incorporates by reference the physical-presence requirements of § 1401, thereby allowing an acknowledged unwed citizen parent to transmit U.S. citizenship to a foreign-born child under the same terms as a married citizen parent. Section 1409(c) -a provision applicable only to unwed U.S.-citizen mothers-states an exception to the physical-presence requirements of §§ 1401 and 1409(a). Under § 1409(c)'s exception, only one year of continuous physical presence is required before unwed mothers may pass citizenship to their children born abroad.
B
Respondent Luis Ramón Morales-Santana moved to the United States at age 13, and has resided in this country most of his life. Now facing deportation, he asserts U.S. citizenship at birth based on the citizenship of his biological father, José Morales, who accepted parental responsibility and included Morales-Santana in his household.
José Morales was born in Guánica, Puerto Rico, on March 19, 1900. Record 55-56. Puerto Rico was then, as it is now, part of the United States, see Puerto Rico v. Sanchez Valle, 579 U.S. ----, ---- - ----, 136 S.Ct. 1863, 1868-1869, 195 L.Ed.2d 179 (2016) ; 8 U.S.C. § 1101(a)(38) (1958 ed.) ("The term United States ... means the continental United States, Alaska, Hawaii, Puerto Rico, Guam, and the [U.S.] Virgin Islands." (internal quotation marks omitted)); § 1101(a)(38) (2012 ed.) (similar), and José became a U.S. citizen under the Organic Act of Puerto Rico, ch. 145, § 5, 39 Stat. 953 (a predecessor to 8 U.S.C. § 1402 ). After living in Puerto Rico for nearly two decades, José left his childhood home on February 27, 1919, 20 days short of his 19th birthday, therefore failing to satisfy § 1401(a)(7)'s requirement of five years' physical presence after age 14. Record 57, 66. He did so to take up employment as a builder-mechanic for a U.S. company in the then-U.S.-occupied Dominican Republic. Ibid.
By 1959, José attested in a June 21, 1971 affidavit presented to the U.S. Embassy in the Dominican Republic, he was living with Yrma Santana Montilla, a Dominican woman he would eventually marry. Id., at 57. In 1962, Yrma gave birth to their child, respondent Luis Morales-Santana. Id., at 166-167. While the record before us reveals little about Morales-Santana's childhood, the Dominican archives disclose that Yrma and José married in 1970, and that José was then added to Morales-Santana's birth certificate as his father. Id., at 163-164, 167. José also related in the same affidavit that he was then saving money "for the susten[ance] of [his] family" in anticipation of undergoing surgery in Puerto Rico, where members of his family still resided. Id., at 57. In 1975, when Morales-Santana was 13, he moved to Puerto Rico, id., at 368, and by 1976, the year his father died, he was attending public school in the Bronx, a New York City borough, id., at 140, 369.
C
In 2000, the Government placed Morales-Santana in removal proceedings based on several convictions for offenses under New York State Penal Law, all of them rendered on May 17, 1995. Id., at 426. Morales-Santana ranked as an alien despite the many years he lived in the United States, because, at the time of his birth, his father did not satisfy the requirement of five years' physical presence after age 14. See supra, at 1686 - 1687, and n. 3. An immigration judge rejected Morales-Santana's claim to citizenship derived from the U.S. citizenship of his father, and ordered Morales-Santana's removal to the Dominican Republic. Record 253, 366; App. to Pet. for Cert. 45a-49a. In 2010, Morales-Santana moved to reopen the proceedings, asserting that the Government's refusal to recognize that he derived citizenship from his U.S.-citizen father violated the Constitution's equal protection guarantee. See Record 27, 45. The Board of Immigration Appeals (BIA) denied the motion. App. to Pet. for Cert. 8a, 42a-44a.
The United States Court of Appeals for the Second Circuit reversed the BIA's decision. 804 F.3d 520, 524 (2015). Relying on this Court's post-1970 construction of the equal protection principle as it bears on gender-based classifications, the court held unconstitutional the differential treatment of unwed mothers and fathers. Id., at 527-535. To cure the constitutional flaw, the court further held that Morales-Santana derived citizenship through his father, just as he would were his mother the U.S. citizen. Id., at 535-538. In so ruling, the Second Circuit declined to follow the conflicting decision of the Ninth Circuit in United States v. Flores-Villar, 536 F.3d 990 (2008), see 804 F.3d, at 530, 535, n. 17. We granted certiorari in Flores-Villar, but ultimately affirmed by an equally divided Court. Flores-Villar v. United States, 564 U.S. 210, 131 S.Ct. 2312, 180 L.Ed.2d 222 (2011) (per curiam ). Taking up Morales-Santana's request for review, 579 U.S. ---- (2016), we consider the matter anew.
II
Because § 1409 treats sons and daughters alike, Morales-Santana does not suffer discrimination on the basis of his gender. He complains, instead, of gender-based discrimination against his father, who was unwed at the time of Morales-Santana's birth and was not accorded the right an unwed U.S.-citizen mother would have to transmit citizenship to her child. Although the Government does not contend otherwise, we briefly explain why Morales-Santana may seek to vindicate his father's right to the equal protection of the laws.
Ordinarily, a party "must assert his own legal rights" and "cannot rest his claim to relief on the legal rights ... of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975). But we recognize an exception where, as here, "the party asserting the right has a close relationship with the person who possesses the right [and] there is a hindrance to the possessor's ability to protect his own interests." Kowalski v. Tesmer, 543 U.S. 125, 130, 125 S.Ct. 564, 160 L.Ed.2d 519 (2004) (quoting Powers v. Ohio, 499 U.S. 400, 411, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991) ). José Morales' ability to pass citizenship to his son, respondent Morales-Santana, easily satisfies the "close relationship" requirement. So, too, is the "hindrance" requirement well met. José Morales' failure to assert a claim in his own right "stems from disability," not "disinterest," Miller v. Albright, 523 U.S. 420, 450, 118 S.Ct. 1428, 140 L.Ed.2d 575 (1998) (O'Connor, J., concurring in judgment), for José died in 1976, Record 140, many years before the current controversy arose. See Hodel v. Irving, 481 U.S. 704, 711-712, 723, n. 7, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987) (children and their guardians may assert Fifth Amendment rights of deceased relatives). Morales-Santana is thus the "obvious claimant," see Craig v. Boren, 429 U.S. 190, 197, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976), the "best available proponent," Singleton v. Wulff, 428 U.S. 106, 116, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976), of his father's right to equal protection.
III
Sections 1401 and 1409, we note, date from an era when the lawbooks of our Nation were rife with overbroad generalizations about the way men and women are. See, e.g., Hoyt v. Florida, 368 U.S. 57, 62, 82 S.Ct. 159, 7 L.Ed.2d 118 (1961) (women are the "center of home and family life," therefore they can be "relieved from the civic duty of jury service"); Goesaert v. Cleary, 335 U.S. 464, 466, 69 S.Ct. 198, 93 L.Ed. 163 (1948) (States may draw "a sharp line between the sexes"). Today, laws of this kind are subject to review under the heightened scrutiny that now attends "all gender-based classifications." J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127, 136, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994) ; see, e.g., United States v. Virginia, 518 U.S. 515, 555-556, 116 S.Ct. 2264, 135 L.Ed.2d 735 (1996) (state-maintained military academy may not deny admission to qualified women).
Laws granting or denying benefits "on the basis of the sex of the qualifying parent," our post-1970 decisions affirm, differentiate on the basis of gender, and therefore attract heightened review under the Constitution's equal protection guarantee. Califano v. Westcott, 443 U.S. 76, 84, 99 S.Ct. 2655, 61 L.Ed.2d 382 (1979) ; see id., at 88-89, 99 S.Ct. 2655 (holding unconstitutional provision of unemployed-parent benefits exclusively to fathers). Accord Califano v. Goldfarb, 430 U.S. 199, 206-207, 97 S.Ct. 1021, 51 L.Ed.2d 270 (1977)
(plurality opinion) (holding unconstitutional a Social Security classification that denied widowers survivors' benefits available to widows); Weinberger v. Wiesenfeld, 420 U.S. 636, 648-653, 95 S.Ct. 1225, 43 L.Ed.2d 514 (1975) (holding unconstitutional a Social Security classification that excluded fathers from receipt of child-in-care benefits available to mothers); Frontiero v. Richardson, 411 U.S. 677, 688-691, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973) (plurality opinion) (holding unconstitutional exclusion of married female officers in the military from benefits automatically accorded married male officers); cf. Reed v. Reed, 404 U.S. 71, 74, 76-77, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971) (holding unconstitutional a probate-code preference for a father over a mother as administrator of a deceased child's estate).
Prescribing one rule for mothers, another for fathers, § 1409 is of the same genre as the classifications we declared unconstitutional in Reed,Frontiero,Wiesenfeld,Goldfarb, and Westcott . As in those cases, heightened scrutiny is in order. Successful defense of legislation that differentiates on the basis of gender, we have reiterated, requires an "exceedingly persuasive justification." Virginia, 518 U.S., at 531, 116 S.Ct. 2264 (internal quotation marks omitted); Kirchberg v. Feenstra, 450 U.S. 455, 461, 101 S.Ct. 1195, 67 L.Ed.2d 428 (1981) (internal quotation marks omitted).
A
The defender of legislation that differentiates on the basis of gender must show "at least that the [challenged] classification serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives." Virginia, 518 U.S., at 533, 116 S.Ct. 2264 (quoting Mississippi Univ. for Women v. Hogan, 458 U.S. 718, 724, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982) ; alteration in original); see Tuan Anh Nguyen v. INS, 533 U.S. 53, 60, 70, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001). Moreover, the classification must substantially serve an important governmental interest today, for "in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality ... that once passed unnoticed and unchallenged." Obergefell v. Hodges, 576 U.S. ----, ----, 135 S.Ct. 2584, 2603, 192 L.Ed.2d 609 (2015). Here, the Government has supplied no "exceedingly persuasive justification," Virginia, 518 U.S., at 531, 116 S.Ct. 2264 (internal quotation marks omitted), for § 1409(a) and (c)'s "gender-based" and "gender-biased" disparity, Westcott, 443 U.S., at 84, 99 S.Ct. 2655 (internal quotation marks omitted).
1
History reveals what lurks behind § 1409. Enacted in the Nationality Act of 1940 (1940 Act), see 54 Stat. 1139-1140, § 1409 ended a century and a half of congressional silence on the citizenship of children born abroad to unwed parents. During this era, two once habitual, but now untenable, assumptions pervaded our Nation's citizenship laws and underpinned judicial and administrative rulings: In marriage, husband is dominant, wife subordinate; unwed mother is the natural and sole guardian of a nonmarital child.
Under the once entrenched principle of male dominance in marriage, the husband controlled both wife and child. "[D]ominance [of] the husband," this Court observed in 1915, "is an ancient principle of our jurisprudence." Mackenzie v. Hare, 239 U.S. 299, 311, 36 S.Ct. 106, 60 L.Ed. 297 (1915). See generally Brief for Professors of History et al. as Amici Curiae 4-15. Through the early 20th century, a male citizen automatically conferred U.S. citizenship on his alien wife. Act of Feb. 10, 1855, ch. 71, § 2, 10 Stat. 604; see Kelly v. Owen, 7 Wall. 496, 498, 19 L.Ed. 283 (1869) (the 1855 Act "confers the privileges of citizenship upon women married to citizens of the United States"); C. Bredbenner, A Nationality of Her Own: Women, Marriage, and the Law of Citizenship 15-16, 20-21 (1998). A female citizen, however, was incapable of conferring citizenship on her husband; indeed, she was subject to expatriation if she married an alien. The family of a citizen or a lawfully admitted permanent resident enjoyed statutory exemptions from entry requirements, but only if the citizen or resident was male. See, e.g., Act of Mar. 3, 1903, ch. 1012, § 37, 32 Stat. 1221 (wives and children entering the country to join permanent-resident aliens and found to have contracted contagious diseases during transit shall not be deported if the diseases were easily curable or did not present a danger to others); S.Rep. No. 1515, 81st Cong., 2d Sess., 415-417 (1950) (wives exempt from literacy and quota requirements). And from 1790 until 1934, the foreign-born child of a married couple gained U.S. citizenship only through the father.
For unwed parents, the father-controls tradition never held sway. Instead, the mother was regarded as the child's natural and sole guardian. At common law, the mother, and only the mother, was "bound to maintain [a nonmarital child] as its natural guardian." 2 J. Kent, Commentaries on American Law *215-*216 (8th ed. 1854); see Nguyen, 533 U.S., at 91-92, 121 S.Ct. 2053 (O'Connor, J., dissenting). In line with that understanding, in the early 20th century, the State Department sometimes permitted unwed mothers to pass citizenship to their children, despite the absence of any statutory authority for the practice. See Hearings on H.R. 6127 before the House Committee on Immigration and Naturalization, 76th Cong., 1st Sess., 43, 431 (1940) (hereinafter 1940 Hearings); 39 Op. Atty. Gen. 397, 397-398 (1939); 39 Op. Atty. Gen. 290, 291 (1939). See also Collins, Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation, 123 Yale L.J. 2134, 2199-2205 (2014) (hereinafter Collins).
In the 1940 Act, Congress discarded the father-controls assumption concerning married parents, but codified the mother-as-sole-guardian perception regarding unmarried parents. The Roosevelt administration, which proposed § 1409, explained: "[T]he mother [of a nonmarital child] stands in the place of the father ... [,] has a right to the custody and control of such a child as against the putative father, and is bound to maintain it as its natural guardian." 1940 Hearings 431 (internal quotation marks omitted).
This unwed-mother-as-natural-guardian notion renders § 1409's gender-based residency rules understandable. Fearing that a foreign-born child could turn out "more alien than American in character," the administration believed that a citizen parent with lengthy ties to the United States would counteract the influence of the alien parent. Id., at 426-427. Concern about the attachment of foreign-born children to the United States explains the treatment of unwed citizen fathers, who, according to the familiar stereotype, would care little about, and have scant contact with, their nonmarital children. For unwed citizen mothers, however, there was no need for a prolonged residency prophylactic: The alien father, who might transmit foreign ways, was presumptively out of the picture. See id., at 431; Collins 2203 (in "nearly uniform view" of U.S. officials, "almost invariably," the mother alone "concern[ed] herself with [a nonmarital] child" (internal quotation marks omitted)).
2
For close to a half century, as earlier observed, see supra, at 1689 - 1690, this Court has viewed with suspicion laws that rely on "overbroad generalizations about the different talents, capacities, or preferences of males and females." Virginia, 518 U.S., at 533, 116 S.Ct. 2264 ; see Wiesenfeld, 420 U.S., at 643, 648, 95 S.Ct. 1225. In particular, we have recognized that if a "statutory objective is to exclude or 'protect' members of one gender" in reliance on "fixed notions concerning [that gender's] roles and abilities," the "objective itself is illegitimate." Mississippi Univ. for Women, 458 U.S., at 725, 102 S.Ct. 3331.
In accord with this eventual understanding, the Court has held that no "important [governmental] interest" is served by laws grounded, as § 1409(a) and (c) are, in the obsolescing view that "unwed fathers [are] invariably less qualified and entitled than mothers" to take responsibility for nonmarital children. Caban v. Mohammed, 441 U.S. 380, 382, 394, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979). Overbroad generalizations of that order, the Court has come to comprehend, have a constraining impact, descriptive though they may be of the way many people still order their lives. Laws according or denying benefits in reliance on "[s]tereotypes about women's domestic roles," the Court has observed, may "creat[e] a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family caregiver." Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721, 736, 123 S.Ct. 1972, 155 L.Ed.2d 953 (2003). Correspondingly, such laws may disserve men who exercise responsibility for raising their children. See ibid. In light of the equal protection jurisprudence this Court has developed since 1971, see Virginia, 518 U.S., at 531-534, 116 S.Ct. 2264, § 1409(a) and (c)'s discrete duration-of-residence requirements for unwed mothers and fathers who have accepted parental responsibility is stunningly anachronistic.
B
In urging this Court nevertheless to reject Morales-Santana's equal protection plea, the Government cites three decisions of this Court: Fiallo v. Bell, 430 U.S. 787, 97 S.Ct. 1473, 52 L.Ed.2d 50 (1977) ; Miller v. Albright, 523 U.S. 420, 118 S.Ct. 1428, 140 L.Ed.2d 575 ; and Nguyen v. INS, 533 U.S. 53, 121 S.Ct. 2053, 150 L.Ed.2d 115. None controls this case.
The 1952 Act provision at issue in Fiallo gave special immigration preferences to alien children of citizen (or lawful-permanent-resident) mothers, and to alien unwed mothers of citizen (or lawful-permanent-resident) children. 430 U.S., at 788-789, and n. 1, 97 S.Ct. 1473. Unwed fathers and their children, asserting their right to equal protection, sought the same preferences. Id., at 791, 97 S.Ct. 1473. Applying minimal scrutiny (rational-basis review), the Court upheld the provision, relying on Congress' "exceptionally broad power" to admit or exclude aliens. Id., at 792, 794, 97 S.Ct. 1473. This case, however, involves no entry preference for aliens. Morales-Santana claims he is, and since birth has been, a U.S. citizen. Examining a claim of that order, the Court has not disclaimed, as it did in Fiallo, the application of an exacting standard of review. See Nguyen, 533 U.S., at 60-61, 70, 121 S.Ct. 2053 ; Miller, 523 U.S., at 434-435, n. 11, 118 S.Ct. 1428 (opinion of Stevens, J.).
The provision challenged in Miller and Nguyen as violative of equal protection requires unwed U.S.-citizen fathers, but not mothers, to formally acknowledge parenthood of their foreign-born children in order to transmit their U.S. citizenship to those children. See § 1409(a)(4) (2012 ed.). After Miller produced no opinion for the Court, see 523 U.S., at 423, 118 S.Ct. 1428 we took up the issue anew in Nguyen . There, the Court held that imposing a paternal-acknowledgment requirement on fathers was a justifiable, easily met means of ensuring the existence of a biological parent-child relationship, which the mother establishes by giving birth. See 533 U.S., at 62-63, 121 S.Ct. 2053. Morales-Santana's challenge does not renew the contest over § 1409's paternal-acknowledgment requirement (whether the current version or that in effect in 1970), and the Government does not dispute that Morales-Santana's father, by marrying Morales-Santana's mother, satisfied that requirement.
Unlike the paternal-acknowledgment requirement at issue in Nguyen and Miller, the physical-presence requirements now before us relate solely to the duration of the parent's prebirth residency in the United States, not to the parent's filial tie to the child. As the Court of Appeals observed in this case, a man needs no more time in the United States than a woman "in order to have assimilated citizenship-related values to transmit to [his] child." 804 F.3d, at 531. And unlike Nguyen 's parental-acknowledgment requirement, § 1409(a)'s age-calibrated physical-presence requirements cannot fairly be described as "minimal." 533 U.S., at 70, 121 S.Ct. 2053.
C
Notwithstanding § 1409(a) and (c)'s provenance in traditional notions of the way women and men are, the Government maintains that the statute serves two important objectives: (1) ensuring a connection between the child to become a citizen and the United States and (2) preventing "statelessness," i.e., a child's possession of no citizenship at all. Even indulging the assumption that Congress intended § 1409 to serve these interests, but see supra, at 1683 - 1693, neither rationale survives heightened scrutiny.
1
We take up first the Government's assertion that § 1409(a) and (c)'s gender-based differential ensures that a child born abroad has a connection to the United States of sufficient strength to warrant conferral of citizenship at birth. The Government does
Question: What is the disposition of the case, that is, the treatment the Supreme Court accorded the court whose decision it reviewed?
A. stay, petition, or motion granted
B. affirmed (includes modified)
C. reversed
D. reversed and remanded
E. vacated and remanded
F. affirmed and reversed (or vacated) in part
G. affirmed and reversed (or vacated) in part and remanded
H. vacated
I. petition denied or appeal dismissed
J. certification to or from a lower court
K. no disposition
Answer:
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songer_r_fed
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0
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "the federal government, its agencies, and officials". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MOMAND v. PARAMOUNT PUBLIX CORPORATION et al.
No. 1477.
Circuit Court of Appeals, Tenth Circuit.
Feb. 26, 1937.
Rehearing Denied April 8, 1937.
George S. Ryan (Frank S. Field, of Oklahoma City, Okl., on the brief), for appellant.
Frank Wells, of Oklahoma City, Okl. (D. I. Johnston, of Oklahoma City, Okl., on the brief), for appellees except Regal Theatres, Inc.
Malcolm W. McKenzie, of Oklahoma City, Okl. (J. H. Everest, of Oklahoma City, Old., on the brief), for appellee Regal Theatres, Inc.
Before LEWIS, PHILLIPS, and BRATTON, Circuit Judges.
PHILLIPS, Circuit Judge.
Appellant brought this action at law against appellees to recover treble damages under IS U.S.C.A. § IS, 38 Stat. 731.
The record sets forth a purported motion interposed by appellees to strike certain portions of the amended petition and to require appellant tO' make certain portions thereof more definite and certain and purported rulings by the trial court on such motion. Neither the motion nor the rulings are incorporated in a bill of exceptions.
The appeal is from the following order:
“Now on the 9th day of July, the plaintiff having announced in open court that the order of February 3, 1936, entered in this cause would not be complied with, and no amended petition filed, it is the opinion that this cause should be dismissed.
“It is therefore ordered, adjudged, and decreed, that this action be dismissed, and exceptions allowed the plaintiff.”
The assignments of error are all predicated on the purported rulings on the motion.
Motions to strike and motions to make more definite and certain and rulings thereon are not part of the record proper and may be brought upon the record only by a bill of exceptions duly authenticated and filed. Dietz v. Lymer (C.C.A.8) 61 F. 792, 794; Ghost v. United States (C.C.A.8) 168 F. 841; Chicago Great Western R. Co. v. Le Valley (C.C.A.8) 233 F. 384; Vance v. Chapman (C.C.A.8) 23 F.(2d) 914; Flanagan v. Benson (C.C.A.8) 37 F.(2d) 69.
In Deitz v. Lymer, supra, the court said:
“The defendant below has assigned for error the action of the circuit court in sustaining the several motions to make the answer more certain, and to strike out parts of the answer because they were too indefinite. * * * These assignments of error cannot be noticed in this court, for the reason that they relate to matters in which the action of the trial court was purely discretionary. * * * Moreover, motions of this character form no part of the record, unless they are made such by a bill of exceptions; and no bill of exceptions was signed or allowed, so far as the record shows, either when the orders in question were made or afterwards.”
What is record proper and what may be brought upon the record only by a bill of exceptions is controlled by the statutes of the United States and, where they are silent, by the common law and the practice prevailing in the United States courts and not by the rules and practice in the state courts. Ghost v. U. S., supra; Chateaugay Ore & Iron Co., Petitioner, 128 U.S. 544, 553, 9 S.Ct. 150, 32 L.Ed. 508; St. Clair v. United States, 154 U.S. 134, 153, 14 S.Ct. 1002, 38 L.Ed. 936; Camp v. Gress, 250 U.S. 308, 318, 39 S.Ct. 478, 482, 63 L.Ed. 997.
In Camp v. Gress, supra, the court said:
“The Conformity Act [28 U.S.C.A. § 724] by its express terms refers only to proceedings in District (and formerly Circuit) Courts and has no application to appellate proceedings either in this court or in the Circuit Court of Appeals. Such proceedings are governed entirely by the acts of Congress, the common law, and the ancient English statutes.”
The decisions of the state courts are therefore helpful only as they may reflect the practice under the statute of 13 Edward I, Chap. 31, the English statute providing for a bill of exceptions and broadening the scope of review on writ of error. The decisions of the state courts generally are to the effect that such motions may he brought upon the record only by bill of exceptions.
It follows that the matters upon which error are assigned are not before us and may not be considered.
Since it appears that the dismissal was because of failure to comply with the court’s order and was not based on matters going to the merits, the dismissal should have been without prejudice. Langley v. Hamilton, 127 Okl. 35, 259 P. 575.
The order is reversed with instructions to vacate the order and enter an order dismissing the amended petition without prejudice. Each party will pay his own costs.
Ewing v. Vernon County, 216 Mo. 681, 116 S.W. 518; Birmingham v. Warren (Mo.Sup.) 34 S.W.(2d) 115; Shuey v. Bunney, 4 Cal.App.(2d) 408, 40 P.(2d) 859; Arkansas Central R. Co. v. State, 72 Ark. 250, 79 S.W. 773; Town of Scott v. Artman, 237 Ill. 394, 86 N.E. 595; Pittsburgh, C., C. & St. L. R. Co. v. Indiana Horseshoe Co., 154 Ind. 322, 56 N.E. 766; Masoner v. Bell, 20 Okl. 618, 95 P. 239, 18 L.R.A.(N.S.) 106; Forbes v. Rogers, 143 Ala. 208, 38 So. 843; De Pedrorena v. Hotchkiss, 95 Cal. 636, 30 P. 787; Whitney v. Teichfuss, 11 Colo. 555, 10 P. 507; Mann v. Brown, 263 Ill. 394, 105 N.E. 328; Interstate Ry. Co. v. Missouri River & C. R. Co., 251 Mo. 707, 158 S.W. 349; Continental Casualty Co. v. Ogburn, 186 Ala. 396, 64 So. 619; Barber v. Mulford, 117 Cal. 356, 49 P. 206; Brink v. Posey, 11 Colo. 521, 10 P. 467.
Question: What is the total number of respondents in the case that fall into the category "the federal government, its agencies, and officialss"? Answer with a number.
Answer:
|
songer_typeiss
|
D
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the general category of issues discussed in the opinion of the court. Choose among the following categories. Criminal and prisioner petitions- includes appeals of conviction, petitions for post conviction relief, habeas corpus petitions, and other prisoner petitions which challenge the validity of the conviction or the sentence or the validity of continued confinement. Civil - Government - these will include appeals from administrative agencies (e.g., OSHA,FDA), the decisions of administrative law judges, or the decisions of independent regulatory agencies (e.g., NLRB, FCC,SEC). The focus in administrative law is usually on procedural principles that apply to administrative agencies as they affect private interests, primarily through rulemaking and adjudication. Tort actions against the government, including petitions by prisoners which challenge the conditions of their confinement or which seek damages for torts committed by prion officials or by police fit in this category. In addition, this category will include suits over taxes and claims for benefits from government. Diversity of Citizenship - civil cases involving disputes between citizens of different states (remember that businesses have state citizenship). These cases will always involve the application of state or local law. If the case is centrally concerned with the application or interpretation of federal law then it is not a diversity case. Civil Disputes - Private - includes all civil cases that do not fit in any of the above categories. The opposing litigants will be individuals, businesses or groups.
CHICAGO TELEPHONE SUPPLY CO. v. STACKPOLE CARBON CO.
No. 7253.
Circuit Court of Appeals, Third Circuit.
June 29, 1940.
Ira Milton Jones, of Milwaukee, Wis. (Stebbins, Blenko & Parmelee, of Pittsburgh, Pa., of counsel), for appellant.
Brown, Critchlow & Flick, of Pittsburgh, Pa. (Jo Baily Brown and Victor A. Peckham, both of Pittsburgh, Pa., of counsel), for appellee.
Before BIGGS, MARIS, and CLARK, Circuit Judges.
CLARK, Circuit Judge.
The art is a small corner of the vast radio structure. All of us are familiar with the “click” when we turn on our radios. That click reflects the closing of a power switch. We also recall that to increase (or in reverse decrease) the volume of sound we turn the knob further. That further turning 'lowers the resistance and so raises the sound. It is desirable to prevent electrical interference as between the switch mechanism and the resistance circuit (rheostat). Two electrical engineers pose the problem thus: “If a charged object (that is, an object with a voltage different f-rom that of the ground, or greater than zero) is suspended above the ground, there is an electrostatic field between the object and the ground. This field may be represented by lines of force extending from the object to the ground, between which the voltage of each line of force is graduated from zero to that of the object. Consequently, if a second and uncharged object is placed in the field between the first object and the ground, the second object will assume a voltage corresponding to its place in the field. However, frequently it is not desirable for the second object to become so 'charged.’” Hartmann and Meagher, Shielding in Radio Receivers, Radio News, February, 1927, p. 988, 2 R. 69.
The patent is in essence a bid for a monopoly in a hole. The patent solicitor, of course, does not put it quite that way. In a case recently considered in this Circuit, another patent solicitor dignified the humble orifice by calling it a “localized opening”, Gardiner v. Freed Heater Mfg. Co., 3 Cir., 107 F.2d 364, 365. We say that the patent is for a hole for' this reason. Everyone agrees to the desirability of separating the two elements by a non-conductor. That separation had been accomplished by what the industry describes as shielding. The shields are small and thin pieces of metal (aluminum, brass, copper) and are grounded. They are almost as old as the art both in practice, Centralab Volume Control, 1930, Exhibit UU, 1 R. 385, Centralab Volume' Control, 1931, Exhibit VV, 1 R. 385, Atwater Kent Volume Control, Exhibit R., 1 R. 384, Atwater Kent Volume Control, Exhibit S, 1 R. 384, in the scientific literature, cited in Hartmann and Meagher, Shielding in Radio Receivers, above cited, and Felix, Why Shielding?, Radio Broadcast, June, 1927, 2 R. 83, and in the kindness of the Patent Office, Patent to Moore, No. 1,641,-395. In an article received in evidence, 1 R. 345, 2 R. 79, and relied on in defendant’s brief, p. 8, the learned author describes the operation of these shields, saying: “* * * Obviously, any change of potential in a conductor in a radio set will cause potential changes in all nearby conductors. Warding off the influence of the electrostatic field is simple and the most elementary application of shielding will accomplish it. The electrostatic influence is restricted by placing a grounded conductor between any point where potentials rise or fall and neighboring objects which are likely to be influenced by the electrostatic effects resulting therefrom. If a good conducting path is provided to the ground, the influence of the electrostatic field does not penetrate beyond the shield.” Felix, Why Shielding?, above cited, p. 83, 2 R. 79.
To secure compactness with a protruding switch and a flat plate as elements, a hole in the plate is plainly a sine qua non. By the same token, it is obvious not only to any mechanic (electrician) but to any child. This assumes that a change in size whether by way of shrinking or expanding is patentable at all. Any such view would tend to proportion the number of patents to the number of inches available in and for a particular apparatus.
We think that the less said about the claimed prior use the better. For that reason we do not place our decision on that ground. The alleged inventor is himself an artisan in a radio assembly plant. Other persons had had his idea, but, as he claimed, later in time. To defeat them he had to assert and prove completion of his work in April, '1928. In the interference proceedings he did so. But that very evidence was dangerous on prior use; in other words, we have the horns of a dilemma. We declare for neither horn and so need not adjudicate the interesting question of experimental use. A Circuit Court of Appeals in another Circuit took a serious view of one horn, Globe-Union, Inc. v. Chicago Telephone Supply Co., 7 Cir., 103 F.2d 722.
The decree of the District Court dismissing the bill of complaint is affirmed.
Robinson, Manual of Radio Telegraphy and Telephony, pp. 282, 396; Fleming, Principles of Electric Wave Telegraph and Telephony; Meagher, Proper Shielding and How to Do It, -N. Y. Telegram and Evening Mail, Radio Section, August 30, 1924; Morecroft and Turner, The Shielding of Electric and Magnetic Fields, Proceedings I. R. E., August, 1925; Clemons, The Shielding Problem, QST. March, 1926; Dreyer and Manson, The Shielded Neutrodyne Receiver, Proceedings I. R. E. April, 1926; Henderson, Multi-Purpose Shielded Units, QST. Sept., 1926; Hazeltine, Discussion of Articles in Proceedings I. R. E. August, 1925 and April, 1926, above cited, Proceedings I. R. E. June, 1926.
“A similar result may be achieved by interposing a grounded conducting plate between the objects. Now the lines of force terminate on the plate and are conducted to the earth”. Hartman and Meagher, Shielding in Radio Receivers, Radio News, February, 1927, p. 988, 2 R. 69.
Brown, Developments in the Patent Daw as Effected by Adjudications, Tenth Anniversary number, United States Patents Quarterly, p. 9; Forkosch, The Economics of American Patent Daw, 17 New York University Daw Quarterly Review 157, 406.
Question: What is the general category of issues discussed in the opinion of the court?
A. criminal and prisoner petitions
B. civil - government
C. diversity of citizenship
D. civil - private
E. other, not applicable
F. not ascertained
Answer:
|
songer_respond2_1_2
|
D
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to classify the scope of this business into one of the following categories: "local" (individual or family owned business, scope limited to single community; generally proprietors, who are not incorporated); "neither local nor national" (e.g., an electrical power company whose operations cover one-third of the state); "national or multi-national" (assume that insurance companies and railroads are national in scope); and "not ascertained".
DEUTSCH ENERGY CO., Plaintiff-Appellant, v. Sherman MAZUR; Richard Wall; Jerome Weiner; New Century Energy Corp.; New Century Oil & Gas Supply Corp.; Jack Ralston, Defendants-Appellees.
No. 86-5959.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Feb. 4, 1987.
Decided April 8, 1987.
David F. Tilles, Ron S. Kaufman, Los Angeles, Cal., for the plaintiff-appellant.
H. Roy Jeppson, Los Angeles, Cal., Charles E. Noneman, Los Angeles, Cal., for the defendants-appellees.
Before FERGUSON, NELSON and BEEZER, Circuit Judges.
NELSON, Circuit Judge:
Deutsch Energy Company (“DEC”) appeals from the district court’s grant of summary judgment in favor of defendants Sherman Mazur, Gerald Weiner, New Century Energy Corporation (“NCEC”), New Century Oil and Gas Supply Corporation (“NCOGSC”), and New Century Oil and Gas Supply Corporation Income Development Program 1982-1983 (“Program”), and dismissal of its complaint against the remaining defendants, Richard Wall, Jack Ralston, Courtney Ralston, and Sand Dollar Energy Corporation (“Sand Dollar”). We find that no genuine issue of material fact exists as to whether the transaction among the parties constitutes a security because there was no expectation that profits would be derived solely from the efforts of individuals other than the investors. Accordingly, we affirm the district court’s grant of summary judgment.
BACKGROUND
In April 1981, defendants Mazur and Weiner formed NCEC, a California corporation, to acquire oil and gas producing properties. NCEC subsequently purchased the mineral and extraction rights over a 400-acre parcel located in Kansas referred to as the “Morton Lease.” At the time of the purchase, twenty-two wells had been drilled and were operating on the parcel.
Negotiations between Mark and Jaime Deutsch and NCEC began in December 1981 for a purchase of well sites. Negotiations continued through February 1982, and concluded with NCEC agreeing to transfer the lease rights to four drilled wells and eighteen well sites to DEC, a general partnership formed by the Deutsches, for a payment of approximately $1.5 million. Two purchase agreements ultimately reflected the terms of the transaction. Each purchase agreement expressly provided that the parties would execute an operating agreement, which was attached as an exhibit to the purchase agreements, designating Sand Dollar as operator of the wells and sites. DEC retained significant managerial powers under the agreements, including the power to veto any decision by NCEC to replace Sand Dollar as operator or to abandon wells as dry holes.
Unfortunately, the wells did not perform to the expectations of DEC, which has received no money in return for its $1.5 million investment. The parties entered a contingent repurchase agreement on March 15, 1983. The repurchase was never consummated, however, apparently because NCEC (then acting as Program) was unable to acquire the necessary funds.
DEC filed the present action on November 10, 1983. The complaint alleged violations of section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982), and section 12(2) of the Securities Act of 1933, 15 U.S.C. § 771(2) (1982), in connection with the sale of the oil well leases. NCEC filed a motion for summary judgment in February 1986 seeking dismissal of DEC’s complaint on the ground that the interests purchased by DEC did not constitute securities within the meaning of the securities laws. Following a hearing on April 7, 1986, the district court granted the motion and entered judgment on April 30, 1986. DEC timely appealed this decision.
DISCUSSION
This court reviews de novo the district court’s grant of summary judgment and its determination that the transaction did not constitute an investment contract. SEC v. Murphy, 626 F.2d 633, 640 (9th Cir.1980); see United States v. McConney, 728 F.2d 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984) (application of a rule of law to the established facts is reviewed de novo where the question requires consideration of legal concepts in the mix of fact and law). The initial burden under Fed.R. Civ.P. 56(c) is on the moving party to point out the absence of any genuine issues of material fact. Murphy, 626 F.2d at 640. Once the initial burden is satisfied, the burden shifts to the nonmoving party to present probative evidence showing that there remains a genuine factual issue for trial. Id. The moving party is entitled to summary judgment if, viewing the evidence in the light most favorable to the opponent, no genuine issue of material fact remains and the moving party is entitled to judgment as a matter of law. See id.; Celotex Corp. v. Catrett, — U.S. -, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986).
DEC argues that issues of material fact exist as to whether the transaction constitutes an “investment contract” and, therefore, a security within the definitions stated in section 2(1) of the 1933 Securities Act, 15 U.S.C. § 77b(1) (1982), and in section 3(a)(10) of the 1934 Securities Exchange Act, 15 U.S.C. § 78c(a)(10) (1982). The Supreme Court has defined an investment contract in Securities & Exchange Commission v. W.J. Howey Co., 328 U.S. 293, 66 S.Ct. 1100, 90 L.Ed. 1244 (1946), as “a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.” Id. at 298-99, 66 S.Ct. at 1103. As this court has recognized, the test requires three distinct elements: (1) an investment of money, (2) in a common enterprise, (3) based on an expectation of profits to be derived solely from the efforts of individuals other than the investor. SEC v. Goldfield Deep Mines Co., 758 F.2d 459, 463 (9th Cir.1985). This court has further held that it would not confine the Howey test to situations in which the term “solely derived” applied literally, but would find the third element satisfied when “the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise.” SEC v. Glenn W. Turner Enters, Inc., 474 F.2d 476, 482 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973). In this case, we need not discuss the first and second elements of Howey because we find that as a matter of law based on undisputed facts, the third element is absent and the district court, therefore, properly granted summary judgment to the NCEC defendants.
DEC claims that it expected to rely almost exclusively on the “essential managerial efforts” of NCEC and Sand Dollar. The appellees respond that DEC’S significant managerial powers preclude this claim as a matter of law. Both parties rely on dicta from Williamson v. Tucker, 645 F.2d 404 (5th Cir), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). The Williamson court, in a well-reasoned opinion, said that “[a]n investor who is offered an interest in a general partnership or joint venture should be on notice ... that his ownership rights are significant, and that the federal securities acts will not protect him from a mere failure to exercise his rights.” Id. at 422. The court identified as an exception to this rule a case when an investor “has irrevocably delegated his powers, or is incapable of exercising them, or is so dependent on the particular expertise of the promoter or manager that he has no reasonable alternative to reliance on that person.” Id. at 422-23. The parties in this case appear to agree that DEC possessed, if not a general partnership interest, at least significant managerial powers under the purchase agreements. DEC claims, however, that it falls within the Williamson exception because the Deutsches’ inexperience in the oil and gas business and their residence in California made them incapable of exercising any managerial powers over the drilling projects in Kansas. The undisputed facts, however, simply do not support their claimed lack of sophistication in financial affairs. See Matek v. Murat, 638 F.Supp. 775, 780 n. 4 (C.D.Cal.1986) (when general partners participated significantly in management and were knowledgeable in the field, their interests were not securities).
The undisputed facts in the present case are as follows: the Deutsches, who are California residents, own and operate a convalescent hospital as their primary business. Jaime Deutsch, the father, also owns and operates retirement hotels adjacent to the convalescent hospital. Mark Deutsch, the son, inspected the oil well sites before the agreements were executed. The Deutsches’ previous investments include a limited partnership organized to drill and operate gas wells in Ohio. Furthermore, they retained legal counsel who was present for the latter stages of the negotiations with NCEC regarding the purchase agreements.
While one may surmise from these facts that neither of the Deutsches possesses the expertise to drill and complete the oil wells personally, it does not follow that they are “inexperienced and unknowledgeable members of the general public.” See Williamson, 645 F.2d at 423. Their general business expertise arises from other sophisticated business transactions. They clearly know how to read financial statements and are familiar with the use of experts such as accountants, attorneys, and geologists. Although it appears to be an open question whether sophistication in one field of business will always transfer to another field, we find that the Deutsches’ claim of unsophistication is unsupported and raises no genuine issues of material fact given their level of general business expertise.
CONCLUSION
Based on undisputed facts, the transaction entered into by DEC and NCEC did not constitute an investment contract because, as possessors of significant managerial powers and a high degree of business acumen, the partners of DEC could not rightfully expect their profits to be derived solely from the efforts of individuals other than themselves. The district court, therefore, correctly granted summary judgment to NCEC because no genuine issues of material fact exist as to whether the third element of Howey is absent.
AFFIRMED.
. The district court, in apparent reliance on Fed.R.Civ.P. 52, made no findings of fact or conclusions of law in its order granting summary judgment to the defendants. The transcript of the hearing, however, indicates that the district court determined that DEC and NCEC had formed a joint venture and had not entered an investment contract. Accordingly, the complaint was dismissed because the interest was not a security and, thus, not protected under the securities laws.
. Section 2(1) of the Securities Act of 1933 provides:
The term "security" means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas or other mineral rights ... or, in general, any interest or instrument commonly known as a "security", or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.
15 U.S.C. § 77b(1). Section 3(a)(10) of the Securities Exchange Act of 1934 corresponds almost exactly with this definition. It adds, however, an exception to the above:
[The term “security”] shall not include currency or any note, draft, bill of exchange, or banker’s acceptance which has a maturity at the time of issuance of not exceeding nine months, exclusive of days of grace, or any renewal thereof the maturity of which is likewise limited.
15 U.S.C. § 78c(a)(10). The courts have found these definitions to be functional equivalents. Tcherepnin v. Knight, 389 U.S. 332, 336, 342, 88 S.Ct. 548, 553, 556, 19 L.Ed.2d 564 (1967); United Cal. Bank v. THC Fin. Corp., 557 F.2d 1351, 1356 (9th Cir.1977).
Question: This question concerns the second listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What is the scope of this business?
A. local
B. neither local nor national
C. national or multi-national
D. not ascertained
Answer:
|
songer_interven
|
C
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
Your task is to determine whether one or more individuals or groups sought to formally intervene in the appeals court consideration of the case.
Robert BARTHOLOMEW, Jr., and Ann Bryant Bartholomew, Plaintiffs-Appellees Cross-Appellants, and Liberty Mutual Insurance Company, Intervenor-Appellee Cross-Appellant, v. CNG PRODUCING COMPANY, Defendant-Appellant Cross-Appellee Appellee.
No. 87-4265
Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Nov. 17, 1987.
Wood Brown, III, New Orleans, La., for CNG Producing Co.
J.B. Jones, Jr., Cameron, La., Wilford D. Carter, Lake Charles, La., for Bartholomew.
Kenny M. Charbonnet, Metairie, La., for Liberty Mut. Ins. Co.
Before POLITZ, JOHNSON and HIGGINBOTHAM, Circuit Judges.
JOHNSON, Circuit Judge:
In this dispute involving the Outer Continental Shelf Lands Act (OCSLA), the defendant CNG Producing Company appeals from the district court’s judgment based upon the jury verdict. By way of cross-appeal, the plaintiffs, Robert Bartholomew, Jr., and Ann Bryant Bartholomew, attack the district court’s award of posijudgment interest at a rate lower than that prescribed by Louisiana law as improper and also assert that the overall award of damages is inadequate. We reject the contentions of both parties and affirm.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff Robert Bartholomew, Jr., was injured on October 30, 1984, while working as a roughneck on an offshore production platform on the outer Continental Shelf off the Louisiana coast. At all material times, Bartholomew was an employee of Booker Drilling Company. Booker was working as an independent contractor for CNG Producing Company, who owned and operated the offshore platform. Under the contract between CNG and Booker, CNG reserved the right to inspect all work performed on the rig. To exercise this right of inspection, CNG relied primarily on two “company men.” One of these men was E.W. Farrar, Jr., an independent consultant, and the other was J.T. Madison, a salaried full-time employee of CNG. These men were to ensure that drilling operations on the platform were conducted in a safe and efficient manner.
At the time of the accident, Bartholomew and the driller, Perry Gill, were setting slips, an operation which involved putting pipe into the well hole. The rig floor on which the men were working was wet and muddy. As a result of the floor’s condition, Bartholomew slipped and twisted his back, sustaining the injuries to his back which form the basis of this lawsuit. In the subsequent jury trial, Bartholomew testified that the reason the rig floor was wet and muddy was because the CNG “company man,” J.T. Madison, whom Bartholomew referred to as “Mad Dog,” had instructed the driller, Gill, not to stop the drilling operation to wash off the floor, but to do so afterwards.
Ultimately, the jury determined that CNG was negligent, finding CNG to be thirty percent at fault for Bartholomew’s injuries. We note at this time that CNG failed to move for a directed verdict or a judgment notwithstanding the verdict. Additionally, the jury awarded $325,000 for damages suffered by Bartholomew as a result of the accident and $5,000 to Ann Bartholomew for her loss of consortium and services. The district court also awarded the Bartholomews prejudgment interest at the rate of twelve percent per annum from the date of judicial demand until entry of the judgment and awarded interest thereafter at the rate prescribed by 28 U.S.C. § 1961 until payment of the judgment by CNG. Both parties appeal the district court’s judgment.
II. DISCUSSION
A. The OCSLA
Bartholomew was injured on an offshore fixed platform located on the outer Continental Shelf off the coast of Louisiana. The Outer Continental Shelf Lands Act (OCSLA) provides that federal jurisdiction extends to
the subsoil and seabed of the outer Continental Shelf and to all artificial islands, and all installations and other devices permanently or temporarily attached to the seabed, which may be erected thereon for the purpose of exploring for, developing, or producing resources therefrom, ..., to the same extent as if the outer Continental Shelf were an area of exclusive Federal jurisdiction located within a State: ....
43 U.S.C. § 1333(a)(1) (emphasis added). Both parties in the instant case attempt to characterize the jurisdictional basis of this lawsuit as one premised on diversity of citizenship pursuant to 28 U.S.C. § 1332. This characterization is incorrect. Since the accident occurred on an offshore platform located on the outer Continental Shelf, the appropriate basis of jurisdiction for this claim is the OCSLA; therefore, the applicable law in the instant case is defined by the OCSLA as follows:
To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations of the Secretary now in effect or hereafter adopted, the civil and criminal laws of each adjacent state, ... are hereby declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf,....
43 U.S.C. § 1333(a)(2)(A). Interpreting the above provision, the Supreme Court, in Rodrigue v. Aetna Casualty Co., 395 U.S. 352, 89 S.Ct. 1835, 23 L.Ed.2d 360 (1969), stated that the law to be applied in actions governed by the OCSLA is “federal law, supplemented by state law of the adjacent state,....” Id. at 355, 89 S.Ct. at 1837. Thus, the Act mandates that we technically apply federal law to the instant case, but also apply the law of the adjacent state, Louisiana, as surrogate federal law to the extent that it is not inconsistent with federal laws and regulations. Having determined the applicable law, we next turn to the merits of the parties’ contentions on appeal.
B. The Liability of CNG
The Bartholomews brought this negligence suit against CNG, asserting that CNG was negligent (1) in ordering Bartholomew’s employer, Booker, to engage in an unsafe work practice and (2) in contracting with Booker for an inadequate number of floor hands to operate the equipment safely. In defense, CNG argues that as a principal which exercised no operational control over its independent contractor, Booker, CNG was insulated from liability in this case. Because we find that some evidence exists to support a finding by the jury that CNG expressly authorized an unsafe work practice on the platform, we reject CNG’s arguments and affirm the district court’s judgment without addressing the claim that CNG was negligent in failing to contract for adequate personnel.
It is well established that a principal is not liable for the activities of an independent contractor committed in the course of performing its duties under the contract. Hawkins v. Evans Cooperage Co., 766 F.2d 904, 906 (5th Cir.1985); Wallace v. Oceaneering Int’l, 727 F.2d 427, 437 (5th Cir.1984); Moser v. Texas Trailer Corp., 623 F.2d 1006, 1014-15 (5th Cir.1980). However, two notable exceptions exist to this general rule. First, a principal may not escape liability arising out of ultrahaz-ardous activities which are contracted out to an independent contractor. Second, and of importance to the instant case, a principal is liable for the acts of an independent contractor if he exercises operational control over those acts or expressly or impliedly authorizes an unsafe practice. Hawkins, 766 F.2d at 906; Wallace, 727 F.2d at 437; Williams v. Gervais F. Favrot Co., 499 So.2d 623, 625 (La.App.1986), writ denied, 503 So.2d 19 (La.1987); Ewell v. Petro Processors of Louisiana, Inc., 364 So.2d 604, 606-07 (La.App.1978), writ denied, 366 So.2d 575 (La.1979).
Where an available safe method, which includes the taking of adequate precautions, will render it at least ordinarily safe, and the work is done in an unsafe manner, the employer will be liable if he has expressly or impliedly authorized the particular manner which will render the work unsafe, and not otherwise.
Ewell, 364 So.2d at 607 (quoting Perkow-ski, The Employer and the Torts of His Independent Contractor in Louisiana, 21 TuLL.Rev. 619, 627 (1947)).
Having set forth the general rule and its exceptions, we must now determine the appropriate standard of review to utilize in reviewing the jury’s findings. As previously noted, CNG failed to move for a directed verdict or a judgment notwithstanding the verdict at the trial level. This Court has consistently held that it will not review the sufficiency of the evidence supporting a jury finding in the absence of a directed verdict or motion for judgment notwithstanding the verdict. Smith v. Trans-World Drilling Co., 772 F.2d 157, 160 (5th Cir.1985); Quinn v. Southwest Wood Products, Inc., 597 F.2d 1018, 1024 (5th Cir.1979); Coughlin v. Capitol Cement Co., 571 F.2d 290, 297 (5th Cir.1978); Fugitt v. Jones, 549 F.2d 1001, 1004 (5th Cir.1977). Accordingly, our evidentiary inquiry is limited to whether there was 11 any evidence to support the jury’s verdict, irrespective of its sufficiency, or whether plain error was committed which, if not noticed, would result in a ‘manifest miscarriage of justice.’ ” Coughlin, 571 F.2d at 297 (emphasis in original).
In finding that the appropriate standard of review is whether there was any evidence to support the jury’s finding, we reject CNG’s assertion that it was entitled to judgment as a matter of law. The jury expressly found that CNG’s negligence was a cause in fact of the injury suffered by Bartholomew on the offshore platform. Thus, the inquiry becomes whether there was any evidence that CNG exercised operational control over its independent contractor, Booker, or expressly or impliedly authorized the unsafe practice which caused Bartholomew’s injuries.
Bartholomew testified at trial that the company man, J.T. Madison, expressly told the driller, Perry Gill, not to wash the rig floor until after the operation was completed. Bartholomew also testified that the driller was fearful for his job. As a floor hand, Bartholomew took his orders directly from the driller. Bartholomew’s testimony was not directly contradicted by any of CNG’s witnesses. In fact, the Booker tool pusher testified that he had heard of some company men ordering the driller to speed up the operations and not to wash down the rig. Emmett Farrar, the other company man for CNG, who was independently employed, testified that he did not know whether or not Madison had ever issued such an order to the driller. Thus, the question was one of Bartholomew’s credibility. The jury was entitled to make that credibility determination and did so. On the record before us, we conclude that some evidence supported a finding by the jury that CNG, through its representative on the rig, J.T. Madison, expressly authorized the unsafe practice of failing to wash down the rig floor which eventually caused Bartholomew’s accident.
It is submitted by CNG that because Madison possibly gave his order not to wash down the floor two days prior to the accident, CNG was not exercising operational control at the time of the accident and therefore was not liable. Without determining who the company man was at the time of the accident, we conclude that whether Madison was on duty at the time of the accident or whether he gave the order two days prior to the accident is not dispositive. An employee does not stop obeying his employer’s orders merely because the employer is no longer present. It is not unrealistic to expect the driller, as well as the floor hands, to continue to conduct operations without washing down the floor, in light of Madison’s previous order to do so. Since there was some evidence to support a finding by the jury that CNG expressly authorized an unsafe work practice, we affirm the district court’s judgment.
C. Prejudgment Interest
We next address the Bartholomews’ claim that the district court erred in not awarding postjudgment interest at a rate of twelve percent, as provided by La.Rev. Stat. § 13:4203. The district court awarded postjudgment interest, but at the rate prescribed by 28 U.S.C. § 1961(a) and (b). Unfortunately, in making this claim, the Bartholomews continue to labor under the mistaken perception that federal court jurisdiction in this case is based on diversity of citizenship. Relying on this mistaken belief, the Bartholomews insist that the substantive law of Louisiana should apply in the instant case; therefore, the Louisiana rate of interest should apply to both prejudgment and postjudgment interest.
However, as we noted earlier, the OCS-LA is the appropriate jurisdictional basis for the Bartholomews’ claim. Therefore, Louisiana law only applies to the extent that it is not inconsistent with federal laws and regulations. In the instant case, the district court awarded postjudgment interest at the rate prescribed by 28 U.S.C. § 1961, the federal statute which governs awards of postjudgment interest.
Since Louisiana law provides for prejudgment interest as a substantive right, the district court also awarded interest to the Bartholomews from the date of judicial demand until the entry of judgment at a rate of twelve percent as prescribed by Louisiana law. This Court has repeatedly recognized that 28 U.S.C. § 1961 does not prohibit an award by the district court of prejudgment interest pursuant to La.Rev. Stat. § 13:4203 in an OCSLA case. Haas v. Atlantic Richfield, 799 F.2d 1011, 1018 (5th Cir.1986); Frederick v. Mobil Oil Corp., 765 F.2d 442, 449 (5th Cir.1985); Smith v. Shell Oil Co., 746 F.2d 1087, 1097 (5th Cir.1984); Olsen v. Shell Oil Co., 708 F.2d 976, 984 (5th Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 715, 79 L.Ed.2d 178 (1984). However, our prior decisions do not permit district courts to supplant federal statutes with state law. If we were to accept the plaintiffs’ arguments that Louisiana law should apply to both prejudgment and postjudgment interest in the instant case, we would be applying a state statute to an area already specifically covered by federal law. Such a holding would be in direct conflict with the statutory mandate of the OCSLA. We, therefore, conclude that the district court’s award of prejudgment interest at the rate specified by Louisiana law (twelve percent), and the award of postjudgment interest at the rate specified by federal law was not improper.
D. Inadequacy of Damages
Finally, the Bartholomews assert that the damage award of the jury was inadequate. In the instant case, the jury awarded the Bartholomews $325,000 for the damages Robert Bartholomew suffered as a result of his accident and $5,000 to Ann Bartholomew for her loss of consortium and services. “This Court will overturn a jury verdict for inadequacy only upon the strongest of showings.” Thezan v. Maritime Overseas Corp., 708 F.2d 175, 182 (5th Cir.1983), cert. denied, 464 U.S. 1050, 104 S.Ct. 729, 79 L.Ed.2d 189 (1984). In reviewing the damage award, this Court is limited to determining whether the trier of fact abused its discretion. Hawkes v. Ayers, 537 F.2d 836, 837 (5th Cir.1976). Moreover, damage awards will only be overturned in exceptional cases where such awards are so gross as to be contrary to right reason. Thezan, 708 F.2d at 182 (quoting Bailey v. Southern Pacific Transp. Co., 613 F.2d 1385, 1390 (5th Cir.), cert. denied, 449 U.S. 836, 101 S.Ct. 109, 66 L.Ed.2d 42 (1980)).
The Bartholomews contend that the jury verdict was inadequate when considered in light of the testimony of their economic expert who propounded that Bartholomew’s estimated economic loss from his accident would be anywhere between $473,162.87 and $614,314.72. Additionally, the Bartholomews assert that the minimum general damage award for this type of claim is $200,000. In Haas v. Atlantic Richfield, this Court explained the function of the testimony of economic experts regarding damages.
Haas claims the award for lost wages is grossly inadequate in light of the testimony of his economics expert. The expert calculated Haas’ past lost wages to be $61,605,000 and his future loss of earnings to be $422,076,000. Calculations such as these are only a suggested guideline for a jury.
799 F.2d at 1017 (emphasis added). In Haas, the Court concluded that the jury was free to consider evidence of higher discount rates, the plaintiff’s ability to mitigate damages, and factors which may have prevented the plaintiff from obtaining employment in the future. Id.
Similarly, the testimony of the economic expert in the instant case was only a suggested guideline for the jury. The facts and figures of the economic expert were based on predictions as to future economic trends and salary increases of oil field employees in the future. The jury was free to accept or reject those predictions as it saw fit. Additionally, the jury could properly consider Bartholomew’s ability to return to the workforce in the future. We do not believe that the award of $325,000 was so gross as to be contrary to right reason. Therefore, we reject Bartholomew’s contentions.
III. CONCLUSION
In sum, we conclude that there was some evidence that CNG expressly authorized the unsafe practice of failing to wash down the rig floor until after operations were completed. Additionally, the district court did not err in awarding prejudgment interest at a rate set by Louisiana law and postjudgment interest at a rate set by federal law. The district court’s hybrid award based on federal and state law was exactly the type of application of the OCSLA contemplated by its drafters. Finally, we cannot say that the jury award of $325,000 was so inadequate as to amount to an abuse of discretion on the part of the trier of fact. The judgment of the district court is therefore AFFIRMED.
. Since Booker was insured by Liberty Mutual Insurance Company for liability to its employees, Liberty Mutual intervened in the instant lawsuit to recoup compensation paid to Bartholomew as a result of the injuries which he suffered due to his accident.
. Present appellate counsel were not trial counsel.
. 28 U.S.C. § 1961 provides for postjudgment interest at a rate lower than that mandated by Louisiana law. Section 1961(a) provides:
... Such interest shall be calculated from the date of the entry of the judgment, at a rate equal to the coupon issue yield equivalent (as determined by the Secretary of the Treasury) of the average accepted auction price for the last auction of fifty-two week United States Treasury bills settled immediately prior to the date of the judgment. The Director of the Administrative Office of the United States Courts shall distribute notice of that rate and any changes in it to all Federal judges.
In any event, we do not decide whether § 1961 applies in diversity suits. Compare Budge v. Post, 643 F.2d 372 (1981 5th Cir.) and G.M. Brod & Co., Inc. v. U.S. Home Corp., 759 F.2d 1526 (11th Cir.1985).
Question: Did one or more individuals or groups seek to formally intervene in the appeals court consideration of the case?
A. no intervenor in case
B. intervenor = appellant
C. intervenor = respondent
D. yes, both appellant & respondent
E. not applicable
Answer:
|
songer_respond1_1_3
|
E
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". Your task is to determine what category of business best describes the area of activity of this litigant which is involved in this case.
P. D. MARCHESSINI & CO. (NEW YORK), Inc., Plaintiff-Appellant, v. H. W. ROBINSON & CO., Inc., Defendant-Appellee.
No. 476, Docket 32084.
United States Court of Appeals Second Circuit.
Argued May 2, 1968.
Decided May 9, 1968.
Alvin L. Stern, New York City, (Poles, Tublin, Patestides & Stratakis, New York City; John G. Poles, New York City, of counsel), for appellant.
John H. Cleveland, III, New York City, (Haight, Gardner, Poor & Havens, New York City; Charles Grice McMullan, Jr., New York City, of counsel), for appellee.
Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.
PER CURIAM:
P. D. Marchessini & Co. (New York), Inc., a steamship operator, appeals from a judgment of the District Court for the Southern District of New York dismissing a libel against H. W. Robinson & Co., Inc., a freight forwarder. The libel sought damages of $201,500 for breach of a contract for the shipment of 260 locomotive trucks, weighing 1057 long tons and occupying 156,000 cubic feet of space, from New York to Yokohama. The contract was evidenced by a “booking note” executed on behalf of Robinson by Edward C. Boyens, who was listed in a standard trade publication under Robinson’s name and advertisement opposite the rubric “Export Department.”
We need not determine whether, despite the absence of any statement in the booking note that Robinson was acting only as agent for an undisclosed shipper, the dealings between the parties did not make this sufficiently plain to Marchessini as to preclude its recovering against Robinson as a principal. See ALI, Restatement 2d, Agency, § 322, § 336, comment d (1958); 2 Williston, Contracts, § 283-85 (3d ed. 1959). Assuming this point in Marehessini’s favor, it still had the burden of establishing Boy-ens’ authority to bind Robinson. The absence of actual authority is clear, and the judge was warranted in concluding that Marchessini had not established apparent authority. Although Marches-sini’s policy was to attempt to obtain signed booking contracts from freight forwarders, Robinson’s policy was to avoid such signature. Boyens denied having signed any previous booking notes with Marchessini except on a single occasion when he had specific authority from the shipper and signed in a manner making plain that Robinson was acting solely as agent for a named principal. There was no evidence that he had apparent authority to commit his employer, for a small commission, to a contract that would entail large liabilities to the steamship operator in the event of default by a client whose conduct was beyond its control.
Affirmed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "private business (including criminal enterprises)". What category of business best describes the area of activity of this litigant which is involved in this case?
A. agriculture
B. mining
C. construction
D. manufacturing
E. transportation
F. trade
G. financial institution
H. utilities
I. other
J. unclear
Answer:
|
sc_caseorigin
|
212
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
MARYLAND et al. v. LOUISIANA
No. 83,
Orig.
Argued January 19, 1981
Decided May 26, 1981
White, J., delivered the opinion of the Court, in which Burger, C. J., and BreNNAN, Stewart, Marshall, BlackmüN, and SteveNS, JJ., joined. Burger, C. J., filed a concurring opinion, post, p. 760. RehNQUist, J., filed a dissenting opinion, post, p. 760. Powell, J., took no part in the consideration or decision of the case.
Stephen H. Sachs, Attorney General of Maryland, argued the cause for plaintiffs. With him on the briefs were David H. Feldman, Diana Gribbon Mots, and Robert A. Zarnoch, Assistant Attorneys General of Maryland; Tyrone C. Fahner, Attorney General of Illinois, Hercules F. Bolos, Special Assistant Attorney General, and Thomas J. Swabowski, Assistant Attorney General; Theodore L. Sendak, Attorney General of Indiana, and William E. Daily and Robert B. Wente, Deputy Attorneys General; Francis X. Bellotti, Attorney General of Massachusetts, and Alan D. Mandl, Assistant Attorney General; Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and Arthur E. D’Hondt, Don L. Keskey, and John M. Dempsey, Assistant Attorneys General; Robert Abrams, Attorney General of New York, Shirley A. Siegel, Solicitor General, and Paulann M. Caplovitz and Richard W. Golden, Assistant Attorneys General; Dennis J. Roberts II, Attorney General of Rhode Island, and Stephen Lichatin III, Assistant Attorney General; and Bronson C. La Follette, Attorney General of Wisconsin, Charles A. Bleck, Assistant Attorney General, and Steven M. Schur.
Stuart A. Smith argued the cause for intervenors United States et al. With him on the briefs were Solicitor General McCree, Jerome M. Feit, and J. Paul Douglas.
Frank J. Peragine argued the cause for intervenor pipeline companies. With him on the briefs were H. Paul Simon, C. McVea Oliver, William W. Brackett, Daniel F. Collins, Arthur J. Waechter, Jr., Herschel L. Abbott, Jr., Gene W. Lafitte, John M. Wilson, Ernest L. Edwards, Margaret R. Tribble, James PL. Napper II, and Melvin Richter.
Eugene Gressman and Robert G. Pugh argued the cause for defendant. With them on the briefs were'William J. Guste, Jr., Attorney General of Louisiana, Carmack M. Blackmon, Assistant Attorney General, and William C. Broadhurst.
Frederick Moving filed a brief for Associated Gas Distributors as amicus curiae.
Justice White
delivered the opinion of the Court.
In this original action, several States, joined by the United States and a number of pipeline companies, challenge the constitutionality of Louisiana’s “First-Use Tax” imposed on certain uses of natural gas brought into Louisiana, principally from the Outer Continental Shelf (OCS), as violative of the Supremacy Clause and the Commerce Clause of the United States Constitution.
I
The lands beneath the Gulf of Mexico have large reserves of oil and natural gas. Initially, these reserves could not be developed due to technological difficulties associated with offshore drilling. In 1938, the first drilling rig was constructed off the coast of Louisiana, and with the advent of new technologies, offshore drilling has become commonplace. Exploration and development of the OCS in the Gulf of Mexico have become large industries providing a substantial percentage of the natural gas used in this country. Most of the gas being extracted from the lands underlying the Gulf is piped to refining plants located in coastal portions of Louisiana where the gas is “dried” — the liquefiable hydrocarbons gathered and removed- — on its way to ultimate distribution to consumers in over 30 States. It is estimated that 98% of the OCS gas processed in Louisiana is eventually sold to out-of-state consumers with the 2% remainder consumed within Louisiana. The, contractual arrangements between a producer of gas and the pipeline companies vary. Most often, the producer sells the gas to the pipeline companies at the wellhead, although the producer may retain an interest in any extractable components. Some producers, however, retain full ownership rights and simply pay a flat fee for the use of the pipeline companies’ facilities.
The ownership and control of these large reserves of natural gas have been much disputed. In United States v. Louisiana, 339 U. S. 699 (1950), the Court applied the principle of its holding in United States v. California, 332 U. S. 19 (1947)—that the United States possesses paramount rights to lands beneath the Pacific Ocean seaward of California’s low-water mark — to the offshore areas adjacent to Louisiana. In 1953, Congress passed the Submerged Lands Act, 43 U. S. C. §§ 1301-1315, ceding any federal interest in the lands within three miles of the coast, while confirming the Federal Government’s interest in the area seaward of the 3-mile limit. See United States v. Louisiana, 363 U. S. 1 (1960); United States v. Maine, 420 U. S. 515, 524-526 (1975). In the same year, Congress passed the Outer Continental Shelf Lands Act, 43 U. S. C. §§ 1331-1343 (OCS Act), which declared that the “subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition . . . .” § 1322. The OCS Act also established procedures for federal leasing of OCS land to develop mineral resources. While the passage of these Acts established the respective legal interests of the parties, there has been extensive litigation to establish the legal boundaries of the .federal OCS domain. See generally United States v. Louisiana, 446 U. S. 253, 254-260 (1980) (detailing the history of the “long-continuing and sometimes strained controversy” between the United States and Louisiana concerning the OCS lands).
In 1978, the Louisiana Legislature enacted a tax of seven cents per thousand cubic feet of natural gas on the “first use” of any gas imported into Louisiana which was not previously subjected to taxation by another State or the United States. La. Rev. Stat. Ann. §§ 47:1301-47:1307 (West Supp. 1981) (Act). The Tax imposed is precisely equal to the severance tax the State imposes on Louisiana gas producers. The Tax is owed by the owner of the gas at the time the first taxable “use” occurs within Louisiana. § 1305B. About 85% of the OCS gas brought ashore is owned by the pipeline companies, the rest by the producers. Since most States impose their own severance tax, it is acknowledged that the primary effect of the First-Use Tax will be on gas produced in the federal OCS area and then piped to processing plants located within Louisiana. It has been estimated that Louisiana would receive at least $150 million in annual receipts from the First-Use Tax.
The stated purpose of the First-Use Tax was to reimburse the people of Louisiana for damages to the State’s waterbot-toms, barrier islands, and coastal areas resulting from the introduction of natural gas into Louisiana from areas not subject to state taxes as well as to compensate for the costs incurred by the State in protecting those resources. § 1301C. Moreover, the Tax was designed to equalize competition between gas produced in Louisiana and subject to the state severance tax of seven cents per thousand cubic feet, and gas produced elsewhere not subject to a severance tax such as OCS gas. § 1301A. The Act specified a number of different uses justifying imposition of the First-Use Tax including sale, processing, transportation, use in manufacturing, treatment, or “other ascertainable action at a point within the state.” § 1302 (8).
The Act itself, as well as provisions found elsewhere in the state statutes, provided a number of exemptions from and credits for the First-Use Tax. The Severance Tax Credit provided that any taxpayer subject to the First-Use Tax was entitled to a direct tax credit on any Louisiana severance tax owed in connection with the extraction of natural resources within the State. La. Rev. Stat. Ann. § 47:647 (West Supp. 1981). Second, municipal or state-regulated electric generating plants and natural gas distributing services located within Louisiana, as well as any direct purchaser of gas used for consumption directly by that purchaser, were provided tax credits on other Louisiana taxes upon a showing that “fuel costs for electricity generation or natural gas distribution or consumption have increased as a direct result of increases in transportation and marketing costs of natural gas delivered from the federal domain of the outer continental shelf . . . ,” which implicitly includes any increases resulting from the First-Use Tax. La. Rev. Stat. Ann. § 47:11B (West Supp. 1981). Furthermore, imported natural gas used for drilling oil or gas within the State was exempted from the First-Use Tax. La. Rev. Stat. Ann. §47:1303A (West Supp. 1981). Thus, Louisiana consumers of OCS gas for the most part are not burdened by the Tax, but it does uniformly apply to gas moving out of the State. The Act also purported to establish the legal effect of the Tax in terms of defining the proper allocation of the Tax among potentially liable parties. Specifically, the Act declared that the “tax shall be deemed a cost associated with uses made by the owner in preparation of marketing of the natural gas.” § 1303C. Any contract which attempted to allocate the cost of the Tax to any party except the ultimate consumer was declared to be “against public policy and unenforceable to that extent.” Ibid.
On March 29, 1979, eight States filed a motion for leave to file a complaint under this Court’s original jurisdiction pursuant to Art. Ill, § 2, of the Constitution. The complaint sought a declaratory judgment that the First-Use Tax was unconstitutional under: (1) the Commerce Clause, Art. I, § 8, cl. 3; (2) the Supremacy Clause, Art. VI, cl. 2; (3) the Import-Export Clause, Art. I, § 10, cl. 2; (4) the Impairment of Contracts Clause, Art. I, § 10, cl. 1; and (5) the Equal Protection Clause of the Fourteenth Amendment. The plaintiff States also sought injunctive relief against Louisiana or its agents collecting the Tax with respect to any gas in interstate commerce as well as a refund of taxes already collected. We granted plaintiffs’ motion for leave to file on June 18, 1979. 442 U. S. 937. Subsequently, as. is usual, we appointed a Special Master to facilitate handling of the suit. 445 U. S. 913 (1980). To date, the Special Master has issued two reports. In the first report, dated May 14, 1980, the Special Master recommended that the Court approve the motions of New Jersey, the United States, the Federal Energy Regulatory Commission (FERG), and 17 pipeline companies to intervene as plaintiffs. The Master’s second report was issued on September 15, 1980, and essentially made two recommendations. First, the Master recommended that we deny Louisiana’s motion to dismiss and reject the submissions that the plaintiff States had no standing to bring the action and that the case was not an appropriate one for the exercise of our original jurisdiction. Second, on the plaintiff States’ motion for judgment on the pleadings on the grounds that the Tax was unconstitutional on its face, the Special Master, while recognizing that the statute was constitutionally suspect in certain respects, recommended that the motion be denied and that further evidentiary hearings be conducted. We heard oral argument on the exceptions filed to the reports.
II
Initially, we must resolve Louisiana’s contention, rejected by the Special Master, that the case should be dismissed. In support of its motion, Louisiana presents two principal arguments. First, Louisiana contends that the plaintiff States lack standing to bring the suit under the Court’s original jurisdiction. Second, Louisiana argues that even if the bare requirements for exercise of our original jurisdiction have been met, this case is not an appropriate one to entertain here because of certain pending state-court actions in Louisiana in which the constitutional issues sought to be presented may be addressed. See Arizona v. New Mexico, 425 U. S. 794, 797 (1976). See also Ohio v. Wyandotte Chemicals Corp., 401 U. S. 493, 501 (1971). We agree with the Special Master that both contentions should be rejected.
A
1
The Constitution provides for this Court’s original jurisdiction over cases in which a “State shall be a Party.” Art. Ill, § 2, cl. 2. Congress has in turn provided that the Supreme Court shall have “original and exclusive jurisdiction of all controversies between two or more States.” 28 U. S. C. § 1251 (a) (1976 ed., Supp. III). In order to constitute a proper “controversy” under our original jurisdiction, “it must appear that the complaining State has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to the accepted principles of the common law or equity systems of jurisprudence.” Massachusetts v. Missouri, 308 U. S. 1, 15 (1939). See New York v. Illinois, 274 U. S. 488, 490 (1927) ; Texas v. Florida, 306 U. S. 398, 405 (1939).
Louisiana asserts that this case should be dismissed for want of standing because the Tax is imposed on the pipeline companies and not directly on the ultimate consumers. Under its view, the alleged interests of the plaintiff States do not fall within the type of "sovereignty” concerns justifying exercise of our original jurisdiction. Standing to sue, however, exists for constitutional purposes if the injury alleged “fairly can be traced to the challenged action of the defendant, and not injury that results from the independent action of some third party not before the court.” Simon v. Eastern Kentucky Welfare Rights Organization, 426 U. S. 26, 41-42 (1976). See Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U. S. 59, 72-81 (1978). This is clearly the case here. The plaintiff States are substantial consumers of natural gas. The First-Use Tax, while imposed on the pipeline companies, is clearly intended to be passed on to the ultimate consumer. Indeed, the statute forbids the Tax from being passed on or back to any third party other than the purchaser of the gas and explicitly directs that it should be considered as a cost of preparing the gas for market. La. Rev. Stat. Ann. §47:1303C (West Supp. 1981). In fact, the pipeline companies, with the approval of the FERC, have passed on the cost of the First-Use Tax to their customers. See Louisiana First-Use Tax in Pipeline Rate Cases, Docket No. RM78-23, Order No. 10, 43 Fed. Reg. 45553 (1978). Thus, the Special Master properly determined that “although the tax is collected from the pipelines, it is really a burden on consumers.” Second Report, at 12. It is clear that the plaintiff States, as major purchasers of natural gas whose cost has increased as a direct result of Louisiana’s imposition of the First-Use Tax, are directly affected in a “substantial and real” way so as to justify their exercise of this Court’s original jurisdiction.
2
Jurisdiction is also supported by the States’ interest as parens patriae. A State is not permitted to enter a controversy as a nominal party in order to forward the claims of individual citizens. See Oklahoma ex rel. Johnson v. Cook, 304 U. S. 387 (1938); New Hampshire v. Louisiana, 108 U. S. 76 (1883). But it may act as the representative of its citizens in original actions where the injury alleged affects the general population of a State in a substantial way. See, e. g,, Missouri v. Illinois, 180 U. S. 208 (1901); Kansas v. Colorado, 185 U. S. 125 (1902); Georgia v. Tennessee Copper Co., 206 U. S. 230 (1907). See generally Note, The Original Jurisdiction of the United States Supreme Court, 11 Stan. L. Rev. 665, 671-678 (1959). Cf. Hawaii v. Standard Oil Co., 405 U. S. 251, 257-259 (1972) (the Court has recognized the right of a State to sue as parens patriae “to prevent or repair harm to its 'quasi-sovereign' interests” in original jurisdiction suits).
In this respect, this case is functionally indistinguishable from Pennsylvania v. West Virginia, 262 U. S. 553 (1923), in which the Court entertained a suit brought by one State against another. In that case, West Virginia, then the leading producer of natural gas, required gas producers in the State to meet the needs of all local customers before shipping any gas interstate. Ohio and Pennsylvania moved for leave to file a complaint under the Court’s original jurisdiction claiming that the statute violated the Commerce Clause in that the statute would have the effect of cutting off supplies of natural gas to those States. Both States claimed to be protecting a twofold interest — “one as the proprietor of various public institutions and schools whose supply of gas will be largely curtailed or cut off by the threatened interference with the interstate current, and the other as the representative of the consuming public whose supply will be similarly affected.” The Court granted leave to file, finding both interests to be substantial. With respect to representing the interests of its citizens the Court stated:
“The private consumers in each State not only include most of the inhabitants of many urban communities but constitute a substantial portion of the State’s population. Their health, comfort and welfare are seriously jeopardized by the threatened withdrawal of the gas from the interstate stream. This is a matter of grave public concern in which the State, as the representative of the public, has an interest apart from that of the individuals affected. It is not merely a remote or ethical interest but one which is immediate and recognized by law.” Id., at 592.
Pennsylvania v. West Virginia counsels that we should not dismiss this action. Plaintiff States have alleged substantial and serious injury to their proprietary interests as consumers of natural gas as a direct result of the allegedly unconstitutional actions of Louisiana. This direct injury is also supported by the States’ interest in protecting its citizens from substantial economic injury presented by imposition of the First-Use Tax. Nor does the incidence of the Tax fall on a small group of citizens who are likely to challenge the Tax directly. Rather, a great many citizens in each of the plaintiff States are themselves consumers of natural gas and are faced with increased costs aggregating millions of dollars per year. As the Special Master observed, individual consumers cannot be expected to litigate the validity of the First-Use Tax given that the amounts paid by each consumer are likely to be relatively small. Moreover, because the consumers are not directly responsible to Louisiana for payment of the taxes, they of course are foreclosed from suing for a refund in Louisiana’s courts. In such circumstances, exercise of our original jurisdiction is proper.
B
With respect to Louisiana’s second argument, it is true that we have construed the congressional grant of exclusive jurisdiction under § 1251 (a) as requiring resort to our obligatory jurisdiction only in “appropriate cases.” Illinois v. City of Milwaukee, 406 U. S. 91, 93 (1972); Arizona v. New Mexico, 425 U. S., at 796-797. This view is consistent with the general observation that the Court’s original jurisdiction should be exercised “sparingly.” United States v. Nevada, 412 U. S. 534, 538 (1973). See Ohio v. Wyandotte Chemicals Corp., 401 U. S., at 501; Massachusetts v. Missouri, 308 U. S., at 18-20. In City of Milwaukee, we noted that what is “appropriate” involves not only “the seriousness and dignity of the claim,” but also “the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had.” 406 U. S., at 93. Louisiana urges that presently pending state lawsuits raising the identical constitutional issues presented here constitute sufficient reason to forgo the exercise of our original jurisdiction.
There have been filed in various lower courts several suits challenging the constitutionality of the First-Use Tax. The first suit was brought by Louisiana in state court seeking a declaratory judgment that the First-Use Tax is constitutional. Edwards v. Transcontinental Gas Pipe Line Corp., No. 216,867 (19th Judicial Disk, East Baton Rouge Parish). Among the named
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
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004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
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166. California U.S. Circuit for (all) District(s) of California
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205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
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songer_casetyp1_7-3-2
|
D
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "economic activity and regulation - torts".
Hempsal SNYDOR, Jr., Appellant, v. VILLAIN & FASSIO et COMPANIA INTERNAZIONALE DI GENOVA SOCIETA REUNITE DI NAVIAGAIONE, S.P.A., Appellee. William RANDOLPH, Appellant, v. CENTRAL GULF STEAMSHIP CORP. et al., Appellees. Bert ROBINSON, Appellant, v. GRACE LINE, INC., Appellee. Paisley GREEN, to his own use and to the use of Liberty Mutual Insurance Company, Appellant, v. POPE AND TALBOTT, INC., a body corporate, Appellee. James R. MILES, Appellant, v. S.S. PRODROMOS et al., Appellees. Oscar EADDY, Appellant, v. EMDER DAMPFERCOMPAGNIE AK TIENGESELLSCHAFT et al., Appellees. James MISLAK, Appellant, v. PLOUVIER MARITIME, N.V., Appellee.
Nos. 71-1208, 71-1473, 71-1477, 71-1478, 71-1496, 71-1497, 71-1678.
United States Court of Appeals, Fourth Circuit.
April 24, 1972.
Raymond J. Cardillo, Baltimore, Md., for appellant in No. 71-1473.
H. Carl Butler, Baltimore, Md., for appellant in No. 71-1477.
Franklin I. Freeman and William B. Ewers, Baltimore, Md., for appellant in No. 71-1478.
John J. O’Connor, Jr., Baltimore, Md., for appellant in No. 71-1496.
Joseph F. Lentz, Jr., Baltimore, Md., for appellant in Nos. 71-1497, 71-1208 and 71-1678.
Louis G. Close, Jr., Randall C. Coleman, Eugene A. Edgett, Jr., Phillips L. Goldsborough, 3rd, Baltimore, Md., A. Owen Hennegan, Towson, Md., Richard R. Jackson, Jr., Paul V. Niemeyer and Jesse Slingluff, Baltimore, Md., for ap-pellees in Nos. 71-1208, 71-1473, 71-1477, 71-1478, 71-1496 and 71-1497.
David R. Owen, Baltimore, Md., for appellee in No. 71-1678.
Before HAYNSWORTH, Chief Judge, SOBELOFF, Senior Circuit Judge, and FIELD, Circuit Judge.
PER CURIAM:
Each of these seven cases involves a longshoreman employee of a stevedoring company who was injured on a pier or in a pier-based structure in the performance of his work. In each case the longshoreman instituted an action against the shipowner with the usual allegations of negligence and unseaworthiness of the vessel. Some of the cases were brought in admiralty, while others were instituted as actions at law. The district court took the position that the cases presented common “substantive” questions which could be determined only by the application of principles of maritime law. Basically, the “substantive” question in each case is whether the subject matter is a maritime tort which falls within the admiralty jurisdiction of the district courts. The district court 328 F.Supp. 71, concluded in effect that there was an absence of admiralty jurisdiction over the subject matter and accordingly dismissed the complaints.
On the basis of the recent decision of the Supreme Court in Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), we conclude that the action of the district court in dismissing these cases was appropriate.
In Victory Carriers, the longshoreman, Bill Law, was the operator of a forklift owned by his employer. At the time of his injuries the forklift was carrying cargo to be loaded on a vessel owned by Victory Carriers, Inc., and was being operated by Law on the pier alongside the vessel. The injury resulted from the fall of a rack on the forklift which occurred during the course of its operation. Law instituted suit in the district court alleging both negligence and unseaworthiness. The district court entered judgment for the owner, holding that the doctrine of unseaworthiness did not apply to Law since he was not engaged in the loading process. The Court of Appeals for the Fifth Circuit reversed. Law v. Victory Carriers, Inc., 432 F.2d 376 (5 Cir. 1970).
The Supreme Court reversed the Fifth Circuit and held that admiralty jurisdiction does not extend to “pier-side accidents caused by a stevedore’s pier-based equipment.” The Court observed that the Admiralty Extension Act of 1948, 46 U.S.C. § 740, extended admiralty jurisdiction to include “all cases of damage or injury * * * caused by a vessel on navigable waters, notwithstanding that such damage or injury be done or consummated on land.” The Court pointed out that the mere fact that a longshoreman was engaged in loading or unloading a vessel at the time of his injury did not necessarily bring him within the ambit of the Act, but that recovery in admiralty is limited to those situations where the injuries are caused by the ship, its crew or its appurtenances. Mr. Justice White, writing for the majority stated:
“In the present case, however, the typical elements of a maritime cause of action are particularly attenuated: respondent Law was not injured by equipment which was part of the ship’s usual gear or which was stored on board, the equipment which injured him was in no way attached to the ship, the forklift was not under the control of the ship or its crew, and the accident did not occur aboard ship or on the gang plank.” 404 U.S. 213, 92 S.Ct. 426.
An examination of the facts in the present cases indicates that each of them falls within the principles enunciated in Victory and, accordingly, the longshoremen plaintiffs had no maritime cause of action.
No. 71-1208
Hempsal Snydor, a longshoreman, was injured on a pier when he was struck by a pier-based tractor owned by his stevedore employer. At the time he was struck, Snydor was bending down to pick up some straps and the tractor was pushing a barrel of rags from one end of the pier to another so that they could be loaded onto the vessel owned by the respondent. Since Sydnor was not injured by equipment which was a part of the ship’s gear and since this equipment was in no way attached to the ship or under the control of the ship or its crew, there was no maritime cause of action.
No. 71-1473
William Randolph was working in a railroad gondola car which was positioned on a pier alongside the S. S. GREEN BAY. He was injured when he was struck by the hook of a pier-based crane owned by the Maryland Port Authority which was suddenly dropped into the gondola car. Since the crane was operated by a fellow longshoreman and was in no way connected with or under the control of the ship or its crew, the district court properly dismissed the case.
No. 71-1477
Bert Robinson, a longshoreman, was standing on a pier helping unload some pontoon hold covers. These pontoons cover the ship’s hold and are usually stored on the deck; however, in this instance they were being stored on the pier. As the ship’s boom lowered the pontoons, Robinson and another longshoreman grabbed each end and then guided the pontoons to the place on the pier where they were put on wooden chocks. As Robinson was guiding one of the pontoons he tripped over a small piece of wood injuring him. At the trial of this case no evidence was offered as to the ownership of the piece of wood nor was any connection shown between it and the vessel. Robinson himself testified that the offending piece of wood had nothing to do with the unloading operation. Under these circumstances, the district court properly dismissed Robinson’s complaint.
No. 71-1478
Paisley Green worked on the second floor of a warehouse which had been constructed on a pier. His job on the day of the accident was to “spot” a palletized cargo that had been unloaded from a ship which was tied up alongside the pier. He was injured when a case of cargo fell from a stack and struck him. Green argues that his injury was caused by an appurtenance of the ship, i.e., defective cargo pallets. He further contends that “it was obvious that the cases had to have been improperly or insecurely glued together and that such condition had existed while the cases were on the vessel in question.” We are unpersuaded by this theory advanced for the first time in the appellant’s brief in this court. During a full trial on the merits he offered no evidence that the pallets were defective when they left the ship — a fact crucial to establishing a maritime cause of action under the Admiralty Extension Act. Indeed, at the most, the only proof adduced at trial concerning the cause of the accident indicates that the defect in the pallets was the result of the negligence of a forklift operator during the stacking of the pallets after they left the ship. The District Court was, therefore, correct in distinguishing Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), for in that case, unlike the one under review there was evidence in the record that the cargo containers were defective before they left the ship. Since no personnel from the vessel were shown to have damaged the pallets, and the pallets were not defective when they left the ship, the complaint was properly dismissed.
No. 71-1496
James R. Miles was employed as an operator of a grain elevator. Grain was transferred from the elevator into the hold of the S. S. PRODROMOS by means of a conveyor belt. Miles was injured when an explosion took place inside the control box as he threw a switch in an effort to restart the motor which drove the belt. While it is unquestioned that Miles was in the process of loading the vessel, he was not injured by equipment which was a part of the ship’s gear or in anyway attached to the ship. Moreover, neither the grain elevator nor the conveyor belt was under the control of the ship or its crew, and the accident occurred not on the ship but on the pier. Therefore, his claim was properly dismissed by the District Court.
No. 71-1497
Oscar Eaddy was injured while he was doing work preparatory to the loading of the M. S. ANNI NUBEL. A palletized cargo of barrels was to be loaded aboard the ship on the morning of Eaddy’s accident. Many of the pallets supporting the cargo were not in good order and Eaddy and another longshoreman were to help place good pallets under any pallet considered to be too weak. Eaddy was also instructed to make sure that the barrels were placed securely on the pallets. While Eaddy was placing a barrel back on a pallet it broke causing three crowbars which were standing together between the barrels to fall and injure his foot. The defective pallet in question was not part of the ship’s gear or cargo. No member of the ship’s crew was present when the accident occurred and the forklift holding the pallet was not under the control of the ship or its crew. On these facts the district court properly dismissed the complaint.
No. 71-1678
The factual situation in this case is very similar to No. 71-1473. James Mislak was working in a railroad car on the pier. At the time of his injury, a pier-based crane owned by the Maryland Port Authority was unloading steel beams from the S. S. STAD GENT. The crane was being operated by an employee of the Authority and as the operator lowered one of the beams into the gondola car the operator caused the steel to swing and it caught Mislak’s hand against the side of the car. Since the crane was not a part of the ship’s gear or equipment and since it was being operated by an employee of the Authority and was not under the control of the ship or its crew at the time of the accident, there was no maritime cause of action.
Accordingly, for the reasons stated above we dispense with oral argument and affirm the judgments below.
Affirmed.
Question: What is the specific issue in the case within the general category of "economic activity and regulation - torts"?
A. motor vehicle
B. airplane
C. product liability
D. federal employer liability; injuries to dockworkers and longshoremen
E. other government tort liability
F. workers compensation
G. medical malpractice
H. other personal injury
I. fraud
J. other property damage
K. other torts
Answer:
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songer_appnatpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Dillard Elean HENDERSON, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
No. 27360
Summary Calendar.
United States Court of Appeals Fifth Circuit.
Jan. 8, 1970.
Dillard Elean Henderson, pro se.
H. M. Ray, U. S. Atty., Roger M. Flynt, Jr., Asst. U. S. Atty., Oxford, Miss., for appellee.
Before JOHN R. BROWN, Chief Judge, and THORNBERRY and MORGAN, Circuit Judges.
PER CURIAM:
This case comes to us from the District Court’s denial without an evidentiary hearing of Petitioner’s § 2255 motion to vacate sentence. Petitioner contends that his conviction was obtained in violation of the Due Process Clause of the Fifth Amendment, his Sixth Amendment rights to counsel and to confront the witnesses against him, F.R. Crim.P. 43, and his right to trial by an impartial jury. Zeroing in on these broad claims Petitioner asserts that (1) he was absent during part of the impaneling of the jury, (2) a juror slept through part of the trial, and (3) his attorney was not present for all the examination of a prosecution witness. We find all these contentions to be without merit and affirm.
Petitioner’s first contention is that he was not present during part of the impaneling procedure and that his presence is required by F.R.Crim.P. 43, which provides that “the defendant shall be present * * * at every stage of the trial including the impaneling of the jury * * Although Petitioner’s statement that he was not present is shown by the record to be factually correct, we find that the error was harmless and should be disregarded under F.R.Crim.P. 52(a).
To handle challenges for cause the Judge and counsel withdrew to the Judge’s chambers. During Petitioner’s absence from chambers five things happened : the government announced it had no challenges for cause. Petitioner’s attorney challenged one juror for cause, which challenge was granted. Another juror was substituted and the United States announced it was satisfied. Petitioner’s attorney announced he was satisfied with the juror. The United States announced that it had no peremptory challenges with respect to the remaining 12 jurors. At this stage on discovery that defendant was not present, he was brought into the Judge’s chambers and the Court asked his counsel whether there was “any need * * * to go back through the preliminaries with respect to the exercise of challenges for cause.” To this his counsel answered with a categorical “No.” The momentary error of inadvertently allowing Petitioner to be absent brought no harm upon him since nothing occurred to his detriment, the Trial Court offered an opportunity to go back through the entire procedure, which was declined, and Petitioner was present during the entire peremptory challenge period and only 6 of his 10 peremptory challenges were exercised.
Petitioner’s second contention is that he was denied his Sixth Amendment right to trial by jury because a juror fell asleep during the trial. We agree that nothing was shown requiring a further hearing either as to the occurrence or timely notice to the Court to permit corrective action.
Petitioner’s last contention is that he was denied assistance of counsel during a portion of the trial because his attorney was absent from the courtroom. The claim arises out of this part of the record. A principal witness for the government had implicated Petitioner and several other defendants (one of whom, Glenn Nash, was an attorney) in a conspiracy to steal United States postal money orders. Immediately after this testimony and before cross-examination, a recess was taken. After the recess the government asked two principal questions. The first — presumably anticipating the inevitable inquiry on cross-examination — was whether he had been convicted of a felony (the reply was “Yes, in 1966”). The second was whether co-defendant Nash had ever represented the witness in legal matters. To this he answered that Nash had represented him in a divorce proceeding and in the present criminal case in the very beginning.
All counsel were given full opportunity for cross-examination, two did so, and nothing adverse to Petitioner came out. The first attorney elicited only testimony which exculpated his client. The second extensively cross-examined the witness bringing out testimony, such as the fact that he had been charged several times with passing bad checks and with a series of burglaries, that was damaging only to his credibility.
Quite obviously Petitioner’s counsel was satisfied, for when it came his turn to cross-examine he responded to specific inquiry of the Court that he had “No further cross-examination.” Nothing in this portion of the record transpiring subsequent to the recess affords any basis for concluding that for whatever time counsel was momentarily absent anything occurred which was harmful to Petitioner or — with or without hindsight — pointed up lines of inquiry which' a diligent counsel would have pursued.
Affirmed.
. Pursuant to Rule 18 of the Rules of this Court, we have concluded on the merits that this case is of such character as not to justify oral argument and have directed the clerk to place the case on the Summary Calendar and to notify the parties in writing. See Murphy v. Houma Well Service, 5 Cir., 1969, 409 F.2d 804, Part I; and Hufth v. Southern Pacific Co., 5 Cir., 1969, 417 F.2d 526, Part I.
Question: What is the total number of appellants in the case that fall into the category "natural persons"? Answer with a number.
Answer:
|
sc_issuearea
|
I
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the issue area of the Court's decision. Determine the issue area on the basis of the Court's own statements as to what the case is about. Focus on the subject matter of the controversy rather than its legal basis. In specifying the issue in a legacy case, choose the one that best accords with what today's Court would consider it to be. Choose among the following issue areas: "Criminal Procedure" encompasses the rights of persons accused of crime, except for the due process rights of prisoners. "Civil rights" includes non-First Amendment freedom cases which pertain to classifications based on race (including American Indians), age, indigency, voting, residency, military or handicapped status, gender, and alienage. "First Amendment encompasses the scope of this constitutional provision, but do note that it need not involve the interpretation and application of a provision of the First Amendment. For example, if the case only construe a precedent, or the reviewability of a claim based on the First Amendment, or the scope of an administrative rule or regulation that impacts the exercise of First Amendment freedoms. "Due process" is limited to non-criminal guarantees. "Privacy" concerns libel, comity, abortion, contraceptives, right to die, and Freedom of Information Act and related federal or state statutes or regulations. "Attorneys" includes attorneys' compensation and licenses, along with trhose of governmental officials and employees. "Unions" encompass those issues involving labor union activity. "Economic activity" is largely commercial and business related; it includes tort actions and employee actions vis-a-vis employers. "Judicial power" concerns the exercise of the judiciary's own power. "Federalism" pertains to conflicts and other relationships between the federal government and the states, except for those between the federal and state courts. "Federal taxation" concerns the Internal Revenue Code and related statutes. "Private law" relates to disputes between private persons involving real and personal property, contracts, evidence, civil procedure, torts, wills and trusts, and commercial transactions. Prior to the passage of the Judges' Bill of 1925 much of the Court's cases concerned such issues. Use "Miscellaneous" for legislative veto and executive authority vis-a-vis congress or the states.
No. 125.
No. 224.
Arkansas & Louisiana Missouri Railway Co. et al. v. Amarillo-Borger Express, Inc., et al.; and United States et al. v. Amarillo-Borger Express, Inc., et al.
Argued December 4-5, 1957.
Decided March 11, 1957.
William B. McDowell argued the cause for appellants in No. 125. With him on the brief was J. T. Suggs. Robert W. Oinnane argued the cause for the United States and the Interstate Commerce Commission, appellants in No. 224. With him on the brief were Solicitor General Rankin, Assistant Attorney General Hansen and H. Neil Garson. Ralph W. Currie argued the cause and filed a brief for appellees.
Per Curiam:
The judgment is vacated and the cases are remanded to the District Court with directions to dismiss the cause as moot.
Mr. Justice Erankeurter and Mr. Justice Douglas dissent.
Reported below: 138 F. Supp. 411.
Question: What is the issue area of the decision?
A. Criminal Procedure
B. Civil Rights
C. First Amendment
D. Due Process
E. Privacy
F. Attorneys
G. Unions
H. Economic Activity
I. Judicial Power
J. Federalism
K. Interstate Relations
L. Federal Taxation
M. Miscellaneous
N. Private Action
Answer:
|
songer_state
|
47
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the state or territory in which the case was first heard. If the case began in the federal district court, consider the state of that district court. If it is a habeas corpus case, consider the state of the state court that first heard the case. If the case originated in a federal administrative agency, answer "not applicable". Answer with the name of the state, or one of the following territories: District of Columbia, Puerto Rico, Virgin Islands, Panama Canal Zone, or "not applicable" or "not determined".
HAWTHORNE et al. v. AUSTIN ORGAN CO.
No. 3599.
Circuit Court of Appeals, Fourth Circuit.
June 25, 1934.
PARKER, Circuit Judge, dissenting.
Murray M. McGuire, of Richmond, Va., and John S. Battle, of Charlottesville, Va. (Robert E. Taylor, of Charlottesville, Va., on the brief), for appellants.
H. W. Walsh, of Charlottesville, Va. (W. Eskridge Duke and Lyttelton Waddell, both of Charlottesville, Va., on the brief), for appellee.
Before PARKER and SOPER, Circuit Judges, and WEBB, District Judge.
SOPER, Circuit Judge.
This action in assumpsit was instituted on June 22) 1932; in the District Court by Austin Organ Company, a Maine corporation, as plaintiff, against H. K. Hawthorne, M. L. Rea, and R. Merritte Robinson, citizens of Virginia, to recover the sum of $12,870, with interest. The suit was based on five promissory notes payable to the plaintiff; one of April .10) 1930; for $2)700, payable six months after date,, with an attorney’s fee of 10' per cent, for collection if not paid at maturity, and four notes of December 10) 1929) for $2)-475 each, payable at intervals of one, two, three, and four years, respectively. The notes were signed by the three defendants as “Trustees High Street Baptist Church.” The defense pleaded was that the notes ’were not the individual personal obligations of the defendants, but were the obligations of the congregation of the church, executed upon its authority by the defendants, as its agents, in evidencei of the purchase price of an organ, pursuant to a contract under which the plaintiff agreed to sell and deliver the organ to the congregation; and that the notes were accepted by the plaintiff, not as the obligations of the defendants, but as the obligations of the congregation.
At the trial of the case, the plaintiff proved the notes and rested. The defendants thereupon offered in evidence a contract of February 1, 3929) between the Organ Company, as party of the first part, and High Street Baptist Church, as party of the second. part, signed by a'representative of the Organ Company and by the three defendants, as trustees of the church. The contract provided that the Organ Company should construct, erect, and sell to the church, a pipe organ, according to certain specifications, and that upon the acceptance of the organ the church should pay therefor the sum of $12,-900 as follows: $3,000, in cash, and the balance in four notes of $2,475 each, payable at yearly intervals, with interest at 6 per cent. It was further provided that in the event of default in the payment of any note given for the balance of the purchase price, all of the sums represented by the notes should become due and pajmble. The contract was approved by the congregation at a meeting held on February 1,1929', at which the report of a music committee recommending the purchase of the organ on the terms expressed was adopted, and the trustees of the church were authorized and requested to’ sign the contract.
The organ was installed and accepted by the church on August 11,1939. The cash payment of $3>0()0, however, was not made, and after certain negotiations the Organ Company accepted in lieu thereof $100 in cash and a four months’ note of December 10, 1939, for $2,900'. On the same date the remaining four notes in suit were executed and delivered for the balance of the purchase price. The execution of the notes bj^ the trustees was authorized at a meeting of the congregation on December 6,19291, at which a motion requesting the trustees to sign the notes was adopted. The sum of $200- was subsequently paid on the note of $2,900', and on April 10, 1930, a renewal note for six months for $2,700' was given in its place.
The plaintiff objected to the introduction of the contract in evidence on the ground that it had been finally merged in the notes, which became the obligations for payment upon which the defendants were bound. It seems to be true that the notes were accepted as payment for the organ, but the evidence referred to above was relevant to the defense, and the default provision of the contract was necessary to justify an action upon the last two notes prior to their maturity.
At the conclusion of the evidence in the court below, a motion of the plaintiff for a directed verdict in its favor was granted, and this, action is assigned as error in this appeal. The District Judge was of the opinion that the defendants were individually liable on the notes by reason of the established principle that a trustee is subject to personal liability upon a contract made by him in the course of the administration of the trust, unless, by the contract, it is provided that he shall not he personally liable. The rule is so stated in Tentative Draft No. 4, Restatement of Trusts of the American Law Institute, §§ 253) 264, and 255, and the authorities support the statement. Taylor v. Davis, 110 U. S. 330, 4 S. Gt. 147, 28 L. Ed. 163 ; Petition of Eddy (C. C. A.) 6 F. (2d) 196-198; Allegheny Tank Car Co. v. Culbertson (D. C.) 288 F. 406; Hussey v. Arnold, 185 Mass. 203, 70 N. E. 87; Philip Carey Co. v. Pingree (1916) 223 Mass. 352, 111 N. E. 857; Equitable Trust Co. v. Taylor (1928) 330 Ill. 43, 161 N. E. 62, 64; Feldman, v. Preston (1916) 194 Mich. 352, 3.00 N. W. 055; Truesdale v. Phila. Trust Co. (1895) 63 Minn. 49, 65 N. W. 133; Stanton Nat. Bank v. Swallow (1925) 113 Neb. 330, 203 N. W. 561; Riedell v. Stuart (1931) 151 Okl. 266, 2 P.(2d) 929, 76 A. L. R. 1469; Catlett v. Hawthorne, 157 Va. 372., 161 S. E. 47. Compare Boyle v. Rider, 136 Md. 286, 110 A. 524, where it was held that the intent of the parties not to hold a trustee personally liable upon a contract need not necessarily be shown in the contract itself, but may be evidenced by circumstances known to the parties at the time the contract was executed.
The general rule, however, has been modified, so far as negotiable instruments are concerned, by section 20 of the Negotiable Instruments Law, codified in section 5582 of the Virginia Code, which provides as follows: “Where the instrument contains, or a person adds to his signature, words indicating that he signs for or on behalf of a principal or in a representative capacity, he is not liable on the instrument if he was duly authorized; but the mere addition of words describing him as an agent, or as filling a representative character, without disclosing his principal, does not exempt him from personal liability.” It is said in the Tentative Draft of the Restatement of Trusts, § 255., page 153, that this statute is applicable to a trustee who signs a negotiable instrument in such a manner as to manifest an intention to he liable not in his personal capacity, but only as trustee. The authorities likewise support this statement of the rule. Thus in New Georgia Nat. Bank v. Lippmann, 249 N. Y. 307, 310, 164 N. E. .108,109', 60' A. L. R. 1344, the court was construing the liability of a person who signed an instrument containing words indicating that he was signing- in a representative capacity, when in fact he signed without authority. In holding that in such circumstances the signer was liable on the instrument, the court, through Cardozo, C. J., discussed the purpose of section 20, as follows:
“Before the statute was adopted, all manner of subtle distinctions had to be drawn before one could say where liability would rest. Brannon [Negotiable Instruments Law (4th Ed.)], supra; Meehem, Agency, vol. 1, §§ 1122, 3123. Many forms of signature indicating an intention to sign as agent for a designated principal were held to charge the agent personally. The hardship was mitigated by resort to- extrinsic evidence when the controversy was one between the original parties to the paper, but not when the paper was in the hands of a holder in due course. Thus, a note bearing the name of a corporation in the margin, but signed by the president and treasurer in their own names with the addition of their official titles, and thereafter discounted by a bank without notice dehors the instrument, was in law their individual promise. Casco Nat. Bank v. Clark, 139 N. Y. 307, 34 N. E. 908, 30 Am. St. Rep. 705; Merchants’ Nat. Bank v. Clark, 139 N. Y. 314, 34 N. E. 910, 36 Am. St. Rep. 710; First Nat. Bank v. Wallis, 150 N. Y. 455, 44 N. E. 1038, Many decisions to the like effect aro collated in the .text-books, see, e. g., Brannon’s Negot. Instr. I Law (4th Ed.) by Prof. Chufee, note to section 20, Mechem, supra. Slight variations of form led to variant conclusions. See, e. g., Barker v. Mechanic Fire Ins. Co., 3 Wend. [N. Y.] 94, 20 Ain. Dee. 664; Miller v. Roach, 150 Mass. 140; 23 N. E. 634, 6 L. R. A. 71; Meehem, § 1124. The refinement of distinction was mystifying even to the courts. It must have been moro mystifying to business men in the quick transactions of the market.
“The statute, as we read it, sweeps these subleties away. Whenever the form of the paper is sucli as fairly to indicate to the eye of common sense that the maker signs as agent or in a representative capacity, he is relieved of personal liability if duly authorized. Jump v. Sparling, 218 Mass. 324, 328, 105 N. E. 878; Consumers’ Twine Co. v. Mount Pleasant Co., 186 Iowa, 64,194 N. W. 290; Austin, Nichols & Co. v. Gross, 98 Conn. 782; 120 A. 596.”
See, also, American Trust Co. v. Canevin (C. C. A.) 184 F. 657; Gutelius v. Stanbon (D. C.) 39 F.(2d) 621; First Nat. Bank of Pennsboro v. Delancey, 109 W. Va. 136, 153 S. E. 908; Wilson v. Clinton, etc., Church, 138 Tcnn. 398, 198 S. W. 244; Adams v. Swig, 234 Mass. 584,125 S. E. 857; Bank of Spruce Pines v. Vance, 205 N. C. 303, 170 S. E. 119; Megowan v. Peterson, 173 N. Y. 1, 65 N. E. 738; Charles Nelson Co. v. Morton, 106 Cal. App. 144, 288 P. 845; Grafton Nat. Bank v. Wing, 172 Mass. 53.3, 53 N. E. 3067, 43 L. R. A. 833, 70 Am. St. Rep. 303; Bowen v. Farley, 256 Mass. 19; 152 N. E. 69; Korby v. Ruegamer, 3.07 App. Div. 491, 95 N. Y. S. 408; Wolff v. Plateau, 206 App. Div. 133, 200 N. Y. S. 646; Orgill Bros. v. Perry, 157 Miss. 543, 128 So. 755; Conner v. Clark, 12 Cal. 168, 73 Am. Dec. 529; Hall v. Jameson, 151 Cal. 606, 91 P. 518, 12 L. R. A. (N. S.) 1190,12 L Am. St. lisp. 137; True W. Jones Brewing Co. v. Flaherty, 80 N. H. 571, 120 A. 432. We have been referred to no- Virginia cases in which it is held that section 20' is applicable to trustees signing a contract as such, but it seems certain that the Virginia court regards with favor the rule established by the above-cited authorities, for there are numerous dicta to that effect in the opinion of Coal River Collieries v. Eureka C. & W. Co., 144 Va. 263, 132 S. E. 337, 339; 46 A. L. R. 485.
It will be noticed that a trustee is excused from personal liability only if he is duly authorized to sign the instrument, in a representative capacity. Reiving on this proviso, the plaintiff contends that no authority was given to the defendants by the church to sign the notes «in suit on its behalf. Reference is made to the resolution passed by the congregation of February 1, 3.929, wherein the report of the music committee was adopted, and the trustees of the church, were authorized and requested to sign the contract for the purchase of the organ; and also- to the resolution passed at the meeting of December 6, 1920, wherein the trustees were requested to sign the notes. The contention is that these resolutions did not empower the trustees to sign on behalf of the congregation, but merely to sign the contract themselves. The position is not tenable. The contract which the trustees wore authorized and requested to sign was expressly entered into between the Organ Company, as party of the first pari, and the church, as party of the second part, and it would be a perversion of the reasonable meaning of the resolutions to hold that the congregation did not authorize the trustees to sign the notes on its behalf, but merely on their account. •
The plaintiff goes further and contends that the church had no power under the Virginia statutes to authorize the trustees to sign a contract on its behalf which might become a charge upon the property held by the trustees for the uses of a religious congregation. Reference is made to sections 45 and 46 of the Virginia Code, in which if is provided that whenever any religious congregation shall deem that their interests will be promoted by a sale of tbeir land or by a mortgage thereof or deed of' trust thereon, any member of the congregation may prosecute a suit in the circuit court of the county where the land lies against the trustees in whom the legal title is, and the court may, if the congregation has given its assent and the court be of the opinion that the rights of others will not be violated, order that the desired action be taken. . The trustees themselves. may file such petition, and the court, upon evidence that the action is the wish of the congregation, may pass the desired order. The contention is that no action may be taken by the congregation or the trustees which may incumber the lands or property of the church unless proceedings are instituted in conformity with these statutes.
The answer to this argument is found in the decision of Cain v. Rea, 159l Va. 446> 166 S. E. 478, 480; which, was a suit instituted by an architect against the same trustees involved in the pending ease to enforce a mechanic’s lien on the property of the same church, for compensation for labor performed in connection with the erection of the church building under a contract between the architect and the church, which was authorized by the congregation and signed by the trustees. The main question in the ease was whether under the Virginia Mechanic’s lien Law, section 642© of the Virginia Code, a mechanic’s lien attaches to church property held by trustees. The sole defense to the suit was that the Legislature had provided only two methods under sections 45 and 46 by which church property might be incumbered; and since neither had been followed in the transaction between the architect and the church, he could not enforce his mechanic’s lien. The court said: “We are unwilling to concur in the contention that sections 45 and 46 prohibit a church congregation from making any contract which will affect the church property, except in the particulars enumerated in the statutes. The sections in question provide a convenient method for the sale or mortgaging of church property. They are barriers over which neither trustees nor individual members can step in order to destroy the corpus. They do not prohibit a church, in a congregational meeting, duly called in conformity with the rules of the church, from entering into a contract with a laborer or materiahnan to perform labor or furnish material.”
The court, in reaching this conclusion, relied largely on the decision in Linn v. Carson’s Adm’r, 32 Grat. (73 Va.) 170; wherein a church trustee filed a bill in equity to collect an amount which he had advanced for the erection of a church building; and it was held that the transaction between him and the church amounted to a contract which could be enforced against the church property in that ease. There the court said: “The Methodist Episcopal church at Winchester, though not a corporation, and incapable of incorporation under the constitution of the state, was an association of individuals, recognized by the constitution as a body capable of taking and holding land, under such limitations as might be prescribed by law, and entitled to be secured in the enjoyment of its property.”
In Cain v. Rea, the court expressly disapproved a statement in its prior decision in Forsberg v. Zehm, 150 Va. 756, 143 S. E. 284, 61 A. L. R. 232, to the effect that in Virginia a church or its congregation cannot contract except by reason of a specially held meeting and through a special committee appointed by the members attending the meeting. In that ease the board of stewards of a church was held personally liable on a contract in the name of the church, on the ground that the church eo nomine was not a legal entity, Was not competent to sue or be sued, and could not be a party to a contract. The final conclusion in Cain v. Rea was, that since the church had authorized the contract of employment, the architect’s lien for services rendered was enforceable against the church property. -
This decision seems to us conclusive upon the point under discussion; for if the congregation of a church has the capacity to contract, it must-possess legal personality, and the inherent power to authorize other persons to enter into a contract on its behalf. The full significance of the decision appears when it is noted that it followed closely upon the decision in Catlett v. Hawthorne, 157 Va. 372, 161 S. E. 47, wherein the defendants in the pending ease were held personally liable upon a note signed by them as trustees which had been given in payment of lighting fixtures for the church. They had secured a ruling in prior litigation that the church had not authorized the execution of the note in accordance with law, and it was held that they were therefore estopped, when sued personally, from contending that the payee was to look for payment to the congregation. It is also significant that the court’s attention was called to the provision of section 59‘ of the Constitution of Virginia, that the General Assembly shall not grant a charter of incorporation to any church or religious denomination, and to expressions in earlier cases such as Forsberg v. Zehm, 150 Va. 756, 143 S. E. 284, 61 A. L. R. 232, indicating that a church in Virginia1 is not a legal entity. See, also, Feuchtenberger v. Williamson, 137 Va. 578, 120 S. E. 257, which, holds that under the Mechanics Lien Statute, sections 6426 and 6436, only the interest of the contracting party in the land is subject to the lien.
It is true that the provisions of section 20 of the Negotiable Instruments Law suggest that ordinarily the authority of the maker of the instrument to sign in a representative capacity must proceed from some person against whom liability upon the instrument may be asserted. Compare Charles Nelson Co. v. Morton, 1.06 Cal. App. 144, 288 P. 845. It seems clear, however, from the decision in Cain v. Rea, that the congregation in the pending ease was not so devoid of legal personality that no liability could be fixed, upon it. Such a body is not only capable of taking and holding property, but it can make a. contract which may give rise to a lien upon its property. Moreover, under the statute law of Virginia, a church organization is liable to suit. Section 42 of the Code of Virginia enables trustees of a church, in their own names, to sue for and recover real and personal property held by them in trust, or to sue for damages for injury thereto; and also permits them to be sued in relation to the same. The scope of this section seems to ho limited to suits attacking the property or the legal title vested in the trustees. Globe Furniture Co. v. Jerusalem Church, 103 Va. 559, 49 S. E. 657. There is, however, a broader statute in section 6058 of the Virginia Code which provides for suits by and against unincorporated associations generally, and declares that they may sue or be sued raider their common name, and that judgments and execution against them shall bind their real and personal property in like manner as if they were incorporated. There appear to have been no decisions of the state courts as to the applicability of this statute to a church, but the language is sweeping and broad enough to include such a group. So it now appears that the property which a church owns may he made liable for the debts which it incurs under its power to make a contract. It follows that section 20’ of the Negotiable Instruments Law may be applied to a negotiable instrument executed on behalf of a church in Virginia, so as to give effect to the obvious purpose of the section to save from personal liability a person who signs a negotiable instrument in a representative capacity, when he is authorized to do so by one subject to the liability.
The effect of the decision of the Supreme Court of Appeals of Virginia, as we understand it, is in accord with the tendency of modern decisions to acknowledge the fact that associations of men, united in a common purpose, are endowed with personality which, for some purposes at least, the courts may recognize. It is insisted in some quarters that in the absence of legislative authority it is not proper for the courts in any case to view an association as a legal unit or juristic person, while other writers, without ignoring the traditional view, suggest that the line between bodies corporate and unincorporate is so indefinite in the decisions and statutes of to-day that a sharp distinction cannot always he made. Compare Warren, Corporate Advantages without Incorporation (19'29) and Dodd on Dogma and Practice in the Law of Associations, 42 Harvard Law Review, 977, June, 192.9; Stnrges, Unincorporated Associations as Parties to Actions, 33 Yale Law Journal, 9214. The more liberal view is not without support in the decisions o f the courts. In the well-known case of United Mine Workers v. Coronado Coal Co., 259 U. S. 344, 42 S. Ct. 570, 66 L. Ed. 975, 27 A. L. R. 762i, the Supreme Court held that unincorporated labor unions are suable in the federal courts for torts, and that their funds, are subject to execution. Reference was made in the opinion (page 385 of 2159 II. S., 42 S. Ct. 570, 574), to “affirmative legal recognition of their existence and usefulness and provisions for their protection,” embodied in statutory provisions passed; by Congress and by the Legislatures of many states, and also to the influence upon the law side of litigation of the equity procedure by which the representation by one person of many in a suit is permitted with the result that the suable character of such an organization has been recognized without dispute in many jurisdictions. The court said .(pages 390, 391 of 259 U. S., 42 S. Ct. 570, 576) : “Though such a conclusion as to the suability of trades unions is of primary importance in the working out of justice and in protecting individuals and society from possibility of oppression and injury in their lawful rights from the existence of such powerful entities as trade unions, it is after all in essence and principle merely a procedural matter. As a matter of substantive law, all the members of the union engaged in a combination doing unlawful injury are liable to suit and recovery, and the only question is whether when they have voluntarily, and for the purpose of acquiring concentrated strength and the faculty of quick unit action and elasticity, created a self-acting body with great funds to accomplish their purpose, they may not be sued as this body, and the funds they have accumulated may not be made to satisfy claims for injuries unlawfully caused in carrying out their united purpose.”
We do not think that it can be said that the opinion was in strict accord with the traditional rule that a voluntary association may not be treated as a legal unit; for on the contrary there was the recognition of the fact that such an organization may be an entity or self-acting body, capable of possessing funds and subject as such to suit in the courts. It seems to us rather that the opinion represented an advance or natural development in the law by which the ancient rule was brought into conformity with modern needs that in various ways had been formally recognized in the litigation and statutes of the country.
In other connections, the Supreme Court has treated unincorporated aggregations as legal entities subject to liabilities. In BurkWaggoner Association v. Hopkins, 269 U. S. 116, 46- S. Ct. 48, 70 L. Ed. 183, it held that an unincorporated joint stock association, although a partnership under the state law, was a corporation within the definition of the Revenue Act of 1918 (40 Stat. 1057) and subject to the income taxes imposed by that act, and therefore overruled the contention of the association that what was called its property and income was in law the property and income of its members which could be taxed only after apportionment to the owners thereof. In Hemphill v. Orloff, 277 U. S. 537, 48 S. Ct. 577, 579, 72 L. Ed. 978, it was held that a business association known as a “Massachusetts Trust,” which was unincorporated but had some of the attributes of a corporation under the state law, could not claim for itself the privileges and immunities granted to associates as individual citizens by article 4, § 2, of the Federal Constitution. Discussing the matter, the court said: “Whether a given association is called a corporation, partnership, or trust, is not the essential factor in determining the powers of a state concerning it. The real nature of the organization must be considered. If clothed with the ordinary functions and attributes of a corporation, it is sub ject to similar treatment.”
It is obvious that in this decision the actuality of the situation rather than the technical distinction between incorporated bodies and voluntary associations was the controlling consideration.
Conversely, cases dealing with incorporated bodies are not wanting in which the corporate fiction has been ignored so that the situation might bo treated realistically and justice might be done. The Supreme Court itself on occasion has disregarded the fiction in tax cases in order to avoid injustice to the taxpayer or to the United States, as in Southern Pacific Co. v. Lowe, 247 U. S. 330, 38 S. Ct. 540, 62 L. Ed. 1142; Weiss v. Stearn, 265 U. S. 242, 44 S. Ct. 490, 68 L. Ed. 1061, 33 A. L. R. 5201; U. S. v. Phellis, 257 U. S. 156, 42 S. Ct. 63, 66 L. Ed. 180. See, also, Industrial Cotton Mills v. Commissioner (C. C. A.) 61 F.(2d) 291; Western Md. By. Co. v. Commissioner (C. C. A.) 33 F.(2d) 695. Compare New Colonial lee Co. v. Helvering, 54 S. Ct. 788, 78 L. Ed. 1348, decided May 28, 1934.
Modem legislation itself, reflecting the demands of the times, tends to obliterate the distinction. On the one hand, we find statutes like that codified in section 6058 of the Virginia Code, which permits an unincorporated association to sue and be sued under its common name, and provides that judgments and executions against it shall bind its real and personal property in like manner as if it were incorporated. These provisions may be viewed-as merely procedural; see Warren, Corporate Advantages without Incorporation (1929), Ch. 6; but they are none the less a recognition of the fact that an aggregation of men, which performs acts, incurs liabilities, and owns property as a body, has in fact.a personality which cannot be completely ignored by the law without introducing confusion and injustice in practical affairs. On the other hand, there are the liberal permissive laws of the several states which make possible the formation of a corporation by any group of individuals who see fit to take advantage of the opportunity. The liberality of these statutes emphasizes the unreality of the distinction between the two classes of aggregations, and the result is that the courts are led more and more to recognize the factual similarity between them. The Supreme Court of Appeals of Virginia was doubtless influenced by these considerations when it spoke in Linn v. Carson, supra, of a church as “an association of individuals, recognized * * * as a body capable of taking and holding land.”
The plaintiff further contends, irrespective of the liability of the defendants on the notes as trustees, that they are-personally liable as members of an unincorporated body, who participated in the making of the contract, and are in effect the principals on whose behalf the notes were executed. The general rule at common law is invoked that a voluntary association, not for profit, such as an unincorporated church or club, is not liable as such 011 its contracts because it lias no independent legal status, but the members thereof, who authorize or ratify the contract, are liable thereon upon general principles of agency. Thus it is said in Catlett v. Hawthorne, 157 Va. 372, 377, 161 S. E. 47, that members of an unincorporated church organization, who are actually instrumental in incurring liabilities for it, or authorize or ratify its transactions, are personally liable therefor. See the authorities collected in Vader v. Ballou, 151 Wis. 577,139 N. W. 413, 7 A. L. R. 216, 218, 222; Cousin v. Taylor, 115 Or. 472, 239 P. 96, 41 A. L. R. 750, 754; Jardine v. Superior Court in and for Los Angeles County, 213 Cal. 301, 2 P.(2d) 756, 79 A. L. R. 291; Sweetman v. Barrows, 263 Mass. 349, 161 N. E. 272, 63 A. L. R. 313.
It is by no means clear that under the Virginia law the liabilities of members of the congregation of a church upon contracts made in its name are as broad as the liabilities of members of the .ordinary unincoi’porated association, which has no existence at all in law. But if we assume that not only the church, hut also its members, are liable upon its contracts, we must still bear in mind that in the pending- case the contracts in suit are promissory notes governed by the Negotiable Instruments Law. Section 18 of the statute (Va. Code, § 5580) provides: “No person is liable on the instrument whose signature does not appear thereon except as herein otherwise expressly provided. But one who signs in a trade or assumed name will be liable to ihe same extent as if he had signed in his -own name.”
The rule enunciated in this section is declaratory of the common law (Daniel on Negotiable Instruments (6th Ed.) § 303; Cragin v. Lovell, 109 U. S. 194, 398, 3 S. Ct. 132; 27 L. Ed. 303; Texas L. & C. Co. v. Carroll & Iler, 63 Tex. 48,
Question: In what state or territory was the case first heard?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
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songer_opinstat
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify whether the opinion writter is identified in the opinion or whether the opinion was per curiam.
Robert I. GREENBERG; Rose Greenberg; Maynard Greenberg, as Co-Trustees of the Mal Greenberg Testamentary Trust, Plaintiffs-Appellees, v. SERVICE BUSINESS FORMS INDUSTRIES, INC.; Service Computer Forms Industries, Inc., Defendants-Appellants.
No. 88-1636.
United States Court of Appeals, Tenth Circuit.
Aug. 17, 1989.
John T. Edwards (Sarah H. Stuhr with him, on the brief) of Monnet, Hayes, Bullís, Thompson & Edwards, Oklahoma City, Okl., for plaintiffs-appellees.
Richard C. Ford (J. Clay Christensen with him, on the brief) of Crowe & Dun-levy, Oklahoma City, Okl., for defendants-appellants.
Before LOGAN, BRORBY, and EBEL, Circuit Judges.
PER CURIAM.
Service Business Forms Industries, Inc. (Service Business) and Service Computer Forms Industries, Inc. (Service Computer), defendants, appeal the district court’s order granting plaintiffs partial summary judgment on their claim for recovery of an accelerated debt allegedly due under Service Business’ promissory note. The district court determined that there were no material issues of fact as to Service Business’ default under the terms of the promissory note and that plaintiffs properly exercised their right to accelerate the unpaid principal balance and accrued interest. On appeal, defendants contend there are genuine issues of fact regarding each of its defenses.
Plaintiffs are co-trustees of the Mai Greenberg Testamentary Trust (the Trust). On October 29, 1982, plaintiffs entered into a stock redemption agreement with Service Computer, a Nevada corporation presently owned and operated by Carolyn and Lau-rance Wolfberg. The Wolfbergs are the sister and brother-in-law of Robert Green-berg (Greenberg), a plaintiff and a trustee of the Trust. Under the stock redemption agreement, the Trust transferred all the shares it owned in Service Computer back to the company in exchange for $102,000. Of this amount, $2,000 was to be paid at closing and $100,000 was to be paid pursuant to the promissory note at issue here.
Pursuant to the stock redemption agreement, Service Business, an affiliate of Service Computer which is also operated by the Wolfbergs, executed a $100,000 promissory note on October 29, 1982, the closing date of the stock redemption agreement. The note provided for annual payments to be calculated on a twenty-year amortization schedule with full payment to be made on the tenth anniversary of the note’s execution. The note further stated that the Trust had the option to accelerate the debt and demand full payment if Service Business defaulted on any of its obligations under the note. The note did not specify a specific due date for the annual payments. In addition to this written agreement, Service Business alleged that Greenberg promised to execute a disclaimer of any interest he had as a beneficiary under the Trust. Greenberg denied that he ever made such an agreement.
By April, 1986, Service Business had made only one payment on the note, in the amount of $5,000. As a result of further negotiation between the parties, Greenberg executed a written disclaimer in favor of Service Computer under which Greenberg disclaimed any interest he might have through inheritance in the family jewelry. The disclaimer was conditioned on Service Business’ payment of all past due amounts owing under the promissory note and upon its “timely payment” of all future installments. The disclaimer also failed to designate a specific date for the future annual payments. Thereafter, Service Business paid $43,231.86 on June 26, 1986, which included partial payment of the 1986 installment. On November 6, 1986, not having received the payment from Service Business which they considered due on October 29, 1986, plaintiffs sent Service Business a notice of their intention to accelerate payment of the note. On November 14, 1986, and again on October 29, 1987, Service Business tendered payment of the installment amount owing, calculated as of the anniversary date of the note. On both occasions, plaintiffs refused to accept the payments.
Plaintiffs brought this action to recover the accelerated amount of the principal and accrued interest under the note. In its answer, defendants raised several defenses, including waiver, estoppel, and lack of default under the terms of the note. Defendants also filed a counterclaim, alleging failure of consideration by virtue of Green-berg’s refusal to execute a disclaimer of any interest in the Trust funds. Plaintiffs moved for summary judgment and, after a hearing, the district court granted partial summary judgment in their favor. The court found that the terms of the contract clearly designated the payments to be due on October 29th of each year, by virtue of the date of the note's execution and the fact that annual payments were calculated on the basis of a twenty-year amortization. The court further held that there were no material issues of fact as to waiver, estop-pel, or default and found that Business Service had defaulted on its payment obligations, that the Trust had the right to accelerate the balance owing upon default, and that the Trust properly exercised its right to accelerate. The court ruled, however, that there were material issues of fact regarding the issue of whether Service Business received full consideration for the stock redemption agreement with the Trust because Greenberg allegedly failed to issue a disclaimer of any interest as beneficiary under the Trust. This last issue was presented to the jury, which returned a verdict in favor of Greenberg and the Trust.
On appeal, Service Business contends that there are several genuine issues of fact which precluded the granting of partial summary judgment. First, Service Business contends that it did not default on its obligations under the note because the document did not specify a date on which payment was due, and argues under Oklahoma law that payment was thereby due within a reasonable time. We disagree. Oklahoma statute dictates that contracts are to be interpreted according to the intent of the parties at the time the instrument was executed. Okla.Stat. tit. 15, §§ 152, 153 (1981). Intent must be determined by construing the contract as a whole, and the court must construe the contract so as to give effect to each provision. Amoco Prod. Co. v. Lindley, 609 P.2d 733, 741 (Okla.1980). The language of the note setting the date of final payment as October 29, 1992, and the method for calculating the amount of annual payments clearly indicate that the parties intended that payments were to have been made on the anniversary date of the note.
Second, Service Business asserts that plaintiffs did not accelerate the note in good faith. Service Business claims the duty of good faith arises both under the Uniform Commercial Code (UCC), Okla. Stat. tit. 12A, § 1-208 (1981), and under the common law doctrine of good faith in the performance of a contract. Section 1-208 provides:
A term providing that one party ... may accelerate payment or performance or require collateral or additional collateral “at will” or “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.
Id.; see also Mitchell v. Ford Motor Credit Co., 688 P.2d 42, 44-45 (Okla.1984) (acceleration by a secured party). In finding that plaintiffs properly exercised their power of acceleration, the district court implicitly found that the good faith requirement set forth in § 1-208 does not apply to notes that permit acceleration at the option of the holder upon default by the debtor. We agree.
The only Oklahoma case we have located which addresses the question of whether the good faith requirement under the UCC applies to acceleration on default clauses is Knittel v. Security State Bank, Mooreland, Okla., 593 P.2d 92 (Okla.1979). The case did not directly address the issue; however, it upheld a challenged jury instruction which stated that the good faith requirement under § 1-208 did not apply to an acceleration on default clause. Id. at 97. Because a court must determine whether a challenged jury instruction properly states the applicable law, see Big Horn Coal Co. v. Commonwealth Edison Co., 852 F.2d 1259, 1271 (10th Cir.1988), it logically follows that Knittel supports the position that the UCC good faith requirement does not apply to acceleration on default clauses.
Several states have similarly held that the UCC good faith requirement is not applicable when the acceleration clause is based on an event in the debtor’s complete control. E.g. Brummund v. First Nat’l Bank, 99 N.M. 221, 656 P.2d 884, 887 (1983) (relying on North Carolina law); Bowen v. Danna, 276 Ark. 528, 637 S.W.2d 560, 564 (1982); In re Sutton Invs., Inc., 46 N.C.App. 654, 266 S.E.2d 686, 690 (1980); Crockett v. First Fed. Sav. & Loan Ass’n, 289 N.C. 620, 224 S.E.2d 580, 588 (1976). But see Brown v. AVEMCO Inv. Corp., 603 F.2d 1367, 1375-80 (9th Cir.1979) (comparing the applicability of UCC § 1-208 on “default” acceleration clauses as opposed to “insecurity” acceleration clauses under Texas law). Because of the ruling in Knit-tel and the general consensus in other jurisdictions, we conclude that Oklahoma would not apply the good faith requirement in § 1-208 to the acceleration on default clause at issue in this case.
Service Business also claims that plaintiffs failed to perform their contract in good faith under common law equitable principles. Service Business relies on Brown v. AVEMCO Inv. Corp., in which the Ninth Circuit applied the common law doctrine of good faith to a due-on-lease clause contained in a security agreement executed in conjunction with a promissory note. 603 F.2d at 1375-79. In reversing a jury verdict in favor of the creditor, the court noted that, under Texas law, acceleration clauses are designed to protect a creditor from conduct or events that jeopardize or impair the creditor’s security. Id. at 1376. The court held that the jury should have been instructed on the issue of the creditor’s good faith in exercising the due-on-lease clause when evidence existed that it inequitably desired to take advantage of a technical default, not because it in good faith feared its security was impaired. Id. at 1379. This decision was based on Texas case law which clearly mandated that equitable considerations should be applied when a creditor exercises an optional right to accelerate for the sole purpose of receiving the entire payment rather than for the purpose of protecting its debt. Id. We must determine whether Oklahoma would likewise impose an equitable duty on a creditor to not use the power of acceleration when its security is not impaired.
The Oklahoma Supreme Court has ruled on two occasions that an acceleration clause contained in a mortgage will not be enforced where the conduct of the mortgagee has been unconscionable or inequitable. Continental Fed. Sav. & Loan Ass’n v. Fetter, 564 P.2d 1013, 1019 (Okla.1977); Murphy v. Fox, 278 P.2d 820, 826 (Okla.1955). In Continental, the court denied a bank’s request to accelerate and foreclose on a mortgage based on a due-on-transfer clause when the bank refused to consent to a transfer solely because the mortgagor would not pay a substantial transfer fee. The transfer fee was an additional condition unilaterally imposed by the bank and was not contained in the original mortgage agreement. The court held the bank’s conduct in demanding additional payment was unconscionable and denied its requested relief. 564 P.2d at 1019.
In Murphy, the court refused to permit a mortgagee to accelerate the maturity of a promissory note because the court found that the mortgagee had attempted to hinder timely payment by the mortgagor and had encouraged its default. 278 P.2d at 824. The court determined that this conduct was motivated solely by the mortgagee’s desire to accelerate the maturity of the entire debt and held that the technical default of tendering late payment of taxes was insufficient to justify acceleration when the mortgagee had acted unconscionably. Id. at 826.
According to our reading of these cases, whether the Oklahoma court permits acceleration depends on the conduct of the mortgagee and whether he has dealt fairly with the debtor or has acted oppressively or unconscionably. This view is consistent with that of several other jurisdictions. See Phipps v. First Fed. Sav. & Loan Ass’n, 438 N.W.2d 814, 819 (S.D.1989) (an acceleration clause will be enforced absent fraud, bad faith, or other conduct on part of the mortgagee which would make it unconscionable to enforce the clause); Key Int’l Mfg., Inc. v. Stillman, 103 A.D.2d 475, 480 N.Y.S.2d 528, 530 (1984) (absent some element of fraud, exploitative overreaching or unconscionable conduct by the creditor, the court should enforce an acceleration clause), aff'd as modified, 66 N.Y.2d 924, 498 N.Y.S.2d 795, 489 N.E.2d 764 (1985); Bowen v. Danna, 637 S.W.2d at 564 (a court in equity can relieve a debtor from the hardship of acceleration based on accident, mistake, fraud, or inequitable conduct of the creditor); First Fed. Sav. & Loan Ass’n v. Ram, 135 Ariz. 178, 659 P.2d 1323, 1325 (Ct.App.1982) (same); Ciavarelli v. Zimmerman, 122 Ariz. 143, 593 P.2d 697, 698-99 (Ct.App.1979) (same).
Nothing in the record warrants an application of these equitable principles in the instant case. Plaintiffs did not exercise their option to accelerate after a considerable delay. See, e.g., Brown, 603 F.2d at 1379; Caspert v. Anderson Apartments, Inc., 196 Misc. 555, 94 N.Y.S.2d 521, 526 (Sup.Ct.1949). Nor did the default concern a technical, secondary obligation such as payment of taxes. Rather, the default violated the essence of the written agreement, timely payment of principal and interest. Finally, no evidence was presented that Greenberg attempted to hinder or otherwise cause the default so as to make his conduct unconscionable. Defendants had complete control over the event which triggered plaintiffs’ right to accelerate. The mere fact that the plaintiffs' interest might not have been in jeopardy, without some misconduct on the part of the plaintiffs, does not warrant a refusal to enforce an acceleration clause which was a bargained-for element of the contract between the parties. Under the circumstances of this case, we conclude that there are no material issues of fact under the applicable Oklahoma law regarding the enforceability of the acceleration clause and the issue of good faith.
Service Business also asserts that plaintiffs waived their right to accelerate through their prior acceptance of late payments. Ordinarily, prior acceptance of late payments only waives the right to accelerate as to those past installments. McGowan v. Pasol, 605 S.W.2d 728, 732 (Tex.Civ.App.1980). When a creditor establishes a prior course of dealing in accepting late payments, the creditor is estopped from declaring total debt due on future defaults. Id. Estoppel does not apply, however, when the obligor gives the debtor notice that the terms of the agreement will be enforced in the future. Id.; Dunn v. General Equities of Iowa, Ltd., 319 N.W.2d 515, 517 (Iowa 1982); see also Sternberg v. Mason, 339 So.2d 373, 376 (La.Ct.App.1976) (waiver rule has no application where obligee made frequent demands for punctual payment or accepted tardy payment as a result of unwilling or forced indulgence). Because Service Business or its officers received adequate notice by virtue of the disclaimer executed in April, 1986, that the trustees demanded all future payments to be made timely, no material issue of fact exists on the issue of waiver.
Defendants also argue that they did not receive a fair trial on the disclaimer issue because they were not permitted to introduce evidence concerning Greenberg’s motivation in accelerating the note. Apparently, the district court refused to allow any evidence concerning the default because the issue had been decided on summary judgment. The question of whether certain evidence is relevant to an issue before the jury is within the sound discretion of the district court. United States v. Alexander, 849 F.2d 1293, 1301 (10th Cir.1988). If Service Business believed evidence regarding Greenberg’s motivation was relevant to its claim tried to the jury, it should have made such an objection during trial. Based on the objections contained in the record, we do not believe the trial court abused its discretion in so ruling.
The judgment of the United States District Court for the Western District of Oklahoma is AFFIRMED.
. Service Business relies on Okla.Stat. tit. 15, § 173 (1981), which states that the law implies a reasonable time for payment when no date is provided for performance of a contractual obligation. But the law implies a reasonable time for payment only when the contract is ambiguous and the intention of the parties cannot be determined from the express language and terms of the contract. See id. § 154; Lindhorst v. Wright, 616 P.2d 450, 453 (Okla.App.1980). Because the terms of the agreement as a whole clearly indicate a time for payment, this rule cannot appropriately be applied to the promissory note at issue in this case.
. Under the security agreement, the creditor, AVEMCO, had the option to accelerate the entire debt if the debtor leased the property, an airplane, without its written consent. In 1973, the debtor leased the airplane to a third party and also executed an option to purchase. The debtor sent notice of the agreement to AVEM-CO. Two years later, the lessee exercised its option to purchase and tendered full payment of the remainder owing under the promissory note. AVEMCO, after two years of inaction, refused the tendered payment and instead exercised its option to accelerate under the due-on-lease clause but also demanded an additional sum for the cost of insurance premiums. After the debtor refused to pay the additional amount, AVEMCO repossessed the airplane and sold it for a higher profit. 603 F.2d at 1369.
. In Murphy, the court discussed several cases from other jurisdictions which considered a technical default to be a failure to comply with a secondary obligation such as payment of taxes or assessments as opposed to a default on payment of principal or interest. See 278 P.2d at 825. Generally, these cases consider a default in payment of a principal or interest payment to be a substantial breach rather than a technical default. See e.g., Graf v. Hope Bldg. Corp., 254 N.Y. 1, 171 N.E. 884, 885-86 (1930).
. The court in Continental Federal Savings & Loan Association v. Fetter stated:
[Acceleration clauses are bargained-for elements of mortgages and notes to protect the mortgagee from risks connected with transfer of the mortgaged property. The underlying rationale for an acceleration clause is to insure that a responsible party is in possession, to protect the mortgagee from unanticipated risks, and to afford the lender the right to be assured of the safety of his security. However, an action to accelerate and foreclose a mortgage is an equitable proceeding, and the equitable powers of the court will not be invoked to impose an extreme penalty on a mortgagor with no showing that he has violated the substance of the agreement.
564 P.2d at 1017-18 (footnote omitted) (emphasis added).
.Any issue as to Greenberg’s refusal to provide a disclaimer was conclusively decided by the jury, which decision is not an issue in this appeal.
Question: Is the opinion writer identified in the opinion, or was the opinion per curiam?
A. Signed, with reasons
B. Per curiam, with reasons
C. Not ascertained
Answer:
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songer_district
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B
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
Lloyd BIGGLE, Jr. and Damon Knight, Plaintiffs-Appellants, v. HARPER & ROW PUBLISHERS, INC., A Delaware Corporation, Defendant-Appellee.
No. 80-1579.
United States Court of Appeals, Sixth Circuit.
Argued Feb. 5, 1982.
Decided March 31, 1982.
Alex Berman, Kozlow, Woll, Crowley & Berman, Southfield, Mich., for plaintiffs-appellants.
Wallace Handler, Snyder & Handler, Birmingham, Mich., Alfreida B. Kenny, Harper & Row Publishers, Inc., New York City, for defendant-appellee.
Before LIVELY and KEITH, Circuit Judges, and PHILLIPS, Senior Circuit Judge.
LIVELY, Circuit Judge.
In this diversity action the district court granted summary judgment for the defendant on one count of the complaint and certified the case for immediate appeal pursuant to Rule 54(b), F.R.Civ.P. The question in the case is whether certain writings relied upon by the plaintiffs were sufficient to satisfy the requirements of the statute of frauds. The district court held that the writings were not sufficient and dismissed the plaintiffs’ breach of contract claim.
I.
The plaintiffs Biggie and Knight approached the defendant Harper & Row with the idea of publishing an anthology of science fiction stories which would be used primarily in high school and college courses. The entire anthology as proposed was to consist of eight volumes and a teacher’s manual. In discussions with the plaintiffs, Hugh Van Dusen, the senior editor in charge of Harper & Row “Perennial Paperback” books, suggested that a series of four rather than eight volumes might be preferable. Nevertheless, on May 16, 1975 Van Dusen sent an inter-office memorandum to Elizabeth Jakab, an editor of the Perennial Paperback books, in which he stated, “I talked to Biggie and agreed to do the 8 books.” The memorandum also stated, “We need a separate contract for each book . . .,” and contained directions for forwarding contracts to the plaintiffs and terms of payment of advances. The memorandum was typed and unsigned. It was from “Hugh” to “Elis” and referred to “Damon Knight and Lloyd Biggie Science Fiction Project.” It is reproduced in full as Appendix Exhibit A to this opinion.
On June 2, 1975 Elizabeth Jakab wrote Lloyd Biggie a letter in which she enclosed “the first of the contracts that will be coming from us for the volume tentatively entitled YESTERDAY PLUS TWO.” On July 28, 1975 Ms. Jakab wrote to Biggie acknowledging receipt of three contracts, identified by titles, and forwarding three additional contracts covering different volumes,' again identified by title. In this letter Ms. Jakab noted that there were two more contracts to come. All of the contracts were prepared by Harper & Row and those covering four of the volumes were executed by the plaintiffs and by a representative of Harper & Row. The contracts for three other volumes were signed by the plaintiffs and returned to the defendant, but were never signed on its behalf.
Harper & Row issued an announcement of the forthcoming publication of THE SCIENCE FICTION UNIVERSE which identified Knight and Biggie as the editors. It described the publication as “a complete science fiction textbook in eight topically oriented paperback volumes.” The title of volume one — YESTERDAY PLUS TWO— was given and the contents of volumes two through eight were described. This announcement is reproduced as Appendix Exhibit B to this opinion.
On November 12, 1975, after four contracts had been executed by all parties and three others had been prepared by the defendant and executed by the plaintiffs and returned to the defendant, Elizabeth Jakab wrote a letter to Lloyd Biggie which opened with a question:
Do you think you and Damon might be able to pack the Science Fiction Universe into four volumes instead of eight? I know this is a rather staggering request, but truly it is less so than it sounds at first.
Biggie responded at length, giving various reasons for insisting that the series contain eight rather than four volumes. Eventually Van Dusen wrote Biggie on December 22,1975 that Harper & Row would be “happy to try the first four volumes as a test,” but if the plaintiffs would rather go with eight volumes, “the only advice we can offer is that you try another publisher who can see the project your way.” This lawsuit followed.
II.
A.
The parties agree that the New York statute of frauds is applicable to their agreement. The statute provides:
Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking:
1. By its terms is not to be performed within one year from the making thereof or the performance of which is not to be completed before the end of a lifetime ....
New York General Obligations Law, Section 5-701 (McKinney 1979).
The district court found that the plaintiffs had shown by the four fully executed contracts that a contractual relationship existed between them and the defendant. However, it found the execution of separate contracts to be inconsistent with an agreement that all eight volumes would be published. The four executed contracts were deemed to relate only to individual volumes, not to the entire anthology. The unsigned memorandum from Van Dusen to Ms. Jakab was held insufficient to establish the “underlying relationship regarding, the anthology as a whole.” In concluding that the plaintiffs failed to show the presence of “the essential core document,” the district court did not refer to the November 12, 1975 letter which was signed by Ms. Jakab or the December 22, 1975 letter which was signed by Van Dusen. In both of these letters the anthology was referred to as “the Science Fiction Universe.” In their complaint the plaintiffs alleged that the contract with Harper & Row called for the “publication, promotion and sale of a series of eight volumes of books the nature of which was a science fiction anthology to be entitled The Science Fiction Universe.” (Underlining in complaint).
B.
The parties and the district court placed principal reliance upon the decision of the Court of Appeals of New York in Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 110 N.E.2d 551 (1953). We agree that Crabtree controls. In Crabtree the plaintiff claimed that he was hired as sales manager of a cosmetics firm for at least two years. He had sought a three-year contract at a fixed salary. During negotiations, which were primarily conducted by Robert P. Johns, the general manager of the defendant corporation, Miss Arden, the president, made an offer of a two-year contract with salary increases at the end of the first six months and of one year. A memorandum was typed by Miss Arden’s secretary reflecting this offer. The unsigned memorandum was as follows:
Employment Agreement with
Nate Crabtree Date Sept. 26 — 1947
At 681 — 5th Ave 6: PM
* * *
Begin 20000.
6 months 25000.
6 " 30000.
5000. — per year Expense money
[2 years to make good]
Arrangement with Mr. Crabtree
'By Miss Arden '
Present Miss Arden
Mr John
Mr Crabtree
Miss OLeary
110 N.E.2d at 552.
Crabtree notified the defendant that he accepted “the invitation to join the Arden organization” and when he reported for work a payroll card was prepared by general manager Johns who initialed it before forwarding it to the payroll department. This card showed the names of the parties, Crabtree’s job classification and the salary for the first six months, the second six months and after one year. The salary was increased after six months, but Miss Arden refused to approve the increase which the memorandum called for at the end of one year. However, a payroll change card was prepared and signed by the comptroller noting a salary increase from $25,000 to $30,-000 per year, “per contractual arrangements with Miss Arden.” Miss Arden again refused to approve the increase and Crab-tree brought suit for breach of contract. The defendant denied the existence of any agreement to employ Crabtree for two years, and pled the statute of frauds as a bar to enforcement if the court should find that an agreement had been made. The trial court upheld the plaintiffs’ contentions and awarded damages. The Appellate Division affirmed and the question addressed by the New York Court of Appeals was whether there was a memorandum of the terms of the contract, subscribed by the defendant sufficient to satisfy the requirements of the New York statute of frauds.
The court of appeals affirmed the judgment for Crabtree upon the basis of its finding that the two payroll cards which were signed and the unsigned memorandum, when considered together, constituted a memorandum under the statute of frauds. The two signed documents were found to establish the existence of a contractual relationship and to set forth all the terms of the contract except one- — the duration of Crab-tree’s employment. The notation on the unsigned memorandum, “2 years to make good,” was found sufficient to establish the period of employment. The court adopted a rule that signed and unsigned writings may be read together so long as they clearly refer to the same subject matter or transaction. The holding and rationale of the court were summarized as follows:
The language of the statute — “Every agreement * * * is void, unless * * * some note or memorandum thereof be in writing, and subscribed by the party to be charged”, Personal Property Law, § 31— does not impose the requirement that the signed acknowledgment of the contract must appear from the writings alone, unaided by oral testimony. The danger of fraud and perjury, generally attendant upon the admission of parol evidence, is at a minimum in a case such as this. None of the terms of the contract are supplied by parol. All of them must be set out in the various writings presented to the court, and at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed. Parol evidence — to portray the circumstances surrounding the making of the memorandum — serves only to connect the separate documents and to show that there was assent, by the party to be charged, to the contents of the one unsigned. If that testimony does riot convincingly connect the papers, or does not show assent to the unsigned paper, it is within the province of the judge to conclude, as a matter of law, that the statute has not been satisfied.
110 N.E.2d at 554.
In its Crabtree opinion the court referred several times to its earlier decision in Marks v. Cowdin, 226 N.Y. 138, 123 N.E. 139 (1919). Speaking for the court in Marks, Judge Cardozo wrote, “The memorandum exacted by the statute does not have to be in one document. It may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject-matter and occasion.” 123 N.E. at 141 (citations omitted). Thus, the process which has been referred to as considering a “confluence of memoranda,” Babdo Sales, Inc. v. Miller-Wohl Co., 440 F.2d 962, 966 (2d Cir. 1971), has long been recognized by the courts of New York as a proper means to avoid pressing the statute of frauds “to the extreme of a literal and rigid logic.” Marks v. Cowdin, supra, 123 N.E. at 141.
III.
The district court erred in concluding that the memoranda relied upon by the plaintiffs in this case did not satisfy the requirements of the New York statute of frauds. Referring to O’Keeffe v. Bry, 456 F.Supp. 822 (S.D.N.Y.1978), the district court held that the plaintiffs had failed to establish the existence of “the essential core document.” In reaching this conclusion the district court either misread Crabtree and O’Keeffe or overlooked the letter of November 12th from Elizabeth Jakab to Lloyd Biggie. In O’Keeffe the court held that “a core document evidencing a promise” must be present and that additional documents may be permitted to supply essential terms of the agreement, but “not to piece together the existence of the agreement itself.” 456 F.Supp. at 829. Though the Crabtree court did not use the term “core document” it stated that “at least one writing, the one establishing a contractual relationship between the parties, must bear the signature of the party to be charged, while the unsigned document must on its face refer to the same transaction as that set forth in the one that was signed.” 110 N.E.2d at 554.
The district court found that the four signed contracts could not serve as the “core” document because each related only to a single volume rather than to the anthology as a whole. Nevertheless, these four signed documents unquestionably demonstrated the existence of “a contractual relationship between the parties .... ” Crabtree, supra, 110 N.E.2d at 554. In fact, the district court agreed that they did establish the existence of the relationship, but found them inconsistent with a claim that the anthology was to contain eight volumes. That this contractual relationship involved the publication of more than one volume is demonstrated by the very existence of separate contracts which refer to four volumes by name. The letter of November 12th refers to the anthology by name, “Science Fiction Universe” and broaches the question of whether the plaintiffs “might be able to pack” it into four volumes rather than eight. Taken together the signed documents establish that there was a contractual relationship between the parties, that it involved the publication'of an anthology to be known as “Science Fiction Universe,” to consist of several volumes, with the royalty and other terms including advances against royalties set forth in identical language in each of the four signed contracts.
There was no signed document which stated the exact number of volumes to be included in the anthology. However, the unsigned inter-office memorandum identified the “Science Fiction Project” and contained the statement that Van Dusen had talked with Biggie “and agreed to do the 8 books.” In addition, this memorandum explained why separate contracts were being prepared for each volume. Further, the unsigned publication announcement identified the anthology by name and the first volume by title, and described the series as “a complete science fiction textbook in eight topically oriented paperbound volumes.” Both of the unsigned documents qualified under the Crabtree test to be read together with the signed ones since they “clearly refer to the same subject matter or transaction.” 110 N.E.2d at 554. Thus in the language of Marks v. Cowdin, supra, 128 N.E. at 141, quoted in Crabtree, 110 N.E.2d at 553, the plaintiffs relied upon a memorandum which “may be pieced together out of separate writings, connected with one another either expressly or by the internal evidence of subject-matter and occasion.”
It was error to grant summary judgment for the defendant on the basis of the New York statute of frauds. We express no opinion on the merits of the plaintiffs’ claim for breach of contract. However, they are entitled to a trial on this claim. We do not consider any of the other issues raised by the parties. The district court based summary judgment squarely on the statute of frauds and its Rule 54(b) certification presents that issue only on appeal. The judgment of the district court is reversed, and the case is remanded for further proceedings. The plaintiffs will recover their costs on this appeal.
APPENDIX
Exhibit A
HARPER & ROW, PUBLISHERS MEMORANDUM
To: Elis Date: 5/16
From; Hugh
Damon Knight and Lloyd Biggie
Science Fiction Project
I talked to Biggie and agreed to do the 8 books.
1) We need a separate contract for each book, so that they can cope with their accounting to authors
2) The contracts are with Biggie and Knight. You have Biggie’s address and Lynn can give you Knight’s.
3) Contracts to be sent to Knight.
4) Advance half on sig and half on acceptance of each
Exhibit B
HARPER & ROW
Perennial Library
Announce the Forthcoming Publication of THE SCIENCE FICTION UNIVERSE
Edited by Damon Knight and Lloyd Biggie, Jr.
A Complete Science Fiction Textbook in Eight Topically Oriented Paperback Volumes.
Specifically designed for use in high schools and lower-division college classes, the stories are graded according to the degree of difficulty of the ideas involved. A TEACHER’S MANUAL, written by the Editors and Marshall Tymn, will also be available. Together with the Editors’ Notes, this manual will enable teachers to organize their courses to best meet the needs and capabilities of their students. Volume I — YESTERDAY PLUS TWO.
To be published early in 1976, this volume contains stories grouped around two units of study:
All in a Day’s Work (and Play). Demonstrates the impact of science technology, and the future on man’s work and daily life.
Don’t Blame Necessity. Inventions dangerous and otherwise. The stories are chosen to provide an understanding of aspects of the physical universe.
Volumes 2 through 8 will become available during the rest of 1976 and early 1977. They will each contain one or more of the following units:
Machine Bites Man. The battle between men and machines and man’s struggle to use machines rather than be used by them. This unit functions as an introduction to modern technology, computers, and automation and inevitably leads to a serious evaluation of what the machine has done for us — and to us.
Elixirs of Life and Death. Stories concerning drugs. As with machines, man’s problem is to use them to his advantage rather than to his detriment. The Powers. Stories about extraordinary beings and extraordinary forces. This unit provides an introduction to extrasensory perception and parapsychology and deals with the question of how far or how little one must deviate from the average in order to be more than human — or less.
I’m a Stranger Here Myself. Aliens from outer space and invaders of Earth, in all of their infinite variety. The Many Sides of Now. An introduction to topology that also asks the question: “What is on the other side of a one-sided figure?” This unit introduces the concept of parallel worlds. Time on My Hands. Time travel, forward and backward. Backward time travel is the opening door to paleontology, anthropology, geology, history, and related subjects. Time travel in either direction starkly sets off our twentieth-century selves.
Outward Bound. Two units on space travel and exploration: The Solar System, the Galaxy, and beyond.
The Sound of Trumpets. The Alarms of War. The only thing more terrifying than the last war is the next. Here are science fiction stories about future wars.
Of Worlds Beyond. Stories about alien life on alien worlds, with glimpses of utterly strange scientific, social, and cultural conditions and problems.
The Strangest Universe. Stories about the human mind.
No Fathers to Guide Them. Stories about artificial life.
This Polluted Planet. Stories concerning ecology.
Let’s All Cancel Tomorrow. A bleak view of the future, disturbing and challenging because some of the trends in these stories are already with us.
I Didn’t Think It Would End Like That. From the end of the world to the end of everything.
THE EDITORS
Damon Knight’s achievements span the entire field of Science Fiction: author, magazine and book editor, critic, reviewer, anthologist. Among his dozens of anthologies is the Orbit series, which has contributed a remarkable number of award-winning stories. He was the founder and first president of Science Fiction Writers of America.
Lloyd Biggie, Jr. is the author of nine Science Fiction novels, including the forthcoming This Darkening Universe. His numerous short stories have appeared in all the Science Fiction magazines, as well as in two book collections. He is the editor of Nebula Award Stories Seven, an anthology.
* * *
Marshall Tymn is a well-known bibliographer of Science Fiction and the editor of the forthcoming Checklist of Fantastic Literature, the multivolume Guide to Fantastic Literature, and The Science Fiction Reference Book. He reviews Science Fiction for Choice Magazine and teaches courses in Science Fiction at Eastern Michigan University.
for further information on THE SCIENCE FICTION UNIVERSE write to
Perennial Library, Harper & Row, Publishers, Department 524
10 East 53d Street, New York, New York 10022
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
|
songer_r_nonp
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "groups and associations". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
MASHPEE TRIBE, Plaintiff, Appellant, v. NEW SEABURY CORP. et al., Defendants, Appellees. MASHPEE TRIBE, Plaintiff, Appellee, v. NEW SEABURY CORP. et al., Defendants, Appellants. MASHPEE TRIBE, Plaintiff, Appellee, v. NEW SEABURY CORP. et al., Defendants, Appellees, Matthew B. Connolly, etc., Defendant, Appellant.
Nos. 78-1272 to 78-1274.
United States Court of Appeals, First Circuit.
Argued Nov. 8, 1978.
Decided Feb. 13, 1979.
James D. St. Clair and Allan van Gestel, Boston, Mass., with whom Stephen H. Oleskey, William F. Lee, Hale & Dorr, James J. Dillon, Goodwin, Procter & Hoar, Morris Kirsner, Edwin J. Carr, May, Bilodeau, Dondis & Landergan, Thomas B. Shea, Andrew J. McElaney, Jr., Asst. Atty. Gen., Thomas Otis, Boston, Mass., Selma R. Rollins and Rollins, Rollins & Fox, Chestnut Hill, Mass., were on brief, for New Seabury Corp. et al.
Richard B. Collins, Window Rock, Ariz., with whom Thomas N. Tureen, Portland, Me., Moshe J. Genauer and Barry A. Margolin, Boston, Mass., were on brief, for Mashpee tribe.
Joseph E. Brennan, Atty. Gen., John M. R. Paterson, Deputy Atty. Gen., and David Roseman, Asst. Atty. Gen., Augusta, Me., on brief, for the State of Me., amicus curiae.
Before COFFIN, Chief Judge, CAMPBELL and BOWNES, Circuit Judges.
COFFIN, Chief Judge.
Plaintiff, denominating itself the Mash-pee Tribe, claims to be a tribe of Indians that has lived in and around the town of Mashpee, Massachusetts, continuously since time immemorial. The suit is based on the Indian Nonintercourse Act which was first passed in 1790 and exists now as 25 U.S.C. § 177:
“No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. . . . ”
Plaintiff claims that its tribal land was taken from it between 1834 and 1870 without the required federal consent. This suit, filed August 26, 1976, against a defendant class representing landowners in the town of Mashpee, seeks recovery of those lands.
Defendants answered the complaint, in part, by denying that plaintiff is or was a tribe. It is undisputed that if plaintiff was not a tribe in 1976 it lacked standing to bring this suit and that if not a tribe at the critical times in the nineteenth century it was not protected by the Act. The district court severed the issue of plaintiff’s tribal status for a separate, preliminary trial. Before trial plaintiff moved for a continuance pending the Department of the Interior’s determination whether or not to declare plaintiff a federally recognized tribe. The court denied the motion, and trial began October 17, 1977. The trial lasted 40 days and was submitted to the jury on special interrogatories January 4, 1978. The jury returned its verdict on January 6. The interrogatories, together with the jury’s answers, were as follows:
“1. Did the proprietors of Mashpee, together with their spouses and children, constitute an Indian tribe on any of the following dates:
a. July 22, 1790: The date of the enactment of the first version of the federal Nonintercourse Act?
No
b. March 31,1834: The date on which the District of Marshpee was established. [sic]
Yes
c. March 3, 1842: The date on which formal partition of land in the District of Marshpee among the proprietors of Marshpee and their children was authorized by act of the legislature of the Commonwealth of Massachusetts?
Yes
d. June 23, 1869: The date on which all restraints on alienation of land held individually by Indians and people of color known as Indians were removed by act of the legislature of the Commonwealth of Massachusetts?
No
e. May 28, 1870: The date on which the Town of Mashpee was incorporated by act of legislature of the Commonwealth of Massachusetts: [sic]
No
2. Did the plaintiff group, as identified by the plaintiff’s witnesses, constitute an Indian tribe as of August 26, 1976: The date of the commencement of this law suit?
No
3. If you find that people living in Mashpee constituted an Indian tribe or nation on any of the dates prior to August 26, 1976 listed in Special Question No. 1, did they continuously exist as such a tribe or nation from such date or dates up to and including August 26, 1976?
No”
Mashpee Tribe v. Town of Mashpee, 447 F.Supp. 940, 943 (D.Mass.1978).
After receiving these answers, but without discharging the jury, the court requested memoranda from the parties to show cause why an order of dismissal should not be entered on the basis of the jury’s answers. Plaintiff argued that the special verdicts were inconsistent and ambiguous and moved that, therefore, a new trial should be ordered. The court denied the motion and dismissed the case. Plaintiff asserts in appeal No. 78-1272 as error the court’s denial of the pre-trial motion for a continuance, certain aspects of the court’s instruction on the definition of “tribe”, the court’s instructions concerning allocation of the burden of proof, the court’s ruling that the special verdicts were not fatally inconsistent or ambiguous, and the court’s handling of an ex parte communication with a juror. These issues will be taken up in turn, and we will present the necessary factual background as needed. A fuller discussion of the relevant history may be found in Mashpee Tribe, supra, 447 F.Supp. at 943-47. We will not attempt to duplicate the district court’s effort.
I.
Plaintiff argues that the district court erred by refusing to grant a continuance pending Department of the Interior action on Mashpee’s application for federal recognition as a tribe. Plaintiff moved for a continuance upon learning that the Department, in a departure from previous policy, had issued proposed regulations for determining whether to recognize tribes and that, using these regulations, the Department would begin proceedings concerning the Mashpees. The court denied the motion but invited the Department to participate in the trial either as an intervenor or as an amicus curiae with permission to submit questions for the court to ask witnesses. The Department chose not to participate in either capacity in part because the Department had not yet taken “a definitive position on the regulations” and, thus, would “not be able to participate meaningfully in the trial of this case at this time.”
We hold that the court acted correctly in denying the continuance. The cases cited by plaintiff demonstrate that this is not the kind of case in which the Supreme Court has required courts to defer to administrative process. The deference doctrine primarily serves as a means of coordinating administrative and judicial machinery. Port of Boston Marine Terminal Ass’n v. Rederiaktiebolaget Transatlantic, 400 U.S. 62, 68, 91 S.Ct. 203, 27 L.Ed.2d 203 (1970); United States v. Western Pacific R. R. Co., 352 U.S. 59, 62, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956); Far East Conference v. United States, 342 U.S. 570, 575, 72 S.Ct. 492, 96 L.Ed. 576 (1952); Locust Cartage Co., Inc. v. Transamerican Freight Lines, Inc., 430 F.2d 334, 339 (1st Cir. 1970). It is meant to promote uniformity and take advantage of agencies’ special expertise. Western Pacific R. R. Co., supra, 352 U.S. at 64, 77 S.Ct. 161; Far East Conference, supra, 342 U.S. at 574-75, 72 S.Ct. 492. In a recent pair of antitrust cases against a commodities exchange regulated by the Commodities Exchange Commission, the Court looked at three factors to determine whether a court should defer: (1) whether the agency determination lay at the heart of the task assigned the agency by Congress; (2) whether agency expertise was required to unravel intricate, technical facts; and (3) whether, though perhaps not determinative, the agency determination would materially aid the court. Chicago Mercantile Exchange v. Deaktor, 414 U.S. 113, 114-15, 94 S.Ct. 466, 38 L.Ed.2d 344 (1973); Ricci v. Chicago Mercantile Exchange, 409 U.S. 289, 93 S.Ct. 573, 34 L.Ed.2d 525 (1973). Other cases have identified other reasons for deferring to administrative agencies. Deference can dam a potential flood of suits seeking de novo review of agency determinations. Weinberger v. Bentex Pharmaceuticals, Inc., 412 U.S. 645, 653, 93 S.Ct. 2488, 37 L.Ed.2d 235 (1973) (fearing suits testing the status of each newly developed “me-too” drug). Deference can permit an agency to follow through and supervise earlier actions. Port of Boston, supra, 400 U.S. at 68, 91 S.Ct. 203 (agency had approved the agreement under dispute). The doctrine recognizes that some problems are better solved by the more flexible procedures possible before agencies not bound by Article III limitations. Id. And, finally, agencies often have prescribed procedures specially designed to resolve particular kinds of disputes. Best v. Humboldt Placer Mining Co., 371 U.S. 334, 339, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Western Pacific R. R. Co., supra, 352 U.S. at 64, 77 S.Ct. 161.
The Department of the Interior has not historically spent much effort deciding whether particular groups of people are Indian tribes. By and large no one has disputed the tribal status of Indians with whom the Department has dealt. The Department has never formally passed on the tribal status of the Mashpees or, so far as the record shows, any other group whose status was disputed. Therefore, the Department does not yet have prescribed procedures and has not been called on to develop special expertise in distinguishing tribes from other groups of Indians. Moreover, the facts in this case, though developed and interpreted in part with the expert help of historians and anthropologists, are not so technical as to be beyond the understanding of judges or juries. As the court said in its charge, “We are dealing with the human condition here as well.” Finally, ours is a straightforward Article III case. The resolution will not affect rights of others than the parties except in the traditional legal effect that our opinion will have as precedent. The facts on which the dispute turns, though hard to come by, are adjudicative facts. They are not in the nature of legislative policy decisions. For all these reasons, we cannot be sure how helpful the Department’s ultimate decision might be. We can, however, be certain that the decision will not be available soon. The court was right to respect the “strong public interest in the prompt resolution” of the case and not defer to administrative action of uncertain aid and uncertain speed. It follows from what we have said, of course, that in another case, once the Department has finally approved its regulations and developed special expertise through applying them, we might arrive at a different answer.
II.
The next challenge is to the court’s instructions on the definition of “tribe”. Plaintiff must prove that it meets the definition of “tribe of Indians” as that phrase is used in the Nonintercourse Act both in order to establish any right to recovery and to establish standing to bring this suit. This issue is particularly difficult in this case because the Mashpees differ from most other groups who have sought to assert rights as Indian tribes. The federal government has never officially recognized the Mashpees as a tribe or actively supported or watched over them. Moreover, the Mashpees have a long history of intermarriage with non-Indians and acceptance of non-Indian religion and culture. These facts do not necessarily mean that the Mashpees are not a tribe protected by federal law, but they do make the issue of tribal existence a difficult factual question for the jury.
Because most groups of Indians involved in litigation in the federal courts have been federally recognized Indians on western reservations, the courts have been able to accept tribal status as a given on the basis of the doctrine going back at least to The Kansas Indians, 72 U.S. (5 Wall.) 737, 756-57, 18 L.Ed. 667 (1867), that the courts will accord substantial weight to federal recognition of a tribe. See, e.g., Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370, 377 (1st Cir. 1975). One consequence is that very little case law has developed on the meaning of “tribe”. The court below, in its instructions to the jury, relied primarily on Montoya v. United States, 180 U.S. 261, 266, 21 S.Ct. 358, 359, 45 L.Ed. 521 (1901):
“By a ‘tribe’ we understand a body of Indians of the same or similar race, united in a community under one leadership or government, and inhabiting a particular though sometimes ill-defined territory
”
Neither party challenges this basic definition, but it is far from satisfactory. Its four elements — (a) “same or similar race”; (b) “united in a community”; (c) “under one leadership or government”; and (d) “inhabiting a particular . . . territory”— leave much to be explained. A few other cases have described characteristics of tribes whose status as such was in question. See United States v. Candelaria, 271 U.S. 432, 442-43, 46 S.Ct. 561, 70 L.Ed. 1023 (1926); The Kansas Indians, 72 U.S. (5 Wall.) 737, 756, 18 L.Ed. 667 (1867); United States v. Wright, 53 F.2d 300 (4th Cir. 1931). But these tribes bore little resemblance to the Mashpees.
Starting with the Montoya definition, the district court went on to explain each of its elements at some length. Plaintiff asserts as error the court’s explanation of two of the elements of the definition: (1) the requirement of a “leadership or government” and (2) the requirement that the Indians be “united in a community”.
Beginning with the requirement of leadership, we will reprint the several pertinent sections of the charge rather than attempt to summarize the court’s explanation.
“There has to be a leadership or government. . . . Obviously, this was a little enclave in one corner of Massachusetts. It could not have a government like that in Massachusetts; it could not compete with the government of Massachusetts. Clearly, there was an area in which it could exercise control over its own internal relations, to control the relationship . among its own members . . . , between the management and the others and among all of the members of the group.”
******
“The level of leadership or government that was appropriate for this situation also has to be considered in terms of the need. How much government do you need? You’ve got three or four hundred people on 13,000 acres of land, and their interaction may not have been so intense as to require constant regulation. Bear in mind these . . . three and four hundred people . . . were grouped in families, in family households, and it may well be they were spread kind of thin. How much government is required? Well, that is for you to decide.”
******
“There were a series of petitions in the 1740’s-1760’s, leading to the formation of the district. After 1788 some more petitions complaining about the grieved position under the guardians. It may be a reasonable inference from those events that there was a continuing political leadership, but you must be prepared to make that inference, and that is solely for you to determine because sporadic grouping, sporadic leadership is not what is meant by ‘united in a community under one leadership or government.’
You can have that any time in a fire or flood in the neighborhood where some people will emerge and organize a rescue or organize boats or a bucket brigade, whatever is needed. That is not the kind of leadership we are talking about. We are talking about something that goes on, has continuity. Continuity of leadership in which leadership Is'passed on in some orderly way.”
* * * * * *
“[T]he notion of sovereignty ... is not an element, a necessary element of tribal existence. What it is is a leadership which has evolved in some respect which has its roots and has evolved from a once sovereign Indian community. Now, it may take different forms.”
“Clearly, whatever kind of leadership or government the tribe has, if it is a tribe, it cannot compete with the duly established government of the Commonwealth. You would not expect, under these circumstances, and it would not be legally permissible for a group within a town to have its own courts, in any formal sense. It could conceivably set up a school system if it were sufficiently wealthy, . . . but that . . . should be considered in the context of a school system, which until recently, was predominantly Indian, anyway, according to the testimony.”
******
“The testimony most favorable to the plaintiff has been that these leaders, as identified by various witnesses, are leaders with respect to a way of life. . . . [Y]ou can consider all of that testimony, whether there is enough in your opinion to warrant the inference that there was controlling leadership of significant elements in the lives of the people. Significant elements. For the leadership to be such as qualifies the group as a tribe, there must be followers.”
******
“There was a core group that was very much concerned about Indian affairs, a good many of them have shown up in the courtroom, some have not.
Now, the existence of 30, 40, 50, 60 people, who are concerned with the existence of a chief, who pay attention to what the chief is doing, expect various things from the chief of the tribe or the leaders of the tribe, or the leaders of the group, rather, is not enough. You’ve got to find that the leadership, whatever it is, has a significant__effect upon at least a majority of the claimed group.”
******
“There will be a diminution of influence from the center of the organization to the fringe . . [TJhere are some people who are reasonably enthusiastic and attend all the time, and out at the fringe there are some people that don’t show up but once a year and not every year at that. That is a common characteristic of all organizations. We are dealing with the human condition here, as well. I suppose, if you found that to be the situation, it would not mean that there was no tribe. But you do have to find that it is something more than just a small coterie, a small band of enthusiasts who are supporting the Indian leadership, if that is what it is, in Mashpee.
. Obviously, more enthusiasm should be e[xp]ected of those within the town than those that are without. . . . Well, . . . it’s up to you to decide whether you’ve got a leadership that is governing the conduct, the lives of the people in some significant way, that people order their lives in response to these leaders’ requirements in some significant way. . . . ”
******
“This is nothing more essentially political than speaking on a town meeting floor or lobbying the Governor of the state, no matter for what purpose. [B]ut the question is, is it significant? Is it evidence of a continuing leadership? That goes back to what I said about the petitions that were filed in the eighteenth century.”
******
“Now, that is for you to decide, under all the circumstances, whether that leadership is tribal leadership, whether it’s the leadership which would be followed, adopted and obeyed in some significant degree by at least a majority of the people who are going to be a tribe in 1976.”
Plaintiff complains that the court erroneously required it to prove “binding authority” over the group’s members and an orderly means of transmitting the leadership. The first complaint is not true as a matter of fact. The court never said that a tribe’s leaders’ influence must be “binding” but that they must cause the people to “order their lives ... in some significant way”. The people must “follow[], adopt[] and obey[]” the leadership. And the leadership must be “controlling . of significant elements in the lives of the people.” But the court’s discussion demonstrates that it did not require plaintiffs to show “coercive power or binding authority” or to “exhibit the full panoply of governmental powers exercised by advanced groups . . . .” The court was trying to establish a fair test to determine whether the alleged tribal leadership had any followers. If no one follows, then the would-be leader is not leading anyone and cannot sustain the claim to leadership.
The court explicitly charged that plaintiff did not have to show any kind of sovereignty or an ability to compete with the Commonwealth of Massachusetts for power over the Mashpees. The court pointed out that plaintiff need not have a court system, a school system, or any other formal governmental institutions. Further, the court instructed the jury to consider the claims that the asserted leaders “are leaders with respect to a way of life”. Such leadership is certainly not expected to be coercive or binding. Plaintiff was allowed to show leadership, at least in part, by demonstrating that the alleged leaders were role-models to whom a majority of the asserted tribe responded on questions of tribal or ethnic significance. In the same vein the court, in its discussion of diminution of influence towards the fringe of an organization, permit- . ted the jury to consider as followers those who responded to the leaders with less than total enthusiasm. Absolute obedience, voluntary or coerced, was explicitly not a prerequisite to tribal existence. Furthermore, the examples of political activity that the court allowed the jury to consider in deciding whether the requisite leadership or government existed were not examples of coercive power over constituents, but of representation of constituents’ interests before non-Indian governmental bodies. One need have no coercive power to speak at town meetings, submit petitions, or lobby a governor. The court required plaintiff to show only such leadership or government as its situation required. The court pointed to some legitimate evidence. Plaintiff’s problem was that it did not submit sufficient evidence to convince the jury that the asserted leaders had enough followers on significant issues.
Turning to the issue of continuity of leadership, it is true that the court at one point required that leadership be “passed on in some orderly way”. Read in the context of the entire instruction, however, it is clear that the court was not imposing a requirement of formal systems of succession. The court never required elections, inheritance, or any other fixed system of determining a leader’s successor. The court’s concern was not with how the leadership passed, but with making sure that the leadership did pass. The sentence on which plaintiffs seize was a way of differentiating the necessary leadership from sporadic, crisis-oriented leadership that would disappear as soon as the crisis was resolved. We agree that a fire or a flood cannot spawn a “tribe” that exists only during the disaster.
Accordingly, the court instructed that there must be a continuous leadership. It suggested as evidence worth considering, the series of petitions filed on behalf of the Mashpees beginning in the middle of the eighteenth century. The court permitted the inference that those petitions might be evidence of a continuing political leadership. We interpret the court’s instruction to require that there be a recognized leadership to which the people can turn at any time — a leadership “orderly” in the sense that, whether or not there is a specific short-term crisis, the need for ongoing leadership is always met without a significant break in continuity. Nothing the court said contradicted plaintiff’s position that a tribe ought to be able to choose its leaders in any way it sees fit and for whatever purposes are necessary. Montoya held that a group without leaders or government could not be a tribe. The district court’s instructions are consistent with and, probably, more favorable to plaintiff than the every day usage of the terms in the Montoya definition would be. Without the court’s interpretation the jurors might well have construed the phrase “leadership or government” to imply the formal kinds of structures and institutions by which the jurors themselves are governed.
Not only did the portions of the court’s instructions complained of not mean what plaintiff suggests, but the court read to the jury the very language that plaintiff argues is a more correct statement of law. That passage, also from Montoya, explained why, according to the Supreme Court, Indian tribes were not nations.
“As they had no established laws, no recognized method of choosing their sovereigns by inheritance or election, no officers with defined powers, their governments in their original state were nothing more than a temporary submission to an intellectual or physical superior, who in some cases ruled with absolute authority, and in others, was recognized only so long as he was able to dominate the tribe by the qualities which originally enabled him to secure their leadership. In short, the word ‘nation’ as applied to the uncivilized Indians is so much of a misnomer as to be little more than a compliment.” 180 U.S. at 265, 21 S.Ct. at 359.
Though not “nations” in the eyes of turn-of-the-century civilization, the groups so described were tribes. The discussion in Montoya of “nation” supplements that Court’s definition of “tribe”. Different sections of an opinion should be read as consistent with each other. Moreover, the district court’s definition of “tribe” is consistent with the passage cited above. Therefore, plaintiff’s challenge to this aspect of the instruction must fail.
Plaintiff interprets the court’s instruction relative to the “united in a community” requirement to permit the jury to find there is no tribe if the Indians have become assimilated into the general society. Its concern is that the jury could find that the tribe ceased to exist through assimilation without having voluntarily decided to abandon tribal existence. Such a finding, it asserts, would be contrary to established law. Again, we will reprint the relevant portions of the court’s instruction before discussing plaintiff’s position.
“There has to be a community. ‘United in a community,’ the Court said. I suggest to you an Indian community is something different from a community of Indians. That is to say, it has some boundary that separates it from the surrounding society, which is perceived as Indian and not merely as neighborhood or territory.”
******
“It would be permissible to find that the boundary was in part established by the outside, that is, that there was a social boundary established in part by discrimination of the white inhabitants against the Indians.”
******
“Now the question for you to decide is whether in accepting this property [the proprietorship], accepting these rights with their limitations, the Indians intended to give up their tribal organization and assume an English organization, or whether it was simply the tribal organization carrying on as owners of this plantation with a different label.”
******
“The question comes when English forms are adopted. English labels are adopted, whether that has constituted an abandonment of the tribal form in a complete submission and adoption of an English form instead. Abandonment being the key word. Abandonment of a right or status does not occur unless it is voluntary, unless it is a knowing and willing and voluntary act. Abandonment cannot be found because of conditions which have been imposed from the outside.”
******
“Again [looking at 1976], we have the question of community and whether that community is defined by characteristics which are identifiable as Indian, not necessarily aboriginal Indian.”
******
“It is, I suppose, possible that by reason of circumstances, tribal existence be so suppressed that it be in limbo for a period, that it not be manifest for a period without there being an abandonment. If you find that there was, by reason of the activities in 1869, 1870, a conscious abandonment of tribal status, then you would not be warranted in finding the existence of a tribe in 1976.”
******
“Now, there is one other aspect that I would like to address, and that is the subject of assimilation. In one of the cases it is said that the Nonintercourse Act, really, refers to poor and uninformed people as opposed to assimilated and sophisticated. . . . And by saying a group is assimilated is the reverse of the coin of saying they have a distinct Indian community, and so I suggest that you not be concerned about that except in that context.
If you find that the group is assimilated, well, it doesn’t have a distinct community, it’s just blended in with everybody else, in all respects or in all significant respects. So assimilation is simply a way of expressing the reverse of the existence of an Indian community.”
We agree that if a group of Indians has a set of legal rights by virtue of its status as a tribe, then it ought not to lose those rights absent a voluntary decision made by the tribe and by its guardian, Congress, on its behalf. The Kansas Indians, 72 U.S. (5 Wall.) 737, 757, 18 L.Ed. 667 (1867); The Confederated Salish and Kootenai Tribes v. Moe, 392 F.Supp. 1297, 1315 (D.Mont.1975) (supplemental order of three-judge court), aff’d sub nom. Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463, 96 S.Ct. 1634, 48 L.Ed. 96 (1976). A tribe, even if it is federally recognized, however, can choose to terminate tribal existence. See The Kansas Indians, supra, 72 U.S. at 759 (a state’s policy of treating Indians the same as other citizens could “eventually succeed in disbanding the tribe,” but presumably only to the extent the tribe chose to acquiesce in that policy); United States v. Joseph, 94 U.S. 614, 617, 24 L.Ed. 295 (1876), overruled as to result but not necessarily logic, United States v. Sandoval, 231 U.S. 28, 48, 34 S.Ct. 1, 158 L.Ed. 107 (1913). Certainly individual Indians or portions of tribes may choose to give up tribal status. Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 97 S.Ct. 911, 51 L.Ed.2d 173 (1977) (holding that that portion of tribe which chose to stay behind when tribe moved dissolved relations with tribe and lost interest in tribal claims); McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 171, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); United States v. Wright, 53 F.2d 300 (4th Cir. 1931) (holding that portion of tribe that chose to stay behind when tribe moved lost tribal status though gradually restored to that status by federal recognition and protection). If all or nearly all members of a tribe chose to abandon the tribe, then, it follows, the tribe would disappear.
The court instructed the jury that any abandonment of tribal status must be “knowing and willing and voluntary”. Once the jury found that a tribe existed in 1
Question: What is the total number of respondents in the case that fall into the category "groups and associations"? Answer with a number.
Answer:
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songer_usc1
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42
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What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
Elaine COLE; Christina Elaine Cole; Carlie Deigh Cole, by and through next friend Elaine Cole; Candie Leigh Cole, by and through next friend Elaine Cole, Appellees, v. C.E. BONE, Trooper; Nathan K. Brown, Trooper; F.T. Martinez, Jr., Trooper; Royal F. Messick, Trooper; Randall R. Rice, Trooper; Gilbert L. Rodenburg, Trooper; Jeffrey L. Smith, Trooper; D.S. Stewart, Trooper; Randall S. Beydler, Corporal; D.E. Holt, Corporal; F.M. Mills, Lieutenant; P.C. Spire, Sargeant; C.E. Fisher, Colonel; John H. Ford, Colonel; E.F. Christman, Major; R.G. Biele, Captain; G.P. Corbin, Captain, Appellants.
No. 92-2245.
United States Court of Appeals, Eighth Circuit.
Submitted Jan. 14, 1993.
Decided May 17, 1993.
Rehearing and Rehearing En Banc Denied July 12, 1993.
Theodore A. Bruce, Asst. Atty. Gen., Jefferson City, MO argued (Elizabeth L. Ziegler, on the brief), for appellants.
Justine E. Del Muro, Kansas City, MO, argued (Dennis E. Egan, on the brief), for appellees.
Before WOLLMAN and BEAM, Circuit Judges, and BOGUE, Senior District Judge.
Judge McMfflian would grant suggestion for rehearing en banc.
The HONORABLE ANDREW W. BOGUE, Senior United States District Judge for the District of South Dakota, sitting by designation.
WOLLMAN, Circuit Judge.
The defendants appeal from the district court’s denial of their motion for summary judgment in this action brought under 42 U.S.C. § 1983 against seventeen members of the Missouri State Highway Patrol. We reverse and remand.
I.
This case arises from a high speed pursuit on the east-bound lane of Interstate 70 that ended with the death of David Cole. Around noon on July 4, 1988, David Cole and his brother, Todd, were on their way to Kentucky in an eighteen-wheel tractor-trailer unit on their return trip from New Mexico. For some unknown reason, David Cole drove the truck at a high speed through a toll booth in Bonner Springs, Kansas, without stopping to pay the toll. When a Kansas state trooper began pursuing the truck, David refused to stop. Todd pleaded with David to pull over, but David responded that he had the situation under control and began driving even faster. As the truck approached Kansas City, Missouri, and the traffic became heavier, David Cole continued to drive recklessly. Kansas City police officers began pursuing the truck once it crossed the state line and entered the city.
Several Missouri State Highway Patrolmen became involved in the pursuit east of Kansas City, about twenty miles into Missouri. These patrolmen had learned of the fleeing truck over their police radios. They had received a report that the truck, while being pursued by Kansas City police officers, had travelled through Kansas City at speeds exceeding ninety miles per hour and had passed traffic on both shoulders of Interstate 70. The report also said that the truck had attempted to ram several police cars.
Troopers Rice and Martinez, in separate vehicles, entered Interstate 70 in front of the truck; Trooper Messick and Corporal Holt, also in separate cars, were following the truck. Rice, who was in the left lane, and Martinez, who was in the right lane, first attempted to execute a “rolling roadblock”; that is, they attempted to slow their vehicles gradually to force the truck to also slow down and eventually stop. This procedure failed, however. According to the troopers, whenever they slowed their vehicles, the truck would accelerate rather than slow down.
After the rolling roadblock had failed, Trooper Messick attempted to disable the truck by firing his shotgun into the trailer’s wheels. Although Messick succeeded in flattening one trailer tire, the truck continued to speed along on its remaining tires. Messick was unable to fire any more shots at the trailer’s tires because every time he attempted to pull alongside the trailer, Cole would observe Messick in the truck’s side-view mirror and swerve towards Messick’s patrol car.
Corporal Holt then ordered that a stationary roadblock be set up at the forty-four-mile marker of Interstate 70. Troopers Brown, Smith, and Rodenburg arranged their patrol cars in the passing lane of the interstate so as to funnel the truck into a single lane. This arrangement left an escape route for the truck in case -Cole decided to run the roadblock — which he did. Although Cole could see the roadblock from one-half mile away, he did not slow down. As the truck sped past the roadblock, the troopers fired their shotguns at the tractor’s tires and radiator. Although a tire on one of the tractor’s two rear axles was blown out, the truck continued speeding down the highway.
Throughout the pursuit, Troopers Rice and Martinez remained in front of the truck, which continued to travel at speeds exceeding ninety miles per hour. Because the holiday traffic on the interstate remained congested, the troopers were constantly attempting to remove civilian traffic from the truck’s pathway, sometimes by forcing motorists to drive off the roadway onto the shoulder and median by use of the red lights, sirens, and the maneuvering of the patrol cars. The two troopers used two methods to slow the truck and prevent it from hitting their vehicles and the vehicles of civilians. Rice was able to slow the truck temporarily when it approached traffic by placing his shotgun on the roof of his patrol car so that Cole could see it. Rice displayed his shotgun approximately twenty times in an attempt to prevent the truck from hitting motorists. Trooper Martinez slowed the truck and attempted to disable it by firing several shots at it. Rice stated that without these tactics the truck would have struck the officers’ patrol cars as well as civilian vehicles. He stated further that, as it was, Cole forced more than one hundred cars off the road or out of the truck’s way and endangered the lives of many other motorists during the pursuit.
After all these attempted means had failed, Rice decided to use deadly force based on Cole’s demonstrated lack of concern for other travellers and for the officers themselves. At the fifty-mile marker, Rice observed that the road was momentarily clear of civilian traffic. He radioed the other officers that he was going to shoot at the truck. To get an unobstructed shot at the truck, he first shot out the rear window of his patrol car with his shotgun. He then fired two rounds from his revolver at the truck, attempting to disable its engine. The second shot hit David Cole in the forehead.
Todd Cole, who had been in the truck’s sleeper compartment and thus hidden from the troopers’ view, then brought the truck to a stop. David Cole was transported to a Kansas City hospital, where he died from the gunshot wound.
David Cole’s wife and children brought this section 1983 action, alleging various violations of David Cole’s constitutional rights. They also filed a pendent state law claim for wrongful death. They alleged that Troopers Bone, Brown, Martinez, Messick, Rice, Ro-denburg, Smith, and Stewart; Corporals Beydler and Holt; and Sergeant Spire were liable for their roles in the pursuit. Additionally, plaintiffs alleged that Corporal Bey-dler, Corporal Holt, Sergeant Spire, Lieutenant Mills, Colonel Fisher, Colonel Ford, Major Christman, Captain Bierle, and Captain Corbin were liable as supervisors of the troopers involved in the pursuit. Plaintiffs sued all defendants individually and in their official capacities.
Following some discovery, defendants moved for summary judgment, asserting that they were entitled to qualified immunity. The district court denied the motion, and defendants subsequently filed this interlocutory appeal pursuant to Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 2817, 86 L.Ed.2d 411 (1985).
II.
In reviewing a denial of summary judgment, we apply the same standard as that applied by the district court. See, e.g., Meester v. IASD Health Servs. Corp., 963 F.2d 194, 196 (8th Cir.1992). “A motion for summary judgment should be granted if, viewing the evidence in the light most favorable to the nonmoving party, ‘there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law.’ ” Nelson v. City of McGehee, 876 F.2d 56, 57 (8th Cir.1989) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986)); see also Fed.R.Civ.P. 56. Although a defendant who moves for summary judgment has the burden of showing that there is no genuine issue of fact for trial, “the plaintiff is not thereby relieved of his own burden of producing in turn evidence that would support a jury verdict.” Liberty Lobby, 477 U.S. at 256, 106 S.Ct. at 2514. A plaintiff opposing a properly supported motion for summary judgment may not rest upon the mere allegations in his pleadings, “but must set forth specific facts showing that there is a genuine issue for trial.” Id.
Government officials performing discretionary functions are shielded from liability for civil damages by qualified immunity as long as their “conduct does not violate clearly established [federal] statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). In other words, to decide whether an official is protected by qualified immunity, a court must determine whether the official’s action was objectively legally reasonable in the light of the legal rules that were clearly established at the time the action occurred. Anderson v. Creighton, 483 U.S. 635, 639, 107 S.Ct. 3034, 3038, 97 L.Ed.2d 523 (1987). In Siegert v. Gilley, the Supreme Court announced that the threshold question in analyzing a qualified immunity claim is whether the plaintiff has alleged the violation of a constitutional right. - U.S. -,-, 111 S.Ct. 1789, 1793, 114 L.Ed.2d 277 (1991); see also, Peterson v. City of Plymouth, 945 F.2d 1416, 1419 (8th Cir.1991). The Court stated that a “necessary concomitant to the determination of whether the constitutional right asserted by a plaintiffs is ‘clearly established’ at the time the defendant acted is the determination of whether a plaintiff has asserted a violation of a constitutional right at all.” Siegert, - U.S. at -, 111 S.Ct. at 1793. This threshold inquiry is one of law. Id.
Following Siegert’s analytical structure, we first examine whether plaintiffs have alleged a violation of a clearly established constitutional right. Although plaintiffs assert a variety of constitutional violations in their complaint, the gravamen of their action is that the officers involved in the high speed pursuit unreasonably seized David Cole in violation of the Fourth Amendment. All claims that law enforcement officials used excessive force — deadly or not — in the course of making an arrest or other “seizure” of a free citizen are properly analyzed under the Fourth Amendment. Graham v. Connor, 490 U.S. 386, 394-95, 109 S.Ct. 1865, 1870-71, 104 L.Ed.2d 443 (1989) (citing Tennessee v. Garner, 471 U.S. 1, 7-8, 105 S.Ct. 1694, 1699-1700, 85 L.Ed.2d 1 (1985)).
In analyzing plaintiffs’ unreasonable seizure claim, we begin by identifying the “seizure.” Plaintiffs argue that David Cole was seized during the pursuit when the troopers attempted the rolling roadblock and the stationary roadblock. Defendants, on the other hand, argue that Cole was not seized until he was struck by the shot from Trooper Rice’s revolver.
The question whether a seizure occurred is one of law that we determine de novo. United States v. McKines, 933 F.2d 1412, 1424-26 (8th Cir.) (en banc), cert. denied, - U.S. -, 112 S.Ct. 593, 116 L.Ed.2d 617 (1991).
In California v. Hodari D., the Supreme Court held that a seizure occurs only when the pursued citizen is physically touched by the police or when he submits to a show of authority by the police. - U.S. -,-, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991). In adopting this definition, the Court expressly stated that an assertion of authority by the police without submission by the pursued citizen does not constitute a seizure. Id. at -, 111 S.Ct. at 1550. More particularly, the Court stated that a seizure does not occur during the course of a police pursuit of a fleeing vehicle if the pursuit, as a show of authority, does not produce a stop. Id. at -, 111 S.Ct. at 1552 (citing Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 1381, 103 L.Ed.2d 628 (1989)).
In view of the holding in Hodari D., we hold that Cole was not seized until he was struck by the shot from Trooper Rice’s revolver. Cf. Garner, 471 U.S. at 7, 105 S.Ct. at 1699 (stating that apprehension by the use of deadly force is a seizure). The pursuit in and of itself did not constitute a seizure, because it did not produce a stop. Hodari D., - U.S. at -, 111 S.Ct. at 1552 (citing Brower, 489 U.S. at 596, 109 S.Ct. at 1381). Likewise, the shots that were fired at the truck and that did not hit Cole were not seizures because they too failed to produce a stop. Nor did the unsuccessful rolling roadblock and stationary roadblock constitute seizures. To constitute a seizure, a roadblock must have been meant to stop the citizen and it must actually succeed in stopping him. Brower, 489 U.S. at 599, 109 S.Ct. at 1382. In short, all of these actions constituted assertions of authority by the officers, but they were not seizures under the Fourth Amendment because Cole did not submit to any of them, nor did any succeed in stopping him.
The Fourth Amendment prohibits unreasonable seizures, not unreasonable or ill-advised conduct in general. Carter v. Buscher, 973 F.2d 1328, 1332 (7th Cir.1992) (citing Tom v. Voida, 963 F.2d 952, 957 (7th Cir.1992)). Consequently, we scrutinize only the seizure itself, not the events leading to the seizure, for reasonableness under the Fourth Amendment. Id. at 1333. Accordingly, plaintiffs have failed to allege a constitutional violation against those defendants who did not seize Cole and who were not sued as supervisors. Those defendants are entitled to summary judgment.
Having held that Trooper Rice’s shooting of Cole constituted a seizure under the Fourth Amendment, we now consider, viewing the record in the light most favorable to plaintiffs, whether plaintiffs have alleged facts sufficient to establish that the seizure violated the Fourth Amendment. In Tennessee v. Garner, the Court defined the circumstances in which an officer may reasonably employ deadly force:
Where the officer has probable cause to believe that the suspect poses a threat of serious physical harm, either to the officer or to others, it is not constitutionally unreasonable to prevent escape by using deadly force. Thus, if the suspect threatens the officer with a weapon or there is probable cause to believe that he has committed a crime involving the infliction of serious physical harm, deadly force may be used if necessary to prevent escape, and if, where feasible, some warning has been given.
471 U.S. at 11-12, 105 S.Ct. at 1701. See also Krueger v. Fuhr, 991 F.2d 435, 438 (8th Cir.1993).
In analyzing the reasonableness of Trooper Rice’s decision to use deadly force, we examine the information that Rice possessed at the time of his decision. The “ ‘reasonableness’ of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. at 1872; Krueger, 991 F.2d at 439. “The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make ... judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.” Graham, 490 U.S. at 396-97, 109 S.Ct. at 1872. Rice’s subjective intent as to the lawfulness of his conduct is irrelevant. In excessive force cases “the question is whether the [officer’s] actions are ‘objectively reasonable’ in light of the facts and circumstances confronting [him], without regard to his underlying intent or motivation.” Id. at 397, 109 S.Ct. at 1872.
We hold that Trooper Rice’s decision to use deadly force to disable the truck was not objectively unreasonable. He had probable cause to believe that the truck posed an imminent threat of serious physical harm to innocent motorists as well as to the officers themselves. Rice had seen the truck force several motorists off the road and threaten the safety of many others. He could reasonably have believed that the truck would continue to threaten the lives of travellers as it continued speeding down the crowded interstate highway. He knew that the truck had been careening through traffic for at least fifty miles and that it showed no signs of stopping. He knew further that all other attempted means to stop the truck — the rolling roadblock, the stationary roadblock, the shots at its tires and radiator — had been unsuccessful.
Moreover, Rice had probable cause to believe that Cole had committed a crime. He had received a radio report that the truck had attempted to force several police cars off the road in Kansas City. Additionally, he believed that Cole had attempted to ram his and Trooper Martinez’s vehicles. Attempting to strike police officers with an automobile constitutes first degree assault under Missouri law. See, e.g., State v. McClain, 824 S.W.2d 103, 104 (Mo.Ct.App.1992); State v. Caldwell, 695 S.W.2d 484, 485 (Mo.Ct.App.1985). In the light of all of the information that was available to him, then, we find that Trooper Rice’s use of deadly force was constitutionally reasonable under Gamer.
The district court seemingly believed that Rice’s conduct was legally unreasonable because it was not authorized under the policies of the Missouri Highway Patrol. We need not determine whether Trooper Rice violated Missouri Highway Patrol policy, however, for under section 1983 the issue is whether the government official violated the Constitution or federal law, not whether he violated the policies of a state agency. Conduct by a government official that violates some state statutory or administrative provision is not necessarily constitutionally unreasonable. Davis v. Scherer, 468 U.S. 183, 193-94, 104 S.Ct. 3012, 3018-19, 82 L.Ed.2d 139 (1984); Cf. Edwards v. Baer, 863 F.2d 606, 608 (8th Cir.1988) (citing Scherer, 468 U.S. at 194, 104 S.Ct. at 3019) (stating that police department guidelines do not create a constitutional right). State legislatures and government agencies are free to hold government officials to higher standards than the Constitution requires. Smith v. Freland, 954 F.2d 343, 347 (6th Cir.), cert. denied, - U.S. -, 112 S.Ct. 1954, 118 L.Ed.2d 557 (1992).
It could be argued, of course, that Trooper Rice’s decision to use deadly force might not have been the most prudent course of action; other courses of action, such as another stationary roadblock, might conceivably have been available. The Constitution, however, requires only that the seizure be objectively reasonable, not that the officer pursue the most prudent course of conduct as judged by 20/20 hindsight vision. Graham, 490 U.S. at 396, 109 S.Ct. at 1871; Krueger, 991 F.2d at 439.
Because we have found that Rice’s seizure of David Cole was constitutionally reasonable as a matter of law, plaintiffs have failed to assert a constitutional violation against Rice. Accordingly, it is thus unnecessary for us to reach Rice’s contention that the district court erred in denying his claim of qualified immunity. Krueger, 991 F.2d at 440.
Last, we consider whether those members of the Missouri Highway Patrol sued as supervisors should remain in the lawsuit. Plaintiffs argue that these defendants are liable under section 1983 because they failed to adequately train and supervise the officers involved in the pursuit on the use of deadly force.
Government officials may be held liable for constitutional wrongs caused by their failure to train or supervise subordinates adequately. See, e.g., Boswell v. Sherburne County, 849 F.2d 1117, 1122 (8th Cir.1988) (citing Hahn v. McLey, 737 F.2d 771, 773 (8th Cir.1984) (per curiam)), cert. denied, 488 U.S. 1010, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989). Nevertheless, because we have found that plaintiffs have failed to establish that David Cole’s constitutional rights were violated, they have no section 1983 claim against those defendants sued as supervisors. A vital element of any section 1983 claim is a showing that a right secured by the Constitution or federal law was violated. See Rubek v. Barnhart, 814 F.2d 1283, 1285 (8th Cir.1987). No such showing having been made, the defendants named as supervisors must also be granted summary judgment.
The district court’s order denying the defendant’s motion for summary judgment on qualified immunity grounds is reversed. The case is remanded with directions that summary judgment be entered in favor of all defendants. Whether the pendent state law wrongful death claim should proceed to trial in federal court under the district court’s supplemental jurisdiction is a question for the district court to resolve in the first instance. 28 U.S.C. § 1367(c)(3). Cf. Rosado v. Wyman, 397 U.S. 397, 403-05, 90 S.Ct. 1207, 1213-14, 25 L.Ed.2d 442 (1970); United Mine Workers v. Gibbs, 383 U.S. 715, 725-26, 86 S.Ct. 1130, 1138-39, 16 L.Ed.2d 218 (1966); Brousard-Norcross v. Augustana College Ass’n, 935 F.2d 974, 979 (8th Cir.1991); Ronwin v. Dunham, 818 F.2d 675, 677 n. 6 (8th Cir.1987).
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_genapel1
|
G
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task is to determine the nature of the first listed appellant.
Charles Leroy TIMBERLAKE and Mitchell Skiff Engelhart, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant-Appellee.
Nos. 84-2563, 2564.
United States Court of Appeals, Tenth Circuit.
July 23, 1985.
McKay, Circuit Judge, concurred in part, dissented in part, and filed an opinion.
Thomas H. Connors, Miami, Fla., for plaintiffs-appellants.
Donn F. Baker, U.S. Atty., E.D. Oklahoma, Paul G. Hess, Asst. U.S. Atty., E.D. Oklahoma, Muskogee, Okl., for defendantappellee.
Before McKAY, DOYLE and LOGAN, Circuit Judges.
WILLIAM E. DOYLE, Circuit Judge.
After examining the briefs and the appellate record, this three-judge panel has determined that oral argument would not be of material assistance in the determination of this appeal. See Fed.R.App.P. 34(a); Tenth Circuit R. 10(e). The cause is therefore ordered submitted without oral argument.
Appellants Mitchell Skiff Engelhart and Charles Leroy “Chuck” Timberlake, airplane pilots by trade, became involved in a summer 1983 drug run from Colombia. On June 30, 1983, Engelhart and Timberlake left Grand Prairie, Texas, in a twin-engine Cessna Titan airplane. They flew to an isolated airfield in Colombia, where they picked up 23 duffel bags containing approximately 460 pounds of 97 percent pure cocaine. They flew to an isolated airfield located near Talihina, in the Eastern District of Oklahoma. They arrived at about 3:35 a.m., CDT, on July 1, 1983. The cocaine was removed from the plane. Appellants then flew to Dallas-Fort Worth, Texas, where they were arrested later that day. Engelhart had an understanding that he would be paid $175,000 for this flight; Timberlake was to be paid $70,000.
Appellants were indicted by a federal grand jury in the Eastern District of Oklahoma on July 27, 1983. This was for their transportation of the drugs as part of a conspiracy. Timberlake was indicted on six specific counts; Engelhart was indicted on seven. Both appellants entered into plea agreements with the United States Attorney whereby each pleaded guilty to three counts of the indictments and agreed to cooperate with the government in connection with the prosecution of the other conspirators. No promises were made by the government as to the sentences that appellants would receive. The government’s only promise was to bring appellants’ cooperation to the attention of the court at the time of sentencing. Both the government and the appellants kept their portions of the bargain.
The United States District Court for the Eastern District of Oklahoma, after ascertaining that there was a sufficient factual basis for appellants’ guilty pleas and determining that the pleas were knowingly and voluntarily entered, accepted the guilty pleas on September 2, 1983. On October 26, 1983, the court sentenced each appellant to twenty-five years imprisonment. Appellants retained new counsel and launched collateral attacks on their sentences by means of motions to vacate them pursuant to 28 U.S.C. § 2255. However, the district court denied their motions in memorandum opinions and judgments which were issued September 25, 1984 to Timberlake, and on September 27, 1984 to Engelhart. These appeals are from the district court’s denial of the motions under § 2255.
Appellants have advanced several arguments in support of their appeal. Both of them argue that their convictions on multiple conspiracy counts violate the double jeopardy clause of the Fifth Amendment. The appellants also contend that they were denied effective assistance of counsel in violation of the Sixth Amendment. A final contention from appellant Engelhart maintains that the district court failed to ascertain whether there was a factual basis for his guilty pleas to Counts 3 and 5 of the indictment. We are unable to find any merit in any of appellants’ arguments and thus affirm the district court’s denial of their § 2255 motions.
We now address ourselves to the contention that there was double jeopardy which voids the pleas of guilty. Engelhart pleaded guilty to conspiracy to import cocaine in violation of 21 U.S.C. § 963, conspiracy to distribute cocaine in violation of 21 U.S.C. § 846, and conspiracy to travel in interstate and foreign commerce with intent to promote an unlawful activity contrary to 18 U.S.C. § 371. Appellant Timberlake pleaded guilty to the conspiracy counts. He was charged with violating 21 U.S.C. § 963 and 18 U.S.C. § 371. The appellants now contend that there was but a single conspiracy, and that imposition of several punishments for that single conspiracy under several statutes violates the double jeopardy clause.
We disagree with this contention. It is settled that a single illegal transaction may be punished under several statutory provisions if conviction under each statutory provision requires proof of a fact not required for conviction under the other statutory provisions. Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932). After all, these are separate and distinct violations, the conspiracy and the actual carrying out of the conspiracy. This double jeopardy test focuses on the elements of the crimes, and not on the specific acts charged in the indictment or the evidence presented at trial. United States v. Rodriquez, 612 F.2d 906, 919 (5th Cir.1980), aff'd. sub nom., Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981); see also United States v. Solano, 605 F.2d 1141 (9th Cir.1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 677, 62 L.Ed.2d 652 (1980); United States v. Peterson, 524 F.2d 167 (4th Cir.1975), cert. denied, 423 U.S. 1088, 96 S.Ct. 881, 47 L.Ed.2d 99 (1976). It is also settled that a single illegal activity may be punished under two distinct and specific conspiracy statutes, see American Tobacco Co. v. United States, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946), or under the general conspiracy statute (18 U.S.C. § 371) and a more specific conspiracy statute, United States v. Barton, 647 F.2d 224 (2d Cir.), cert. denied, 454 U.S. 857, 102 S.Ct. 307, 70 L.Ed.2d 152 (1981).
When one applies the rulings in the authorities which are set forth above, we can see that those convictions do not violate any double jeopardy clause. The Supreme Court has already ruled that a single conspiracy may support convictions under both 21 U.S.C. § 963 and 21 U.S.C. § 846. Albernaz v. United States, 450 U.S. 333, 339, 101 S.Ct. 1137, 1142, 67 L.Ed.2d 275 (1981). The holding in Albernaz effectively disposes of one of appellant Engelhart’s double jeopardy arguments. With respect to both appellants’ double jeopardy challenges to convictions under both 18 U.S.C. § 371 and 21 U.S.C. § 963, we find that the elements of proof under the two statutes diverge sufficiently that a single conspiracy can support separate violations of the two statutes. 18 U.S.C. § 371 requires proof of an overt act in furtherance of the conspiracy. See, e.g., United States v. Sterkel, 430 F.2d 1262, 1263 (10th Cir. 1970). The Fifth Circuit has ruled that no overt act need to be proven in order to obtain a conspiracy conviction under 21 U.S.C. § 963. See, e.g., United States v. Pool, 660 F.2d 547, 560 (5th Cir. 1981). Inasmuch as the elements required to prove conspiracies under the two statutes diverge, they constitute separate offenses under the Blockburger test, and conviction of both offenses does not violate the double jeopardy clause. Finally, with respect to appellant Engelhart’s conviction of conspiracies under both 21 U.S.C. § 846 and 18 U.S.C. § 371, it is to be noted that the elements of proof once again diverge. Conviction on the § 371 count requires proof of an element, intent to travel in interstate commerce to promote an unlawful activity. It does not require the sustaining of a conviction for conspiracy unlawfully to distribute controlled substances under 21 U.S.C. § 846. Consequently, Engelhart’s conviction on both of these conspiracy counts does not bring the double jeopardy clause into action. Cf. United States v. Stevens, 612 F.2d 1226, 1231 (10th Cir.1979), cert. denied, 447 U.S. 921, 100 S.Ct. 3011, 65 L.Ed.2d 1113 (1980). In summary, we find no merit to any of the appellants’ double jeopardy arguments.
The next argument is that appellants were denied the effective assistance of counsel guaranteed to them by the Sixth Amendment during plea bargaining and at the time of sentencing. They maintain that their earlier counsel did not advise them of proffered plea bargains more favorable than the ones that they ultimately accepted. They also contend that their counsel advised them to plead guilty to charges that violated the double jeopardy clause. This suggests that we must measure these contentions against our rule that “[t]he Sixth Amendment demands that defense counsel exercise the skill, judgment, and diligence of a reasonably competent defense attorney.” Dyer v. Crisp, 613 F.2d 275, 278 (10th Cir.) (en banc), cert. denied, 445 U.S. 945, 100 S.Ct. 1342, 63 L.Ed.2d 779 (1980). When we consider appellants’ arguments in light of this rule, we are compelled to reject them. We hold that appellants’ Sixth Amendment right to effective representation was not infringed.
The appellants claim that their attorneys were approached by the United States Attorney and offered more advantageous plea bargains than those which they accepted. However, there is no evidence in the record to support such contentions. In fact, the affidavit of Donn F. Baker, the Assistant United States Attorney who handled this case, dispels that contention. No such offers were ever made to the appellants’ attorneys. If the U.S. Attorney had offered a more advantageous plea bargain that was not conveyed to the appellants, and no such offer is at all likely, it is doubtful whether this would justify our reversing these defendants’ convictions. See United States v. Geittmann, 733 F.2d 1419, 1422 (10th Cir.1984).
Finally, the appellants also claim that their attorneys’ failure to develop double jeopardy arguments and advice that they plead guilty to counts that they now allege violated the double jeopardy clause shows the ineffectiveness of their earlier counsel. We find this argument to be without merit. As noted above, there is no legal support for the appellants’ double jeopardy arguments. We must conclude, therefore, that trial counsel’s failure to pursue those double jeopardy arguments at an earlier stage of this case does not add up to ineffective assistance of counsel.
We turn now to appellant Engelhart’s final argument. His contention is that the district court failed to ascertain that there was a sufficient factual basis for his guilty plea. This, however, is without merit. The transcript shows that Engelhart’s Rule 11 hearing was sufficient. The district court was correct in concluding there was a factual basis for Engelhart’s guilty plea. Therefore, we reject Engelhart’s argument.
Our conclusion is that the judgments below should be and they are affirmed.
Question: What is the nature of the first listed appellant?
A. private business (including criminal enterprises)
B. private organization or association
C. federal government (including DC)
D. sub-state government (e.g., county, local, special district)
E. state government (includes territories & commonwealths)
F. government - level not ascertained
G. natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)
H. miscellaneous
I. not ascertained
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
MEEKINS, INC., Appellant, v. Harold A. BOIRE, Regional Director, Twelfth Region, National Labor Relations Board, et al., Appellees. CONE BROTHERS CONTRACTING COMPANY, Appellant, v. Harold A. BOIRE, Regional Director, Twelfth Region, National Labor Relations Board, Appellee.
Nos. 19847, 19848.
United States Court of Appeals Fifth Circuit.
July 8, 1963.
Erie Phillips, Atlanta, Ga., Ralph R. •Quillan, Hollywood, Fla., Fisher & Phillips, Atlanta, Ga., for appellant Meekins, Inc.
J. Rex Farrior, Jr., Tampa, Fla., Ray G. Muller, Atlanta, Ga., Jack S. Newsome, Tampa, Fla., Erie Phillips, Atlanta, Ga., for appellant Cone Bros. Contracting Co.
Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon Hirsh, Atty., Stuart Rothman, Gen. Counsel, Dominick L. Ma-noli, Associate Gen. Counsel, Melvin J. Welles, Herman M. Levy, Attys., N. L. R. B., Washington, D. C., for appellees.
Before RIVES and CAMERON, Circuit Judges, and BOOTLE, District Judge.
BOOTLE, District Judge.
These two cases have so much in common that they were consolidated for oral argument and will now be decided together. In each case the appeal is from a judgment sustaining a motion to dismiss the complaint. It will be convenient, therefore to refer to appellants as plaintiffs and to appellees as defendants.
The main thrust of each complaint is against Harold A. Boire in his official capacity as Regional Director, Twelfth Region, National Labor Relations Board because of his refusal to exercise his authority and alleged duty under § 10 (l) of the National Labor Relations Act, 29 U.S.C.A. § 160 (l), to petition the district court “for appropriate injunctive relief pending the final adjudication of the Board with respect to” a charge of unfair labor practice. Each complaint seeks injunctive relief against Boire enjoining him from refusing to petition the district court for such appropriate injunctive relief against the allegedly offending labor organization.
Meekins, Inc. sued both Boire and Local 290, Teamsters Union alleging that said Local caused pickets to be placed on a construction job at Coral Ridge Shipping Plaza where plaintiff was pouring concrete as a subcontractor for R. M. Thompson Company, the general contractor; that also on the job was Joseph Sullivan, another subcontractor who was responsible for placing and finishing the concrete poured by plaintiff; that both Thompson and Sullivan employed union members; that Local 290 did not represent plaintiff’s employees and had no dispute with plaintiff, Thompson, Sullivan, or any other contractor working on the job; that the object of the picketing was to force Thompson, Sullivan, and others to cease using and dealing in the products of, and to cease doing business with plaintiff; that the effect of the picketing and appealing to the employees of Sullivan and others to refuse to work for their employer was that numerous union employees walked off the job bringing it to a standstill; that said activity was in violation of 29 U.S.C.A. § 158(b) (4) (i) (ii) (B); that plaintiff’s three primary places of business were away from said job site and plaintiff’s truck drivers reported to one of these plants each morning and after each delivery returned to a plant for another load; that on April 25, 1962 plaintiff filed an unfair labor practice charge with Boire alleging the above; that on May 14,1962 Boire wrote plaintiff that said charge had been carefully investigated and considered, that as a result of said investigation it appeared that, because there was insufficient evidence of violation, further proceedings were not warranted at that time, and that, therefore, Boire was refusing to issue a complaint in the matter, said letter concluding with the following paragraph :
“Pursuant to the National Labor Relations Board Rules and Regulations (Section 102.19), you may obtain a review of this action by filing a request for such review with the General Counsel of the National Labor Relations Board, Washington 25, D. C., and a copy with me. This request must contain a complete statement setting forth the facts and reasons upon which it is based. The request must be received by the General Counsel in Washington, D. C., by the close of business on May 18, 1962. Upon good cause shown, however, the General Counsel may grant special permission for a longer period within which to file.”
Cone Brothers Contracting Company sued only Boire alleging that plaintiff maintained its principal office and place of business in Tampa, Florida, where it was engaged as a general contractor in the business of constructing streets, highways, bridges, sewers, and excavations; that from May 25, 1960 to date the International Union of Operating Engineers, hereinafter called Engineers, had been actively engaged in picketing certain of plaintiff’s business operations and certain of its work sites; that, as a consequence of certain of the picketing, plaintiff, in June 1960, filed unfair labor practice charges with Boire alleging violations of 29 U.S.C.A. § 158(b) (4) (i) (ii) (B); that on the basis of said charges Boire, on June 16, 1960, petitioned the district court for injunctive relief against the Engineers’ secondary picketing, alleging in said petition that there was reasonable cause to believe that Engineers were picketing in violation of said code section; that as a result of the filing of said petition the Engineers and Boire entered into a settlement agreement on June 17,1960 which provided, among other things, that the Engineers “will not engage in any picketing at or in the vicinity of the General Portland Cement Company mine * * * or at or in the vicinity of the premises of any other person engaged in commerce or in an industry affeetng commerce doing business with [plaintiff] * * * ”; that on April 24, 1962 Engineers commenced picketing plaintiff at the premises and at the work site of employers doing business with plaintiff, and that this picketing caused work stoppages by employees of secondary employers; that plaintiff maintained a permanent place of business in Tampa where plaintiff’s employees could be picketed without interfering with employees of neutral employers; that for the preceding twelve month period the Engineers had not picketed any of plaintiff’s work sites where its employees alone were working; that the picketing complained of extended across the entire width of the secondary work site notwithstanding that plaintiff’s employees at all times confined their work area to the eastern end of the work site; that the picketing followed the work schedule of the secondary employees notwithstanding that plaintiff’s employees had a different work schedule; that on April 26, 1962 plaintiff filed with Boire a charge alleging violations of the secondary boycott provision of the Act; and that Boire caused an investigation to be made after the filing of the charge, knew all of the facts alleged by plaintiff, and, additionally, knew of the Engineers’ breach of the settlement agreement.
Each complaint alleges in effect that Boire had reasonable cause to believe that the charges of unfair labor practices were true, that the respective unions were engaging in violations of the secondary boycott provision of the Act and that a complaint should be filed, and alleges further that Boire’s refusal to proceed was arbitrary and capricious; additionally, Meek-ins, Inc. alleged on information and belief that before writing the letter of May 14, 1962 Boire or his agents asked for, and received, direction from the General Counsel of the National Labor Relations Board and that the refusal to issue a complaint was the result of direction from said General Counsel.
Meekins, Inc., in addition to the injunc-tive relief sought against Boire, also prayed for an injunction against Local 290 enjoining it from (a) picketing at Coral Ridge Shopping Plaza or the premises of any other person engaged in commerce doing business with plaintiff; and (b) engaging in any secondary picketing adversely affecting plaintiff.
In the Meekins case Boire filed a motion to dismiss on the grounds that: (1) the court lacked jurisdiction of the General Counsel of the Board who was an indispensable party; (2) the court lacked jurisdiction over the sub ject matter; and (3) the complaint failed to state a claim upon which relief could be granted. Local 290 filed two motions to dismiss, one upon the grounds that (a) the complaint failed to state a cause of action upon which relief could be granted; (b) the complaint failed to show why the relief prayed for should be granted; (c) there was an adequate remedy at law; (d) the plaintiff failed to exhaust its administrative remedies in that it had not appealed to the General Counsel the Regional Director’s decision to refuse to issue the complaint; (e) only the Regional Director and not the plaintiff would be the proper party to bring the action; and (f) the refusal to issue a complaint and the refusal to apply for a preliminary injunction under the Act were purely within the . discretion and determination of the Regional Director and the General Counsel, and the refusal to issue or to apply was not appealable to any administrative body or court under the Act; and the other upon the grounds that: (a) this matter has been preempted by the Act and final determination of the merits of the cause is solely within the jurisdiction of the Board and the federal appellate courts, and the district court was without jurisdiction; (b) the complaint sought final determination, whereas, at most, under the Act the district court could issue only a temporary restraining order pending final adjudication of the matter by the Board; and (c) if the complaint could be interpreted as a request for only a temporary restraining order then said order would be for no final or ultimate purpose and could not lawfully state under what situations it would become permanent or when it would be dismissed.
Upon these motions in the Meekins case the district court, concluding that it had no jurisdiction to grant either a permanent or temporary injunction against the union at' the suit of the employer and that the complaint against Boire and the union failed to state a claim upon which the court could grant relief, entered its order dismissing the complaint.
In the Cone Brothers case, Boire filed his motion to dismiss upon the same grounds urged by him in the Meekins, Inc. case, and the district court sustained said motion being of the view that “inasmuch as the instant complaint seeks by way of a mandatory injunction to compel the defendant to exercise his discretionary jurisdiction, this court is without jurisdiction of the subject matter and the complaint fails to state a claim upon which relief can be granted even if such jurisdiction would be present.”
As we stated at the outset, the main thrust of these complaints is against Boire in his capacity as Regional Director. While Meekins, Inc. joined Local 290 as a defendant and prayed for an injunction against it, it is clear that the district court had no jurisdiction to enjoin the union. The Norris-LaGuardia Act specifically prohibits the issuance of injunctions in labor suits except under certain circumstances which are not here alleged. 29 U.S.C.A. § 107. Congress has entrusted to the National Labor Relations Board the responsibility of administering the Labor Acts and its final orders may be reviewed by the United States Courts of Appeals. 29 U.S.C.A. § 160(e) and (f). Except for such appellate review the power of the Board in labor-management disputes concerning alleged unfair labor practices is exclusive. 29 U.S.C.A. § 160(a); Amalgamated Utility Workers v. Consolidated Edison Co., 309 U.S. 261, 60 S.Ct. 561, 84 L.Ed. 738 (1940); Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 48, 58 S.Ct. 459, 462, 82 L.Ed. 638, 642 (1938). See also San Diego Bldg. Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) and Dunn v. Retail Clerks Int’l Ass’n, 307 F.2d 285 (6th Cir. 1962). The district court was correct, therefore, in dismissing the Meekins, Inc. complaint insofar as it sought relief against the union.
With respect to each complaint insofar as it relates to Boire, the Regional Director, we need not reach any of the questions raised except as to the effect of plaintiffs’ failure to exhaust their administrative remedies, because we are of the opinion that their failure in this regard prevents the maintenance of these suits.
Section 10(b) of the Act, 29 U.S.C.A. § 160(b), empowers “the Board, or any agent or agency designated by the Board * * * to issue * * * a complaint * * * ” upon unfair labor practice charges filed. Section 3(d) of the Act, 29 U.S.C.A. § 153(d) provides that the General Counsel of the Board shall exercise general supervision over the officers and employees in the regional offices and that “he shall have final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints under section 160 of this title, and in respect of the prosecution of such complaints before the Board * * By regulations adopted pursuant to § 6 of the Act, 29 U.S.C.A. § 156, the Board has delegated authority to Regional Directors to issue such complaints which they are required to do “if the charge appears to have merit.” 29 C.F.R. §§ 101.8 and 102.15. Charges alleging violations of certain sections of the Act, including § 8(b) (4) (B) involved in the cases at bar, are given priority over all other cases. 29 U.S.C.A. § 160(e); 29 C. F.R. § 101.4. If, after the investigation of a charge alleging a violation of § 8(b) (4) (B), 29 U.S.C.A. § 158(b) (4) (B), the Regional Director “has reasonable cause to believe such charge is true and that a complaint should issue, he shall, on behalf of the Board, petition any United States district court * * * for appropriate injunctive relief pending the final adjudication of the Board with respect to such matter.” 29 U.S.C.A. § 160 (l). Following issuance of the complaint the case is heard by a trial examiner and finally culminates in a Board decision and order. 29 C.F.R. §§ 102.34-102.51, 101.-10-101.14. The Board decision is then subject to review by the appropriate court of appeals pursuant to § 10(e) and (f) of the Act, 29 U.S.C.A. § 160(e) and (f).
If, on the other hand, the Regional Director’s investigation reveals that “there has been no violation of the * * * Act, or the evidence is insufficient to substantiate the charge” the Regional Director dismisses the charge. 29 C.F.R. §§ 101.5 and 101.6. If the Regional Director refuses to issue the complaint “the person making the charge may obtain a review of such action by filing a request therefor with the general counsel in Washington, D. C.” 29 C.F.R. § 102.19. The Act contains no provision for review, either by the Board or the courts, of the General Counsel’s refusal to issue a complaint.
No reason appears why plaintiffs should be relieved from “the long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or a threatened injury until the prescribed administrative remedy has been exhausted.” Myers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50, 51, 58 S.Ct. 459, 463, 82 L.Ed. 638, 644 (1938). In our judgment not even the “on information and belief” allegations of Meekins, Inc. that Boire or his agent asked for and received direction from the General Counsel and that the refusal to issue a complaint was the result of direction from the General Counsel should have the effect of relieving from this wholesome rule. Any informal or unofficial direction from the General Counsel to Boire encompassed by said allegation would partake too much of the nature of horseback or curbstone advice to take the place of the “review” called for by 29 C.F.R. § 102.19. There are good reasons why in these two cases all administrative remedies should be exhausted. The district court was asked to assume jurisdiction to determine a controversy over which it normally has no general jurisdiction, either initially or by review, a controversy which normally goes before the Board in the first instance and thence directly to a court of appeals, a controversy over which the Act gives to the district court only a limited jurisdiction in specific instances to issue a temporary injunction in aid of the jurisdiction of the Board. 29 U.S.C.A. § 160(l). Moreover, the matters here involved under the scheme of the Act are left largely, if not exclusively, to the discretion of the Regional Director in the first instance, and then upon review to the discretion of the General Counsel. That discretion should be exercised in the manner prescribed by lawful regulations, that is, by having the Regional Director exercise his judgment in the first instance, and then by having that judgment reviewed by the General Counsel as required by 29 C.F.R. § 102.19.
Nothing held in Levers v. Anderson, 326 U.S. 219, 66 S.Ct. 72, 90 L.Ed. 26 (1945), or in Glover v. United States, 286 F.2d 84, 90 (8th Cir. 1961), relied upon by plaintiffs, militates against the foregoing. In Levers it was held that a motion for reconsideration by the same person who had already rendered a decision was not in that particular case necessary as a prerequisite to court action. Then too, the regulations there involved provided only that the aggrieved person “may file an application * * * for a reconsideration of such order” and that “[t]he Commissioner or district supervisor, with whom such application is filed, may hear the application”, and the court pointed out that under these regulations “there is [was] no assurance that a rehearing will [would] be granted * (Emphasis added). In the cases at bar the regulation provides positively that “the person making the charge may obtain a review * * * by filing a request therefor”. Also, in the cases at bar, we are not concerned with a motion for reconsideration by one who has already ruled, but with a review by the official whom the Act vests with “final authority, on behalf of the Board, in respect of the investigation of charges and issuance of complaints * * * ” 29 U.S.C.A. § 153 (d). In Glover, there had already been four unsuccessful appeals by an inductee who claimed a conscientious objector classification from his classification of 1-A. Even there the court said that the rule “is to be relaxed only under extremely exceptional and unusual circumstances.” P. 91 of 286 F.2d.
While we do not reach the merits of the complaints, we note in passing, and this further indicates the propriety of requiring a review by the General Counsel, that the Regional Director’s refusal to file the complaints and to seek temporary injunctive relief in aid of the Board’s jurisdiction was doubtless based upon his interpretation and application of the Board’s recent decision in Plauche Electric, Inc., 135 NLRB No. 41 (January 12, 1962), in which the Board departed somewhat from its earlier decision in Brewery and Beverage Drivers and Workers Local 67 v. N. L. R. B. (Washington Coca-Cola Bottling Works, Inc. v. N. L. R. B.), 107 NLRB 299, enf’d, 95 U.S.App.D.C. 117, 220 F.2d 380 (1955), and held that the mere availability of another establishment where picketing might have been conducted away from a common construction situs will not make the picketing at the common situs per se unlawful. Defendants contend, with some plausibility, that plaintiffs’ attack is really upon the Board decision in Plauche Electric, Inc. This being so, it is all the more proper and necessary that plaintiffs be required to have the Regional Director’s decision reviewed by the General Counsel before resorting to court action. Whether plaintiffs could successfully maintain suits like these against the Regional Director or the General Counsel, or both, after obtaining a review by the General Counsel in the event he affirmed the decision of the Regional Director we need not presently decide.
Because of the failure of plaintiffs to exhaust their administrative remedies, the judgments of the district court dismissing their complaints were correct and are
Affirmed.
CAMERON, Circuit Judge, concurs in the results.
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
sc_respondent
|
179
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
UNITED STATES v. SHIMER.
No. 392.
Argued April 27, 1961.
Decided June 12, 1961.
Wayne G. Barnett argued the cause for the United States. With him on the briefs were former Solicitor General Rankin, Solicitor General Cox, Assistant Attorney General Orrick, Assistant Attorney General Doub, Alan S. Rosenthal, Anthony L. Mondello, Pinckney G. McElwee and Morton Hollander.
The cause was submitted on brief by Edward Davis for respondent.
William F. McKenna and Samuel E. Neel filed a brief for the National Association of Mutual Savings Banks et al., as amici curiae, urging reversal.
Mr. Justice Harlan
delivered the opinion of the Court.
The United States brought this action in the Eastern District of Pennsylvania to recover from Shimer, on theories of subrogration and indemnity, an amount of $4,000 which the Veterans’ Administration, as guarantor of a loan made to him by Excelsior Saving Fund and Loan Association, had paid to that institution.
The relevant facts, as stipulated by the parties, are these: In 1948 Shimer, a World War II veteran, borrowed $13,000 from Excelsior secured by a mortgage upon residential realty which Shimer purchased with the proceeds. At Shimer’s request the Veterans’ Administration, pursuant to Title III of the Servicemen’s Readjustment Act of 1944, as amended in 1945, granted a maximum guarantee of the loan — that is, the lesser of $4,000 or 4/13 of the indebtedness outstanding at any particular time. Both the “Home Loan Report” signed by Shimer, and the Administration certificate of guaranty, specified that the rights of the parties would be governed by Regulations of the Administration in effect at the date of the loan and guaranty. Shimer defaulted in 1948, and in 1949 Excelsior, as mortgagee, notified the Veterans’ Administration of his default and obtained a Pennsylvania judgment foreclosing the mortgage which then secured a debt in excess of $13,000. After the property was purchased by Excelsior at a sheriff’s sale for $250, the Veterans’ Administration paid it the entire guaranty of $4,000 and brought the present action against Shimer.
In the Court of Appeals, the United States chose to rely exclusively on the Administration’s alleged right of indemnity against Shimer, and accordingly does not press its claim here upon a theory of subrogation. The Court of Appeals held that the United States was not entitled to recover, reaching this result by applying a well-established principle of surety law which both parties agree was recognized by Congress when it passed Title III: The Veterans’ Administration, as guarantor, could not recover from its principal, Shimer, any amount it was not obligated to pay the mortgagee, Excelsior, on his behalf. Turning to state law to determine the extent of the Administration’s obligation to Excelsior, the court below considered that under Pennsylvania law both Shimer and the Veterans’ Administration had been released from any further liability to Excelsior at the time the Administration paid its $4,000 guarantee, that is, after the foreclosure sale. 276 F. 2d 792. Under the Pennsylvania Deficiency Judgment Act a mortgagee who purchases the mortgaged property in execution proceedings cannot recover a deficiency judgment unless and until the mortgagee obtains a court determination of the fair market value of the mortgaged property and credits that amount to the unsatisfied liability. When, as eventuated in this case, the mortgagee fails to bring a proceeding for this purpose within six months after the foreclosure sale, the debtor and guarantor are permanently discharged.
We granted certiorari, 364 U. S. 889, to pass upon the contentions of the United States that: (1) the application of state law to determine the Administration’s obligation to Excelsior is inconsistent with the Regulations prescribed by the agency charged with administering the Servicemen’s Readjustment Act; (2) these Regulations are authorized by the federal enactment; and (3) a right of indemnity under federal law arises in favor of the Veterans’ Administration upon proper payment of its obligations as guarantor.
I.
The Regulations promulgated by the Veterans’ Administration make clear that they were intended to create a uniform system for determining the Administration’s obligation as guarantor, which in its operation would displace state law. Section 36.4321, 12 Fed. Reg. 8344, in subsection (a) implements the “pro rata” requirements of § 500 (b) of the statute, Note 2, supra, and establishes the procedure for computing the amount of the guaranty which the mortgagee can, under § 506 of the statute, demand to have applied against his unpaid claim on the date of default. In this instance it is agreed that such amount is $4,000. However, we are informed by the Solicitor General that the mortgagee is both allowed and encouraged to delay collecting on the guaranty until after all events which may lead to a government offset have taken place. The Administration’s potential right as subrogee to some portion of the proceeds of a foreclosure sale is such a possible offset. Accordingly, Excelsior waited until after the foreclosure sale to collect on the guaranty. This brought Excelsior within subsection (b) of § 36.4321 which provides that “Credits accruing from the proceeds of a sale ... of the security subsequent to the date of computation [pursuant to subsection (a), supra], and prior to the submission of the [guaranty] claim” shall be applied in reduction of the outstanding debt and “the amount payable on the claim shall in no event exceed the remaining balance of the indebtedness.”
It was at this point that the Court of Appeals applied the Pennsylvania Deficiency Judgment Act to determine the “Credits accruing from the proceeds of . . . [the foreclosure] sale.” However, the method of determining these credits is also specified in the Regulations, indeed spelled out in § 36.4320, 13 Fed. Reg. 7739-7741, in such great detail that there can be little doubt of an administrative intent that such method should provide the exclusive procedure. In substance, that section provides that in every case at least the amount realized at the foreclosure sale is to be credited. It also specifies the way in which the Veterans’ Administration can require the mortgagee to credit more than the amount received at the foreclosure sale and thereby protect itself against the very risk the Pennsylvania Deficiency Judgment Act was designed to alleviate — the risk of having to make good its guaranty simply because the mortgaged property is sold for an inadequate price at a judicial sale. The Administrator is authorized to “specify in advance of such sale the minimum amount which shall be credited to the indebtedness of the borrower on account of the value of the security to be sold.” The mortgagee must then reduce the balance of the unpaid debt by at least this minimum amount before collecting on the guaranty. The mortgagee has the option, however, of selling any property it purchased at or below this minimum amount to the Veterans’ Administration for the specified minimum amount. If, as in the present case, the Administrator does not specify a minimum amount “the holder [mortgagee] shall credit against the indebtedness the net proceeds of the sale . . . .”
In effect, then, the scheme set up by the Regulations provides the Veterans’ Administration with a measure of assurance that there shall be credited against the unpaid debt at least what the Administrator regards as the fair value of the mortgaged property. In terms of the present case: With an unpaid balance of indebtedness of $13,000, the Veterans’ Administration should not have to pay its full guaranty of $4,000 unless the property which Excelsior may retain is worth less than $9,000. If Excelsior purchased property worth $10,000 for $250 at the foreclosure sale, the Administration should not have to pay more than $3,000 on its $4,000 guaranty, or, to state the matter more precisely, the Administration should realize a $1,000 credit as set off against its $4,000 guaranty which Excelsior could have claimed at the time of default. Accordingly, if the Administrator regarded the mortgaged property as worth $10,000 he could have specified (which he did not) a minimum credit (or “upset price”) of that amount which Excelsior would then have had to credit against the $13,000 unpaid debt. If Excelsior had purchased the property for $10,000 or less, it would have had an option to reconvey the property at a valuation of $10,000 to the Veterans’ Administration.
This scheme of protection, while intended to remedy the same abuses at which the Pennsylvania Deficiency Judgment Act is directed, is, of course, inconsistent with the Pennsylvania procedures which provide for a judicial determination of the amount to be credited against an outstanding debt and do not obligate the guarantor to purchase the mortgaged property at its judicially determined value. We have no doubt that this regulatory scheme, complete as it is in every detail, was intended to provide the whole and exclusive source of protection of the interests of the Veterans’ Administration as guarantor and was, to this extent, meant to displace inconsistent state law.
II.
We think that the Servicemen’s Readjustment Act authorized the Veterans’ Administrator to displace state law by establishing these exclusive procedures. In this regard it is important to recall the scope of our review in a case such as this. More than a half-century ago this Court declared that “where Congress has committed to the head of a department certain duties requiring the exercise of judgment and discretion, his action thereon, whether it involve questions of law or fact, will not be reviewed by the courts, unless he has exceeded his authority or this court should be of opinion that his action was clearly wrong.” Bates & Guild Co. v. Payne, 194 U. S. 106, 108-109. This admonition has been consistently followed by this Court whenever decision as to the meaning or reach of a statute has involved reconciling conflicting policies, and a full understanding of the force of the statutory policy in the given situation has depended upon more than ordinary knowledge respecting the matters subjected to agency regulations. See, e. g., National Broadcasting Co. v. United States, 319 U. S. 190; Labor Board v. Hearst Publications, Inc., 322 U. S. 111; Republic Aviation Corp. v. Labor Board, 324 U. S. 793; Securities & Exchange Comm’n v. Chenery Corp., 332 U. S. 194; Labor Board v. Seven-Up Bottling Co., 344 U. S. 344.
In the present case we need only consider the statutory authorization for § 36.4320 (a) (4) which provides that “If a minimum amount [the upset price] has not been specified by the Administrator . . . the holder shall credit against the indebtedness the net proceeds of the sale . . . .” It would, of course, have been possible for the Administrator to have promulgated regulations consistent with much of the present scheme which would have, in addition, accepted the benefits of local law which tended further to reduce a guarantor’s risk of loss from sale of the mortgaged property at an inadequate price. Thus, with specific reference to the Pennsylvania Deficiency Judgment Act, there would have been nothing inherently illogical about administrative regulations providing for an “upset price” device and then adding that, in situations where the “upset price” technique was not used by the Administrator, the Veterans’ Administration was to be entitled to the benefits of the state judicial assessment of the value of property purchased by the mortgagee. However, the Veterans’ Administrator has chosen not to take advantage of laws like that of Pennsylvania. If this choice represents a reasonable accommodation of conflicting policies that were committed to the agency’s care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.
It is doubtless true that the policy of the Act is, broadly stated, to enable veterans to obtain loans and to obtain them with the least risk of loss upon foreclosure, to both veteran and the Veterans’ Administration as guarantor of the veteran’s indebtedness, and it is equally clear that had the Regulations adopted or included the provisions of the Pennsylvania Deficiency Judgment Act this would have furthered at least the second of these purposes. However, there are also ample indications both in the Act and in its legislative history that Congress intended the' guaranty provisions to operate as the substantial equivalent of a down payment in the same amount by the veteran on the purchase price, in order to induce prospective mortgagee-creditors to provide 100% financing for a veteran’s home. The Regulations which the Administrator has adopted provide what the agency could allowably view as a more effective reconciliation of these twofold ends than might be accomplished by a complete or partial adoption of the law of a State such as Pennsylvania.
The Regulations assure a Pennsylanvia mortgagee-creditor that he will be able either to recover the full amount of the guaranty or to sell the mortgaged property to the United States and recover the amount of its loss after such sale. For example, in the present situation Excelsior knew that it could either recover $4,000 from the Veterans’ Administration and keep the mortgaged property, or that it could sell the mortgaged property to the United States, recovering on its guaranty the amount by which the unpaid debt exceeded the price which the United States had paid. The only risk of loss with which Excelsior would have been faced was the risk of having on its hands a property worth less than $9,000 to secure a residual debt of $9,000 (after the United States had paid $4,000 of the total debt of $13,000). This is precisely the risk which Excelsior would have had to assume had it insisted upon a $4,000 down payment by the veteran and lent $9,000 on the property. Presumably therefore it was willing to accept a $4,000 guarantee under the Administrator’s Regulations in exchange for a $4,000 down payment.
In contrast, a mortgagee whose federal guaranty was subject to the law of a State such as Pennsylvania would be subjected both to an additional cost and to an additional risk, neither of which is present when there is an equivalent down payment. The additional cost is that required in every case to litigate the value of the mortgaged property. The additional risk is that, if it was judicially determined that the property was worth more than the amount for which the mortgagee could in fact sell it, the mortgagee would have to absorb the cost of the judicial error and could recover on its guaranty only the difference between the unpaid debt and the amount of the judicial estimate of the value of the property. Thus if the value of the mortgaged property in the present case had been judicially assessed at $10,000, Excelsior, after payment of the resulting $3,000 on the guaranty, would have been left with the mortgaged property in place of an unrequited $10,000 loan, whereas had it insisted on a $4,000 down payment from the veteran it would have had the mortgaged property to stand for a $9,000 loan.
We cannot say that a Pennsylvania lender would not prefer a down payment to a guaranteed loan in the same amount if the Pennsylvania Deficiency Judgment Act were applicable. Nor can we say that the Administrator has unreasonably sacrificed either the Government’s or the veteran’s protection in relying exclusively on the “upset price” device in order to preserve the interchangeability of a guaranty with a down payment. The Veterans’ Administration can and does protect itself from a sale at an inadequate price by specifying the minimum credit which the mortgagee must subtract from the unpaid debt. In protecting itself it also places its own financial resources behind the debtor-veteran who may be forced to reimburse the Administrator only if the Administrator considers that the property has been sold at a fair price, and who retains all the benefits of state law as against the mortgagee.
We consider the Regulations to be a reasonable accommodation of the statutory ends, first, of making a federal guaranty the substantial equivalent of a down payment, and, second, of protecting both the Veterans’ Administration and the veteran from unnecessary loss on a foreclosure sale. And since we find nothing in the statute or the legislative history antagonistic to this accommodation, we hold the Regulations to be a valid exercise of the authority granted the Administrator in § 504 of the Servicemen’s Readjustment Act (note 9, supra).
III.
Respondent’s final contention is that even though the Veterans’ Administration was obligated on its guaranty to Excelsior, the Administration nevertheless had no right to indemnity from him. It is argued, first, that under the Act the Administration, in circumstances like these, can recover over against the veteran only on a theory of subro-gation to the mortgagee’s rights. The Administrator having proceeded in this instance simply on a theory of indemnity, it is claimed that there is no statutory authorization for the present suit.
Prior to the amendment of the Act in 1945, it was assumed that the ordinary concomitants of a guaranty relationship would follow upon the mere authorization of Government guaranteed loans and that these included the guarantor’s right of indemnity. Restatement of the Law of Security, § 104; Decisions of the Administrator of Veterans’ Affairs, No. 625, Vol. 1, p. 1154. The 1945 amendments made explicit that payment of the guaranty would be due on the veteran’s default and that thereupon the Administrator “shall be subrogated to the rights of the holder of the obligation to the extent of the amount paid on the guaranty.”
It is argued that this amendment, by negative implication, overruled or rejected what the Administrator had previously regarded as his independent right to indemnity, but surely this is carrying a negative implication too far. We cannot agree that Congress, without any statutory reference to the problem and without any discussion of it, intended to relieve the veteran of direct liability for amounts properly paid on his behalf by the Veterans’ Administration. Not only might such a waiver of a guarantor’s normal rights require a more burdensome route to recovery over from the principal, but it would deprive the guarantor of any recovery on occasions when the mortgagee’s rights were limited as against the debtor by state law, yet were protected against the Administrator by state or federal law. Relief from liability in these circumstances would convert a guaranty into a grant of aid. But the. entire history of the “home loan” provisions of the statute is inconsistent with an intent to make outright grants, rather than loans of cash (S. 1767, 78th Cong., 2d Sess.) or credit, to returning servicemen.
Moreover, the recognition of a loss to the guarantor merely because of a failure of the lender’s rights against the principal is incompatible with the background of general surety law against which the statute was drawn. See, e. g., Leslie v. Compton, 103 Kan. 92, 172 P. 1015. Indeed, at the time of the 1945 amendments to the Act the Administrator had already ruled that there was a right to-recover over against the veteran on a theory of indemnity in situations where recovery by way of subrogation was barred by state law. Decisions of the Administrator of Veterans’ Affairs, No. 625, Vol. 1, p. 1154.
For these reasons, we are constrained to agree with the uniform construction of the lower courts, including that of the two courts below, that the statute affords an independent right of indemnity to the Veterans’ Administration. See United States v. Shimer, 276 F. 2d 792; McKnight v. United States, 259 F. 2d 540; United States v. Jones, 155 F. Supp. 52; United States v. Gallardo, 154 F. Supp. 373; United States v. Henderson, 121 F. Supp. 343.
Finally, we find untenable respondent’s argument that the applicable Regulation does not support recovery because there was no debt due from the veteran at the time of payment on the guaranty. Section 36.432
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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sc_respondent
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102
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the respondent of the case. The respondent is the party being sued or tried and is also known as the appellee. Characterize the respondent as the Court's opinion identifies them.
Identify the respondent by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the respondent is actually single entitiy or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single respondent, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
DURA PHARMACEUTICALS, INC., et al. v. BROUDO et al.
No. 03-932.
Argued January 12, 2005
Decided April 19, 2005
Breyek, J., delivered the opinion for a unanimous Court.
William F. Sullivan argued the cause for petitioners. With him on the briefs were Christopher H. McGrath and Tracey L. DeLange.
Deputy Solicitor General Hungar argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Solicitor General Clement, Dan Himmelfarb, Jacob H. Stillman, Eric Summergrad, and Allan A. Capute.
Patrick J. Coughlin argued the cause for respondents. With him on the brief were Sanford Svetcov, Eric Alan Isaacson, Joseph D. Daley, Alan Schulman, Myron Mosko-vitz, Daniel S. Sommers, and Paul R. Hoeber.
Briefs of amici curiae urging reversal were filed for the American Institute of Certified Public Accountants by Lawrence S. Robbins, Kathryn S. Zecca, and Richard I. Miller; for Broadcom Corp. by Kenneth R. Heitz, David Siegel, and Richard H. Zelichov; for the Chamber of Commerce of the United States by Neil M. Gorsuch and Robin S. Conrad; for Merrill Lynch & Co., Inc., by Stephen M. Shapiro, Timothy S. Bishop, Andrew L. Frey, and Kenneth S. Geller; for the Securities Industry Association et al. by Carter G. Phillips, Richard D. Bernstein, and Jacqueline G. Cooper; for Technology Network by John R. Reese and Dale E. Barnes, Jr.; and for the Washington Legal Foundation by Michael L. Kichline, David A. Kotler, Daniel J. Popeo, and Paul D. Kamenar.
Briefs of amici curiae urging affirmance were filed for the New Jersey Dept, of Treasury et al. by Melvyn I. Weiss; for the City of New York Pension Funds et al. by Jay W. Eisenhofer, Geoffrey C. Jarvis, Leonard J. Koerner, Peter H. Mixon, David L. Muir, and Christopher W. Waddell; for the National Association of Shareholder and Consumer Attorneys et al. by Kevin P. Roddy, Deborah M. Zuckerman, and Michael Schuster; for the North American Securities Administrators Association, Inc., by Mark J. Davis; for the Regents of the University of California by James E. Holst and Christopher M. Patti; and for James J. Hayes by Edward M. Selfe.
Justice Breyer
delivered the opinion of the Court.
A private plaintiff who claims securities fraud must prove that the defendant’s fraud caused an economic loss. 109 Stat. 747,15 U. S. C. § 78u-4(b)(4). We consider a Ninth Circuit holding that a plaintiff can satisfy this requirement— a requirement that courts call “loss causation” — simply by alleging in the complaint and subsequently establishing that “the price” of the security “on the date of purchase was inflated because of the misrepresentation.” 339 F. 3d 933, 938 (2003) (internal quotation marks omitted). In our view, the Ninth Circuit is wrong, both in respect to what a plaintiff must prove and in respect to what the plaintiffs’ complaint here must allege.
I.
Respondents are individuals who bought stock in Dura Pharmaceuticals, Inc., on the public securities market between April 15, 1997, and February 24, 1998. They have brought this securities fraud class action against Dura and some of its managers and directors (hereinafter Dura) in federal court. In respect to the question before us, their detailed amended (181 paragraph) complaint makes substantially the following allegations:
(1) Before and during the purchase period, Dura (or its officials) made false statements concerning both Dura’s drug profits and future Food and Drug Administration (FDA) approval of a new asthmatic spray device. See, e. g., App. 45a, 55a, 89a.
(2) In respect to drug profits, Dura falsely claimed that it expected that its drug sales would prove profitable. See, e. g., id., at 66a-69a.
(3) In respect to the asthmatic spray device, Dura falsely claimed that it expected the FDA would soon grant its approval. See, e. g., id., at 89a-90a, 103a-104a.
(4) On the last day of the purchase period, February 24, 1998, Dura announced that its earnings would be lower than expected, principally due to slow drug sales. Id., at 51a.
(5) The next day Dura’s shares lost almost half their value (falling from about $39 per share to about $21). Ibid.
(6) About eight months later (in November 1998), Dura announced that the FDA would not approve Dura’s new asthmatic spray device. Id., at 110a.
(7) The next day Dura’s share price temporarily fell but almost fully recovered within one week. Id., at 156a.
Most importantly, the complaint says the following (and nothing significantly more than the following) about economic losses attributable to the spray device misstatement: “In reliance on the integrity of the market, [the plaintiffs] . . . paid artificially inflated prices for Dura securities” and the plaintiffs suffered “damagefs]” thereby. Id., at 139a (emphasis added).
The District Court dismissed the complaint. In respect to the plaintiffs’ drug-profitability claim, it held that the complaint failed adequately to allege an appropriate state of mind, i. e., that defendants had acted knowingly, or the like. In respect to the plaintiffs’ spray device claim, it held that the complaint failed adequately to allege “loss causation.”
The Court of Appeals for the Ninth Circuit reversed. In the portion of the court’s decision now before us — the portion that concerns the spray device claim — the Circuit held that the complaint adequately alleged “loss causation.” The Circuit wrote that “plaintiffs establish loss causation if they have shown that the price on the date of purchase was inflated because of the misrepresentation.” 339 F. 3d, at 938 (emphasis in original; internal quotation marks and citation omitted). It added that “the injury occurs at the time of the transaction.” Ibid. Since the complaint pleaded “that the price at the time of purchase was overstated,” and it sufficiently identified the cause, its allegations were legally sufficient. Ibid.
Because the Ninth Circuit’s views about loss causation differ from those of other Circuits that have considered this issue, we granted Dura’s petition for certiorari. Compare ibid, with, e. g., Emergent Capital Investment Management, LLC v. Stonepath Group, Inc., 343 F. 3d 189, 198 (CA2 2003); Semerenko v. Cendant Corp., 223 F. 3d 165, 185 (CA3 2000); Robbins v. Koger Properties, Inc., 116 F. 3d 1441, 1447-1448 (CA11 1997); cf. Bastian v. Petren Resources Corp., 892 F. 2d 680, 685 (CA7 1990). We now reverse.
I — I
Private federal securities fraud actions are based upon federal securities statutes and their implementing regulations. Section 10(b) of the Securities Exchange Act of 1934 forbids (1) the “use or employ[ment] ... of any . . . deceptive device,” (2) “in connection .with the purchase or sale of any security,” and (8) “in contravention of” Securities and Exchange Commission “rules and regulations.” 15 U. S. C. §78j(b). Commission Rule 10b-5 forbids, among other things, the making of any “untrue statement of a material fact” or the omission of any material fact “necessary in order to make the statements made ... not misleading.” 17 CFR §240.10b-5 (2004).
The courts have implied from these statutes and Rule a private damages action, which resembles, but is not identical to, common-law tort actions for deceit and misrepresentation. See, e. g., Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 730, 744 (1975); Ernst & Ernst v. Hochfelder, 425 U. S. 185, 196 (1976). And Congress has imposed statutory requirements on that private action. E. g., 15 U. S. C. § 78u-4(b)(4).
In cases involving publicly traded securities and purchases or sales in public securities markets, the action’s basic elements include:
(1) a material misrepresentation (or omission), see Basic Inc. v. Levinson, 485 U. S. 224, 231-232 (1988);
(2) scienter, i. e., a wrongful state of mind, see Ernst & Ernst, supra, at 197, 199;
(3) a connection with the purchase or sale of a security, see Blue Chip Stamps, supra, at 730-731;
(4) reliance, often referred to in cases involving public securities markets (fraud-on-the-market cases) as “transaction causation,” see Basic, supra, at 248-249 (nonconclusively presuming that the price of a publicly traded share reflects a material misrepresentation and that plaintiffs have relied upon that misrepresentation as long as they would not have bought the share in its absence);
(5) economic loss, 15 U. S. C. § 78u-4(b)(4); and
(6) “loss causation,” i. e., a causal connection between the material misrepresentation and the loss, ibid.; cf. T. Hazen, Law of Securities Regulation §§ 12.11[1], [3] (5th ed. 2005).
Dura argues that the complaint’s allegations are inadequate in respect to these last two elements.
A
We begin with the Ninth Circuit’s basic reason for finding the complaint adequate, namely, that at the end of the day plaintiffs need only “establish,” i. e., prove, that “the price on the date of purchase was inflated because of the misrepresentation.” 339 F. 3d, at 938 (internal quotation marks and citation omitted). In our view, this statement of the law is wrong. Normally, in cases such as this one (i. e., fraud-on-the-market cases), an inflated purchase price will not itself constitute or proximately cause the relevant economic loss.
For one thing, as a matter of pure logic, at the moment the transaction takes place, the plaintiff has suffered no loss; the inflated purchase payment is offset by ownership of a share that at that instant possesses equivalent value. Moreover, the logical link between the inflated share purchase price and any later economic loss is not invariably strong. Shares are normally purchased with an eye toward a later sale. But if, say, the purchaser sells the shares quickly before the relevant truth begins to leak out, the misrepresentation will not have led to any loss. If the purchaser sells later after the truth makes its way into the marketplace, an initially inflated purchase price might mean a later loss. But that is far from inevitably so. When the purchaser subsequently resells such shares, even at a lower price, that lower price may reflect, not the earlier misrepresentation, but changed economic circumstances, changed investor expectations, new industry-specific or firm-specific facts, conditions, or other events, which taken separately or together account for some or all of that lower price. (The same is true in respect to a claim that a share’s higher price is lower than it would otherwise have been — a claim we do not consider here.) Other things being equal, the longer the time between purchase and sale, the more likely that this is so, i. e., the more likely that other factors caused the loss.
Given the tangle of factors affecting price, the most logic alone permits us to say is that the higher purchase price will sometimes play a role in bringing about a future loss. It may prove to be a necessary condition of any such loss, and in that sense one might say that the inflated purchase price suggests that the misrepresentation (using language the Ninth Circuit used) “touches upon” a later economic loss. Ibid. But, even if that is so, it is insufficient. To “touch upon” a loss is not to cause a loss, and it is the latter that the law requires. 15 U. S. C. § 78u-4(b)(4).
For another thing, the Ninth Circuit’s holding lacks support in precedent. Judicially implied private securities fraud actions resemble in many (but not all) respects common-law deceit and misrepresentation actions. See Blue Chip Stamps, supra, at 744; see also L. Loss & J. Seligman, Fundamentals of Securities Regulation 910-918 (5th ed. 2004) (describing relationship to common-law deceit). The common law of deceit subjects a person who “fraudulently” makes a “misrepresentation” to liability “for pecuniary loss caused” to one who justifiably relies upon that misrepresentation. Restatement (Second) of Torts §525, p. 55 (1976) (hereinafter Restatement of Torts); see also Southern Development Co. v. Silva, 125 U. S. 247, 250 (1888) (setting forth elements of fraudulent misrepresentation). And the common law has long insisted that a plaintiff in such a case show not only that had he known the truth he would not have acted but also that he suffered actual economic loss. See, e. g., Pasley v. Freeman, 3 T. R. 51, 65, 100 Eng. Rep. 450, 457 (1789) (if “no injury is occasioned by the lie, it is not actionable: but if it be attended with a damage, it then becomes the subject of an action”); Freeman v. Venner, 120 Mass. 424, 426 (1876) (a mortgagee cannot bring a tort action for damages stemming from a fraudulent note that a misrepresentation led him to execute unless and until the note has to be paid); see also M. Bigelow, Law of Torts 101 (8th ed. 1907) (damage “must already have been suffered before the bringing of the suit”); 2 T. Cooley, Law of Torts § 348, p. 551 (4th ed. 1932) (plaintiff must show that he “suffered damage” and that the “damage followed proximately the deception”); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts § 110, p. 765 (5th ed. 1984) (hereinafter Prosser and Keeton) (plaintiff “must have suffered substantial damage,” not simply nominal damages, before “the cause of action can arise”).
Given the common-law roots of the securities fraud action (and the common-law requirement that a plaintiff show actual damages), it is not surprising that other Courts of Appeals have rejected the Ninth Circuit’s “inflated purchase price” approach to proving causation and loss. See, e.g., Emergent Capital, 343 F. 3d, at 198 (inflation of purchase price alone cannot satisfy loss causation); Semerenko, 223 F. 3d, at 185 (same); Robbins, 116 F. 3d, at 1448 (same); cf. Bastian, 892 F. 2d, at 685. Indeed, the Restatement of Torts, in setting forth the judicial consensus, says that a person who “misrepresents the financial condition of a corporation in order to sell its stock” becomes liable to a relying purchaser “for the loss” the purchaser sustains “when the facts . . . become generally known” and “as a result” share value “depreciated].” § 548A, Comment b, at 107. Treatise writers, too, have emphasized the need to prove proximate causation. Prosser and Keeton § 110, at 767 (losses do “not afford any basis for recovery” if “brought about by business conditions or other factors”).
We cannot reconcile the Ninth Circuit’s “inflated purchase price” approach with these views of other courts. And the uniqueness of its perspective argues against the validity of its approach in a case like this one where we consider the contours of a judicially implied cause of action with roots in the common law.
Finally, the Ninth Circuit’s approach overlooks an important securities law objective. The securities statutes seek to maintain public confidence. in the marketplace. See United States v. O’Hagan, 521 U. S. 642, 658 (1997). They do so by deterring fraud, in part, through the availability of private securities fraud actions. Randall v. Loftsgaarden, 478 U. S. 647, 664 (1986). But the statutes make these latter actions available, not to provide investors with broad insurance against market losses, but to protect them against those economic losses that misrepresentations actually cause. Cf. Basic, 485 U. S., at 252 (White, J., joined by O’Connor, J., concurring in part and dissenting in part) (“[A]flowing recovery in the face of affirmative evidence of nonreliance — would effectively convert Rule 10b-5 into a scheme of investor’s insurance. There is no support in the Securities Exchange Act, the Rule, or our cases for such a result” (internal quotation marks and citations omitted)).
The statutory provision at issue here and the paragraphs that precede it emphasize this last mentioned objective. Private Securities Litigation Reform Act of 1995, 109 Stat. 737. The statute insists that securities fraud complaints “specify” each misleading statement; that they set forth the facts “on which [a] belief” that a statement is misleading was “formed”; and that they “state with particularity facts giving rise to a strong inference that the defendant acted with the required state' of mind.” 15 U. S. C. §§78u-4(b)(1), (2). And the statute expressly imposes on plaintiffs “the burden of proving” that the defendant’s misrepresentations “caused the loss for which the plaintiff seeks to recover.” § 78u-4(b)(4).
The statute thereby makes clear Congress’ intent to permit private securities fraud actions for recovery where, but only where, plaintiffs adequately allege and prove the traditional elements of causation and loss. By way of contrast, the Ninth Circuit’s approach would allow recovery where a misrepresentation leads to an inflated purchase price but nonetheless does not proximately cause any economic loss. That is to say, it would permit recovery where these two traditional elements in fact are missing.
In sum, we find the Ninth Circuit’s approach inconsistent with the law’s requirement that a plaintiff prove that the defendant’s misrepresentation (or other fraudulent conduct) proximately caused the plaintiff’s economic loss. We need not, and do not, consider other proximate cause or loss-related questions.
B
Our
Question: Who is the respondent of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_district
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H
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What follows is an opinion from a United States Court of Appeals. Your task is to identify which district in the state the case came from. If the case did not come from a federal district court, answer "not applicable".
GARGILL v. AMERICAN GUARANTY CORP.
No. 4640.
United States Court of Appeals, ■First Circuit.
Jan. 2, 1953.
Benjamin Goldman, Boston, Mass. (Louis J. Shrair and Gargill & Shrair, Boston, Mass., on the brief), for appellant.
Bernard Kaplan, Boston, Mass. (Hubert C. Thompson and Libman, Kaplan & Packer, Boston, Mass., on the brief), for appellee.
Before MAGRUDER, Chief Judge, and WOODBURY and HARTIGAN, Circuit Judges.
PER CURIAM.
This is an appeal from a judgment entered after a trial without a jury dismissing an action brought by the trustee in bankruptcy of a Massachusetts corporation to recover payments made over a period of several months by the bankrupt to the defendant. Federal jurisdiction rests upon diversity of citizenship and amount in controversy. Title 28 U.S.C. § 1332(a)(1).
The payments involved were made on a promissory note payable in instalments, and the plaintiff’s action is bottomed on the proposition that it was beyond the bankrupt corporation’s powers (ultra vires) for it to make the payments. Two reasons are advanced for this. First it is said that the corporation was merely an accommodation endorser of the note upon which it made the payments, and that it had no power under Massachusetts law to endorse for accommodation only. Second it is said that to the defendant’s knowledge the money borrowed on the note was not for the use and benefit of the corporation, but instead was intended for, and in fact was used by, one DiTulio to finance his purchase of all the stock in the corporation.
The case was tried on oral testimony and exhibits, and while that evidence provides some factual basis for the plaintiff’s position, the District Court thought otherwise. It found that DiTulio signed the note in question, which was payable to the bankrupt, and that the bankrupt endorsed the note over to the defendant. It also found that as part of the transaction the bankrupt gave the defendant a mortgage of all its corporate assets, and DiTulio gave the defendant an assignment covering all the corporation’s stock which he had just purchased. And it found that thereafter the bankrupt made payments on the note in accordance with its terms. But the court said that it could not “subscribe to the Trustee’s theory that the loan was really being made to DiTulio personally so that he could purchase the stock.” It found that there were pre-existing corporate debts to two banks which DiTulio wanted discharged, that the defendant advanced money on the note “to the corporation in order that it might discharge its own corporate debts, substituting the defendant for the two banks,” and that there was “nothing irregular about this transaction between the corporation and the defendant.”
The entire transaction in which the note under consideration played a part was a complicated one involving the sale of all the corporation’s stock to DiTulio and discharge of all the corporation’s debts as a prerequisite thereto. No useful purpose would be served by describing it in detail. It will suffice for us to say that we find evidence in the record to sustain the District Court’s findings of fact, and that those findings support that court’s ultimate conclusion.
The judgment of the District Court is affirmed.
Question: From which district in the state was this case appealed?
A. Not applicable
B. Eastern
C. Western
D. Central
E. Middle
F. Southern
G. Northern
H. Whole state is one judicial district
I. Not ascertained
Answer:
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sc_petitioner
|
074
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the petitioner of the case. The petitioner is the party who petitioned the Supreme Court to review the case. This party is variously known as the petitioner or the appellant. Characterize the petitioner as the Court's opinion identifies them.
Identify the petitioner by the label given to the party in the opinion or judgment of the Court except where the Reports title a party as the "United States" or as a named state. Textual identification of parties is typically provided prior to Part I of the Court's opinion. The official syllabus, the summary that appears on the title page of the case, may be consulted as well. In describing the parties, the Court employs terminology that places them in the context of the specific lawsuit in which they are involved. For example, "employer" rather than "business" in a suit by an employee; as a "minority," "female," or "minority female" employee rather than "employee" in a suit alleging discrimination by an employer.
Also note that the Court's characterization of the parties applies whether the petitioner is actually single entity or whether many other persons or legal entities have associated themselves with the lawsuit. That is, the presence of the phrase, et al., following the name of a party does not preclude the Court from characterizing that party as though it were a single entity. Thus, identify a single petitioner, regardless of how many legal entities were actually involved. If a state (or one of its subdivisions) is a party, note only that a state is a party, not the state's name.
BARRENTINE et al. v. ARKANSAS-BEST FREIGHT SYSTEM, INC., et al.
No. 79-2006.
Argued January 13, 1981
Decided April 6, 1981
Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, Blackmun, Powell, and Stevens, JJ., joined. Burger, C. J., filed a dissenting opinion, in which Rehnquist, J., joined, post, p. 746.
David C. Vladeck argued the cause for petitioners. With him on the briefs were Alan B. Morrison and Arthur L. Fox II.
S. Walton Maurras argued the cause and filed a brief for respondents.
Briefs of amici curiae urging reversal were filed by Solicitor General McCree, Deputy Solicitor General Geller, Barbara E. Etkind, Donald S. Shire, Lois G. Williams, and Mary-Helen Mautner for the United States; and by J. Albert Woll and Laurence Gold for the American Federation of Labor and Congress of Industrial Organizations.
Justice Brennan
delivered the opinion of the Court.
The issue in this case is whether an employee may bring an action in federal district court, alleging a violation of the minimum wage provisions of the Fair Labor Standards Act, 52 Stat. 1060, as amended, 29 U. S. C. § 201 et seq., after having unsuccessfully submitted a wage claim based on the same underlying facts to a joint grievance committee pursuant to the provisions of his union’s collective-bargaining agreement.
I
Petitioner truckdrivers are employed at the Little Rock terminal of respondent Arkansas-Best Freight Systems, Inc., an interstate motor carrier of freight. In accordance with federal regulations and Arkansas-Best’s employment practices, petitioners are required to conduct a safety inspection of their trucks before commencing any trip, and to transport any truck failing such inspection to Arkansas-Best’s on-premises repair facility. See 49 CFR §§ 392.7, 392.8 (1980). Petitioners are not compensated by their employer for the time spent complying with these requirements.
Pursuant to the collective-bargaining agreement between Arkansas-Best and petitioners’ union, respondent Local 878 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers, petitioner Barrentine and another driver filed a series of grievances against Arkansas-Best. They alleged that Art. 50 of the collective-bargaining agreement, which requires Arkansas-Best to compensate its drivers “for all time spent in [its] service/’ entitled them to compensation for the pretrip inspection and transportation time. Petitioners’ union presented these grievances to a joint grievance committee for final and binding decision pursuant to Art. 44 of the collective-bargaining agreement. The joint committee, composed of three representatives of the union and three representatives of the employer, rejected the grievances without explanation. App. 22.
In March 1977, petitioners filed this action in the United States District Court for the Eastern District of Arkansas. In the first count of their complaint, petitioners alleged that the pretrip safety inspection and transportation time was compensable under the Fair Labor Standards Act, 29 U. S. C. § 201 et seq., and that they were accordingly entitled to the statutory remedy of actual and liquidated damages, costs, and reasonable attorney’s fees. In the second count, petitioners alleged that the union and its president had breached the union’s duty of fair representation, apparently by entering into a “side deal” with Arkansas-Best regarding compensation of the pretrip inspection and transportation time. With respect to this claim, petitioners sought to have the decision of the joint grievance committee set aside and to have proper compensation awarded under the collective-bargaining agreement.
The District Court addressed only the fair representation claim. While it conceded that “the evidence seems . . . rather to predominate in favor of the finding that there was a side agreement” as petitioners alleged, it found that the existence of such an agreement did not in itself give rise to a breach of the union’s duty of fair representation, because the labor laws permit “parties by their own actions . . . [to] fill in the gaps that always arise with a written instrument when you apply that instrument to a multiplicity of situations and practices.” App. to Pet. for Cert. 8a, 9a. This ruling was affirmed by a unanimous panel of the Court of Appeals for the Eighth Circuit, 615 F. 2d 1194, 1202 (1980), and is not challenged here.
With one judge dissenting, the Court of Appeals also held that the District Court was correct in not addressing the merits of petitioners’ FLSA claim. Emphasizing that national labor policy encourages arbitration of labor disputes, the court stated that “wage disputes arising under the FLSA . . . may be the subject of binding arbitration where the collective bargaining agreement so provides ... at least in situations in which employees knowingly and voluntarily submit their grievances to arbitration under the terms of the agreement.” Id., at 1199. Finding that petitioners had voluntarily submitted their grievances to arbitration, the court concluded that they were barred from asserting their statutory wage claim in the subsequently filed federal-court action. Id., at 1199-1200. We granted certiorari, 449 U. S. 819 (1980), and reverse.
II
Two aspects of national labor policy are in tension in this case. The first, reflected in statutes governing relationships between employers and unions, encourages the negotiation of terms and conditions of employment through the collective-bargaining process. The second, reflected in statutes governing relationships between employers and their individual employees, guarantees covered employees specific substantive rights. A tension arises between these policies when the parties to a collective-bargaining agreement make an employee’s entitlement to substantive statutory rights subject to contractual dispute-resolution procedures.
The national policy favoring collective bargaining and industrial self-government was first expressed in the National Labor Relations Act of 1935, 29 U. S. C. § 151 et seq. (the Wagner Act). It received further expression and definition in the Labor Management Relations Act, 1947, 29 U. S. C. § 141 et seq. (the Taft-Hartley Act). Predicated on the assumption that individual workers have little, if any, bargaining power, and that “by pooling their economic strength and acting through a labor organization freely chosen by the majority, the employees of an appropriate unit have the most effective means of bargaining for improvements in wages, hours, and working conditions,” NLRB v. Allis-Chalmers Mfg. Co., 388 U. S. 175, 180 (1967), these statutes reflect Congress’ determination that to improve the economic well-being of workers, and thus to promote industrial peace, the interests of some employees in a bargaining unit may have to be subordinated to the collective interests of a majority of their co-workers. See Vaca v. Sipes, 386 U. S. 171, 182 (1967); 29 U. S. C. § 159 (a). The rights established through this system of majority rule are thus
“protected not for their own sake but as an instrument of the national labor policy of minimizing industrial strife ‘by encouraging the practice and procedure of collective bargaining.’ 29 U. S. C. § 151.” Emporium Capwell Co. v. Western Addition Community Org., 420 U. S. 50, 62 (1975).
To further this policy, Congress has declared that
“[fjinal adjustment by a method agreed upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement.” 29 U. S. C. § 173 (d).
Thus, courts ordinarily defer to collectively bargained dispute-resolution procedures when the parties' dispute arises out of the collective-bargaining process. See, e. g., Hines v. Anchor Motor Freight, Inc., 424 U. S. 554, 562-563 (1976); Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 377-380 (1974); Republic Steel Corp. v. Maddox, 379 U. S. 650, 652-653 (1965); Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 596 (1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S. 574, 577-578, 582-583 (1960); Steelworkers v. American Manufacturing Co., 363 U. S. 564, 566, 568 (1960); Textile Workers v. Lincoln Mills, 353 U. S. 448, 458-459 (1957).
Respondents contend that the aspect of national labor policy encouraging collective bargaining and industrial self-government requires affirmance of the Court of Appeals. They note that the collective-bargaining agreement between Arkansas-Best and petitioners' union requires that “any controversy'' between the parties to the agreement be resolved through the binding contractual grievance procedures. See n. 5, supra. They further note that Local 878 processed petitioners’ grievances in accordance with those procedures, and that the District Court made an unchallenged finding that the union did not breach its duty of fair representation in doing so. Accordingly, they conclude that petitioners should be barred from bringing the statutory component of their wage claim in federal court.
We reject this argument. Not all disputes between an employee and his employer are suited for binding resolution in accordance with the procedures established by collective bargaining. While courts should defer to an arbitral decision where the employee’s claim is based on rights arising out of the collective-bargaining agreement, different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.
These considerations were the basis for our decision in Alexander v. Gardner-Denver Co., 415 U. S. 36 (1974). In that case, petitioner, a black employee, had been discharged by respondent employer, allegedly for producing too many defective parts. Claiming that his discharge was racially motivated, petitioner asked his union to pursue the grievance and arbitration procedure set forth in the collective-bargaining agreement. The union did so, relying on the nondiscrimination clause in the collective-bargaining agreement, but the arbitrator found that petitioner had been discharged for just cause. Petitioner then brought an action under Title VII of the Civil Rights Act of 1964 in Federal District Court based on the same facts that were before the arbitrator. The District Court granted summary judgment for the employer, holding that petitioner was bound by the prior adverse arbi-tral decision. The Court of Appeals affirmed.
This Court reversed, concluding that an employee’s statutory right to a trial de novo under Title VII is not foreclosed by the prior submission of his discrimination claim to final arbitration under a collective-bargaining agreement. The Court found that in enacting Title VII, Congress had granted individual employees a nonwaivable, public law right to equal employment opportunities that was separate and distinct from the rights created through the “majoritarian processes” of collective bargaining. Id., at 51. Moreover, because Congress had granted aggrieved employees access to the courts, and because contractual grievance and arbitration procedures provided an inadequate forum for enforcement of Title VII rights, the Court concluded that Title VII claims should be resolved by the courts de novo.
Respondents would distinguish Gardner-Denver on the ground that because petitioners’ FLSA claim is based on a dispute over wages and hours, subjects at the heart of the collective-bargaining process, their claim is particularly well suited to resolution through collectively bargained grievance and arbitration procedures. But this contention misper-ceives the nature of petitioners’ FLSA claim.
The principal congressional purpose in enacting the Fair Labor Standards Act of 1938 was to protect all covered workers from substandard wages and oppressive working hours, “labor conditions [that are] detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U. S. C. § 202 (a). In contrast to the Labor Management Relations Act, which was designed to minimize industrial strife and to improve working conditions by encouraging employees to promote their interests collectively, the FLSA was designed to give specific minimum protections to individual workers and to ensure that each employee covered by the Act would receive “ '[a] fair day’s pay for a fair day’s work’ ” and would be protected from “the evil of 'overwork’ as well as 'underpay.’ ” Overnight Motor Transportation Co. v. Missel, 316 U. S. 572, 578 (1942), quoting 81 Cong. Rec. 4983 (1937) (message of President Roosevelt).
The statutory enforcement scheme grants individual employees broad access to the courts. Section 16 (b) of the Act, 29 U. S. C. § 216 (b), which contains the principal enforcement provisions, permits an aggrieved employee to bring his statutory wage and hour claim “in any Federal or State court of competent jurisdiction.” No exhaustion requirement or other procedural barriers are set up, and no other forum for enforcement of statutory rights is referred to or created by the statute.
This Court’s decisions interpreting the FLSA have frequently emphasized the nonwaivable nature of an individual employee’s right to a minimum wage and to overtime pay under the Act. Thus, we have held that FLSA rights cannot be abridged by contract or otherwise waived because this would “nullify the purposes” of the statute and thwart the legislative policies it was designed to effectuate. Brooklyn Savings Bank v. O’Neil, 324 U. S. 697, 707 (1945); see D. A. Schulte, Inc. v. Gangi, 328 U. S. 108, 114-116 (1946); Walling v. Helmerich & Payne, Inc., 323 U. S. 37, 42 (1944); Overnight Motor Transportation Co. v. Missel, supra, at 577; see 29 CFR § 785.8 (1974). Moreover, we have held that congressionally granted FLSA rights take precedence over conflicting provisions in a collectively bargained compensation arrangement. See, e. g., Martino v. Michigan Window Cleaning Co., 327 U. S. 173, 177-178 (1946); Walling v. Harnischfeger Corp., 325 U. S. 427, 430-432 (1945); Jewell Ridge Coal Corp. v. Mine Workers, 325 U. S. 161, 166-167, 170 (1945). As we stated in Tennessee Coal, Iron & R. Co. v. Muscoda Local No. 123, 321 U. S. 590, 602-603 (1944) (footnote omitted):
“The Fair Labor Standards Act was not designed to codify or perpetuate [industry] customs and contracts. . . . Congress intended, instead, to achieve a uniform national policy of guaranteeing compensation for all work or employment engaged in by employees covered by the Act. Any custom or contract falling short of that basic policy, like an agreement to pay less than the minimum wage requirements, cannot be utilized to deprive employees of their statutory rights.”
There are two reasons why an employee’s right to a minimum wage and overtime pay under the FLSA might be lost if submission of his wage claim to arbitration precluded him from later bringing an FLSA suit in 'federal court. First, even if the employee’s claim were meritorious, his union might, without breaching its duty of fair representation, reasonably and in good faith decide not to support the claim vigorously in arbitration. Wage and hour disputes that are subject to arbitration under a collective-bargaining agreement are invariably processed by unions rather than by individual employees. Since a union’s objective is to maximize overall compensation of its members, not to ensure that each employee receives the best compensation deal available, cf. Gardner-Denver, 415 U. S., at 58, n. 19, a union balancing individual and collective interests might validly permit some employees’ statutorily granted wage and hour benefits to be sacrificed if an alternative expenditure of resources would result in increased benefits for workers in the bargaining unit as a whole.
Second, even when the union has fairly and fully presented the employee’s wage claim, the employee’s statutory rights might still not be adequately protected. Because the “specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land,” id., at 57; see Steelworkers v. Warrior & Gulf Navigation Co., 363 U. S., at 581-582, many arbitrators may not be conversant with the public law considerations underlying the FLSA. FLSA claims typically involve complex mixed questions of fact and law — e. g., what constitutes the “regular rate,” the “workweek,” or “principal” rather than “preliminary or postlimi-nary” activities. These statutory questions must be resolved in light of volumes of legislative history and over four decades of legal interpretation and administrative rulings. Although an arbitrator may be competent to resolve many preliminary factual questions, such as whether the employee “punched in” when he said he did, he may lack the competence to decide the ultimate legal issue whether an employee’s right to a minimum wage or to overtime pay under the statute has been violated.
Moreover, even though a particular arbitrator may be competent to interpret and apply statutory law, he may not have the contractual authority to do so. An arbitrator’s power is both derived from, and limited by, the collective-bargaining agreement. Gardner-Denver, 415 U. S., at 53. He “has no general authority to invoke public laws that conflict with the bargain between the parties.” Ibid. His task is limited to construing the meaning of the collective-bargaining agreement so as to effectuate the collective intent of the parties. Accordingly,
“[i]f an arbitral decision is based 'solely upon the arbitrator’s view of the requirements of enacted legislation,’ rather than on an interpretation of the collective-bargaining agreement, the arbitrator has 'exceeded the scope of the submission,’ and the award will not be enforced.” Ibid., quoting Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S., at 597.
Because the arbitrator is required to effectuate the intent of the parties, rather than to enforce the statute, he may issue a ruling that is inimical to the public policies underlying the FLSA, thus depriving an employee of protected statutory rights.
Finally, not only are arbitral procedures less protective of individual statutory rights than are judicial procedures, see Gardner-Denver, supra, at 57-58, but arbitrators very often are powerless to grant the aggrieved employees as broad a range of relief. Under the FLSA, courts can award actual and liquidated damages, reasonable attorney’s fees, and costs. 29 U. S. C. § 216 (b). An arbitrator, by contrast, can award only that compensation authorized by the wage provision of the collective-bargaining agreement. He “is confined to interpretation and application of the collective bargaining agreement” and his “award is legitimate only so long as it draws its essence from the collective bargaining agreement.” Steelworkers v. Enterprise Wheel & Car Corp., supra, at 597. It is most unlikely that he will be authorized to award liquidated damages,
Question: Who is the petitioner of the case?
001. attorney general of the United States, or his office
002. specified state board or department of education
003. city, town, township, village, or borough government or governmental unit
004. state commission, board, committee, or authority
005. county government or county governmental unit, except school district
006. court or judicial district
007. state department or agency
008. governmental employee or job applicant
009. female governmental employee or job applicant
010. minority governmental employee or job applicant
011. minority female governmental employee or job applicant
012. not listed among agencies in the first Administrative Action variable
013. retired or former governmental employee
014. U.S. House of Representatives
015. interstate compact
016. judge
017. state legislature, house, or committee
018. local governmental unit other than a county, city, town, township, village, or borough
019. governmental official, or an official of an agency established under an interstate compact
020. state or U.S. supreme court
021. local school district or board of education
022. U.S. Senate
023. U.S. senator
024. foreign nation or instrumentality
025. state or local governmental taxpayer, or executor of the estate of
026. state college or university
027. United States
028. State
029. person accused, indicted, or suspected of crime
030. advertising business or agency
031. agent, fiduciary, trustee, or executor
032. airplane manufacturer, or manufacturer of parts of airplanes
033. airline
034. distributor, importer, or exporter of alcoholic beverages
035. alien, person subject to a denaturalization proceeding, or one whose citizenship is revoked
036. American Medical Association
037. National Railroad Passenger Corp.
038. amusement establishment, or recreational facility
039. arrested person, or pretrial detainee
040. attorney, or person acting as such;includes bar applicant or law student, or law firm or bar association
041. author, copyright holder
042. bank, savings and loan, credit union, investment company
043. bankrupt person or business, or business in reorganization
044. establishment serving liquor by the glass, or package liquor store
045. water transportation, stevedore
046. bookstore, newsstand, printer, bindery, purveyor or distributor of books or magazines
047. brewery, distillery
048. broker, stock exchange, investment or securities firm
049. construction industry
050. bus or motorized passenger transportation vehicle
051. business, corporation
052. buyer, purchaser
053. cable TV
054. car dealer
055. person convicted of crime
056. tangible property, other than real estate, including contraband
057. chemical company
058. child, children, including adopted or illegitimate
059. religious organization, institution, or person
060. private club or facility
061. coal company or coal mine operator
062. computer business or manufacturer, hardware or software
063. consumer, consumer organization
064. creditor, including institution appearing as such; e.g., a finance company
065. person allegedly criminally insane or mentally incompetent to stand trial
066. defendant
067. debtor
068. real estate developer
069. disabled person or disability benefit claimant
070. distributor
071. person subject to selective service, including conscientious objector
072. drug manufacturer
073. druggist, pharmacist, pharmacy
074. employee, or job applicant, including beneficiaries of
075. employer-employee trust agreement, employee health and welfare fund, or multi-employer pension plan
076. electric equipment manufacturer
077. electric or hydroelectric power utility, power cooperative, or gas and electric company
078. eleemosynary institution or person
079. environmental organization
080. employer. If employer's relations with employees are governed by the nature of the employer's business (e.g., railroad, boat), rather than labor law generally, the more specific designation is used in place of Employer.
081. farmer, farm worker, or farm organization
082. father
083. female employee or job applicant
084. female
085. movie, play, pictorial representation, theatrical production, actor, or exhibitor or distributor of
086. fisherman or fishing company
087. food, meat packing, or processing company, stockyard
088. foreign (non-American) nongovernmental entity
089. franchiser
090. franchisee
091. lesbian, gay, bisexual, transexual person or organization
092. person who guarantees another's obligations
093. handicapped individual, or organization of devoted to
094. health organization or person, nursing home, medical clinic or laboratory, chiropractor
095. heir, or beneficiary, or person so claiming to be
096. hospital, medical center
097. husband, or ex-husband
098. involuntarily committed mental patient
099. Indian, including Indian tribe or nation
100. insurance company, or surety
101. inventor, patent assigner, trademark owner or holder
102. investor
103. injured person or legal entity, nonphysically and non-employment related
104. juvenile
105. government contractor
106. holder of a license or permit, or applicant therefor
107. magazine
108. male
109. medical or Medicaid claimant
110. medical supply or manufacturing co.
111. racial or ethnic minority employee or job applicant
112. minority female employee or job applicant
113. manufacturer
114. management, executive officer, or director, of business entity
115. military personnel, or dependent of, including reservist
116. mining company or miner, excluding coal, oil, or pipeline company
117. mother
118. auto manufacturer
119. newspaper, newsletter, journal of opinion, news service
120. radio and television network, except cable tv
121. nonprofit organization or business
122. nonresident
123. nuclear power plant or facility
124. owner, landlord, or claimant to ownership, fee interest, or possession of land as well as chattels
125. shareholders to whom a tender offer is made
126. tender offer
127. oil company, or natural gas producer
128. elderly person, or organization dedicated to the elderly
129. out of state noncriminal defendant
130. political action committee
131. parent or parents
132. parking lot or service
133. patient of a health professional
134. telephone, telecommunications, or telegraph company
135. physician, MD or DO, dentist, or medical society
136. public interest organization
137. physically injured person, including wrongful death, who is not an employee
138. pipe line company
139. package, luggage, container
140. political candidate, activist, committee, party, party member, organization, or elected official
141. indigent, needy, welfare recipient
142. indigent defendant
143. private person
144. prisoner, inmate of penal institution
145. professional organization, business, or person
146. probationer, or parolee
147. protester, demonstrator, picketer or pamphleteer (non-employment related), or non-indigent loiterer
148. public utility
149. publisher, publishing company
150. radio station
151. racial or ethnic minority
152. person or organization protesting racial or ethnic segregation or discrimination
153. racial or ethnic minority student or applicant for admission to an educational institution
154. realtor
155. journalist, columnist, member of the news media
156. resident
157. restaurant, food vendor
158. retarded person, or mental incompetent
159. retired or former employee
160. railroad
161. private school, college, or university
162. seller or vendor
163. shipper, including importer and exporter
164. shopping center, mall
165. spouse, or former spouse
166. stockholder, shareholder, or bondholder
167. retail business or outlet
168. student, or applicant for admission to an educational institution
169. taxpayer or executor of taxpayer's estate, federal only
170. tenant or lessee
171. theater, studio
172. forest products, lumber, or logging company
173. person traveling or wishing to travel abroad, or overseas travel agent
174. trucking company, or motor carrier
175. television station
176. union member
177. unemployed person or unemployment compensation applicant or claimant
178. union, labor organization, or official of
179. veteran
180. voter, prospective voter, elector, or a nonelective official seeking reapportionment or redistricting of legislative districts (POL)
181. wholesale trade
182. wife, or ex-wife
183. witness, or person under subpoena
184. network
185. slave
186. slave-owner
187. bank of the united states
188. timber company
189. u.s. job applicants or employees
190. Army and Air Force Exchange Service
191. Atomic Energy Commission
192. Secretary or administrative unit or personnel of the U.S. Air Force
193. Department or Secretary of Agriculture
194. Alien Property Custodian
195. Secretary or administrative unit or personnel of the U.S. Army
196. Board of Immigration Appeals
197. Bureau of Indian Affairs
198. Bonneville Power Administration
199. Benefits Review Board
200. Civil Aeronautics Board
201. Bureau of the Census
202. Central Intelligence Agency
203. Commodity Futures Trading Commission
204. Department or Secretary of Commerce
205. Comptroller of Currency
206. Consumer Product Safety Commission
207. Civil Rights Commission
208. Civil Service Commission, U.S.
209. Customs Service or Commissioner of Customs
210. Defense Base Closure and REalignment Commission
211. Drug Enforcement Agency
212. Department or Secretary of Defense (and Department or Secretary of War)
213. Department or Secretary of Energy
214. Department or Secretary of the Interior
215. Department of Justice or Attorney General
216. Department or Secretary of State
217. Department or Secretary of Transportation
218. Department or Secretary of Education
219. U.S. Employees' Compensation Commission, or Commissioner
220. Equal Employment Opportunity Commission
221. Environmental Protection Agency or Administrator
222. Federal Aviation Agency or Administration
223. Federal Bureau of Investigation or Director
224. Federal Bureau of Prisons
225. Farm Credit Administration
226. Federal Communications Commission (including a predecessor, Federal Radio Commission)
227. Federal Credit Union Administration
228. Food and Drug Administration
229. Federal Deposit Insurance Corporation
230. Federal Energy Administration
231. Federal Election Commission
232. Federal Energy Regulatory Commission
233. Federal Housing Administration
234. Federal Home Loan Bank Board
235. Federal Labor Relations Authority
236. Federal Maritime Board
237. Federal Maritime Commission
238. Farmers Home Administration
239. Federal Parole Board
240. Federal Power Commission
241. Federal Railroad Administration
242. Federal Reserve Board of Governors
243. Federal Reserve System
244. Federal Savings and Loan Insurance Corporation
245. Federal Trade Commission
246. Federal Works Administration, or Administrator
247. General Accounting Office
248. Comptroller General
249. General Services Administration
250. Department or Secretary of Health, Education and Welfare
251. Department or Secretary of Health and Human Services
252. Department or Secretary of Housing and Urban Development
253. Interstate Commerce Commission
254. Indian Claims Commission
255. Immigration and Naturalization Service, or Director of, or District Director of, or Immigration and Naturalization Enforcement
256. Internal Revenue Service, Collector, Commissioner, or District Director of
257. Information Security Oversight Office
258. Department or Secretary of Labor
259. Loyalty Review Board
260. Legal Services Corporation
261. Merit Systems Protection Board
262. Multistate Tax Commission
263. National Aeronautics and Space Administration
264. Secretary or administrative unit of the U.S. Navy
265. National Credit Union Administration
266. National Endowment for the Arts
267. National Enforcement Commission
268. National Highway Traffic Safety Administration
269. National Labor Relations Board, or regional office or officer
270. National Mediation Board
271. National Railroad Adjustment Board
272. Nuclear Regulatory Commission
273. National Security Agency
274. Office of Economic Opportunity
275. Office of Management and Budget
276. Office of Price Administration, or Price Administrator
277. Office of Personnel Management
278. Occupational Safety and Health Administration
279. Occupational Safety and Health Review Commission
280. Office of Workers' Compensation Programs
281. Patent Office, or Commissioner of, or Board of Appeals of
282. Pay Board (established under the Economic Stabilization Act of 1970)
283. Pension Benefit Guaranty Corporation
284. U.S. Public Health Service
285. Postal Rate Commission
286. Provider Reimbursement Review Board
287. Renegotiation Board
288. Railroad Adjustment Board
289. Railroad Retirement Board
290. Subversive Activities Control Board
291. Small Business Administration
292. Securities and Exchange Commission
293. Social Security Administration or Commissioner
294. Selective Service System
295. Department or Secretary of the Treasury
296. Tennessee Valley Authority
297. United States Forest Service
298. United States Parole Commission
299. Postal Service and Post Office, or Postmaster General, or Postmaster
300. United States Sentencing Commission
301. Veterans' Administration
302. War Production Board
303. Wage Stabilization Board
304. General Land Office of Commissioners
305. Transportation Security Administration
306. Surface Transportation Board
307. U.S. Shipping Board Emergency Fleet Corp.
308. Reconstruction Finance Corp.
309. Department or Secretary of Homeland Security
310. Unidentifiable
311. International Entity
Answer:
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songer_appel1_3_3
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J
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Your task is to determine which specific federal government agency best describes this litigant.
David MILLER, Plaintiff-Appellee, v. Griffin B. BELL, Attorney General of the United States, William H. Webster, Director of the Federal Bureau of Investigation, and United States Department of Justice, Defendants-Appellants.
No. 79-1210.
United States Court of Appeals, Seventh Circuit.
Argued May 13, 1981.
Decided Oct. 1, 1981.
Mark N. Mutterperl, Appellate Staff, Civ. Div., Dept, of Justice, Washington, D.C., for defendants-appellants.
Robert M. Hodge, Chicago, 111., for plaintiff-appellee.
Before CUMMINGS, Chief Judge, PELL, Circuit Judge, and LARSON, Senior District Judge.
Earl R. Larson, Senior Judge of the District of Minnesota, is sitting by designation.
PER CURIAM.
This appeal arises under the Freedom of Information Act, 5 U.S.C. § 552. The plaintiff David Miller (Miller) requested the Federal Bureau of Investigation (the FBI or the Bureau) and the Justice Department to provide him with all documents relating to his complaint to the FBI that someone had wiretapped his telephone. The FBI released some 54 pages of material to the plaintiff, but, pursuant to exemptions 7(C) and (D) of the Act, §§ 552(b)(7)(C) & (D), the Bureau excised the names of persons interviewed in connection with the investigation, third parties named in those interviews, and FBI agents who took part in the investigation. The plaintiff brought suit to compel disclosure of the excised information. The district court granted the plaintiff’s motion for summary judgment, and ordered the FBI to disclose all excised material. 483 F.Supp. 883. The issue presented by this appeal is whether the trial court erred when it found that exemptions 7(C) and (D) were not applicable to the excised names.
I.
As a threshold matter, the plaintiff challenges this court’s jurisdiction of this appeal, claiming that the district court’s order requiring the FBI to turn over the excised information is not a final order, and thus is not appealable.
A disclosure order in a FOIA suit is injunctive in nature. It is granted pursuant to 5 U.S.C. § 552(a)(4)(B), which confers jurisdiction upon the district court, “to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” This vests the district court with all the powers of an equity court to issue injunctive relief from withholding of agency records. Renegotiation Board v. Bannercraft Clothing Co., 415 U.S. 1, 18, 20, 94 S.Ct. 1028, 1037, 1038, 39 L.Ed.2d 123 (1974). The courts of appeals have jurisdiction of appeals from interlocutory orders of the district court granting injunctions, pursuant to 28 U.S.C. § 1292(a). Thus we have jurisdiction of the present appeal regardless of whether other issues remain pending in the district court. Coastal States Gas Corp. v. Department of Energy, 644 F.2d 969, 979 & n.15 (3d Cir. 1981); cf. Theriault v. United States, 503 F.2d 390, 391 (9th Cir. 1974) (when release of documents under FOIA is the ultimate relief sought by party, an order compelling their release is final under doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)).
On September 8, 1973, David Miller, . . . made a complaint concerning a possible intrusion on his telephone. Investigation was conducted and it was determined that an Illinois Bell Telephone (IBT) repairman was at the site on August 24, 1973. This individual advised that while working on the line he hooked into the line to report a problem he was having with his vehicle. After making his call he returned the transmitting wires under the protective coverings. The wire was forwarded to the Federal Bureau of Investigation Laboratory which could not determine whether or not any additional marks were in the wire to those described as having been made by the repairman.
In view of this no further investigation is contemplated by this office.
II.
Before turning to the Bureau’s specific assignments of error in the district court decision, a brief overview of the relevant statutory framework may be helpful. The purpose of the FOIA is to allow public access to official information unnecessarily shielded from public view, see EPA v. Mink, 410 U.S. 73, 80, 93 S.Ct. 827, 832, 35 L.Ed.2d 119 (1973). An agency must release information in its possession unless it falls within one of the nine statutory exemptions to the Act. In light of the policy favoring disclosure, however, those exemptions are to be narrowly construed. Theriault v. United States, 503 F.2d 390, 392 (9th Cir. 1974). The Act provides that the district court is to make a de novo review of the administrative claim of exemption, and that the burden of justifying the decision to withhold is on the agency. 5 U.S.C. § 552(a)(4)(B).
In light of the circumstances of this suit, it is also well to note that it is not the purpose of the Act to benefit private litigants, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1512 n.10, 44 L.Ed.2d 29 (1975), by serving as an adjunct or supplement to the discovery provisions of the Federal Rules of Civil Procedure, Nix v. United States, 572 F.2d 998, 1003 (4th Cir. 1978).
In 1974, Congress amended the FOIA provisions governing the role of a reviewing court in considering claimed exemptions. Prior to 1974 investigatory files compiled for law enforcement purposes were deemed entirely exempt from disclosure. See, e. g., Center for National Policy Review on Race & Urban Issues v. Weinberger, 502 F.2d 370, 372 (D.C.Cir.1974). The 1974 amendments narrowed this broad grant of exemption by limiting its application to particular types of information within the investigatory file.
Congress was extremely concerned, however, that personal privacy and confidentiality be preserved by means of exemptions 7(C) & (D), those at issue in this suit. Senator Hart, who introduced the amendment, discussed at length the purpose and operation of these exemptions in a Memorandum Letter contained in the legislative history of the amendments. He stated:
A question has been raised as to whether my amendment might hinder the [FBI] in the performance of its investigatory duties. The Bureau stresses the need for confidentiality in its investigations. I agree completely....
. . . My amendment would not hinder the Bureau’s performance in any way. . . . [The amendment] was carefully drawn to preserve every conceivable reason the Bureau might have for resisting disclosure of material in an investigative file:
If informants’ anonymity — whether paid informers or citizen volunteers— would be threatened, there would be no disclosure;
If disclosure is an unwarranted invasion of privacy, there would be no disclosure . . . .;
If in any other way the Bureau’s ability to conduct such investigation was threatened, there would be no disclosure.
120 Cong.Rec. S17040 (1974), reprinted in Subeomm. on Govt. Information and Individual Rights, House Comm, on Govt. Operations. 94th Cong., 1st Sess., Freedom of Information Act and Amendments of 1974 (P.L. 93-502) Source Book: Legislative History, Texts, and other Documents (Joint Comm. Print) 351 (hereinafter cited as FOIA Source Book).
In relation to the confidential information and source provisions of exemption 7(D) Senator Hart was specific in identifying precisely the burden of justification for withholding that the exemption imposed upon the Bureau:
[T]he agency not only can withhold information which would disclose the identity of a confidential source but also can provide blanket protection for any information supplied by a confidential source. The President is therefore mistaken in his statement that the FBI must prove that disclosure would reveal an informer’s identity; all the FBI has to do is to state the information was furnished by a confidential source and it is exempt.
120 Cong.Rec. S36871 (Remarks of Sen. Hart) (1974), reprinted in FOIA Source Book at 451. See Terkel v. Kelly, 599 F.2d 214, 216 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980).
A. Exemption (b)(7)(D).
We first turn our attention to (b)(7)(D), which exempts investigatory records compiled for law enforcement purposes to the extent that their release would “disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, . . . confidential information furnished only by the confidential source.” The district court noted that this exemption is available to an agency either if the source of the information is given an express assurance of confidentiality, or if one could reasonably infer such an assurance from the circumstances of the interview. It concluded that the Government had failed to carry its burden of proof on its claim that the interviews at issue were given with such implied assurances of confidentiality. The trial court expressed two grounds for its conclusion. First, it noted an affidavit from one interviewee which specified that no express assurances of confidentiality were made, and that she did not infer such a pledge of confidentiality. Second, the court held that the Bureau had failed to show that this was a case in which an interviewee might have some reason for desiring confidentiality. The Bureau contends that the trial court erred by imposing a higher standard of proof upon the FBI than that intended by the legislature, and the standard established by this court in Scherer v. Kelley, 584 F.2d 170 (7th Cir. 1978), cert. denied, 440 U.S. 964, 99 S.Ct. 1511, 59 L.Ed.2d 778.
In Scherer, this court examined FBI claims of exemption under §§ 7(C) & (D). We concluded that FBI affidavits which “comprehensively set forth the exemptions upon which [the] agency had relied when it excised portions of its file . . . and set forth the reasons underlying their use,” were sufficient to sustain FBI claims of exemption. 584 F.2d at 175, 176. See Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1977). We find that this standard is in keeping with the purpose of the Act as expressed in its legislative history, supra.
Special Agent King’s lengthy and detailed affidavit of October 28, 1977, adequately meets this standard. It identifies each type of excision and relates them in particular detail to the relevant claimed exemption. The affidavit also sets forth the reasons of the FBI in relying on the claimed exemptions, and articulately expresses the concern of the Bureau that such material remain confidential in order to preserve the Bureau’s ability to elicit continued public cooperation through such interviews. See Scherer, 584 F.2d at 176; Maroscia, 569 F.2d at 1002. The legislative history makes it clear that the drafters of the 1974 amendments were fully cognizant of such dangers, and did not seek to impose a heavy burden of justification, see remarks of Senator Hart, supra. We find that the FBI’s affidavit demonstrates that the FBI responded to Miller’s request in a responsible and conscientious manner. It thus meets the Scherer standard, and is sufficient to satisfy the burden of proof imposed upon the Bureau by § 552(a)(4)(B). Terkel v. Kelly, 599 F.2d 214, 217 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980). Unless there is evidence to the contrary in the record, we believe such promises of confidentiality are inherently implicit in FBI interviews conducted pursuant to a criminal investigation. This is necessary not only to protect the individual interviewee, but also to insure the continuing efficacy of FBI criminal investigation. We are unpersuaded by the district court’s rationale for its contrary disposition.
The court relied on the affidavit of Mrs. Kenneth Triphan (Triphan), which stated that she did not receive express assurances of confidentiality, nor was she led to believe that the information she gave was taken on an implied promise of confidentiality. The trial court apparently found this subjective evaluation of one interviewee sufficient to infer that the Bureau did not imply confidentiality to any of the interviewees. While we agree that Triphan has waived whatever confidentiality attached to the contents of her own interview, and that the Bureau must therefore disclose its contents to Miller, unless they are otherwise exempt under § 7(C), we cannot draw the inference that this indicates that manifestations implying confidentiality were not made to other interviewees, or indeed to Triphan herself on an objective basis. Indeed, the fact that among all the interviewees, only Triphan has waived the confidentiality of her interview is supportive of rather the precisely contrary view— that the other interviewees did infer and rely upon assurances of confidentiality. See Nix v. United States, 572 F.2d 998, 1004 (4th Cir. 1978).
Nor are we convinced by the district court’s assertion that this is not a case in which the interviewees might have a reason for desiring confidentiality. It is true that the interviewees are not here in a situation where revelation of their names is likely to subject them to employer retaliation, see, e. g., Wellman Industries, Inc. v. NLRB, 490 F.2d 427, 431 (4th Cir. 1974), cert. denied, 419 U.S. 834, 95 S.Ct. 61, 42 L.Ed.2d 61 (employer sought release of employee interviews), or danger of revenge through physical reprisal, see, e. g., Nix v. United States, 572 F.2d 998, 1004 (4th Cir. 1978) (release of names of guards and prisoners who made statements in regard to a prisoner’s brutality charge). A strong potential for harassment and invasion of privacy of the individual interviewees does, however, remain a real possibility here.
Miller stated in his original complaint to the FBI that he is “litigatous [sic] and a complainer,” and identified himself to the investigating agent as the plaintiff in numerous lawsuits. Miller also recorded the license plate number of the agent’s personal automobile at that time, stating that he did so as a matter of course. An internal FBI note released to Miller as part of the material he requested further indicates that he “introduces himself at Township meetings to Sergeant-at-Arms as that officer will most likely bodily remove him from the meeting.”
Miller has indicated, see note 3 supra, that he seeks the deleted names to pursue civil action, and to enlist their cooperation and support. While we applaud the willingness of the interviewees to “get involved,” in crime prevention and investigation by speaking to FBI agents confidentially, we can also appreciate that some might be reluctant to enlist, or be drafted, in Miller’s anti-government crusade. While they are certainly free to waive their right to confidentiality and step forward, as Triphan has done, it is not the role of the FBI to suffer them to do so, regardless of the possibly beneficent ultimate purposes of Miller’s suit. See Nix, 572 F.2d at 1003 (the right of a FOIA plaintiff to obtain information is not enhanced by his needs as a private civil-rights litigant). Furthermore, in light of Miller’s self-proclaimed litigiousness, some interviewees might be worried that if Miller disagrees with their statements they might find themselves defendants in expensive civil litigation. As we noted above, we believe it is essential to the continued ability of the FBI to conduct effective criminal investigation that witnesses feel free to fulfill their obligations as citizens without fear of exposing themselves to such intrusion or harassment.
We therefore find that the trial court erred in concluding that exemption 7(D) did not shield the names of the interviewees and third parties mentioned in the interviews from disclosure, with, as we noted above, the exception of the Triphan interview, which alone must be disclosed without excision of the name of the interviewee. We now turn our attention to exemption 7(C) to determine whether the court ruled properly that the other excised names were not protected by its strictures.
B. Exemption (b)(7)(C).
In analyzing the 7(C) exemption, which provides for exemption from disclosure of “investigatory records compiled for law enforcement purposes, ... to the extent that production of such records would . . . constitute an unwarranted invasion of personal privacy,” the trial court adopted the balancing test formulated in Dept. of Air Force v. Rose, 425 U.S. 352, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976). In Rose, the Supreme Court held that exemption (b)(6) of the POIA, “require[s] a balancing of the individual’s right to privacy against the bar sic purpose of the Freedom of Information Act ‘to open agency action to the light of public scrutiny.’ ” 425 U.S. at 372, 96 S.Ct. at 1604. The trial court recognized that FBI agents have a privacy interest in withholding their names from public disclosure in connection with a criminal investigation. It concluded, however, that since there was no danger to the agents on the facts of this particular case, but rather only an abstract potential for harassment and annoyance and some possibility that future undercover investigations could be jeopardized, such a privacy interest was therefore minimal.
In balancing these potential invasions against the public interest it found in disclosure of the excised names, the trial court concluded:
[Ojnce we have found a public interest in disclosure, and the government has not pointed to any circumstance peculiar to this case which indicates greater potential for harassment, annoyance, or the compromising of undercover assignments than would be present in every case, we shall resolve the balancing test in favor of disclosure.... In weighing the public interest in disclosure against the privacy interests, we conclude that the government has not satisfied its burden and that disclosure here will not constitute an “unwarranted” invasion of personal privacy. Defendants must release the names of FBI agents withheld. . . .
Mem.Op. at 9 (citations omitted). The FBI contends that the trial court erred, first by weighing too lightly the asserted privacy interests of the FBI agents, and second, by according too substantial a weight to the purported public interest in disclosure. We will turn our attention to each seriatim, and then to the manner in which the district court balanced them one against the other.
1. Privacy Interests of the FBI Agents
The district court- concluded that FBI agents must have a privacy interest peculiar to the facts of a given case before those interests are serious enough to warrant disclosure. We are persuaded that the court erred by seeking such a particular interest, and that the King affidavit sets forth privacy considerations sufficient to establish that FBI agents have not insubstantial privacy interests whenever disclosure is sought of records of a criminal investigation.
In identifying those privacy concerns, King’s affidavit stated:
The privacy consideration is to protect these FBI employees, as individuals, from unnecessary questioning and intrusion into their private lives by members of the public. Additionally, FBI Agents are charged with the responsibility of investigating all matters within the jurisdiction of the FBI. As such, an Agent may investigate applicant matters for a period of time, followed by assignment to strictly criminal or national security matters. These latter assignments may even involve serving in an undercover capacity. To release to plaintiff the identities of all FBI agents involved in the investigation, regardless of their place of assignment or degree of involvement, must be considered a release to the public at large. Such wholesale release, without giving consideration to the current investigative assignments of the FBI Agents involved, would unnecessarily disclose their identities, serve no useful function to plaintiff, and could possibly jeopardize the current, and unknown to affiant, investigative activity of these Agents. It is noted that FBI Agents come into contact with individuals from all strata of society. They conduct searches and make arrests, both of which constitute reasonable, but nonetheless serious, intrusions into peoples’ lives. Many of these people carry grudges which last for years and seek any excuse to harass the responsible Agent.
King Affidavit at 8-9. We find that the FBI has thus met its burden of demonstrating the existence of substantial and legitimate privacy concerns in the names of agents conducting a criminal investigation.
As the Court of Appeals for the Fourth Circuit remarked in Nix, 572 F.2d at 1006,
[o]ne who serves his state or nation as a career public servant is not thereby stripped of every vestige of personal privacy, even with respect to the discharge of his official duties. Public identification of any of these individuals could conceivably subject them to harassment and annoyance in the conduct of their official duties and in their private lives.
We believe these privacy interests are serious and substantial, and absent a countervailing showing of substantial public interest in disclosure, merit the protection of exemption 7(C). Furthermore, we question the district court’s finding that no special hazard of harassment or annoyance exists in this case in light of Miller’s self-proclaimed contentiousness, see supra. It is not necessary that harassment rise to the level of endangering physical safety before the protections of 7(C) can be invoked. See Terkel v. Kelly, 599 F.2d 214 (7th Cir. 1979), cert. denied, 444 U.S. 1013, 100 S.Ct. 662, 62 L.Ed.2d 642 (1980); Nix, 572 F.2d at 1006 n.8; Maroscia v. Levi, 569 F.2d 1000 (7th Cir. 1978).
2. The Public Interest in Disclosure
The trial court identified two types of public interests which it believed disclosure of the names of the participating agents would further: first, “with complete disclosure, plaintiff would be able to determine whether the FBI’s investigation of the illegal wiretap was complete and adequate”; and, second, that if the release of the names of FBI agents might aid the plaintiff in bringing a suit under 18 U.S.C. § 2520, note 3 supra, then their release would benefit a public interest. The Bureau contends the court erred by overvaluing both of these asserted benefits.
As to the first of the asserted public interests, that Miller would use the information to serve as a watchdog over the adequacy and completeness of an FBI investigation, we are absolutely unpersuaded by the reasoning of the trial court. As a preliminary matter, we note that this justification would apparently apply to every FBI criminal investigation, severely vitiating the privacy and confidentiality provisions of exemptions 7(C) and (D). We further find the record demonstrates that this is not a ease of sufficient public importance to warrant such a probe of the FBI’s efficiency. The plaintiff’s broad unsupported hints of a government coverup or undercover surveillance fly in the face of the substance of the disclosed documents which reveal this case as one of consequence to only one individual. There is no allegation of wrongdoing by high-ranking government officials or indeed by any FBI personnel to support any public interest in any further probe into the thoroughness of the instant investigation. Cf. Congressional News Syndicate v. Dept. of Justice, 438 F.Supp. 538, 544 (D.D.C.1977) (Watergate-related investigation). In the absence of such a showing of special public interest in testing the thoroughness of an investigation, we find it of little weight. We further note that, as the plaintiff concedes, the substance of the information in the FBI files has been exposed in its entirety, and only the names of the FBI agents deleted. In this respect the Bureau has followed the directive of this court that only that precise information as to which confidentiality is claimed may be withheld. Terkel v. Kelly, 599 F.2d at 1217-18. The documents thus reveal the entire course of the investigation and the facts it uncovered. This information should be sufficient to permit the plaintiff to evaluate the thoroughness of the investigation. We find any public interest in pursuing the completeness and adequacy of the investigation beyond this point to be minimal in the extreme.
We believe that the trial court similarly overvalued the public interest to be vindicated by the plaintiff’s maintenance of a private lawsuit. The court noted that a mere private interest in maintaining such a suit would not suffice, but concluded that here the private litigant’s interest in such a suit would overlap that of the public, and stated, “Just as the vindication of constitutional rights by private litigants in § 1983 actions serves the public interest, the vindication of important statutory rights such as those embodied in 18 U.S.C. § 2520 also serve the public interest.” Mem.Op. at 7-8. As we noted above, however, the FOIA was not enacted for the benefit of private litigants, NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 143 n.10, 95 S.Ct. 1504, 1512 n.10, 44 L.Ed.2d 29 (1975).
The Nix court rejected a similar argument in a case in which the plaintiff, a prisoner, had filed an FOIA suit to discover documents relating to his alleged mistreatment by prison guards. He had also filed a suit, apparently under 42 U.S.C. § 1983, claiming that the alleged mistreatment violated his civil rights. In rejecting the argument that this created a public interest sufficient to override the guards’ right to privacy, the court concluded:
As this court observed in Deering Milliken [v. Irving,], 548 F.2d [1131 (4th Cir. 1977)] at 1134-35, FOIA’s purpose is to inform the public about the action of government agencies. It was not designed to supplement the rules of civil discovery. Thus, the right of Nix to obtain information is neither enhanced nor diminished because of his needs as a litigant, but is to be measured by the right of the public to obtain the same information.
572 F.2d at 1003. We find this analysis persuasive and applicable a fortiori to this case in which no civil suit has yet been filed, and the rights assertedly violated do not rise to a constitutional level, but where the plaintiff has merely stated that he hopes to obtain information that will aid him in bringing suit. Were this the test for determining the existence of a public interest, every FOIA claimant against the FBI could override the exemption of § 7(C) by the simple expedient of claiming that he hoped to uncover violations of constitutional or statutory rights. Such a test is rife with the potential for abuse, and does not comport with the protective legislative intent embodied in the exemptions of section seven of the FOIA.
3. Balancing
In light of our conclusions above that the agents’ interest in privacy is substantial and the public interest in disclosure here is slight, we reverse the trial court’s conclusion that exemption 7(C) is inapplicable. We also find that the court erred by failing to consider the substantial public interest in maintaining the integrity of future FBI undercover investigations served by the preservation of the privacy of agents’ names, which we believe further militates in favor of nondisclosure.
4. Privacy Interests and Third Parties
In light of our holding above that the names of interviewees and third parties are protected under exemption 7(D), we need not reach the question whether they are also protected by exemption 7(C). The question remains, however, whether third party names mentioned in the Triphan interview, as to which § 7(D) confidentiality was waived, are disclosable or protected under § 7(C).
As we noted above, a real potential for harassment and intrusion exists in this case. This could erode the privacy of individuals unknowingly named by an interviewee, such as Triphan, who does not himself or herself desire confidentiality. Revelation to the public at large of the names of such third parties might also stigmatize them as connected with an FBI criminal investigation. Release of their names might not only have these individualized deleterious effects, but also has the potential to lessen public confidence in the integrity of FBI criminal investigations. We therefore find that third parties do have a substantial privacy interest in nondisclosure. In light of our determination above that the public interest in disclosure here is minimal, under the Rose balancing test we hold that the third parties’ privacy interest outweighs any public interest in disclosure, and the names of third parties mentioned in any interview, including the Triphan interview, are protected by exemption 7(C), and need not be disclosed.
III.
Accordingly, the order of the district court is reversed, except as to the affidavit of Mrs. Kenneth Triphan, which must be released to the plaintiff in its entirety without excisions except for the names of FBI agents and third parties, which are exempt under § 7(C). The appellee shall bear the costs of this appeal.
AFFIRMED IN PART; REVERSED IN PART.
. The FBI reported the results of its investigation to the United States Attorney by the following letter dated November 29, 1973:
. At the time this appeal was taken issues remained before the District Court with respect to disclosure of letters to the FBI from Senators Percy and Stevenson and Congressman Erlenborn, and of attorney’s fees. The letters were disclosed in the entirety following in camera review by the district court. The attorney’s fees issue has also been disposed of below, and is the subject of a separate appeal to this court.
. At oral argument counsel for the plaintiff stated, “The reason Dr. Miller wants to have the names is so he can conduct an investigation to find out if those persons have any knowledge upon which he can enforce his rights under 18 U.S.C. § 2520 [the anti-wiretapping statute]." Similarly the plaintiff’s brief contends that he wishes to enlist the support and cooperation of those whose names have been excised in his effort to discover governmental wrongdoing.
. The district court properly noted that privacy interests are afforded more protection by (b)(7)(C) than by (b)(6), which requires disclosure unless the invasion of privacy would be “clearly” unwarranted. See Deering Milliken, Inc. v. Irving, 548 F.2d 1131, 1136 n.7 (4th Cir. 1977).
. See note 1 supra.
Question: This question concerns the first listed appellant. The nature of this litigant falls into the category "federal government (including DC)", specifically "cabinet level department". Which specific federal government agency best describes this litigant?
A. Department of Agriculture
B. Department of Commerce
C. Department of Defense (includes War Department and Navy Department)
D. Department of Education
E. Department of Energy
F. Department of Health, Education and Welfare
G. Department of Health & Human Services
H. Department of Housing and Urban Development
I. Department of Interior
J. Department of Justice (does not include FBI or parole boards; does include US Attorneys)
K. Department of Labor (except OSHA)
L. Post Office Department
M. Department of State
N. Department of Transportation, National Transportation Safety Board
O. Department of the Treasury (except IRS)
P. Department of Veterans Affairs
Answer:
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songer_usc2
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29
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What follows is an opinion from a United States Court of Appeals.
The most frequently cited title of the U.S. Code in the headnotes to this case is 29. Your task is to identify the second most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if fewer than two U.S. Code titles are cited. To choose the second title, the following rule was used: If two or more titles of USC or USCA are cited, choose the second most frequently cited title, even if there are other sections of the title already coded which are mentioned more frequently. If the title already coded is the only title cited in the headnotes, choose the section of that title which is cited the second greatest number of times.
SHATTUCK DENN MINING CORPORATION, (IRON KING BRANCH), Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
No. 20131.
United States Court of Appeals Ninth Circuit.
May 9, 1966.
Ralph B. Sievwright, Twitty, Siev-wright & Mills, Phoenix, Ariz., for petitioner.
Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, Solomon I. Hirsh, Marion Griffin, Attys., N. L. R. B., Washington, D. C., for respondent.
Before HAMLEY, KOELSCH and DUNIWAY, Circuit Judges.
DUNIWAY, Circuit Judge:
The National Labor Relations Board adopted the findings of its trial examiner and held that petitioner (Shat-tuck) had violated sections 8(a) (1) and 8(a) (3) of the National Labor Relations Act (29 U.S.C. § 158(a) (1) and (3)). Shattuck seeks to set the Board’s order aside; the Board seeks enforcement. The sole question presented is whether “[t]he findings of the Board * * * [are] supported by substantial evidence on the record considered as a whole * * (Section 10(e), 29 U.S. C. § 160(e)). If so, those findings are “conclusive.” We hold that the findings are supported. It follows that the Board's order should be enforced.
Four incidents gave rise to this case. We consider them separately.
1. The discharge of Olvera.
For some years the employees of Shat-tuck, which operates the Iron King mine in Arizona, have been represented by unions, from 1946 to 1958 by the Federal Labor Union, and from 1958 to April 1964 by the Steelworkers Union. On March 25, 1964, the International Union of Mine, Mill and Smelter Workers won a Board-conducted election and became the bargaining agent, certified on April 2, 1964. Olvera, an employee of 9 years standing with an unblemished record, was active in support of the new union. Within a week after the union was certified, it supplied Shattuck with a list of temporary officers, including Olvera, who was designated as vice president, steward, and member of the grievance committee. During the next two weeks a number of grievances were submitted, and Olvera was active in presenting them. Bargaining between the company and the union had not yet begun, but was imminent.
The incident upon which Shattuck based Olvera’s discharge occurred on April 21. The stated ground was refusal to obey an order of his supervisor, Chan-non, and interference with an order given by Channon to another worker, Portugal. Both Olvera and Portugal testified, in substance, that Olvera did not refuse to obey Channon’s order, or interfere with Channon’s order to Portugal, and that Channon, for no apparent reason, picked on Olvera, using obscenities, giving him an unpleasant duty, and threatening more. Channon did not report the incident to his superiors. He was not called as a witness.
Olvera filed a grievance against Chan-non with the union, reading:
“The foreman using abusive language and threatening complainant, an officer and steward of local union, union requests that this foreman be reprimanded and this practice stopped immediately.”
On April 22 at the close of a meeting of the union grievance committee with Shattuck’s manager, Kentro, at which Olvera was present and took an active part, the union president presented this grievance to Kentro. Kentro asked the mine superintendent, Sundeen, to investigate the matter and report back. Sun-deen and Channon submitted written reports on the basis of which Kentro says that he acted. Yet the reports were not produced, nor were Sundeen or Channon called by Shattuck as witnesses. The next grievance meeting was on April 28. Kentro opened the meeting by remarking that the union was turning in too many small grievances, and that he did not like it. Olvera’s grievance was discussed, and he, Portugal and Channon stated their versions. Kentro announced that he would sleep on the matter. The following morning, April 29, Olvera was handed a discharge slip dated April 28, signed by Kentro, and stating the grounds of discharge.
On the day of Olvera’s discharge a new grievance was prepared by the union, protesting his discharge and asking his reinstatement with back pay and full rights restored. A meeting was scheduled on this grievance for May 4, a Monday. Strike action, if the grievance were not satisfactorily adjusted, was voted on May 3. At the May 4 meeting, Kentro again heard from Olvera and Portugal, but refused to permit union representatives to question Channon, and sustained the discharge. There is also evidence that, in another case of claimed insubordination, Kentro looked into the matter more thoroughly and refused to discharge the employee, in rather marked contrast to what he did in Olvera’s case.
In his decision, the trial examiner reviewed the evidence in detail and found that Olvera was not insubordinate, that Kentro had no reasonable ground to believe that Olvera was insubordinate, that the stated grounds for discharge were a pretext, and that the real motivation was to discourage the union’s filing of grievances and its aggressive pursuit of bargaining. He concluded that the discharge was discriminatory, in violation of section 8(a) (3), and constituted restraint and coercion, in violation of section 8(a) (1).
These findings are vigorously attacked, and heavy reliance is placed on cases indicating that the mere fact that good cause for a discharge does not exist is not a basis for inferring that the discharge was based upon an unlawful motive, that the fact that an employee is engaged in union activity is not, taken alone, proof that the discharge was for that reason, that suspicion is not enough to support a finding, that an employer may discharge for any reason or no reason and so has no burden to justify his action, that inferences must be based upon evidence, that it is not the job of the Board to judge the severity of punishment imposed by the employer, that lack of anti-union bias is to be considered in the employer’s favor, and that the Board may not infer an unlawful motive if the evidence equally supports an inference of lawful motive. A recent decision of this court, reversing the Board, relies upon some of the language of some of these cases. Lozano Enterprises v. NLRB, 9 Cir., 1966, 357 F.2d 500.
The Board, in support of the findings, cites cases indicating that it is for the trial examiner and the Board to resolve conflicts in the evidence and pass upon the credibility of witnesses, that inferences drawn by the Board are strengthened by the fact that the explanation of the discharge offered by the employer fails to stand scrutiny, that the Board may consider facts and incidents compositely and draw inferences reasonably justified by their cumulative effects.
Many more cases could be cited in which the courts have used various expressions and stated various reasons in upholding or refusing to uphold the findings of the Board. There is more than enough scripture upon the subject to enable any devil to cite some of it for his purpose.» We think it quite unnecessary to discuss, much less to try to reconcile, all of the statements made by various judges on the subject, or even all of the statements appearing in the opinions in the cited cases. The statute commands that we examine the record of each case to ascertain whether the findings of the Board are supported by substantial evidence on the record considered as a whole. This is not always easy, and judges may,, and sometimes do, disagree about the result. On its facts, each case is unique.
We are to respect the duties of the trier of fact to decide whom to believe, to reconcile conflicting evidence, and to draw such inferences as the evidence reasonably supports. And we are told by the Supreme Court, in no uncertain terms, that “There is no place in the statutory scheme for one test of the substantiality of evidence in reinstatement cases and another test in other cases.” (NLRB v. Walton Mfg. Co., 1961, 369 U.S. 404, 407, 82 S.Ct. 853, 855, 7 L.Ed. 2d 829.) The statute also commands that the Board consider whether the employee was discharged for cause. As stated in NLRB v. Ace Comb Co., supra n. 5, the applicable legal test is this:
“It has long been established that for the purpose of determining whether or not a discharge is discriminatory in an action such as this, it is necessary that the true, underlying reason for the discharge be established. That is, the fact that a lawful cause for discharge is available is no defense where the employee is actually discharged because of his Union activities. A for-tiori, if the discharge is actually motivated by a lawful reason, the fact that the employee is engaged in Union activities at the time will not tie the employer’s hands and prevent him from the exercise of his business judgment to discharge an employee for cause.” (342 F.2d at 847.)
Actual motive, a state of mind, being the question, it is seldom that direct evidence will be available that is not also self-serving. In such cases, the self-serving declaration is not conclusive; the trier of fact may infer motive from the total circumstances proved. Otherwise no person accused of unlawful motive who took the stand and testified to a lawful motive could be brought to book. Nor is the trier of fact — here the trial examiner — required to be any more naif than is a judge. If he finds that the stated motive for a discharge is false, he certainly can infer that there is another motive. More than that, he can infer that the motive is one that the employer desires to conceal — an unlawful motive— at least where, as in this case, the surrounding facts tend to reinforce that inference. Here was a new union, just certified, and quite busy in advancing grievances; here was an officer of that union who was also a shop steward and an active member of the grievance committee; here was such an employee presenting a grievance, on his own behalf, against his supervisor. The inference that his discharge was motivated by a desire to discourage such union activity is by no means without basis. It seems to us a reasonable one to draw. We conclude that the findings are supported by substantial evidence on the record considered as a whole.
2. The posted notice.
The grievance meeting at which Ol-vera’s grievance was discussed was on April 28, he was discharged on April 29, and a new grievance, based upon discharge, was to be heard on May 4, a Monday. On Friday, May 1, the following notice, signed by Kentro and addressed to all employees, was posted on the bulletin board;
“This notice to all employees at this operation is being made because of rumors which have come to our attention that there may be an attempt by some employees to stop the operation of the Iron King Mine in the near future. The Company wishes to state that operation and production will continue at the Iron King. In order to avoid any misunderstanding, the Company hereby notifies you that each employee is expected to report for work at his regularly scheduled work shift time, unless he has an excused absence permit signed or approved by both his Department Head and the General Manager. Employees failing to report for work will be considered as having quit and will be dropped from the payroll, unless they have obtained the excused absence permit referred to above.” (Emphasis as it appears in the original.)
The trial examiner found that, by posting the notice, Shattuck violated Section 8(a) (1) of the Act. This finding, too, is vigorously attacked. Kentro testified that from the time the union had won bargaining rights there had been rumors of a strike. He knew that a union meeting to consider action relating to the discharge of Olvera had been called for Sunday, May 3. He knew that the new grievance relating to that discharge was to be heard on May 4. He said that the purpose of the notice was merely to reiterate Shattuck’s long established absenteeism rule. But, as the trial examiner correctly found, the notice laid down requirements considerably more stringent than those of the long established rule. We agree with the trial examiner that “Employees * * * would reasonably construe this [notice] to constitute a threat of discharge if they should * * * strike.” It was much more than a mere transmission of information that, if employees struck, they might face replacement.
3. The strike.
At the conclusion of the May 4 grievance meeting, when Kentro announced that he was standing by his decision, the chairman of the union committee replied that they would “have to settle this on the picket line.” The strike began the next day. The mine continued to operate, although a majority of the employees struck, and Shattuck began to replace the strikers. On May 8, the union filed with the Board a complaint based upon Olvera’s discharge. On May 11, company and union representatives met with a federal conciliator in an effort to settle the strike. The effort failed. The union then called off the strike and the strikers made an unconditional offer to return to work. Shattuck, however, refused to reinstate 19 strikers who had been replaced. The strike was caused by the discharge of Olvera. Because his discharge was an unfair labor practice, the strike was an unfair labor practice strike and the Board properly ordered reinstatement.
4. The discharge of Jaime.
On May 9, Kentro discharged Jaime, a striker, for threatening Rivera, a non-striker. The evidence, however, supports the finding of the trial examiner that Jaime did not threaten Rivera but only tried to persuade him to join the strike. This was a protected activity. In such a case, even if Kentro reasonably believed that Jaime had threatened Rivera, the discharge was in violation of section 8(a) (1):
“In sum, § 8(a) (1) is violated if it is shown that the discharged employee was at the time engaged in a protected activity, that the employer knew it was such, that the basis of the discharge was an alleged act of misconduct in the course of that activity, and that the employee was not, in fact, guilty of that misconduct.”
******
* * * “a protected activity acquires a precarious status if innocent employees can be discharged while engaging in it, even though the employer acts in good faith.”
(NLRB v. Burnup & Sims, Inc., 1964, 379 U.S. 21, 23, 85 S.Ct. 171, 172, 13 L.Ed. 2d 1.)
The petition to set the order aside is denied.
The order will be enforced.
. “Sec. 8. (a) It shall be an unfair labor practice for an employer—
(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 * * *.
(3) by discrimination in regard to hire or tenure of employment or any term or condition of employment to encourage or discourage membership in any labor organization.’’
Section 7 provides:
“Sec. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection * * (29 U.S.C. § 157.)
. NLRB v. Rickel Bros., Inc., 3 Cir., 1961, 290 F.2d 611, 614; NLRB v. McGahey, 5 Cir., 1956, 233 F.2d 406, 413.
. NLRB v. Citizen-News Co., 9 Cir., 1943, 134 F.2d 970, 974.
. NLRB v. Montgomery Ward & Co., Inc., 8 Cir., 1946, 157 F.2d 486, 491.
. NLRB v. Ace Comb Co., 8 Cir., 1965, 342 F.2d 841, 847; NLRB v. McGahey, supra n. 2.
. NLRB v. Kaiser Aluminum & Chem. Corp., 9 Cir., 1954, 217 F.2d 366, 368.
. NLRB v. Ace Comb Co., supra n. 5; NLRB v. Audio Indus. Inc., 7 Cir., 1963, 313 F.2d 858, 861-863; Osceola County Co-op. Creamery Ass’n v. NLRB, 8 Cir., 1958, 251 F.2d 62, 66; NLRB v. McGahey, supra n. 2; NLRB v. Coats & Clark, Inc., 5 Cir., 1956, 231 F.2d 567, 572-573; NLRB v. Montgomery Ward & Co., supra n. 4.
. See Pacific Gamble Robinson Co. v. NLRB, 6 Cir., 1950, 186 F.2d 106, 109.
. NLRB v. Huber & Huber Motor Express, Inc., 5 Cir., 1955, 223 F.2d 748; see NLRB v. Arthur Winer, Inc., 7 Cir., 1952, 194 F.2d 370, 374.
. Bon Hennings Logging Co. v. NLRB, 9 Cir., 1962, 308 F.2d 548, 554; NLRB v. Davisson, 9 Cir., 1955, 221 F.2d 802, 803; NLRB v. San Diego Gas & Elec. Co., 9 Cir., 1953, 205 F.2d 471, 475.
. NLRB v. Griggs Equip., Inc., 5 Cir., 1962, 307 F.2d 275, 278; NLRB v. Radcliffe, 9 Cir., 1954, 211 F.2d 309, 314; NLRB v. Dant, 9 Cir., 1953, 207 F.2d 165, 167.
. NLRB v. Radcliffe, supra n. 10, at p. 313.
a. “The Devil can cite scripture for his purpose.” (Merchant of Venice, Act 1, Sc. 111, 1. 99, William Shakespeare.)
. Walton was decided in 1961, and expressly disapproved of a special rule that had been developed in the Fifth Circuit for such eases. We note that some of the eases most heavily relied upon by Shat-tuck are from that Circuit and were decided before Walton. Cf. Bon Hennings Logging Company v. NLRB, supra; NLRB v. Mrak Coal Company, 9 Cir., 1963, 322 F.2d 311, 313.
. § 10(c), 29 U.S.C. § 160(c):
“No order of the Board shall require the reinstatement of any individual as an employee who has been suspended or discharged, or the payment to him of any back pay, if such individual was suspended or discharged for cause.”
. “Judges are apt to be naif, simpleminded men, and they need something of Mephistopheles.” (Holmes, Law and Court, in Speeches, 102 (1913) ; “Credulity is not esteemed a paramount virtue of the judicial mind.” (Huston, J., in Rankin v. Jauman, 1895, 4 Idaho 394, 401, 39 P. 1111, 1113.)
. NLRB v. West Coast Casket Co., Inc., 9 Cir., 1953, 205 F.2d 902, 905; see NLRB v. McCatron, 9 Cir., 1954, 216 F.2d 212, 215; cf. NLRB v. Globe Wireless, Ltd., 9 Cir., 1951, 193 F.2d 748, 750.
. See n. 16, supra.
Question: The most frequently cited title of the U.S. Code in the headnotes to this case is 29. What is the second most frequently cited title of this U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_usc1
|
28
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the most frequently cited title of the U.S. Code in the headnotes to this case. Answer "0" if no U.S. Code titles are cited. If one or more provisions are cited, code the number of the most frequently cited title.
RICHARDS v. UNITED STATES.
No. 11674.
United States Court of Appeals District of Columbia Circuit.
Argued Feb. 19, 1954.
Decided April 22, 1954.
Mr. Josiah Lyman, Washington, D. C. , with whom Mrs. Kathryn M. Schwarz, Washington, D. C., was on the brief, for appellant.
Mr. John D. Lane, Asst. U. S. Atty., Washington, D. C., with whom Messrs. Leo A. Rover, U. S. Atty., and Lewis A. Carroll, Asst. U. S. Atty., Washington, D. C., were on the brief, for appellee. Messrs. Charles M. Irelan, U. S. Atty., Washington, D. C., at time record was filed, and William R. Glendon and William J. Peek, Asst. U. S. Attys., Washington, D. C., at time record was filed, entered appearances for appellee.
Before EDGERTON, BAZELON and WASHINGTON, Circuit Judges.
EDGERTON, Circuit Judge.
Appellant was convicted of grand larceny, and sentenced to a term of 20 months to five years, on June 19, 1950. June 27, 1950 his counsel filed a notice of appeal, and also a motion to reduce sentence. July 11, 1950 the District Court entered an order (dated June 30) purporting to reduce the minimum sentence to 13 months.
The provision in Rule 35 of the Federal Rules of Criminal Procedure, 18 U.S.C. that “The court may reduce a sentence within 60 days after the sentence is imposed” is not applicable during an appeal. The District Court’s order was therefore invalid. On December 2, 1952, the District Court vacated the order.
We affirmed appellant’s conviction. 89 U.S.App.D.C. 354, 192 F.2d 602, 30 A.L.R.2d 880. The Supreme Court denied certiorari. 342 U.S. 946, 72 S.Ct. 560, 96 L.Ed. 703. As Rule 35 permitted, within 60 days after certiorari was denied appellant filed in the District Court, «on April 23, 1952, a motion to reduce his sentence further. This motion assumed that the earlier order reducing sentence was valid. On April 25, 1952, in open court, Government counsel duly questioned this assumption. This colloquy followed: “The Court. Well, if there is any question about it, present me a new judgment and make it nunc pro tunc, because there is no question. I do want him to have the benefit of the lesser sentence. Mr. Lyman. May I present you a new judgment, and make it nunc pro tunc, your Honor? The Court. Yes. If there is any question about it, I want him to have the benefit of it. I am fully aware that I have the right under the rules to do it. It was done within the sixty-day period. Mr. Lyman. Thank you.”
But Mr. Lyman failed to present a new judgment. Accordingly no judgment was entered either to remove the “question” about the validity of the earlier order reducing sentence or to give appellant “the benefit of the lesser sentence”. And the court denied appellant’s motion of April 23, 1952.
In the present proceeding, ostensibly under 28 U.S.C. § 2255, appellant contends that the colloquy of April 25, 1952 reduced his minimum sentence to 13 months. We think it plain that it was not intended to, and did not, have that effect. Appellant points to Rule 36 of the Federal Rules of Criminal Procedure, which provides that “Clerical mistakes in judgments, orders or other parts of the record and errors in the record arising from oversight or omission may be corrected by the court at any time * * But this Rule does not aid appellant. Counsel’s failure to prepare and present a new judgment, as the court invited him to do, was neither a “clerical” mistake nor a mistake in “judgments, orders or other parts of the record”, and there appear to be no “errors in the record”, if the quoted words are construed in their ordinary sense. Moreover, if the words of § 2255 are construed in their ordinary sense they do not apply to this case, since they deal with illegal sentences.
The appellant has already served 20 months. Yet there is some possibility that the fact of his having had a minimum sentence of 20 months rather than 13 may in some indirect way affect him adversely in the future. Cf. Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196; United States v. Morgan, 346 U.S. 502, 512-13, 74 S.Ct. 247. We therefore reject appellee’s contention that the appeal is moot.
Affirmed.
BAZELON, Circuit Judge, dissents.
Question: What is the most frequently cited title of the U.S. Code in the headnotes to this case? Answer with a number.
Answer:
|
songer_initiate
|
B
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify what party initiated the appeal. For cases with cross appeals or multiple docket numbers, if the opinion does not explicitly indicate which appeal was filed first, assumes that the first litigant listed as the "appellant" or "petitioner" was the first to file the appeal. In federal habeas corpus petitions, consider the prisoner to be the plaintiff.
Ethyle BLOCH v. Harold N. BLOCH, Appellant.
No. 72-1260.
United States Court of Appeals, Third Circuit.
Submitted Under Third Circuit Rule 12(6) - Oct. 30, 1972.
Decided Feb. 16, 1973.
John F. James, Christiansted, St. Croix, V. I., for appellant.
Thomas Alkon, Isherwood & Colianni, Christiansted, St. Croix, V. I., for ap-pellee.
Before KALODNER, ADAMS and ROSENN, Circuit Judges.
OPINION OF THE COURT
KALODNER, Circuit Judge.
Does Virgin Islands’ public policy preclude recognition of a common law marriage entered into by Virgin Islands domiciliaries in a state where such a marriage is valid?
That is the primary question, of first impression, presented by this appeal.
The District Court of the Virgin Islands answered it in the negative in awarding a decree of divorce to the ap-pellee Ethyle Bloch from the appellant Harold N. Bloch on the ground of incompatibility of temperament.
A second question presented is whether the District Court was “clearly erroneous” in its fact-finding that the Blochs had entered into a common law marriage during a visit they had made to Florida in October 1965. It may be noted, parenthetically, that the appellant does not challenge the District Court’s determination as to incompatibility.
Thesé background facts are undisputed :
The Blochs* are residents and domi-ciliaries of Christiansted, St. Croix, Virgin Islands. In 1962 they commenced living together under one roof, sharing bed and board. A son was born to them in February 1963. From the beginning of their 1962 relationship until the institution of the divorce proceedings in 1971, they held themselves out in the community as husband and wife. In October 1965 they paid a visit to Mrs. Bloch’s father in Miami Beach, Florida. They spent the first night of that visit in her father’s home, and the next two or three days in a Miami Beach hotel where they registered as husband and wife. Prior to the Florida visit, the appellant purchased and gave the appellee a wedding ring which she thereafter wore on the appropriate finger.
The divorce proceedings developed only one critical fact issue, viz., whether the Blochs, during their Florida visit, had entered into a common law marriage, in consonance with then prevailing Florida law, by the exchange of vows. The appellee testified they had exchanged vows and the appellant denied it. The Dis-. trict Court resolved the conflict in the testimony in favor of the appellee. In doing so it stated that it found the appellee’s “demeanor as a witness was the more forthright by far,” and that “she impressed on the witness stand as being earnest and truthful.”
Rule 52(a), F.R.Civ.P., commands that where a trial is had to the court its “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.”
It is settled that Rule 52(a) governs appellate review of a fact-finding of a trial court, and that under it, such a finding, when supported by evidence, can be found to be “clearly erroneous” only when the appellate court, upon review of all the evidence, “ ‘is left with the definite and firm conviction that a mistake has been committed.’ ” McAllister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954), quoting from United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
Speaking for this Court, Judge Aldi-sert recently spelled out the sweep of appellate review of fact-findings made by a trial court, as follows:
“It is the responsibility of an appellate court to accept the ultimate factual determination of the fact-finder unless that determination either (1) is completely devoid of minimum evidentiary support displaying some hue of credibility, or (2) bears no rational relationship to the supportive evidentiary data. Unless the reviewing court establishes the existence of either of these factors, it may not alter the facts found by the trial court. To hold otherwise would be to permit a substitution by the reviewing court of its finding for that of the trial court, and there is no existing authority for this in the federal judicial system, either by American common law tradition or by rule and statute.” Krasnov v. Dinan, 465 F.2d 1298, 1302-1303 (1972)
Applying the principles stated, we are of the opinion, upon review of all the evidence, that the District Court’s fact-finding that the appellant and appellee entered into a common law marriage in Florida in 1965 was not “clearly erroneous.”
It may be noted parenthetically that the District Court found that “apart from the express finding that the parties vowed and consented to be husband and wife in Florida, their cohabitation and holding out as husband and wife in that State would be sufficient to supply the condition of mutual consent” under Florida law, irrespective of the brief span of the Florida visit.
We come now to the primary question, of first impression, whether the public policy of the Virgin Islands precludes recognition of a common law marriage entered into by Virgin Islands domicili-aries in a state where such a marriage is valid.
As earlier stated, the District Court answered the question in the negative.
In doing so, it held that while common law marriages may not be validly entered into in the Virgin Islands under Title 16 V.I.C. § 32, effective September 1, 1957, they are not included in the category of “Void marriages,” Title 16 V.I.C. § l, or “Voidable marriages,” Title 16 V.I.C. § 2, and accordingly they are cognizable under Title 1 V.I.C. § 4, which makes effective in the Virgin Islands the Restatement, Conflicts of Laws § 123 provision that a common law marriage “is valid everywhere” if entered into “in a state in which such a marriage is valid.”
In so holding, the District Court said:
“I find nothing in the statutory or decisional law in the Virgin Islands to indicate that a common law marriage, even if prohibited, is against the public policy of this forum. Certainly, common law marriages are not numbered among those declared to be void (see 16 VIC section 1) or even voidable (see 16 VIC section 2). Accordingly, section 123 of the restatement is to be given effect. , . . ”
We are in accord with the District Court’s holding that the public policy of the Virgin Islands does not preclude recognition of a common law marriage entered into by its domiciliaries in a state where such a marriage is valid.
The sum of the appellant’s challenge to the District Court’s holding is that the Virgin Islands statutory requirement that marriages shall be solemnized “clearly shows a strong public policy” with respect to common law marriages entered into in other jurisdictions.
The stated contention disregards the fact that Title 16 V.I.C. § 4, which concerns marriages entered into by Virgin Islands domiciliarles “in another jurisdiction” declares such marriages “illegal” only if they are “declared illegal by sections 1 and 2 of this title.” Sections 1 and 2, respectively, define categories of “Void” and “Voidable” marriages. They do not, as earlier noted, include common law marriages.
Failure of § 4 of Title 16 to include common law marriages between Virgin Islands domiciliaries, “in another jurisdiction,” in the category of “illegal” marriages, is of significant dimension in ascertaining the Islands’ public policy with respect to such marriages.
The general rule is that in the absence of an express provision to the contrary, a common law marriage, valid in the state in which it is entered into, will be held valid by the courts of the domicile even though such a marriage could not be entered into in the domicile by force of its statutory law. Cf. Loughran v. Loughran, 292 U.S. 216, 223 n. 3, 54 S.Ct. 684, 78 L.Ed. 1219 (1934); see Albina Engine and Machine Works v. O’Leary, 328 F.2d 877 (9 Cir.), cert. denied, 379 U.S. 817, 85 S.Ct. 35, 13 L. Ed.2d 29 (1964).
The circumstance that under Title 16 V.I.C. § 32 a common law marriage cannot be entered into in the Virgin Islands “does not make it so offensive to local policy” so as to preclude recognition of a common law marriage entered into in a state where such a marriage is valid. See Restatement, Conflict of Laws § 134, comment (b) (1934).
For the reasons stated the Decree of the District Court will be affirmed.
. Common law marriages were valid in Florida at the time. They no longer are since Florida enacted a law in 1967 which provided that common law marriages entered into after January 1, 1968 would not be valid. (Ch. 67-571; F.S.1967, § 741.211 F.S.A.)
. In 1965, a common law marriage could be established in Florida by evidence of an agreement between the parties per verba de praesenti to be husband and wife. Phillips v. Phillips, 215 So.2d 83, 84 (Fla. App.1968).
. See, too : Gainey v. Brotherhood of Railway and Steamship Clerks, etc., 406 F.2d 744, 745-746 (3 Cir. 1968), cert. denied, 394 U.S. 998, 89 S.Ct. 1590, 22 L.Ed.2d 775 (1969) ; Speyer, Inc. v. Humble Oil and Refining Company, 403 F.2d 766, 769-770 (3 Cir. 1968), cert. denied, 394 U.S. 1015, 89 S.Ct. 1634, 23 L.Ed.2d 41 (1969) ; Robert H. Fox Co. v. Keystone Driller Company, 232 F.2d 831, 834 (3 Cir. 1956).
. In re Estate of Alcala, 188 So.2d 903 (Fla.App.1966).
. Metropolitan Life Insurance Company v. Holding, 293 F.Supp. 854, 857 (E.D.Va. 1968).
. Title 16 V.I.C. § 32 (Supp.1972) provides :
“Persons solemnizing marriage
“No marriage shall be valid unless solemnized by—
(1) a clergyman or minister of any religion whether he resides in the Virgin Islands or elsewhere in the United States; or
(2) witnessed by a Local Spiritual Assembly of the Bahai is according to the usage of their religious community; or
(3) any judge or any court of record.”
. Title 16 V.I.C. § 1, “Void marriages,” prohibits and declares void from the beginning marriages between certain related persons, and bigamous marriages.
. Title 16 V.I.C. § 2, “Voidable marriages,” provides:
“A marriage is illegal and shall be void from the time its nullity is declared by decree, if either party thereto — •
“(1) is an idiot or a person adjudged a lunatic;
“(2) has consented thereto by reason of fraud or force;
“(3) is incapable, from physical causes, of entering into the marriage itself ; or
“(4) is under the age of consent, which is hereby declared to be 16 years of age for males and 14 years for females.”
. Title 1 V.I.C. § 4 provides:
“The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, ns generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands in cases to which they apply, in the absence of local laws to the contrary.”
The cited sections became effective September 1, 1957.
. Restatement, Conflict of Laws § 123 (1934) provides:
“A marriage without any formal ceremony is valid everywhere if the acts alleged to have created it took place in a state in which such a marriage is valid.”
Accord, Restatement, Second, Conflict of Laws § 283, comments (f), (g) (approved May 23, 1969).
. Title 16 V.I.C. § 4, “Entering into prohibited marriages outside the Virgin Islands,” provides:
“If any marriage declared illegal by sections 1 and 2 of this title is entered into in another jurisdiction by persons having and retaining their domicile in the Virgin Islands, such marriage shall be deemed illegal, and may be decreed void in the same manner as if it had been celebrated within the Virgin Islands.”
. Restatement, Conflict of Laws § 134, comment (b) states:
“The mere fact that the foreign marriage would have been contrary to the statute of the forum bad it occurred within the state, does not make it so offensive to local policy as to be refused enforcement.”
Question: What party initiated the appeal?
A. Original plaintiff
B. Original defendant
C. Federal agency representing plaintiff
D. Federal agency representing defendant
E. Intervenor
F. Not applicable
G. Not ascertained
Answer:
|
songer_source
|
F
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the forum that heard this case immediately before the case came to the court of appeals.
NATIONAL LABOR RELATIONS BOARD, Petitioner, v. SEA-LAND SERVICE, INC., et al., Respondents.
No. 6442.
United States Court of Appeals First Circuit.
Heard Sept. 13, 1965.
Decided March 2, 1966.
Morton Namrow, Atty., Washington, D. C., with whom Arnold Ordman, Gen. Counsel, Dominick L. Manoli, Associate Gen. Counsel, Marcel Mallet-Prevost, Asst. Gen. Counsel, and Melvin J. Welles, Atty., N. L. R. B., Washington, D. C., were on brief, for petitioner.
Herbert Burstein, New York City, with whom Zelby & Burstein,. New York City, was on brief, for respondents.
Before ALDRICH, Chief Judge, J. WARREN MADDEN, Senior Judge and JULIAN, District Judge.
Sitting by designation.
JULIAN, District Judge.
This case is before the Court on petition of the National Labor Relations Board for the enforcement of its order against Sea-Land Service, Inc., and Sea-Land of Puerto Rico, a division of Sea-Land Service, Inc., herein referred to collectively as respondent or as Sea-Land.
This Court has jurisdiction under Section 10(e) of the National Labor Relations Act, as amended (61 Stat. 136, 73 Stat. 519, 29 U.S.C. §§ 151 et seq.). The Board’s jurisdiction is not contested.
The Board found that the respondent violated Section 8(a) (1), (2), (3), and (5) of the Act and entered its order accordingly. The respondent attacks the validity of the order on the general ground that there is no probative evidence of record to support the Board’s findings, and on other specific grounds which will be dealt with later.
The following is a summary of the evidence upon which the Board’s findings are based:
In 1960, Sea-Land, a corporation controlled by McLean Industries, Inc., began operating a service to Puerto Rico with ships known as C-2’s which transport truck trailers containing cargo. Since the inception of this service Sea-Land has had collective bargaining relationships with the International Longshoremen’s Association (ILA), its District Council in Puerto Rico, and ILA Locals 1575 and 1855 at San Juan and Ponce, respectively, covering stevedoring and other employees working at its terminals in those ports. In addition to installations at Ponce and San Juan, Sea-Land maintains terminal facilities at various ports in continental United States where it has collective-bargaining relationships With the ILA and its various subdivisions.
Prior to the events herein, a Sea-Land C-2 carrying cargo from Newark, New Jersey, to Puerto Rico customarily stopped each week at San Juan to unload trailer vans for the San Juan area. It then proceeded to Sea-Land’s Ponce dock where the trailer vans of Ponce cargo were unloaded by Sea-Land’s Ponce employees who were members of ILA Local 1855. Occasionally, because of weather conditions or economic reasons, the Ponce stop was omitted, and the weekly C-2 returned directly to Newark after calling at San Juan. In September, 1960, Sea-Land established the practice of sending a 25-man gang of its Ponce stevedores to San Juan to unload the trailer vans destined for the Ponce area whenever a C-2 was rescheduled to return directly to Newark without making its usual stop at Ponce. On the following day, Sea-Land would employ another 25-man gang at its warehouse in Ponce to strip the trailer vans which had been hauled over the road from San Juan. In 1961, Ponce stevedore gangs were sent to San Juan on seven occasions.
On September 11, 1961, ILA leaders met in San Juan with officers of its newly acquired Union de Trabajadores de Juelles (UTM) locals and those ILA locals which had remained ILA affiliates during ILA’s tenure as an independent union and while it had been on probationary status before rejoining the AFL-CIO. Formerly, the UTM locals in Puerto Rico had been constituent locals of the International Brotherhood of Longshoremen (IBL), but they withdrew from the IBL and affiliated with the ILA when the latter regained its full status as an international union in September, 1961. The purpose of the meeting was to persuade the original ILA locals in all of the Puer-to Rico ports, except San Juan, to accept a plan whereby the ILA locals at each port would merge with their UTM counterparts into single ILA locals to be managed by the respective officials of the former UTM locals. In the port of San Juan, ILA Local 1575 and UTM-ILA Local 1740 were to continue to function separately until a secret ballot election could be held among the members of ILA Local 1575 to decide upon the merger. At Ponce, ILA Local 1855, with about 100 members, was to merge with UTM-ILA Local 1903, with a membership of 1,200, into a single local to be administered by Pedro Rosas, the UTM local’s president. At this meeting, Ramon Mejias, the president of ILA Local 1855, insisted that he could not sign the merger agreement without authorization from his local.
Subsequently, the members of Local 1855 met, rejected the merger, voted to disaffiliate from the ILA, and to form Insular Labor Organization (ILO), an independent labor organization. On September 14, 1961, ILO petitioned the Board for certification as the collective-bargaining representative of a unit of Sea-Land’s stevedores and related employees at Ponce, and ILA and its Puerto Rico district council were permitted to intervene in the proceeding. On June 8, 1962, the Board directed that an election be held among Sea-Land’s employees in the unit proposed by ILO. Thereafter, a Board election was set for July 2, 1962, with ILO and the ILA unions appearing on the ballot.
On June 22,1962, Sea-Land’s stevedore supervisor, Joe Braseau, told Ponce stevedore employees Virgilio Echevarra, Efrain Jiminez, and Celestino Perez that if ILO won the impending Board election, no Sea-Land ships would come to Ponce and Ponce stevedore gangs would no longer be sent to San Juan to handle Ponce cargo. ILO president Ramon Mejias immediately brought Braseau’s warning to the attention of Luis Mon-tero, Sea-Land’s terminal manager at Ponce, but no action was taken by Sea-Land to disclaim any influence ILA might exert upon Sea-Land’s operations if ILO won the Board election.
In a letter dated June 26, 1962, Ramon Mejias complained to Montero about reports that the next C-2, expected to arrive in Ponce on June 29, would not make its scheduled Ponce stop and that this circumstance would be detrimental to the ILO’s interests and serve to strengthen ILA’s cause in the forthcoming Board election. Montero replied on June 27 that Sea-Land, in fact, had rescheduled the next C-2 to by-pass Ponce.
On June 28, 1962, before the customary 25-man gang from Ponce had arrived in San Juan, Eusebio Moreno, ILA vice president for Puerto Rico, and Guillermo Ortiz, president of ILA Local 1575, told Frank Bailey, Sea-Land’s manager and chief executive official in Puerto Rico, that Sea-Land’s gang of Ponce employees would be thrown into the river if they appeared in San Juan to unload the rescheduled C-2. Captain Bradley, however, the then president of ILA, who was also present, promptly interceded to countermand Moreno’s and Ortiz’s statement, and the ILA officials advised Bailey that they would “allow [the Ponce gang] to come.”
On the same day, Captain Bradley approached Ramon Mejias, who had been sent to San Juan with Sea-Land’s customary Ponce gang, and demanded that ILO’s president withdraw ILO’s representation petition and reaffiliate with the ILA, but Mejias refused to do so.
Two days before the election, Captain Bradley appeared in Ponce and told the ILO membership that they would lose the stevedoring work at Ponce if they insisted upon maintaining their independent organization by voting for ILO in the Board election.
ILO won the Board election on July 2, 1962, receiving 77 votes to 3 votes for the ILA unions, and was certified by the Board as the collective-bargaining representative of Sea-Land’s employees at Ponce on July 11, 1962.
Since the Board election, no C-2 ships of Sea-Land have cálled at Ponce, although Sea-Land continued to advertise the stop on its schedule and in announcements to customers and the general public.
In addition, Sea-Land discontinued its established practice of sending Ponce stevedores to San Juan to unload the C-2 trailer vans destined for overland delivery to Ponce, and such cargo has been unloaded only by employees represented by ILA unions in San Juan. The officers of ILO repeatedly advised Sea-Land representatives that ILO members were willing to go to San Juan to do this work, but they were told by Sea-Land’s terminal manager at Ponce, Montero, that he had orders from Manager Bailey that no more ILO gangs were to be sent to San Juan.
After the Board election, Sea-Land also reduced the size of the warehouse gang, which strips the trailer vans that arrived from San Juan, to 8 to 10 employees, instead of using the customary gang of 25 employees.
In August or early September, 1962, another variety of trailership known as a C-4, which also has some space for conventional cargo, began to arrive weekly at Ponce carrying Sea-Land’s cargo formerly transported by Sea-Land’s C-2’s. Sea-Land leased the C-4’s from a sister corporation, Waterman Steamship Corporation and Waterman Steamship Corporation of Puerto Rico (Waterman), pursuant to “bare-boat” charters, whereby Sea-Land has exclusive control over their use, personnel and all other aspects of the C-4’s operations, including loading and unloading. However, these ships have arrived at Waterman’s facilities in Ponce where the unloading and loading work has been assigned to Waterman’s employees who are members of UTM-ILA Local 1903.
About the middle of July, 1962, shortly following its certification by the Board, ILO submitted a proposed stipulation to Sea-Land which provided, among other ' things, for recognition of ILO, a union shop, and a dues checkoff. The stipulation was to remain in effect until a complete bargaining agreement could be signed.
Meanwhile, Montero, Sea-Land’s terminal manager at Ponce, had put off the ILO president’s requests for a meeting on July 10 with the statement that he would speak to his superiors in San Juan, but ILO heard nothing further. Subsequently, after additional demands for the meeting, Montero told Mejias that he had no instructions to meet with ILO.
On July 15, 1962, three days after Montero had received a copy of the Board’s certification of ILO, Montero told Mejias that Ponce gangs of stevedores would no longer be sent to San Juan. At the same time, Sea-Land removed the tractors which it used at its Ponce terminal to haul trailer vans and sent them to San Juan.
On the morning of July 19, 1962, Mejias complained to Montero, as he had done continually in the past, about the failure to send Sea-Land’s C-2 ships to Ponce, Sea-Land’s failure to send ILO gangs to Ponce, the reduction in the size of its warehouse gangs, and now the removal of Sea-Land’s tractors to San Juan. Montero replied again that he knew nothing about these matters since his instructions came from San Juan.
Later the same morning, upon receiving a letter from Sea-Land rejecting ILO’s proposed stipulation, the ILO president assembled ILO’s members. In the ensuing discussion, the membership declared their dissatisfaction with all of Sea-Land’s recent operational changes which had deprived them of work, and voiced their vexation at Sea-Land’s rejection of ILO’s proposed stipulation and its requests for negotiations. It was decided that ILO would demand that Sea-Land reestablish the normal state of affairs, and sit down to negotiate.
On the afternoon of July 19,1962, ILO began to picket Sea-Land’s facilities at Ponce. The pickets carried signs demanding, inter alia, that “ships come to Ponce,” that Ponce “gangs be sent to San Juan,” and that Sea-Land “sit down and negotiate.” On the following day ILO was persuaded to terminate the picketing by public officials at Ponce who informed ILO that Sea-Land, in a meeting with them that day, had promised to have Manager Bailey meet with the ILO president in San Juan on July 21 and had assured the public officials that any changes in Sea-Land’s Ponce operations were only of a temporary nature.
Although ILO’s president, Ramon Mejias, appeared in San Juan on July 21 for the anticipated meeting with Sea-Land, Manager Bailey refused to meet with him until ILO submitted a complete contract proposal. Accordingly, on July 24, 1962, ILO sent Sea-Land a complete contract.
Two days later, Montero advised the ILO president that, in accordance with Bailey’s instructions, he was discharged from his position of checking cargo vans hauled over the road from San Juan. On July 30, 1962, David Mejias, a son of ILO’s president and himself an ILO officer, was notified by letter that Sea-Land was relieving him from his “position of Chief Clerk.”
Whereupon, a special ILO meeting was convened, and the members were advised of Sea-Land’s latest actions. During the meeting, the ILO president reiterated ILO’s grievances concerning Sea-Land’s operational changes, reminding the membership that Sea-Land had made no effort to restore their work. He also pointed out that Sea-Land had reneged on its promise to meet with ILO on July 21 and had failed even to acknowledge ILO’s contract proposal submitted to Sea-Land on July 24. It was decided that Ramon and David Mejias would ask Sea-Land again to recognize ILO, to insist that Sea-Land acknowledge ILO’s contract proposal and to clarify the notice given David.
When the two ILO officers discovered that Montero was not available to negotiate and were told by the Sea-Land official next in charge at Ponce that he had no authority to hear ILO’s grievances, ILO began to picket Sea-Land once again. In addition to signs demanding the reinstatement of David Mejias, the ILO pickets carried signs bearing the same legends as those used during the two-day strike earlier in July.
After the picketing had begun on July-30, 1962, Sea-Land officials called the ILO president from San Juan and asked him what had provoked the strike. Mejias proceeded to enumerate ILO’s grievances to J. ft, Prado, Sea-Land’s second highest offical in Puerto Rico. He then asked Prado to withdraw the letter to his son, and Prado replied that the letter “was an internal affair of the company.” He also cautioned Mejias that ILO “was a small new union.”
On the following morning, David Mejias was given a second letter by Sea-Land, explaining that he had not been discharged, but merely demoted. Later that morning, ILO informed Sea-Land’s Ponce terminal manager that it would continue to picket until David was restored to his previous position and Sea-Land agreed to negotiate the other ILO grievances.
On the afternoon of July 31,1962, pursuant to instructions from Bailey, Mon-tero called on the UTM-ILA Local in Ponce to furnish men for Ponce warehouse jobs formerly performed by ILO members, and Sea-Land has continued to obtain its warehouse personnel from this source, with the exception of a few ILO members who applied for work in person to Montero. Also, on July 31, 1962, Sea-Land discharged its ILO gatemen and replaced them with an independent guard service.
On August 1, 1962, Ramon Mejias was given a letter from Manager Bailey stating, that ILO’s July 24 contract proposal was being translated into English as it had to be sent to “our Labor Relations officials in Newark.” Bailey went on to say that “[a]s soon as a study of this contract has been finished” ILO would be notified with regard to further negotiations.
On August 1 or 2, 1962, the ILO membership authorized its president to petition Local 901, International Brotherhood of Teamsters, Chauffeurs and Warehousemen, Independent (Teamsters) to accept members of ILO into that local and to bargain on its behalf so long as such action did not jeopardize the certification which the Board had issued to ILO. The Teamsters agreed to ILO’s request; and when it apprised Sea-Land of this development on August 2, 1962, Manager Bailey told the Teamsters that if ILO wished the Teamsters to bargain for it, there would have to be an amendment to the Board certification issued to ILO. On August 28, 1962, the Teamsters informed ILO and Sea-Land that it had abandoned its effort to bargain on behalf of ILO.
In the meantime, on August 24, 1962, Sea-Land refused a request of ILO for a bargaining meeting. However, after the Teamsters had withdrawn from the scene, ILO and Sea-Land representatives met on August 30, 1962. At this meeting, Sea-Land rejected ILO’s July 24 contract proposal, claiming that the working conditions described therein were in general terms and did not specifically relate to Sea-Land’s three types of work: warehouse, trailership, and conventional cargo. Sea-Land agreed to submit a contract proposal. During the meeting, the ILO president asked that the strikers be reinstated while negotiations proceeded.
On September 8, 1962, the ILO president wrote to Manager Bailey, reminding him of Sea-Land’s August 30 commitment to present a counterproposal. He also requested that Sea-Land’s representatives meet with him on September 10. On September 11, 1962, Mejias sent Sea-Land a telegram, insisting that Sea-Land resume negotiations.
On September 17, 1962, ILO forwarded to Sea-Land a revised contract in English, containing provisions applying to warehouse work, trailership, and conventional cargo operations. Two days later, Sea-Land informed ILO that it was studying the revised contract and would “notify [ILO] when this is completed.”
On September 21, 1962, Sea-Land representatives failed to appear for a bargaining meeting between the parties which had been arranged by the Puerto Rico Department of Labor at its offices in San Juan.
On October 4, 1962, ILO advised Sea-Land by letter that all of its members were “ready and willing to return to their former jobs without imposing any conditions of any kind.” Sea-Land replied on October 9, 1962, that the ILO strikers had been replaced by the “employment of other labor” and that it was “not in a position at the present time to remove these men.”
A day earlier, ILO’s attorney also informed Sea-Land by letter that ILO members were “ready, willing and able to come to San Juan or any other place designated by you to handle the loading and unloading of Ponce cargo in the same manner as was previously done.” On October 11, Sea-Land answered that its “[c]argo destined to Ponce has been turned over to Waterman of Puerto Rico and is moving to the port of Ponce on the C-4 vessels [which] eliminates * * * our responsibility for the handling of this Ponce cargo.”
The parties met on three subsequent occasions before the Board hearing, but no final agreement was reached.
The Board’s ultimate findings of fact were these:
The warning of a supervisor of respondent on June 22, 1962, that respondent’s Ponce employees would lose their jobs if they voted for ILO to be their collective-bargaining representative in the July 2 election, and respondent’s indifference and stalling with respect to requests of the ILO to meet to discuss grievances and bargain after the Ponce employees had selected ILO as collective-bargaining representative and the Board had so certified, has interfered with, coerced and.restrained the stevedores and related employees of the respondent at its Ponce terminal in the exercise of their right to join the ILO and to choose it as their collective-bargaining representative.
Before and after the election of July 2, 1962, the respondent knew of the competitive situation' existing between ILO and ILA. Respondent’s stevedores and related employees at its terminals in San Juan and at ports in continental United States, with the exception of the West Coast, are represented by ILA unions. The respondent by its conduct has contributed support to ILA unions in their efforts to bring about the absorption by UTM Local 1903 of the ILO members it employs at Ponce and to supplant ILO as the bargaining representative of these employees. An object of the respondent’s conduct has been and is to support ILA unions in their contest with ILO. There is no evidence that a compelling economic reason rather than a discriminatory one caused respondent to make the operational changes it made about June 29 and July 5, and to assign in August or early September, 1962, the handling of the trailer van cargo as well as the conventional cargo of the C-4’s at Ponce to Waterman with its UTM Local 1903 member employees rather than handle it directly with its employee members of ILO. Respondent’s contention that it could not handle directly, with its employee members of ILO, the lesser tonnage of conventional cargo carried by the C-4’s, an assignment basic to any cargo handling, and the type of work done by ILO members before they began handling the trailer vans in 1958, is a specious contention. In fact, respondent has asked ILO since the latter’s selection as bargaining representative to include in its contract proposals a provision covering the work of handling conventional cargo. ILO is certified to represent all of respondent’s employees loading and unloading its cargo at Ponce. Respondent’s employees who are members of ILO at Ponce have been diseriminatorily denied the work of handling the cargo of the C-4’s, the substituted service for the C-2’s, and the cargo of the C-2’s that respondent may bring to Ponce.
Before and after the election, respondent diseriminatorily denied employment to its approximately 100 stevedores and related employees at Ponce, who are listed in Appendix A to the Board’s order, to discourage membership in ILO and acceptance of it as collective-bargaining representative and to encourage membership in UTM Local 1903 and the selection of ILA, ILA District Council, and UTM Local 1903 as collective-bargaining representative. This conduct included the discontinuance from about July 5, 1962, of the practice of sending gangs of Ponce employees to San Juan to handle the cargo of its C-2’s scheduled to dock at Ponce but rescheduled to return to Newark directly from San Juan; the discontinuance of bringing its C-2 ships to Ponce from about June 29, 1962, until a date in August or early September, 1962, when it substituted its C-4 ship service to Ponce for the C-2 service; its failure from about July 5, 1962, to employ full gangs of employee members of ILO for warehouse work; and its failure to assign to its employees who are members of the ILO the work of handling the cargo of the C-4 ships at Ponce since the time these ships first docked at Ponce in August or early September, 1962, and the employment of members of UTM Local 1903 to do this work through the fiction of engaging Waterman, its sister subsidiary of McLean Industries, to handle it. Waterman’s stevedores are members of UTM Local 1903.
Montero, upon instructions from Bailey, discharged Mejias, president of ILO, from his job as hatch tender checking vans hauled overland by independent truckers. The discharge occurred five days following Bailey’s failure to meet and bargain with Mejias as he had promised to do the previous day. Respondent refused to reinstate the warehouse workers who engaged in the strike of July 30, 1962, after they made an unconditional offer to return to work on October 4, 1962. That strike was an unfair labor practice strike. ILO member employees of respondent did not strike against jobs of loading and unloading C-2 cargo at Ponce and San Juan or C-4 cargo at Ponce, and therefore have not been required to offer to return to these jobs. Respondent has discrimina-torily deprived them of this work since the beginning of July, 1962, a month before the strike. An object of the July 30 strike by the warehouse workers and the protest picketing by the remainder of the ILO member employees of respondent was to persuade respondent to return its ILO member employees to the loading and unloading work at San Juan and Ponce. The strike and protest of July 30 was directed against grievances including respondent’s failure to meet and negotiate with ILO.
Respondent failed to negotiate with ILO the discontinuance of sending gangs of its ILO employees to San Juan on and after July 5,1962, and the discontinuance of bringing its C-2 cargo ships to Ponce on and after June 29, 1962; the employing of less than full gangs in warehouse work at Ponce since about July 5, 1962; and the assignment of the work of handling the C-4 cargo at Ponce since August or early September, 1962. These changes in respondent’s operations affected employees’ wages, hours, and working conditions, and should have been discussed with ILO which was the certified collective-bargaining representative of all the respondent’s employees loading and unloading the cargo of its ships in the port of Ponce.
On the basis of the foregoing findings of fact and the entire record, the Board reached the following conclusions of law:
1) Respondent interfered with, and coerced and restrained employees in violation of Section 8(a) (1) of the Act.
2) Respondent contributed support to ILA, ILA District Council, and UTM Local 1903 in violation of Section 8(a) (2) and (1).
3) Respondent violated Section 8(a) (3) and (1) by discriminating against employees with respect to their hire and tenure of employment, and by refusing to reinstate unfair labor practice strikers after they made an unconditional offer to return to work, to discourage membership in and representation by ILO, and encourage membership in UTM Local 1903 and representation by ILA, ILA District Council, and UTM Local 1903.
4) Respondent in violation of Section 8(a) (5) and (1) refused to negotiate with ILO, the Board-certified collective-bargaining representative of its stevedore and related employees at Ponce, the discontinuance of certain operations on June 29, 1962, July 5, 1962, or thereabouts, and the placing in effect in August or early September, 1962, of a new cargo service to Ponce, all of which affected the wages, hours, working conditions, and other conditions of employment, of the employees represented by ILO.
The order issued by the Board in substance requires the respondent to cease and desist from a) interfering with the right of its employees to become members of the ILO and to select that union as their collective-bargaining representative; b) contributing support to ILA and ILA District Council, and to UTM Local 1903 which is affiliated with ILA; c) discouraging membership in ILO and encouraging membership in UTM Local 1903 by means of discriminatory employment practices against ILO members and in favor of members of UTM Local 1903; and d) refusing to bargain in good faith with ILO as the certified exclusive representative of its stevedore and related employees at Ponce in regard to changes in operations that affect wages, hours, and working conditions of these employees.
Affirmatively, the order in substance requires the respondent a) to offer to the employees listed in Appendix A of the order, immediate and full reinstatement to their former or substantially equivalent employment and to make each of them whole for any loss of earnings suffered by reason of the discrimination against them, and b) to bargain collectively in good faith with ILO as the certified exclusive representative of employees at Ponce in regard to wages, hours, working conditions, and other bargainable matters, including changes in operations or services at Ponce affecting wages, hours, working conditions, or other conditions of employment.
The standard for judicial review is set down in Section 10(e) of the National Labor Relations Act (29 U.S.C. § 160(e)) which provides that the “findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” This was construed in Universal Camera Corp. v. National Labor Relations Board, 1951, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, to require affirmance of the findings of the Board if, taking the record as a whole, they are supported by substantial evidence, that is, “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” The following statement of the Supreme Court is also pertinent:
“It has now long been settled that findings of the Board, as with those of administrative agencies, are conclusive upon reviewing courts when supported by evidence, that the weighing of conflicting evidence is for the Board and not for the courts, that the inferences from the evidence are to be drawn by .the Board and not by courts, save only as questions of law are raised and that upon such questions of law, the experienced judgment of the Board is entitled to great weight.” Medo Photo Supply Corp. v. N. L. R. B., 321 U.S. 678, 681, fn. 1, 64 S.Ct. 830, 832, 88 L.Ed. 1007 (1943).
The Court has also stated that “the possibility of drawing either of two inconsistent inferences from the evidence did not prevent the Board from drawing one of them.” N. L. R. B. v. Nevada Consol. Copper Corp., 316 U.S. 105, 106, 62 S.Ct. 960, 961, 86 L.Ed. 1305 (1942).
The respondent’-s contention that the order is invalid on the general ground that there is no probative evidence of record that respondent violated Section 8(a) (1), (2), (3), and (5) of the Act is not well founded. Upon a careful reading and consideration of the entire record, and applying the required standard of review, the Court is satisfied that the findings and conclusions of the Board that respondent violated Section S(a) (1), (2), (3), and (5) of the Act are supported by substantial evidence on the record considered as a whole.
Respondent claims that pre-election interference and coercion cannot be attributed to the respondent.
On the evidence, the Board was justified in finding that Braseau was a supervisor within the meaning of the Act, and that the threat made by him was attributable to respondent. The record discloses:
1) That Joe Braseau was a “stevedore supervisor.” (Bailey, chief executive offical of the company in Puerto Rico, so testified.)
2) That he was the direct superior of Perez, who was foreman in charge of a gang of 21 employees working on the hatches.
3) That Joe Braseau made the threat that no more ships would come to Ponce if the men voted for the ILO. The threat was made to his subordinate, Perez, in the presence of other employees.
4) That the threat was reported by Ramon Mejias to Montero, and that no action was taken to clarify company policy or disavow the threat. This evidence, combined with the fact
that the threat was, in effect, carried out — after selection of the ILO no C-2’s were allowed to land at Ponce — is sufficient support for the Board finding of pre-election interference and coercion on the part of the company. In the case of N. L. R. B. v. Falls City Creamery Co., 1953, 8 Cir., 207 F.2d 820, the Board found coercive a statement by a foreman to an employee to the effect that if she were to tell anyone that she had joined the union she would probably be fired. The Court made it clear that
“It is essential to the spirit and intent of the [National Labor Relations] Act that management itself should not only refrain from any conduct which would be directly conducive to restraint of its employees in the free exercise of their rights under the Act, but also that no supervisory officers or employees of the management, whose duties, responsibility, and relationship to management are such that employees may reasonably assume their conduct and statements originate from and express the views of management, should bring about such coercion or restraint by their conduct.” Id., at 829.
In the case of N. L. R. B. v. Franks Bros., 1943, 1 Cir., 137 F.2d 989, an employer was held liable for statements of “supervisory personnel” in spite of express instructions by the employer that the supervisors refrain from interfering with the employees in their union activities. The basis of liability is that the employer may gain from the supervisor’s statements an “advantage in the bargaining process of a kind which the Act proscribes.” Id., at 992. The rule was specifically laid down by the Supreme Court in H. J. Heinz Co. v. N. L. R. B., 1941, 311 U.S. 514, 521, 61 S.Ct. 320, 323, 85 L.Ed. 309. The Court held that the Board could take action against the employer
“where petitioner [employer], when advised of the participation of his supervising employees in the organization campaign, took no step, so far as appears, to notify the employees that those activities were unauthorized, or to correct the impression of the employees that support of the Union was not favored by petitioner and would result in reprisals. From that time on the Board could have found that petitioner was as responsible for the effect of the activities of its foremen and group leaders upon the organization of the Association as if it had directed them in advance.”
Respondent argues that the strike of July 30 was not an unfair labor practice strike and therefore was not a protected activity. However, applying the required standard of review, the Board’s findings of unfair labor practices on the part of the respondent are adequately supported by substantial evidence. The bases for such findings included the following :
a) Warning to stevedores on July 22, 1962, that they would lose jobs if they selected ILO.
b) Indifference and stalling with respect to requests for bargaining meetings.
c) Support to ILA by discontinuing C-2 sailings to Ponce, changing work assigning practices, diverting work to ILA.
d) Unilateral change of operating procedures without negotiation with ILO.
e) Discrimination in depriving ILO members of work.
Furthermore, despite some evidence t.o the contrary, there is ample evidence in the record to support the Board’s finding that the purpose behind the strike was to redress these unfair labor practices as well as the demotion of David Mejias. For example:
1. Montero testified that Ramon Mejias advised him after a union meeting on July 31 that “the membership of the union had unanimously accorded not to work until David’s position title and job be given back to him and until the company agreed to sit down to negotiate with Moncho.” (Emphasis added.) “Moncho” refers to Ramon Mejias.
2. An affidavit of Ramon Mejias states that “Because of this [discharge of David] and because we had not heard from the company concerning our proposed contract the men went on
Question: What forum heard this case immediately before the case came to the court of appeals?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Court of Customs & Patent Appeals
H. Court of Claims
I. Court of Military Appeals
J. Tax Court or Tax Board
K. Administrative law judge
L. U.S. Supreme Court (remand)
M. Special DC court (not the US District Court for DC)
N. Earlier appeals court panel
O. Other
P. Not ascertained
Answer:
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sc_caseorigin
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046
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify the court in which the case originated. Focus on the court in which the case originated, not the administrative agency. For this reason, if appropiate note the origin court to be a state or federal appellate court rather than a court of first instance (trial court). If the case originated in the United States Supreme Court (arose under its original jurisdiction or no other court was involved), note the origin as "United States Supreme Court". If the case originated in a state court, note the origin as "State Court". Do not code the name of the state. The courts in the District of Columbia present a special case in part because of their complex history. Treat local trial (including today's superior court) and appellate courts (including today's DC Court of Appeals) as state courts. Consider cases that arise on a petition of habeas corpus and those removed to the federal courts from a state court as originating in the federal, rather than a state, court system. A petition for a writ of habeas corpus begins in the federal district court, not the state trial court. Identify courts based on the naming conventions of the day. Do not differentiate among districts in a state. For example, use "New York U.S. Circuit for (all) District(s) of New York" for all the districts in New York.
LURK v. UNITED STATES.
No. 669.
Argued May 4-5, 1961.
Decided May 29, 1961.
Eugene Gressman argued the cause and filed a brief for petitioner.
Oscar H. Davis argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Philip R. Monahan.
By special leave of Court, Francis M. Shea argued the cause for the Judges of the Court of Claims, as amici curiae. With him on the brief was Richard T. Conway.
Bennett Boskey filed a brief for Mark Coppedge, Jr., as amicus curiae, urging reversal.
Per Curiam.
The judgment of the Court of Appeals is reversed and the case is remanded to that court. Ellis v. United States, 356 U. S. 674.
Question: What is the court in which the case originated?
001. U.S. Court of Customs and Patent Appeals
002. U.S. Court of International Trade
003. U.S. Court of Claims, Court of Federal Claims
004. U.S. Court of Military Appeals, renamed as Court of Appeals for the Armed Forces
005. U.S. Court of Military Review
006. U.S. Court of Veterans Appeals
007. U.S. Customs Court
008. U.S. Court of Appeals, Federal Circuit
009. U.S. Tax Court
010. Temporary Emergency U.S. Court of Appeals
011. U.S. Court for China
012. U.S. Consular Courts
013. U.S. Commerce Court
014. Territorial Supreme Court
015. Territorial Appellate Court
016. Territorial Trial Court
017. Emergency Court of Appeals
018. Supreme Court of the District of Columbia
019. Bankruptcy Court
020. U.S. Court of Appeals, First Circuit
021. U.S. Court of Appeals, Second Circuit
022. U.S. Court of Appeals, Third Circuit
023. U.S. Court of Appeals, Fourth Circuit
024. U.S. Court of Appeals, Fifth Circuit
025. U.S. Court of Appeals, Sixth Circuit
026. U.S. Court of Appeals, Seventh Circuit
027. U.S. Court of Appeals, Eighth Circuit
028. U.S. Court of Appeals, Ninth Circuit
029. U.S. Court of Appeals, Tenth Circuit
030. U.S. Court of Appeals, Eleventh Circuit
031. U.S. Court of Appeals, District of Columbia Circuit (includes the Court of Appeals for the District of Columbia but not the District of Columbia Court of Appeals, which has local jurisdiction)
032. Alabama Middle U.S. District Court
033. Alabama Northern U.S. District Court
034. Alabama Southern U.S. District Court
035. Alaska U.S. District Court
036. Arizona U.S. District Court
037. Arkansas Eastern U.S. District Court
038. Arkansas Western U.S. District Court
039. California Central U.S. District Court
040. California Eastern U.S. District Court
041. California Northern U.S. District Court
042. California Southern U.S. District Court
043. Colorado U.S. District Court
044. Connecticut U.S. District Court
045. Delaware U.S. District Court
046. District Of Columbia U.S. District Court
047. Florida Middle U.S. District Court
048. Florida Northern U.S. District Court
049. Florida Southern U.S. District Court
050. Georgia Middle U.S. District Court
051. Georgia Northern U.S. District Court
052. Georgia Southern U.S. District Court
053. Guam U.S. District Court
054. Hawaii U.S. District Court
055. Idaho U.S. District Court
056. Illinois Central U.S. District Court
057. Illinois Northern U.S. District Court
058. Illinois Southern U.S. District Court
059. Indiana Northern U.S. District Court
060. Indiana Southern U.S. District Court
061. Iowa Northern U.S. District Court
062. Iowa Southern U.S. District Court
063. Kansas U.S. District Court
064. Kentucky Eastern U.S. District Court
065. Kentucky Western U.S. District Court
066. Louisiana Eastern U.S. District Court
067. Louisiana Middle U.S. District Court
068. Louisiana Western U.S. District Court
069. Maine U.S. District Court
070. Maryland U.S. District Court
071. Massachusetts U.S. District Court
072. Michigan Eastern U.S. District Court
073. Michigan Western U.S. District Court
074. Minnesota U.S. District Court
075. Mississippi Northern U.S. District Court
076. Mississippi Southern U.S. District Court
077. Missouri Eastern U.S. District Court
078. Missouri Western U.S. District Court
079. Montana U.S. District Court
080. Nebraska U.S. District Court
081. Nevada U.S. District Court
082. New Hampshire U.S. District Court
083. New Jersey U.S. District Court
084. New Mexico U.S. District Court
085. New York Eastern U.S. District Court
086. New York Northern U.S. District Court
087. New York Southern U.S. District Court
088. New York Western U.S. District Court
089. North Carolina Eastern U.S. District Court
090. North Carolina Middle U.S. District Court
091. North Carolina Western U.S. District Court
092. North Dakota U.S. District Court
093. Northern Mariana Islands U.S. District Court
094. Ohio Northern U.S. District Court
095. Ohio Southern U.S. District Court
096. Oklahoma Eastern U.S. District Court
097. Oklahoma Northern U.S. District Court
098. Oklahoma Western U.S. District Court
099. Oregon U.S. District Court
100. Pennsylvania Eastern U.S. District Court
101. Pennsylvania Middle U.S. District Court
102. Pennsylvania Western U.S. District Court
103. Puerto Rico U.S. District Court
104. Rhode Island U.S. District Court
105. South Carolina U.S. District Court
106. South Dakota U.S. District Court
107. Tennessee Eastern U.S. District Court
108. Tennessee Middle U.S. District Court
109. Tennessee Western U.S. District Court
110. Texas Eastern U.S. District Court
111. Texas Northern U.S. District Court
112. Texas Southern U.S. District Court
113. Texas Western U.S. District Court
114. Utah U.S. District Court
115. Vermont U.S. District Court
116. Virgin Islands U.S. District Court
117. Virginia Eastern U.S. District Court
118. Virginia Western U.S. District Court
119. Washington Eastern U.S. District Court
120. Washington Western U.S. District Court
121. West Virginia Northern U.S. District Court
122. West Virginia Southern U.S. District Court
123. Wisconsin Eastern U.S. District Court
124. Wisconsin Western U.S. District Court
125. Wyoming U.S. District Court
126. Louisiana U.S. District Court
127. Washington U.S. District Court
128. West Virginia U.S. District Court
129. Illinois Eastern U.S. District Court
130. South Carolina Eastern U.S. District Court
131. South Carolina Western U.S. District Court
132. Alabama U.S. District Court
133. U.S. District Court for the Canal Zone
134. Georgia U.S. District Court
135. Illinois U.S. District Court
136. Indiana U.S. District Court
137. Iowa U.S. District Court
138. Michigan U.S. District Court
139. Mississippi U.S. District Court
140. Missouri U.S. District Court
141. New Jersey Eastern U.S. District Court (East Jersey U.S. District Court)
142. New Jersey Western U.S. District Court (West Jersey U.S. District Court)
143. New York U.S. District Court
144. North Carolina U.S. District Court
145. Ohio U.S. District Court
146. Pennsylvania U.S. District Court
147. Tennessee U.S. District Court
148. Texas U.S. District Court
149. Virginia U.S. District Court
150. Norfolk U.S. District Court
151. Wisconsin U.S. District Court
152. Kentucky U.S. Distrcrict Court
153. New Jersey U.S. District Court
154. California U.S. District Court
155. Florida U.S. District Court
156. Arkansas U.S. District Court
157. District of Orleans U.S. District Court
158. State Supreme Court
159. State Appellate Court
160. State Trial Court
161. Eastern Circuit (of the United States)
162. Middle Circuit (of the United States)
163. Southern Circuit (of the United States)
164. Alabama U.S. Circuit Court for (all) District(s) of Alabama
165. Arkansas U.S. Circuit Court for (all) District(s) of Arkansas
166. California U.S. Circuit for (all) District(s) of California
167. Connecticut U.S. Circuit for the District of Connecticut
168. Delaware U.S. Circuit for the District of Delaware
169. Florida U.S. Circuit for (all) District(s) of Florida
170. Georgia U.S. Circuit for (all) District(s) of Georgia
171. Illinois U.S. Circuit for (all) District(s) of Illinois
172. Indiana U.S. Circuit for (all) District(s) of Indiana
173. Iowa U.S. Circuit for (all) District(s) of Iowa
174. Kansas U.S. Circuit for the District of Kansas
175. Kentucky U.S. Circuit for (all) District(s) of Kentucky
176. Louisiana U.S. Circuit for (all) District(s) of Louisiana
177. Maine U.S. Circuit for the District of Maine
178. Maryland U.S. Circuit for the District of Maryland
179. Massachusetts U.S. Circuit for the District of Massachusetts
180. Michigan U.S. Circuit for (all) District(s) of Michigan
181. Minnesota U.S. Circuit for the District of Minnesota
182. Mississippi U.S. Circuit for (all) District(s) of Mississippi
183. Missouri U.S. Circuit for (all) District(s) of Missouri
184. Nevada U.S. Circuit for the District of Nevada
185. New Hampshire U.S. Circuit for the District of New Hampshire
186. New Jersey U.S. Circuit for (all) District(s) of New Jersey
187. New York U.S. Circuit for (all) District(s) of New York
188. North Carolina U.S. Circuit for (all) District(s) of North Carolina
189. Ohio U.S. Circuit for (all) District(s) of Ohio
190. Oregon U.S. Circuit for the District of Oregon
191. Pennsylvania U.S. Circuit for (all) District(s) of Pennsylvania
192. Rhode Island U.S. Circuit for the District of Rhode Island
193. South Carolina U.S. Circuit for the District of South Carolina
194. Tennessee U.S. Circuit for (all) District(s) of Tennessee
195. Texas U.S. Circuit for (all) District(s) of Texas
196. Vermont U.S. Circuit for the District of Vermont
197. Virginia U.S. Circuit for (all) District(s) of Virginia
198. West Virginia U.S. Circuit for (all) District(s) of West Virginia
199. Wisconsin U.S. Circuit for (all) District(s) of Wisconsin
200. Wyoming U.S. Circuit for the District of Wyoming
201. Circuit Court of the District of Columbia
202. Nebraska U.S. Circuit for the District of Nebraska
203. Colorado U.S. Circuit for the District of Colorado
204. Washington U.S. Circuit for (all) District(s) of Washington
205. Idaho U.S. Circuit Court for (all) District(s) of Idaho
206. Montana U.S. Circuit Court for (all) District(s) of Montana
207. Utah U.S. Circuit Court for (all) District(s) of Utah
208. South Dakota U.S. Circuit Court for (all) District(s) of South Dakota
209. North Dakota U.S. Circuit Court for (all) District(s) of North Dakota
210. Oklahoma U.S. Circuit Court for (all) District(s) of Oklahoma
211. Court of Private Land Claims
212. United States Supreme Court
Answer:
|
songer_circuit
|
E
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
LIPSCOMB v. TENNESSEE COAL, IRON & R. CO. TENNESSEE COAL, IRON & R. CO. v. LIPSCOMB.
No. 13441.
United States Court of Appeals Fifth Circuit.
June 25, 1951.
William L. Hogue, Asst. U. S, Atty., John D. Hill, U. S. Atty., Birmingham, Ala., for appellant.
Andrew J. Thomas, Birmingham, Ala., for appellee.
Before HUTCHESON, Chief Judge, and BORAH and STRUM, Circuit Judges.
JOSEPH C. HUTCHESON, Chief Judge.
Brought to recover $3301.20, the difference between the pay of the position he was assigned to on his return from the service and the one he claims he was entitled to have been placed on, this is another in the long catalogue of suits which have been brought in vindication of the rights accorded returned veterans by the Selective Training and Service Act of 1940, as amended.
The claim in substance was: that on his re-employment by the defendant in February, 1946, after a leave of absence on military service since October, 1943, he should have been assigned to the position of lathe machine operator rough, or of roughing lathe helper; that instead, defendant reemployed him as crane operator, the same position he had had when he left; and that in doing so, it had, in violation of his rights under the act, deprived him of his seniority rights in favor of one Elrod who had succeeded him as craneman and had then been successively promoted to roughing lathe helper and machine operator.
While there were other defenses, the one relied on mainly below and entirely here is: that the re-employment of plaintiff in February, 1946, in his former position was not in derogation of, but in compliance with, the act; that however, by virtue of a written agreement of date June 10, 1946, between defendant and the United Steel Workers Union, the recognized bargaining agent, plaintiff became entitled, within fifteen days thereafter, to be placed in the position of roughing lathe helper with seniority in such position from November 21, 1943, and, because he was not assigned to that position until February 20> 1948, which position he now holds, he was entitled to recover wages lost 'by the delay in assigning him to it in a sum of which was agreed to as $119.87, less payroll deductions.
The case was tried to the court without a jury, and, the evidence all in, the district judge, on full findings of fact and of law, held: that plaintiff, upon his return was not, and would not have been except after six months’ experience as roughing lathe helper, qualified to perform the duties, and he was, therefore, not entitled to be then employed as roughing lathe operator; but that he was qualified however, to- perform, and should have been assigned to the job of, roughing lathe helper with seniority on that job from November, 1943, and was entitled to recover the agreed wages lost by not being earlier assigned to that job. He found, too: that, under the practice and custom recognized by the defendant and its employees and prevailing in that part of the defendant’s plant where plaintiff was employed, seniority as to both promotion and increase or decrease in forces operated on the individual and separate job positions or levels in the line of promotion; that 'because by the time plaintiff could have qualified as a roughing lathe operator, Byron Elrod, during the period after plaintiff’s return, acquired age on the job as roughing lathe operator, which gave El-rod job seniority as roughing lathe operator, before plaintiff could have qualified as roughing lathe operator; and that plaintiff was, therefore, not entitled to seniority over Elrod as to that position.
He, therefore, entered a judgment for plaintiff: (1) that plaintiff recover the sum of $115.25, less $15.59; (2) that the defendant be, and it is hereby required to maintain plaintiff’s seniority as a roughing lathe helper ahead of and superior to that of Byron V. Elrod insofar as said seniority concerns increase or decrease in forces, but the defendant is not required to maintain plaintiff’s seniority with respect to promotion to the position of roughing lathe operator ahead of, or superior to, that of Byron V. Elrod.
Plaintiff is here appealing from the part of the judgment denying him seniority over Elrod as to the position of lathe operator and a recovery of lost wages accordingly.
Defendant, while not complaining of the effect of the judgment either as to the seniority adjudged or as to the amount of back pay awarded, has cross appealed in complaint of some of the findings of the couit and of the court’s failure to amend and add to its findings as requested by defendant.
Matching plaintiff’s complaint of the judgment with defendant’s, the matter before us comes down to this: Was the district judge wrong in denying plaintiff seniority over Elrod as to the position of lathe operator? Appellant insists that he was because he was either entitled upon his return to be assigned to the position of lathe operator or, if he was not so entitled but only to be assigned to the position of roughing lathe helper with seniority as to that position, he was nevertheless entitled to maintain that seniority not only as to that position 'but as to the next position in line of promotion, lathe operator.
Urging upon us that it is illogical to hold, as the trial court did, that plaintiff was entitled to seniority over Elrod as roughing lathe helper but was not entitled to it as to lathe operator, a position which Elrod got by first serving as roughing lathe helper, appellant insists that the judgment must be reversed.
Appellee, on its part, urges: that when plaintiff went into the service, it was under the protection of an act which entitled him not to a promotion during his absence but a return to the same position; that since when he went into the service he had no contract entitling him to such promotion on seniority alone, and no contract, as in Armstrong’s case, 73 F.Supp. 329, relied on by appellant, was made while he was in the service which enlarged his rights, he was not entitled on his return to promotion on seniority alone; that by virtue of the contract of June 10, 1946, he became entitled to be employed as of his return in a position which he was qualified to fill on his return that would result in a promotion with seniority as to that position; and that it was because of that contract alone and not because of any requirement of the act that he was so entitled to the position of roughing lathe helper which he was able to fill on his return.
It further points out that, under the contracts and practices existing between defendant and the bargaining agent for the employees, and as found by the district judge, it was established that a seniority acquired as to a particular job or position may not be made to give way to a general seniority; and that, under the un-pear on either the appeal or the cross ap-disputed facts and as found by the court, plaintiff was not entitled Oil híá r'étüfíl to the position of lathe operator, and, while he was getting the necessary experience, Elrod had already acquired seniority in that position.
So pointing, it urges upon us that, notwithstanding the erroneous finding of the court that plaintiff was entitled to reemployment as a roughing lathe helper from the time of his return, the judgment must, nevertheless be affirmed. This is because plaintiff was entitled from and after the making of, and under, the contract in June, 1946, to receive the position of roughing lathe helper with seniority and defendant therefore owes plaintiff the amount awarded him the difference in pay between the position of craneman and roughing lathe helper from the time of his return.
We agree with appellee, and, agreeing, affirm the judgment. A careful reading as a whole of the findings of fact and of law of the district judge, in the light of the evidence and the judgment, leaves us in no doubt: that the amounts agreed to be due plaintiff were stipulated as due from June, 1946, to February, 1948, and not as inadvertently stated by the court from February, 1946, to February, 1948; and that the finding and the conclusion of law that plaintiff was entitled to recover for that period were erroneous. It convinces us, too, that, though erroneous, they were inadvertent and also without bearing or effect upon the substance of the findings and judgment. The findings and conclusions as a whole particularly fact findings 13 and 14, and the judgment, make it quite clear that the district judge understood and gave full effect to the contract of June 10, 1946, and that in finding and deciding as he did, no conflict or inconsistency was intended or occurred between the decision in this case and those in the other cases from the Northern District of Alabama cited and relied on.
No reversible error being made to appeal, the judgment as to both appeals is
Affirmed.
. 50 U.S.C.A. Appendix, §§ 308 and 357.
. Fishgold v. Sullivan Drydock & Repair Corp., 328 U.S. 275, 66 S.Ct. 1105, 90 L.Ed. 1230; Aeronautical Industrial Dist. Lodge 727 v. Campbell, 337 U.S. 521, 69 S.Ct. 1287, 93 L.Ed. 1513; Meehan v. Nat’l Supply Co., 10 Cir., 160 F.2d 346; Hewitt v. System Federation No. 152, 7 Cir., 161 F.2d 545; Harvey v. Braniff International Airways, 5 Cir., 164 F.2d 521; Raulins v. Memphis Un. Station Co., 6 Cir., 168 F.2d 486; Oil Workers Int. v. Sinclair, 5 Cir., 171 F.2d 192; Special Service Co. v. Delaney, 5 Cir., 172 F.2d 16; Bond v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 333.
. See authorities cited in note 2, supra.
. Armstrong v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 329; Bond v. Tennessee Coal, Iron & R. Co., D.C., 73 F.Supp. 333.
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
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songer_respond1_7_5
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A
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What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
When coding the detailed nature of participants, use your personal knowledge about the participants, if you are completely confident of the accuracy of your knowledge, even if the specific information is not in the opinion. For example, if "IBM" is listed as the appellant it could be classified as "clearly national or international in scope" even if the opinion did not indicate the scope of the business.
Your task concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Your task is to determine which of these categories best describes the income of the litigant. Consider the following categories: "not ascertained", "poor + wards of state" (e.g., patients at state mental hospital; not prisoner unless specific indication that poor), "presumed poor" (e.g., migrant farm worker), "presumed wealthy" (e.g., high status job - like medical doctors, executives of corporations that are national in scope, professional athletes in the NBA or NFL; upper 1/5 of income bracket), "clear indication of wealth in opinion", "other - above poverty line but not clearly wealthy" (e.g., public school teachers, federal government employees)." Note that "poor" means below the federal poverty line; e.g., welfare or food stamp recipients. There must be some specific indication in the opinion that you can point to before anyone is classified anything other than "not ascertained". Prisoners filing "pro se" were classified as poor, but litigants in civil cases who proceed pro se were not presumed to be poor. Wealth obtained from the crime at issue in a criminal case was not counted when determining the wealth of the criminal defendant (e.g., drug dealers).
CREDIT ALLIANCE CORPORATION, Plaintiff-Appellant, v. Patricia Ann CAMPBELL, Defendant-Appellee.
No. 87-1385.
United States Court of Appeals, Seventh Circuit.
Argued Oct. 26, 1987.
Decided April 29, 1988.
Sol D. Bromberg, New York City, Corneal L. Domeck, III, Louisville, Ky., for plaintiff-appellant.
James F. Flynn, Newman, Trockman, Lloyd, Flynn, & Rheinlander, P.C., Evansville, Ind., for defendant-appellee.
Before BAUER, Chief Judge, WOOD and MANION, Circuit Judges.
HARLINGTON WOOD, Jr., Circuit Judge.
This case is an appeal from the district court’s grant of defendant’s motion for relief from judgment under Federal Rule of Civil Procedure 60(b). Plaintiff had obtained on October 21, 1980, a default judgment in the Southern District of New York enforcing a guaranty contract against the defendant. The judgment was in the amount of $1,302,954.80. The plaintiff registered the judgment in the District Court for the Southern District of Indiana on December 4, 1980 in accordance with 28 U.S.C. § 1963 (1982). On January 9, 1984, Patricia Campbell filed her motion for relief in the district court in Indiana. The court granted this motion on November 26, 1984. We reverse the district court’s grant of relief setting aside the judgment.
I. FACTUAL BACKGROUND
In late 1977 or early 1978 Ralph Douglas Campbell, the defendant’s husband, was a heavy equipment salesman for Stockberger Machinery, Inc. Steve Stockberger, Campbell, another salesman, Tom Marshall, and a physician, James Spahn, entered into a partnership they called Indicoal. The partners’ intention was to strip-mine coal at a mine in Kentucky, and, to further this purpose, the partners acquired equipment from the Stockberger Company. A Credit Alliance sales representative, Harold Kap-lan, sold floor-plan and end-user financing arrangements for Credit Alliance Corporation in the Evansville, Indiana area. Kap-lan arranged financing for the business venture through Credit Alliance. The partners executed a conditional sales contract with Stockberger on May 18, 1978; Stock-berger assigned the contract to Credit Alliance the same day; and the partners and their wives, including the defendant, signed a guaranty for Indicoal’s debts on May 22, 1978. There was undisputed testimony that the wives did not play an active role in Indicoal’s operations. The defendant signed the guaranty without reading it, and she did not receive a copy of the document.
Indicoal began to experience financial difficulties soon after its formation, and fell behind in its payments to Credit Alliance. Meanwhile, the defendant and her husband developed serious marital difficulties which led to their separation at the end of 1978 and divorce in March of 1979. On September 29, 1978, Indicoal and Credit Alliance entered into an agreement to extend Indicoal’s payment period. Although the original guaranty had provided that the guarantors consented to “any agreement or arrangements whatever with subject or anyone else, including without limitation, agreements and arrangements for payment extension,” Credit Alliance customarily executed new extension agreements with all guarantors. The defendant’s husband signed the agreement for the defendant without her knowledge or consent. Credit Alliance granted Indicoal a second extension on March 29, 1979, again without the knowledge or consent of the defendant, whose marriage to Campbell had been dissolved two weeks earlier.
On January 15, 1980, Credit Alliance compromised and settled the Indicoal debt with Dr. Spahn and on August 14, 1980, compromised and settled with the Mar-shalls. A proposed settlement March 6, 1980, between Credit Alliance, Campbell, and Marshall fell through when Campbell’s check was dishonored. The defendant was unaware of these events.
On May 2, 1980, the plaintiff filed this action in the United States District Court for the Southern District of New York. In accordance with the terms of the guaranty, summonses were served on Credit Alliance as agent for the defendants. Credit Alliance sent two certified letters to the defendant notifying her of the lawsuit, but both letters were returned.
The defendant remained unaware of the lawsuit, the entry of default judgment October 21, 1980, and the registry of the judgment in the Southern District of Indiana December 4, 1980, until shortly after the United States Marshal attached all the funds in her bank account. The writ of execution was issued, and the defendant became aware of it, in November of 1983.
The defendant filed a motion for relief from judgment pursuant to Federal Rule of Civil Procedure 60(b). The Southern District of Indiana stayed enforcement of the New York judgment. The parties stipulated, contrary to the guaranty language, that Indiana was the proper forum and Indiana law should apply. We find this to be a reasonable stipulation as to the applicable law. Marmon Group, Inc. v. Rexnord, Inc., 822 F.2d 31, 34 n. 2 (7th Cir.1987); Lloyd v. Loeffler, 694 F.2d 489, 495 (7th Cir.1982). On November 10, 1986, the court heard evidence on the motion. The court considered defendant’s arguments that the guaranty was unsupported by consideration and that her obligation had been so altered as to discharge her. The court found validity in the latter assertion, and granted defendant’s motion.
II. DISCUSSION
Although the parties did not raise the issue, we first consider the propriety of the Indiana courts as a forum for defendant’s Rule 60(b) motion.
“The decision to grant or deny relief under Fed.R.Civ.P. 60(b) is committed to the discretion of the trial court.” Fuhrman v. Livaditis, 611 F.2d 203, 204 (7th Cir.1979). We therefore need only determine whether the court abused its discretion.
In the Fuhrman case Fuhrman, a citizen of Iowa, sued Livaditis, a citizen of Illinois, in the Northern District of Iowa, based on diversity of citizenship. Process was served by certified mail. The return receipt indicated that Livaditis had received notice of the suit. He did not file an appearance and the court entered a default judgment against him. Notice of the default judgment was sent through certified mail to the defendant.
Fuhrman registered the judgment in the Northern District of Illinois pursuant to 28 U.S.C. § 1963. Almost a year after the judgment was registered in Illinois, Livadi-tis filed a motion for relief from judgment under Rule 60(b). The Northern District of Illinois denied the motion without prejudice, noting that Livaditis could file his motion in the Northern District of Iowa, the court that rendered the judgment.
As we mentioned on appeal, “[o]rdinarily, a motion for relief from judgment is addressed to the court which rendered judgment.” 611 F.2d at 204. Generally, “it is more convenient for motions for relief from judgment to be addressed to the [rendering] court.” Id. Two policy considerations support the general rule:
(1) comity among the federal district courts is furthered if the registering court refers the question of relief from judgment to the court which ordinarily entered the judgment; (2) efficient judicial administration is furthered if the registering court defers to the original court, which is likely to be more familiar with the issues raised by the motion for relief from judgment.
Id.
In Fuhrman, as here, there was no litigation with which the rendering court could become familiar. There was simply a default. In Fuhrman, however, Livaditis argued that the rendering court lacked personal jurisdiction over him. This challenge required the court to apply the laws of the state of Iowa, laws with which the district court in Iowa was more familiar than was the district court in Illinois. The federal court in Iowa was thus a more convenient forum for the motion.
The defendant here does not argue that the district court in New York lacked personal jurisdiction over her. The terms of the guaranty provided that an attorney for Credit Alliance would accept service of process for the guarantors, and that they would “agree to the venue and jurisdiction of any court in the State and County of New York.” They agreed as well that the guaranty “shall be interpreted according to the laws of the State of New York.” The defendant instead asserted that there was no consideration for her guaranty, that she terminated her consent, and that she was discharged. Because the parties stipulated to the application of Indiana law before the court in Indiana there was no reason to defer to the district court in New York on the interpretation of state law. And because the judgment was a default judgment, the rendering court had no more familiarity with the facts than did the registering court. Additionally, when “the creditor seeks to utilize the enforcement machinery of [the registering] district court it is not unreasonable to hold that the [registering] court has the power to determine whether relief should be granted the judgment debtor under 60(b).” 7 Moore’s Federal Practice ¶ 60.28[1], at 60-313 (2d ed. 1987). We therefore believe that the district court for the Southern District of Indiana was an appropriate forum for the defendant’s Rule 60(b) motion. There was no abuse of discretion in the court’s decision to entertain the motion. As to the merits of the defendant’s motion, we cannot reach the same conclusion. We find that the district court abused its discretion in granting defendant’s Rule 60(b) motion.
Although “[t]his circuit has a well-established policy favoring a trial on the merits over a default judgment,” C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1205 (7th Cir.1984), a default judgment will not be set aside unless “ ‘the moving party ... alleges a meritorious defense to the action.’ ” A.F. Dormeyer Co. v. M.J. Sales & Distrib. Co., 461 F.2d 40, 43 (7th Cir.1972) (quoting Thorpe v. Thorpe, 364 F.2d 692, 694 (D.C.Cir. 1966)); see also Passarella v. Hilton Int’l Co., 810 F.2d 674, 675-76 (7th Cir.1987). The defendant’s arguments do not present a meritorious defense to the plaintiff’s action.
The defendant argues that her guaranty was not supported by consideration, that she terminated her consent to the guaranty, and that she was discharged from her obligation by the plaintiff’s extensions of the guaranty. The district court discussed only the latter issue, finding that there was “an alteration of her obligation that effected a discharge.” This finding is incorrect under Indiana law.
It is undisputed that the defendant signed the original guaranty of Indicoal’s obligations. It is also undisputed that she did not read the document, that it was not explained to her, and that she did not receive a copy of it. This is unfortunate; under Indiana law, as in most jurisdictions, however, “[a] person is presumed to understand the documents which he signs.” Carney v. Central Nat. Bank, 450 N.E.2d 1034, 1038 (Ind.App.1983). The defendant has described the stressful circumstances under which she. signed the agreement. Although we are sympathetic to her distress, the defendant has not suggested that her signature was obtained by duress or undue influence, and she has not cited to us cases which would justify relieving her from her contractual obligations because of her emotionally trying situation. We therefore must find that she bound herself to the terms of the guaranty.
Those terms included consent without notice “to any agreement or arrangements whatever with subject or anyone else, including without limitation, agreements and arrangements for payment extension, subordination, composition, arrangement, discharge or release of the whole or any part of the Security Obligations.” The defendant argues that Credit Alliance’s extensions of the guaranty so altered her obligation that she was discharged. She points out that an unconsented extension of time for payment or an agreement to compromise and settle the principal obligation discharges a guarantor. Id.; Indiana University v. Indiana Bonding & Surety Co., 416 N.E.2d 1275, 1280 (Ind.App.1981); Lutz v. Frick Co., 242 Ind. 599, 602, 181 N.E.2d 14, 16 (1962). This assertion, while true, overlooks the fact that the defendant consented to the extensions and settlements when she signed the guaranty. Although “ordinarily a surety is released if the creditor, without consent of the surety, renews the note, extends the time of payment, impairs the collateral, or alters the contract with the principal; prior consent contained in the instrument is sufficient to bind the surety.” Franklin Bank & Trust Co. v. Reed, 496 N.E.2d 596, 602 (Ind.App.1986), aff'd in part and vacated in part, 508 N.E.2d 1256 (Ind.1987); Carney, 450 N.E.2d at 1038. Indiana law provides that a guarantor is a surety. Id. at 1036 (citing Ind.Code § 26-1-1-201(40)).
The defendant also directs us to cases holding that revocation of a continuing guaranty terminates a creditor’s rights to alter the obligation without notice to and consent of the guarantor. She argues that she revoked her consent by unknowingly failing to execute her consent on the extension agreements. She bolsters this evanescent argument by citing Indiana cases that hold a continuing guaranty may be revoked in a reasonable manner. Houin v. Bremen State Bank, 495 N.E.2d 753, 758 (Ind.App.1986) (citing LaRose v. Logansport Nat. Bank, 102 Ind. 332, 344-45, 1 N.E. 805, 812 (1885)); Vidimos, Inc. v. Vidimos, 456 N.E.2d 455, 458 (Ind.App.1983) (citing LaRose ). Again it is true that Indiana recognizes revocations that are reasonable under the circumstances. It is also true, how ever, that guaranties are interpreted in the same manner as are other contracts, Kordick v. Merchants Nat. Bank & Trust Co., 496 N.E.2d 119, 122 (Ind.App.1986); Loudermilk v. Casey, 441 N.E.2d 1379, 1383 (Ind.App.1982), and where the guaranty language is unambiguous, “the construction of the guaranty is a question of law.” Skrypek v. St. Joseph Valley Bank, 469 N.E.2d 774, 777 (Ind.App.1984); Loudermilk, 441 N.E.2d at 1383. “Parol evidence is inadmissible where there is no ambiguity in the [guaranty] language.” Skrypek, 469 N.E.2d at 777.
The guaranty at issue here clearly states that the guarantors must provide written notice of their termination. The language is unambiguous. In the Vidimos case, by contrast, the guaranty did not specifically provide for a method of revocation. “A continuing guaranty which is for an indefinite period is revocable by the guarantor provided that he does so reasonably.... This right of revocation exists absent any provision in the guaranty agreement recognizing it.” Vidimos, 456 N.E.2d at 458 (citations omitted). The court’s concern in this case was that the guaranty not be understood as irrevocable, when it did not explicitly provide for a method of revocation. Where the parties agree to a method for revoking the guaranty, as in Houin, that method should be followed. Although the defendant relies on Houin for the proposition that any reasonable method of revocation is effective, the Houin court specifically stated, albeit in dicta, that “oral notice of revocation when the contract called for written notice was not reasonable.” Houin, 495 N.E.2d at 759.
The defendant suggests that the “revocation event occurred in the only reasonable manner one can employ, when one is permitted to remain ignorant of the guaranty: By Mrs. Campbell’s failure to execute her consent on the Extension Agreement prepared by Credit Alliance for her signature.” The defendant, however, had consented to the extension in the original guaranty. This prior consent was binding. Franklin Bank, 496 N.E.2d at 602; Carney, 450 N.E.2d at 1038. Thus her failure to sign an unnecessary extension agreement cannot be said to effect a revocation. The defendant remained bound by the terms of her guaranty. Extensions of the time for payment, because of her earlier consent, did not discharge the defendant. Although we, like the district court, are sympathetic to the defendant’s plight, we find that the district court abused its discretion in finding under Indiana law that the defendant was discharged.
The fact that the defendant did not receive actual notice of the plaintiffs suit in the Southern District of New York does not relieve the defendant from her obligations. By the .terms of the guaranty she waived her right to personal service of process. She and the other guarantors designated a New York attorney and Credit Alliance as agents for service of process, with notice of such service to be sent by mail to the guarantors within three days at the address shown on the guaranty. The plaintiff fulfilled its obligations by sending two letters by certified mail to the address defendant had provided on the guaranty. These letters were returned to the plaintiff, however, because the defendant had moved to a new address. The defendant’s failure to notify the plaintiff of her change of address is perhaps understandable in light of the fact that she did not read the guaranty before (or after) signing it; as we discussed above, however, the defendant is bound by the terms of the guaranty. She cannot now complain about the plaintiff’s failure to notify her of the lawsuit when the failure was a result of defendant’s own actions.
The defendant argues that the guaranty was not supported by consideration. The district court apparently found this argument to be meritless and did not discuss it. We also find no merit to this contention.
The guaranty was dated May 22, 1978. The conditional sales contract and the assignment were dated May 18, 1978. The check that Credit Alliance issued to Stock-berger Machinery for Indicoal’s purchase of the mining equipment was dated May 23, 1978. The guaranty’s stated purpose was to induce Credit Alliance to accept the assignment from Stockberger Machinery. Credit Alliance did accept the assignment as evidenced by its issuance of the check to Stockberger Machinery.
Where a guaranty is executed subsequently to the principal contract, in order for the guaranty to be regarded as being made at the same time so as to constitute a part of the same transaction and be supported by the same consideration it must generally be shown that:
(1) The guaranty was executed pursuant to an understanding had before and was an inducement to the execution of the principal contract; or
(2) The guaranty was delivered before any obligation or liability was incurred under the principal contract; or
(3) The guaranty was made pursuant to a contract provision; or
(4) The principal contract does not become operative until the execution of a guaranty; or
(5) The guaranty expressly refers to a previous agreement between the principal debtor and creditor which is exec-utory in its character and embraces prospective dealings between the parties.
Davis v. B.C.L. Enters., Inc., 406 N.E.2d 1204, 1205-06 (Ind.App.1980). Because these requirements are expressed in the disjunctive, only one need be satisfied to demonstrate that the guaranty is supported by consideration. We believe that the first requirement, at least, is satisfied. The guaranty was executed on May 22, 1978, in order to induce the plaintiff, Credit Alliance, to accept the assignment of the conditional sales contract. The conditional sales contract, dated May 18, 1978, reflected the seller’s intention to assign the contract. The plaintiff accepted this assignment when it issued its check to Stockberger Machinery on May 23, 1978, one day after the guaranty was executed. The guaranty was supported by adequate consideration.
III. CONCLUSION
Because we have found that the defendant raised no meritorious defenses to the default judgment entered against her, we find the district court abused its discretion in granting defendant’s Rule 60(b) motion for relief from judgment. Each party shall bear its or her own costs. The district court’s order is therefore
Reversed.
Question: This question concerns the first listed respondent. The nature of this litigant falls into the category "natural person (excludes persons named in their official capacity or who appear because of a role in a private organization)". Which of these categories best describes the income of the litigant?
A. not ascertained
B. poor + wards of state
C. presumed poor
D. presumed wealthy
E. clear indication of wealth in opinion
F. other - above poverty line but not clearly wealthy
Answer:
|
sc_authoritydecision
|
E
|
What follows is an opinion from the Supreme Court of the United States. Your task is to determine the bases on which the Supreme Court rested its decision with regard to the legal provision that the Court considered in the case. Consider "judicial review (national level)" if the majority determined the constitutionality of some action taken by some unit or official of the federal government, including an interstate compact. Consider "judicial review (state level)" if the majority determined the constitutionality of some action taken by some unit or official of a state or local government. Consider "statutory construction" for cases where the majority interpret a federal statute, treaty, or court rule; if the Court interprets a federal statute governing the powers or jurisdiction of a federal court; if the Court construes a state law as incompatible with a federal law; or if an administrative official interprets a federal statute. Do not consider "statutory construction" where an administrative agency or official acts "pursuant to" a statute, unless the Court interprets the statute to determine if administrative action is proper. Consider "interpretation of administrative regulation or rule, or executive order" if the majority treats federal administrative action in arriving at its decision.Consider "diversity jurisdiction" if the majority said in approximately so many words that under its diversity jurisdiction it is interpreting state law. Consider "federal common law" if the majority indicate that it used a judge-made "doctrine" or "rule; if the Court without more merely specifies the disposition the Court has made of the case and cites one or more of its own previously decided cases unless the citation is qualified by the word "see."; if the case concerns admiralty or maritime law, or some other aspect of the law of nations other than a treaty; if the case concerns the retroactive application of a constitutional provision or a previous decision of the Court; if the case concerns an exclusionary rule, the harmless error rule (though not the statute), the abstention doctrine, comity, res judicata, or collateral estoppel; or if the case concerns a "rule" or "doctrine" that is not specified as related to or connected with a constitutional or statutory provision. Consider "Supreme Court supervision of lower federal or state courts or original jurisdiction" otherwise (i.e., the residual code); for issues pertaining to non-statutorily based Judicial Power topics; for cases arising under the Court's original jurisdiction; in cases in which the Court denied or dismissed the petition for review or where the decision of a lower court is affirmed by a tie vote; or in workers' compensation litigation involving statutory interpretation and, in addition, a discussion of jury determination and/or the sufficiency of the evidence.
BARNHART, COMMISSIONER OF SOCIAL SECURITY v. THOMAS
No. 02-763.
Argued October 14, 2003
Decided November 12, 2003
Scaua, J., delivered the opinion for a unanimous Court.
Jeffrey A. Lamken argued the cause for petitioner. With him on the briefs were Solicitor General Olson, Assistant Attorney General McCollum, Deputy Solicitor General Kneedler, William Kanter, Wendy M. Keats, and Barbara L. Spivak.
Abraham S. Alter argued the cause and filed a brief for respondent.
Justice Scalia
delivered the opinion of the Court.
Under the Social Security Act, the Social Security Administration (SSA) is authorized to pay disability insurance benefits and Supplemental Security Income to persons who have a “disability.” A person qualifies as disabled, and thereby eligible for such benefits, “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U. S. C. §§423(d)(2)(A), 1382c(a)(3)(B). The issue we must decide is whether the SSA may determine that a claimant is not disabled because she remains physically and mentally able to do her previous work, without investigating whether that previous work exists in significant numbers in the national economy.
I
Pauline Thomas worked as an elevator operator for six years until her job was eliminated in August 1995. In June 1996, at age 53, Thomas applied for disability insurance benefits under Title II and Supplemental Security Income under Title XVI of the Social Security Act. See 49 Stat. 622, as amended, 42 U. S. C. § 401 et seq. (Title II); as added, 86 Stat. 1465, and as amended, § 1381 et seq. (Title XVI). She claimed that she suffered from, and was disabled by, heart disease and cervical and lumbar radiculopathy.
After the SSA denied Thomas’s application initially and on reconsideration, she requested a hearing before an Administrative Law Judge (ALJ). The ALJ found that Thomas had “hypertension, cardiac arrythmia, [and] cervical and lumbar strain/sprain.” Decision of ALJ 5, Record 15. He concluded, however, that Thomas was not under a “disability” because her “impairments do not prevent [her] from performing her past relevant work as an elevator operator.” Id,., at 6, Record 16. He rejected Thomas’s argument that she is unable to do her previous work because that work no longer exists in significant numbers in the national economy. The SSA’s Appeals Council denied Thomas’s request for review.
Thomas then challenged the ALJ’s ruling in the United States District Court for the District of New Jersey, renewing her argument that she is unable to do her previous work due to its scarcity. The District Court affirmed the ALJ, concluding that whether Thomas’s old job exists is irrelevant under the SSA’s regulations. Thomas v. Apfel, Civ. No. 99-2234 (Aug. 17, 2000). The Court of Appeals for the Third Circuit, sitting en banc, reversed and remanded. Over the dissent of three of its members, it held that the statute unambiguously provides that the ability to perform prior work disqualifies from benefits only if it is “substantial gainful work which exists in the national economy.” 294 F. 3d 568, 572 (2002). That holding conflicts with the decisions of four other Courts of Appeals. See Quang Van Han v. Bowen, 882 F. 2d 1453, 1457 (CA9 1989); Garcia v. Secretary of Health and Human Services, 46 F. 3d 552, 558 (CA6 1995); Pass v. Chater, 65 F. 3d 1200, 1206-1207 (CA4 1995); Rater v. Chater, 73 F. 3d 796, 799 (CA8 1996). We granted the SSA’s petition for certiorari. 537 U. S. 1187 (2003).
II.
As relevant to the present ease, Title II of the Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U. S. C. § 423(d)(1)(A). That definition is qualified, however, as follows;
“An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. ...” § 423(d)(2)(A) (emphases added).
“[W]ork which exists in the national economy” is defined to mean “work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Ibid. Title XVI of the Act, which governs Supplemental Security Income for disabled indigent persons, employs the same definition of “disability” used in Title II, including a qualification that is verbatim the same as § 423(d)(2)(A). See 42 U. S. C. § 1382c(a)(3)(B). For simplicity’s sake, we will refer only to the Title II provisions, but our analysis applies equally to Title XVI.
Section 423(d)(2)(A) establishes two requirements for disability. First, an individual’s physical or mental impairment must render him “unable to do his previous work.” Second, the impairment must also preclude him from “engaging] in any other kind of substantial gainful work.” The parties agree that the latter requirement is qualified by the clause that immediately follows it — “which exists in the national economy.” The issue in this case is whether that clause also qualifies “previous work.”
The SSA has answered this question in the negative. Acting pursuant to its statutory rulemaking authority, 42 U. S. C. §§ 405(a) (Title II), 1383(d)(1) (Title XVI), the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. See 2Ó CFR §404.1520 (2003) (governing claims for disability insurance benefits); § 416.920 (parallel regulation governing claims for Supplemental Security Income). If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a “substantial gainful activity.” §§404.1520(b), 416.920(b). At step two, the SSA will find nondisability unless the claimant shows that he has a “severe impairment,” defined as “any impairment or combination of impairments which significantly limits [the claimant’s] physical or mental ability to do basic work activities.” §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. §§ 404.1520(d), 416.920(d). If the claimant’s impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called “vocational factors” (the claimant’s age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. §§ 404.1520(f), 404.1560(c), 416.920(f), 416.960(e).
As the above description shows, step four can result in a determination of no disability without inquiry into whether the claimant’s previous work exists in the national economy; the regulations explicitly reserve inquiry into the national economy for step five. Thus, the SSA has made it perfectly clear that it does not interpret the clause “which exists in the national economy” in § 423(d)(2)(A) as applying to “previous work.” The issue presented is whether this agency interpretation must be accorded deference.
As we held in Chevron U S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843 (1984), when a statute speaks clearly to the issue at hand we “must give effect to the unambiguously expressed intent of Congress,” but when the statute “is silent or ambiguous” we must defer to a reasonable construction by the agency charged with its implementation. The Third Circuit held that, by referring first to “previous work” and then to “any other kind of substantial gainful work which exists in the national economy,” 42 U. S. C. § 423(d)(2)(A) (emphasis added), the statute unambiguously indicates that the former is a species of the latter. “When,” it said, “a sentence sets out one or more specific items followed by ‘any other’ and a description, the specific items must fall within the description.” 294 F. 3d, at 572. We disagree. For the reasons discussed below, the interpretation adopted by SSA is at least a reasonable construction of the text and must therefore be given effect.
The Third Circuit’s reading disregards — indeed, is precisely contrary to — the grammatical “rule of the last antecedent,” according to which a limiting clause or phrase (here, the relative clause “which exists in the national economy”) should ordinarily be read as modifying only the noun or phrase that it immediately follows (here, “any other kind of substantial gainful work”). See 2A N. Singer, Sutherland on Statutory Construction §47.33, p. 369 (6th rev. ed. 2000) (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent”). While this rule is not an absolute and can assuredly be overcome by other indicia of meaning, we have said that construing a statute in accord with the rule is “quite sensible as a matter of grammar.” Nobelman v. American Savings Bank, 508 U. S. 324, 330 (1993). In FTC v. Mandel Brothers, Inc., 359 U. S. 385 (1959), this Court employed the rule to interpret a statute strikingly similar in structure to § 423(d)(2)(A) — a provision of the Fur Products Labeling Act, 15 U. S. C. § 69, which defined “ 'invoice’ ” as “ 'a written account, memorandum, list, or catalog... transported or delivered to a purchaser, consignee, factor, bailee, correspondent, or agent, or any other person who is engaged in dealing commercially in fur products or furs.”’ 359 U. S., at 386 (quoting 15 U. S. C. § 69(f)) (emphasis added). Like the Third Circuit here, the Court of Appeals in Mandel Brothers had interpreted the phrase “'any other’” as rendering the relative clause (“ 'who is engaged in dealing commercially’ ”) applicable to all the specifically listed categories. 359 U. S., at 389. This Court unanimously reversed, concluding that the “limiting clause is to be applied only to the last antecedent.” Id., at 389, and n. 4 (citing 2 J. Sutherland, Statutory Construction § 4921 (3d ed. 1943)).
An example will illustrate the error of the Third Circuit’s perception that the specifically enumerated “previous work” “must” be treated the same as the more general reference to “any other kind of substantial gainful work.” 294 F. 3d, at 572. Consider, for example, the case of parents who, before leaving their teenage son alone in the house for the weekend, warn him, “You will be punished if you throw a party or engage in any other activity that damages the house.” If the son nevertheless throws a party and is caught, he should hardly be able to avoid punishment by arguing that the house was not damaged. The parents proscribed (1) a party, and (2) any other activity that damages the house. As far as appears from what they said, their reasons for prohibiting the home-alone party may have had nothing to do with damage to the house — for instance, the risk that underage drinking or sexual activity would occur. And even if their only concern was to prevent damage, it does not follow from the fact that the same interest underlay both the specific and the general prohibition that proof of impairment of that interest is required for both. The parents, foreseeing that assessment of whether an activity had in fact “damaged” the house could be disputed by their son, might have wished to preclude all argument by specifying and categorically prohibiting the one activity — hosting a party — that was most likely to cause damage and most likely to occur.
The Third. Circuit suggested that interpreting the statute as does the SSA would lead to “absurd results.” Ibid. See also Kolman v. Sullivan, 925 F. 2d 212, 213 (CA7 1991) (the fact that a claimant could perform a past job that no longer exists would not be “a rational ground for denying benefits”). The court could conceive of “no plausible reason why Congress might have wanted to deny benefits to an otherwise qualified person simply because that person, although unable to perform any job that actually exists in the national economy, could perform a previous job that no longer exists.” 294 F. 3d, at 572-573. But on the very next page the Third Circuit conceived of just such a plausible reason, namely, that “in the vast majority of cases, a claimant who is found to have the capacity to perform her past work also will have the capacity to perform other types of work.” Id., at 574, n. 5. The conclusion which follows is that Congress could have determined that an analysis of a claimant’s physical and mental capacity to do his previous work would “in the vast majority of cases” serve as an effective and efficient administrative proxy for the claimant’s ability to do some work that does exist in the national economy. Such a proxy is üseful because the step-five inquiry into whether the claimant’s cumulative impairments preclude him from finding “other” work is very difficult, requiring consideration of “each of th[e] [vocational] factors and ... an individual assessment of each claimant’s abilities and limitations,” Heckler v. Campbell, 461 U.S. 458, 460-461, n. 1 (1983) (citing 20 CFR §§404.1545-404.1565 (1982)). There is good reason to use a workable proxy that avoids the more expansive and individualized step-five analysis. As we have observed, “[t]he Social Security hearing system is ‘probably the largest adjudicative agency in the western world.’ . . . The need for efficiency is self-evident.” 461 U. S., at 461, n. 2 (citation omitted).
The Third Circuit rejected this proxy rationale because it would produce results that “may not always be true, and ... may not be true in this case.” 294 F. 3d, at 576. That logic would invalidate a vast number of the procedures employed by the administrative state. To generalize is to be imprecise. Virtually every legal (or other) rule has imperfect applications in particular circumstances. Cf. Bowen v. Yuckert, 482 U. S. 137, 157 (1987) (O’CONNOR, J., concurring) (“To be sure the Secretary faces an administrative task of staggering proportions in applying the disability benefits provisions of the Social Security Act. Perfection in processing millions of such claims annually is impossible”). It is true that, under the SSA’s interpretation, a worker with severely limited capacity who has managed to find easy work in a declining industry could be penalized for his troubles if the job later disappears. It is also true, however, that under the Third Circuit’s interpretation, impaired workers in declining or marginal industries who cannot do “other” work could simply refuse to return to their jobs — even though the jobs remain open and available — and nonetheless draw disability benefits. The proper Chevron inquiry is not whether the agency construction can give rise to undesirable results in some instances (as here both constructions can), but rather whether, in light of the alternatives, the agency construction is reasonable. In the present ease, the SSA’s authoritative interpretation certainly satisfies thát test.
We have considered respondent’s other arguments and find them to be without merit.
* * *
We need not decide today whether § 423(d)(2)(A) compels the interpretation given it by the SSA. It suffices to conclude, as we do, that § 423(d)(2)(A) does not unambiguously require a different interpretation, and that the SSA’s regulation is an entirely reasonable interpretation of the text. The judgment of the Court of Appeals is reversed.
It is so ordered.
The step-four instructions to the claimant read as follows: “If we cannot make a decision based on your current work activity or on medical facts alone, and you have a severe impairments), we then review your residual functional capacity and the physical and mental demands of the work you have done in the past. If you can still do this kind of work, we will find that you are not disabled.” 20 CFR §§ 404.1520(e), 416.920(e) (2003).
In regulations that became effective on September 25, 2003, the SSA amended certain aspects of the five-step process in ways not material to this opinion. The provisions referred to as subsections (e) and (f) in this opinion are now subsections (f) and (g).
This interpretation was embodied in the regulations that first established the five-step process in 1978, see 43 Fed. Reg. 55349 (codified, as amended, at 20 CFR §§404.1520 and 416.920 (1982)). Even before enactment of § 423(d)(2)(A) as part of the Social Security Amendments of 1967, the SSA disallowed disability benefits when the inability to work was caused by “technological changes in the industry in which [the claimant] has worked.” 20 CFR § 404.1502(b) (1961).
Question: What is the basis of the Supreme Court's decision?
A. judicial review (national level)
B. judicial review (state level)
C. Supreme Court supervision of lower federal or state courts or original jurisdiction
D. statutory construction
E. interpretation of administrative regulation or rule, or executive order
F. diversity jurisdiction
G. federal common law
Answer:
|
songer_procedur
|
A
|
What follows is an opinion from a United States Court of Appeals. Your task is to determine whether there was an issue discussed in the opinion of the court about the interpretation of federal rule of procedures, judicial doctrine, or case law, and if so, whether the resolution of the issue by the court favored the appellant.
Samuel Jennings JOHNSON, Appellant, v. Fred T. WILKINSON, Warden, United States Penitentiary, Atlanta, Georgia, Appellee.
No. 18246.
United States Court of Appeals Fifth Circuit.
June 20, 1960.
Rehearing Denied July 29, 1960.
Samuel J. Johnson, in pro. per. William C. O’Kelley, E. Ralph Ivey, Asst. U. S. Attys., Charles D. Read, Jr., U. S. Atty., Atlanta, Ga., for appellee.
Before RIVES, Chief Judge, and CAMERON and BROWN, Circuit Judges.
PER CURIAM.
Petitioner, by a writ of habeas corpus, seeks release from the federal penitentiary in Atlanta on the ground that he has served his sentence in full. He was convicted for interstate transportation of stolen vehicles and sentenced on February 5, 1951, to six years and six days in prison. With 852 days remaining on this sentence, he was paroled. While on parole, he committed a second federal offense for which he was arrested in January 1955, convicted, sentenced, and imprisoned in a federal penitentiary in Virginia. Also, because of this offense and other conduct, the Parole Board issued a warrant for his arrest as a parole violator in January 1955 (which petitioner asserts was then served). On June 4, 1957, after serving his sentence for the second crime, he was served with the parole violator’s warrant (the Government says the one originally issued in January 1955) confining him for the 852 days remaining on the original sentence. Petitioner contends that the time served for the second offense should be credited on his first offense as it was federal custody subsequent to revocation of his parole. On the pleadings and affidavits and a full response showing the record of his confinement, releases, etc., but without a hearing, the District Judge denied the writ of habeas corpus. We affirm.
The confinement in the federal prison in Virginia was pursuant to the conviction and sentence for the federal crime committed while on parole from the original sentence. Petitioner is not entitled to credit on the original sentence for the time spent serving the sentence for the subsequent crime committed while he was on parole from the original sentence. Zerbst v. Kidwell, 1938, 304 U.S. 359, 58 S.Ct. 872, 82 L.Ed. 1399. The District Court found that the parole violator’s warrant was not served until June 14, 1957 at the end of the second sentence. Even assuming that a warrant for the arrest of petitioner was served by a deputy Marshal in January 1955 as petitioner •claims, he was not at that time returned to the custody of the Attorney General under that warrant. He remained under the same confinement until he was arraigned and pleaded guilty to the second offense and commenced service of that sentence in April 1955. The service of the warrant, if made then as claimed, would not have transmuted that custody into custody under the parole violator warrant. That would have been accomplished only by the Marshal’s carrying out the command of the warrant. Jenkins v. Madigan, 7 Cir., 1954, 211 F.2d 904. This was not done until two years later in June 1957. Until then the unexpired term on the original sentence had not begun to run. 18 U.S.C.A. § 4205.
As all the facts either appeared on the face of the record or the one “disputed” fact was immaterial, the District Court could properly dispose of the petition without holding a hearing. Rea v. McDonald, 5 Cir., 1946, 153 F.2d 190.
Affirmed.
. Petitioner would have been out of prison a long time ago but for a sequel to the events recited above. He was paroled a second time and again broke his parole for which he was returned to serve the remaining time (then 727 days) on his original conviction.
. The parole violator’s warrant, directed to any federal officer authorized to serve criminal process, provides:
“NOW, THEREFORE, this is to command you to execute this warrant by taking the said Samuel J. Johnson [petitioner], wherever found in the United States, and Mm safely return to the institution designated according to law.”
. 18 U.S.O.A. § 4205:
“Retaking parole violator under warrant; time to serve undiminished
“A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.”
Question: Did the interpretation of federal rule of procedures, judicial doctrine, or case law by the court favor the appellant?
A. No
B. Yes
C. Mixed answer
D. Issue not discussed
Answer:
|
songer_appbus
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Minkin CHANDLER, Plaintiff-Appellant, v. BARCLAYS BANK PLC, International Steel Marketing, Gamille Beshay, Kamil Beshay, Defendants, Banque Du Caire Barclays International, S.A.E. Cairo, Defendant-Appellee.
No. 89-1155.
United States Court of Appeals, Sixth Circuit.
Argued Jan. 22, 1990.
Decided March 22, 1990.
Rehearing and Rehearing En Banc Denied May 4, 1990.
John C. Kaplansky (argued), Southfield, Mich., for Minkin Chandler.
Donald S. Young, Dykema, Gossett, Spencer, Goodnow & Trigg, Detroit, Mich., for defendant Barclays Bank PLC.
Kenneth J. McIntyre, Dickinson, Wright, Moon, Van Dusen & Freeman, Detroit, Mich., for Banque Du Caire Barclays Intern., S.A.E. Cairo.
Before KENNEDY and BOGGS, Circuit Judges, and HULL, Chief District Judge.
The Honorable Thomas G. Hull, Chief Judge, United States District Court for the Eastern District of Tennessee.
KENNEDY, Circuit Judge.
Appellant Minkin Chandler filed this action on January 19, 1988, against Barclays Bank PLC (Barclays), an English banking corporation with offices in New York; International Steel Marketing (International Steel), an Egyptian corporation; Gamille and Kamil Beshay, Egyptian citizens and principals of International Steel; and appel-lee Banque du Caire Barclays International S.A.E. Cairo (Banque du Caire), an Egyptian banking corporation. Appellant alleged (1) that payment under a letter of credit issued by Banque du Caire was wrongfully denied, and (2) that defendants Barclays, International Steel, the Beshays, and Banque du Caire conspired to deny payment on the letter of credit in order to allow International Steel to extort a reduction in the price it had agreed to pay for the steel.
Banque du Caire moved for dismissal pursuant to Fed.R.Civ.P. 12(b)(2), arguing that the court lacked personal jurisdiction over it. The District Court agreed, and dismissed Banque du Caire from the action. The court also rejected appellant’s contention that a “national contacts” analysis should be applied in determining whether jurisdiction over Banque du Caire was proper in Michigan. Finally, the court determined that there was no agency relationship between Banque du Caire and the other parties, thereby rejecting appellant’s argument that Banque du Caire subjected itself to the court’s jurisdiction through the actions of its agent(s). Minkin Chandler appeals these three determinations. The other defendants have been dismissed. We AFFIRM the decision of the District Court.
Appellant Minkin Chandler is a Detroit steel supplier. In October of 1986, International Steel entered into a contract to purchase steel from appellant. Payment for the steel was to be made by a letter of credit. To guarantee that a letter of credit would be obtained, International Steel was initially to obtain a letter of guarantee in the amount of $100,000 upon which Minkin Chandler could demand payment from a confirming bank in New York (Barclays) in the event that International Steel did not obtain the promised letter of credit. Following the execution of the contract, International Steel approached Banque du Caire in Cairo, Egypt, and applied for a letter of guarantee. Banque du Caire then established a letter of guarantee in favor of Minkin Chandler in Cairo. Barclays in New York confirmed the letter of guarantee.
After the issuance of the letter of guarantee, International Steel again approached Banque du Caire in Cairo and requested that the bank establish a letter of credit on its behalf in favor of Minkin Chandler. Banque du Caire subsequently issued the letter of credit to International Steel, in the amount of about $1,680,000.00. The letter of credit provided, among other things, that Minkin Chandler could present documents to Barclays in New York, which would act as a confirming bank. In late July of 1987, a representative of Minkin Chandler traveled to New York and presented documents to Barclays, seeking payment under the letter of credit from Barclays. At this time, Banque du Caire was closed due to an Egyptian holiday.
Appellant claims that on August 3, 1987, Barclays denied payment, informing appellant that Barclays had been advised not to make payment under the letter of credit by a “very, very urgent” telefax of Monday, August 3, 1987 from International Steel to Barclays noting two “major discrepancies” in Minkin Chandler’s documents. The tele-fax requested Barclays to withhold payment until after it “check[ed] with our Bank [Banque du Caire].” Minkin Chandler could not reach Banque du Caire, however, during the week of August 3 because of the Egyptian holiday.
On August 4, 1987, Barclays telefaxed to Minkin Chandler a ten-point list of discrepancies, and outlined its reasons for declining payment. When Banque du Caire resumed business following the holiday, it too discovered discrepancies in Minkin Chandler’s documents and advised Bar-clays on August 10, 1987 not to make payment to appellant.
Appellant first argues that there were sufficient contacts between Banque du Caire and the state of Michigan for the court to assert jurisdiction pursuant to the Michigan long-arm statute. Appellant asserts that the letter of credit, in addition to naming a Michigan resident as beneficiary, was sent to and relied upon in Michigan and caused numerous transactions to occur in Michigan.
The Michigan long-arm statute provides, in part:
The existence of any of the following relationships between a corporation or its agent and the state shall constitute a sufficient basis of jurisdiction to enable the courts of record of this state to exercise limited personal jurisdiction over such corporation and to enable such courts to render personal judgments against such corporation arising out of the act or acts which create any of the following relationships:
(1) The transaction of any business within the state.
(2) The doing or causing any act to be done, or consequences to occur, in the state resulting in an action for tort.
(3) The ownership, use, or possession of any real or tangible personal property situated within the state.
(4) Contracting to insure any person, property, or risk located within this state at the time of contracting.
(5) Entering into a contract for services to be performed or for materials to be furnished in the state by the defendant.
Mich.Comp.Laws Ann. § 600.715 (West 1981).
This limited personal jurisdiction provision extends the state’s jurisdiction to the limits permitted by due process requirements. LAK, Inc. v. Deer Creek Enterprises, 885 F.2d 1293, 1298, (6th Cir.1989) (“Generally speaking, ... ‘[t]he Michigan statute confers on the state courts the maximum scope of personal jurisdiction permitted by the due process clause of the Fourteenth Amendment’.”) (quoting Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1236 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981)); Sifers v. Horen, 385 Mich. 195, 198-200, 188 N.W.2d 623 (1971). Due process mandates that jurisdiction be exercised only if Ban-que du Caire had sufficient “minimum contact” with the state of Michigan, so that summoning the bank to Michigan would not offend “ ‘traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 343, 85 L.Ed. 278 (1940)).
This Court has adopted a three-part test for determining whether personal jurisdiction can properly be exercised over an out-of-state defendant:
First, the defendant must purposefully avail himself of the privilege of acting in the forum state or causing a consequence in the forum state.
Second, the cause of action must arise from the defendant’s activities there. Finally, the acts of the defendant or consequences caused by the defendant must have a substantial enough connection with the forum state to make the exercise of jurisdiction over the defendant reasonable.
Capital Dredge & Dock Corp. v. Midwest Dredging Co., 573 F.2d 377, 379 (6th Cir.1978) (quoting Southern Mach. Co. v. Mohasco Indus., Inc., 401 F.2d 374 (6th Cir.1968)). The plaintiff below has the burden of establishing jurisdiction under this test. Welsh v. Gibbs, 631 F.2d 436, 438 (6th Cir.1980), cert. denied, 450 U.S. 981, 101 S.Ct. 1517, 67 L.Ed.2d 816 (1981).
We disagree with appellant’s argument that Banque du Caire purposefully availed itself of the privilege of acting or causing a consequence to occur in Michigan. Several courts have held that the mere issuance of a letter of credit naming a resident of a particular state as beneficiary does not subject the issuing bank to the jurisdiction of that state. For example, the court in Occidental Fire & Casualty Co. v. Continental Illinois Nat’l Bank, 689 F.Supp. 564, 568 (E.D.N.C.1988) stated that “courts which have analyzed the issuance of letters of credit for jurisdictional purposes have come to a uniform conclusion. This conclusion is that jurisdiction cannot be properly based on the issuance of a letter of credit.”
This opinion cited a Third Circuit case reaching the same conclusion. The Third Circuit stated:
We do not think that by issuing a letter of credit for a Rhode Island customer, calling for its performance in Rhode Island, the bank can be said to have subjected itself to the adjudicatory authority of Pennsylvania with respect to its obligations under the letter of credit solely because the beneficiary was a Pennsylvania corporate resident. We agree with the District Court that subjecting the bank to the jurisdiction of a Pennsylvania forum would offend traditional notions of fair play and substantial justice.
Empire Abrasive Equip., Inc. v. H.H. Watson, Inc., 567 F.2d 554, 558 (3d Cir.1977).
The Ninth and Tenth Circuits have reached similar conclusions. In H. Ray Baker, Inc. v. Associated Banking Corp., 592 F.2d 550 (9th Cir.), cert. denied, 444 U.S. 832, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979), the Ninth Circuit decided a case similar to the one before us. In Baker, Associated Banking Corp. (ABC) issued an irrevocable letter of credit in favor of Baker, an Ohio corporation doing business in California. The proceeds of the letter were assigned to Interquip Corp., another Ohio corporation doing business in California. Interquip negotiated with Dura-Tire and Rubber Industries, a Philippine corporation, for the sale of equipment to Dura-Tire in the Philippines. All of these negotiations were conducted in San Francisco. Dura-Tire caused ABC to issue the irrevocable letter of credit for payment of the equipment. All negotiations between Dura-Tire and ABC were conducted in the Philippines. The letter of credit originally called for a single shipment and payment in five installments, to be advised through Manufacturers Hanover Trust Company of New York. The letter was amended to permit partial shipments. The goods were shipped and the first installment was paid by Manufacturers Hanover. Baker then assigned the proceeds of the letter of credit to Interquip and notified ABC of the assignment. In-terquip presented the letter of credit for payment at a California bank. The letter was dishonored, purportedly because the equipment did not conform to contract terms.
ABC maintained correspondent banking relationships with six California banks. ABC had non-interest-bearing accounts with those banks for the purpose of processing letters of credit and facilitating the transfer of funds between California and the Philippines. ABC’s maintenance of its accounts in these six banks was its sole contact with California.
The California long-arm statute, like the Michigan statute applicable in the case before this Court, has been interpreted to extend to the outer limits of due process. The Ninth Circuit found that ABC had purposefully invoked the protection of California law in order to reap the benefit of the very type of transaction sued upon, for ABC’s assets in California represented one aspect of correspondent banking relationships undertaken by ABC for the express purpose of providing letter of credit services to the bank’s Philippine clients in their business dealings with American entities. The court further found that the sales contract underlying the letter of credit and on which the dishonor apparently was based was thoroughly connected to California. The court nonetheless found:
The existence of correspondent relationships with the six California banks did not put these banks on any special footing with regard to this letter of credit. While Baker could have negotiated the letter of credit through any bank of its choice, any negotiating bank would have forwarded the draft to the paying bank in New York for reimbursement. ... ABC’s selection of a New York correspondent as the advising and paying bank confined the place of payment to New York, where the draft was later dishonored....
[W]e think on this record that plaintiffs have failed to show that ABC could reasonably have expected the issuance or negotiation of this letter to have effects in California that would make it fair to require it to defend this suit [in California].
Id. at 553.
The facts in the case before us are nearly identical to those in Baker. In fact, fewer contacts exist in the present case, for the letter of credit was neither presented nor dishonored in the state where appellant is arguing jurisdiction exists, as was the case in Baker. Furthermore, Banque du Caire does not possess assets in Michigan similar to those possessed by ABC in California.
In Leney v. Plum Grove Bank, 670 F.2d 878 (10th Cir.1982), the Tenth Circuit decided a similar case. Leney was the designated beneficiary in a letter of credit issued by an Illinois Bank. Illinois resident Sheldon Moss, the Bank’s customer and the designated account party, procured the letter of credit from the Illinois bank at its Illinois location. The Bank mailed the letter to California resident Leney’s attorney in Colorado. According to the letter’s terms, Le-ney would receive payment upon presenting to the Illinois bank the letter of credit accompanied by documents showing Leney had sold to a designated Colorado corporation his interests in certain real and personal property. Leney submitted the letter of credit to his bank in California, which transmitted a sight draft signed by Leney to the Illinois bank for payment. The Illinois bank refused to pay on the sight draft, stating that it would not honor the letter of credit because of the California bank’s improper endorsement and the absence of necessary documents required by the letter of credit.
The court found that asserting jurisdiction in the federal district court in Colorado over the Illinois bank violated due process. The court noted that “[ojther than mailing the letter of credit to a Colorado attorney, the bank’s only connection to Colorado was its probable knowledge that the letter was going to be used in the sale of Colorado property to a Colorado corporation.” Id. at 880. Although this case differs from the one before us because Leney was a California resident whereas Minkin Chandler is a resident of the state where it is arguing jurisdiction exists, the case is factually similar in most other respects.
As in Leney, the record in the present case does not indicate that the parties expected any dispute over the letter of credit to be resolved in Michigan, for appellant did not ask for a letter of credit on a Michigan bank or for confirmation by a Michigan bank. Id. The court in Leney also noted that “Leney had no direct dealings with the Bank with respect to the letter’s issuance. The Bank did nothing in Colorado. Its Illinois customer obtained the letter of credit from the Bank in Illinois.” Id. Similarly, Minkin Chandler had no direct dealings with Banque du Caire with respect to the letter’s issuance. Ban-que du Caire did nothing in Michigan. Its Egyptian customer obtained the letter of credit from the bank in Egypt.
The court in Leney noted that the trial court below relied upon the Colorado Supreme Court case of Van Schaack & Co. v. District Court, 189 Colo. 145, 538 P.2d 425 (1975). The Leney court stated, however, “[Wjhile we are bound by the Colorado Supreme Court’s interpretation of its own statute, we are not bound by its interpretations of the Due Process Clause of the United States Constitution.... We must independently determine whether asserting jurisdiction in the federal district court in Colorado over the Illinois bank violates due process.” Leney, 670 F.2d at 879-80. The Tenth Circuit then proceeded to disagree with the Colorado Supreme Court’s due process analysis.
In Van Schaack, the Colorado Supreme Court upheld jurisdiction over a Kansas bank that had issued a letter of credit on behalf of its Kansas customer to a Colorado beneficiary in connection with obtaining an extension of time on a Colorado real estate transaction. The court found that-no due process violation existed because: (1) the letter of credit induced conduct in Colorado, for the plaintiff relied upon the letter in extending the contract; (2) the cause of action arose from the consequences in Colorado of the cancellation of the letter; and (3) the letter of credit was issued in conjunction with a Colorado real estate transaction having a substantial connection with Colorado. Van Schaack, 189 Colo. at 147, 538 P.2d 425.
We agree with the Tenth Circuit’s statement in Leney that “ ‘[tjhe bank’s obligation under the letter of credit is independent of the underlying sales contract.’ ” Leney, 670 F.2d at 881 (quoting Baker, 592 F.2d at 553). Consequently, our due process analysis of the case before us, like that of the Tenth Circuit in Leney, differs from that of the Colorado Supreme Court in Van Schaack.
Our decision is further buttressed by the reasoning of the court in Stutsman v. Patterson, 457 F.Supp. 189 (C.D.Calif.1978). In that case, the court found that: (1) the fact that a bank issuing a letter of credit may have inquired of a beneficiary by mail as to the manner in which the letter of credit was to be used does not show an intent on the part of the bank to put itself under the protection of the laws of the state in which the beneficiary resides; (2) the fact that the letter was made payable to a California corporation states little more than that the plaintiff is a resident of California, and is thus entitled to little weight; and (3) the issuing bank had no reason to anticipate any profits merely because the letter of credit was issued in California.
Appellant next argues that the court below had jurisdiction over Banque du Caire because of its contacts with the United States as a nation. The District Court noted that all of the cases that it examined allowing for a “national contacts” or “aggregate contacts” approach were cases, unlike the one before us, involving a federal statute. The court agreed with those courts that have rejected the national contacts approach, citing Max Daetwyler Corp. v. R. Meyer, 762 F.2d 290 (3d Cir.), cert. denied, 474 U.S. 980, 106 S.Ct. 383, 88 L.Ed.2d 336 (1985) and Wells Fargo & Co. v. Wells Fargo Express Co., 556 F.2d 406, 418 (9th Cir.1977). The court in Max Daetwyler stated:
Although we do not decide the issue, we can appreciate the argument that a federal statute, prescribing nationwide personal jurisdiction on the basis of a defendant’s aggregated national contacts, might itself be constitutional. We are, however, unaware of any federal statute which presently authorizes district courts to [find] personal jurisdiction upon such aggregated contacts.
Even those few courts which have accepted the national contacts theory have ultimately grounded jurisdiction upon satisfaction of a state long-arm statute.
We conclude that in the absence of some provision within the patent laws authorizing nationwide service of process, the district court’s power to exercise in per-sonam jurisdiction is limited by Fed.R. Civ.P. 4(e) and by the Pennsylvania long-arm statute, whose incorporation by reference, Rule 4(e) requires.
Max Daetwyler, 762 F.2d at 295, 297 (emphasis in original, citations omitted).
Further, the District Court interpreted the United States Supreme Court case of Omni Capital Int’l v. Rudolf Wolff & Co., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987), as rejecting the “national contacts” approach. The Court in Omni recognized that under Federal Rule of Civil Procedure 4(e), a federal court looks to either a federal statute or to the state long-arm statute in order to determine whether a defendant is amenable to service of process, a prerequisite to its exercise of personal jurisdiction. The Omni case involved a federal statute, the Commodity Exchange Act, but the Court found that this statute did not contain an implied provision for nationwide service of process in a private cause of action. In so finding, the Court noted, “[I]t would appear that Congress knows how to authorize nationwide service of process when it wants to provide for it.” Id. at 106, 108 S.Ct. at 411.
Appellee argues the Court’s decision in Omni not to address the constitutionality of the aggregate contacts theory was due to the fact that the doctrine has no application where no federal statute with an authorized service of process vehicle is at issue. The Ninth Circuit has agreed with this interpretation of Omni. Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1416 (9th Cir.1989) (“Indeed, a recent Supreme Court decision implies that a national service provision is a necessary prerequisite for a court even to consider a national contacts approach.”). We agree with appel-lee and the Ninth Circuit on this point. The Supreme Court’s statement in Omni that it had “no occasion” to consider the constitutional issues raised by the national contacts theory leads to no other conclusion but that the theory is applicable solely in conjunction with a statutory national service provision. Because the present case is a diversity action and as such does not involve a federal statute with a national service provision, we find that the District Court properly rejected the national contacts approach.
Finally, appellant argues that Banque du Caire and Barclays operated as agents of International Steel and the Beshays, and as agents of each other, and that under the theory of implied agency, the acts of each defendant are attributable to each other. The implied agency arose, appellant alleges, when Barclays received instruction not to pay on the documents from International Steel and Banque du Caire. Appellant alleges that the defendants agreed to act individually and in combination to breach the sales agreement and the obligations under the letter of credit and the confirmation, committed acts in furtherance of that agreement, and that this conspiracy comprised an implied agency arrangement. The District Court disagreed. The court stated that the rule permitting agency to serve as a basis for service to be effected upon a principal under the long-arm statute “means that if a principal allows an agent to act in a jurisdiction, that the principal subjects itself to the jurisdiction of that Court. That agency involves control, general control over that particular agent.” Joint App. at 215. See Avery v. American Honda Motor Car Co., 120 Mich.App. 222, 225, 327 N.W.2d 447 (1982). The District Court then noted, “[T]he best we have here is one party gave a direction to another party. The requirements of control are clearly not present to establish any type of agency relationship.” Joint App. at 215.
As a confirming bank, Barclays acted pursuant to its own independent contractual relationship with Minkin Chandler. Barclays undertook an independent legal duty to make payment under the letter of credit if conforming documents were presented by Minkin Chandler. In fact, appellant’s complaint acknowledges that: (1) Barclays charged appellant a separate fee in return for its services as confirming bank; (2) Barclays failed to exercise its obligation, independent of and in addition to the obligation of any other bank; and (3) Barclays breached its engagement and contract of confirmation, thus indicating that Barclays indeed had an independent contractual obligation. Because “[a]n agent is one who acts on behalf of another,” Lincoln v. Fairfield-Nobel Co., 76 Mich.App. 514, 519, 257 N.W.2d 148 (1977), appellant’s argument that Barclays was an agent is not persuasive.
Because we agree with the District Court’s determinations that: (1) the court lacked personal jurisdiction over Banque du Caire; (2) a national contacts approach is not appropriate in this case; and (3) Ban-que du Caire did not subject itself to the court’s jurisdiction through the actions of an agent, we AFFIRM the decision of the District Court.
. With respect to this point, the fact that the letter of credit was made payable to a Michigan corporation is entitled to little weight by itself, for *‘[i]n virtually every case alleging personal jurisdiction over a foreign corporation this will be the case.” Stutsman v. Patterson, 457 F.Supp. 189, 191 (C.D.Cal.1978).
. See Venizelos, S.A. v. Chase Manhattan Bank, 425 F.2d 461, 465 (2d Cir.1970) ("Chase is a confirming bank ... and accordingly has all the duties and rights of a confirming bank.... Thus Chase added its own liability to that of the issuing bank, undertook to honor the drafts and was directly obligated as though it were the letter’s issuer to the extent of its confirmation.”).
. Insofar as appellant alleges that jurisdiction exists based upon the existence of a conspiracy, we find that these allegations are unsupported and therefore do not constitute sufficient contacts to justify an exercise of personal jurisdiction. Chrysler Corp. v. Fedders Corp., 643 F.2d 1229, 1237 (6th Cir.), cert. denied, 454 U.S. 893, 102 S.Ct. 388, 70 L.Ed.2d 207 (1981) ("[T]otally unsupported allegations of conspiracy cannot constitute sufficient contacts ... to justify an exercise of personal jurisdiction.... Similarly, the allegation of conspiratorial activities with tortious consequences in the forum state is insufficient to support jurisdiction under the long arm statute in the absence of some minimal factual showing of ... participation in the conspiracy.").
Question: What is the total number of appellants in the case that fall into the category "private business and its executives"? Answer with a number.
Answer:
|
songer_casetyp1_1-3-1
|
J
|
What follows is an opinion from a United States Court of Appeals.
Your task is to identify the issue in the case, that is, the social and/or political context of the litigation in which more purely legal issues are argued. Put somewhat differently, this field identifies the nature of the conflict between the litigants. The focus here is on the subject matter of the controversy rather than its legal basis.
Your task is to determine the specific issue in the case within the broad category of "criminal - federal offense".
The UNITED STATES v. Philip Henry OLECK and David Bedell. Appeal of David BEDELL.
No. 89-3461.
United States Court of Appeals, Third Circuit.
Submitted Oct. 10, 1989.
Decided Jan. 25, 1990.
David Bedell, Elgin, Fla., pro se.
Paul J. Brysh, Asst. U.S. Atty., Pittsburgh, Pa., for appellee.
Before BECKER, GREENBERG and VAN DUSEN, Circuit Judges.
OPINION OF THE COURT
BECKER, Circuit Judge.
This appeal presents the same question as that posed in the companion case, United States v. Gozlon-Peretz, 894 F.2d 1402 i.e. whether the district court had authority to impose a term of supervised release for a sentence imposed pursuant to 21 U.S.C. § 841(b)(1) for an offense committed after October 27, 1986, the date of enactment of the Anti-Drug Abuse Act of 1986 (ADAA), but before November 1, 1987, the effective date of ADAA section 1004. Appellant David Bedell was convicted under § 841(b)(1)(B) for an offense committed on July 1, 1987. He was sentenced on December 8, 1987, to a term of five years of imprisonment, followed by four years of supervised release. Bedell argues that neither special parole nor supervised release was available for offenses committed on that date.
Bedell differs from appellant Gozlon-Peretz in that Gozlon-Peretz was convicted under § 841(b)(1)(A), not § 841(b)(1)(B). This difference could be seen as crucial because the Comprehensive Crime Control Act, Pub.L. No. 98-473, 98 Stat. 1837, 1976 (1984) (“the Act”), apparently inadvertently, left out both special parole and supervised release for the newly created § 841(b)(1)(A) offenses. Bedell was sentenced under § 841(b)(1)(B), which contained a special parole term. Thus, as the fourth, fifth, and eleventh circuits have done, see United States v. Byrd, 837 F.2d 179, 181 (5th Cir.1988), United States v. Whitehead, 849 F.2d 849, 860 (4th Cir.1988), and United States v. Smith, 840 F.2d 886 (11th Cir.1988), we could rule that because special parole was available in § 841(b)(1)(B), and because it is not clear when Congress meant the ADAA amendments to the Act to go into effect, Bedell should be sentenced to a special parole term. However, for the reasons set forth in Gozlon-Peretz, we believe that the correct reading of the ADAA is that supervised release replaced special parole in §§ 841(b)(1)(A), (B) and (C) as of the date of the ADAA’s enactment, October 27, 1986. Therefore, we hold that supervised release was the proper sentence. The government, after a change of position, apparently agrees with that result in this case.
The judgment of sentence will be affirmed.
. Section 1002 of the ADAA replaced old §§ 841(b)(1)(A), (B) and (C) with new provisions that included supervised release terms, not special parole terms. 100 Stat. 3207-2 to 3207-4 (1986). Section 1004(a) of the ADAA substituted "supervised release” for all remaining "special parole” offenses. Section 1004(b) explicitly linked section 1004's effective date to the effective date of the Sentencing Reform Act, November 1, 1987. See 100 Stat. at 3207-6.
. Appellant contends that he should be treated as having violated § 841(b)(1)(A) because he was charged with distribution of over 500 grams of cocaine. Section 841(b)(1)(A) carries a higher penalty. However, we can decide the case only on the basis of the charge in the indictment. Bedell can hardly complain that he was charged with an offense that carries a lesser penalty.
. The § 841(b)(1)(B) under which Bedell was sentenced was the exact same provision as the “old” (pre-Act) § 841(b)(1)(A). The Act redesig-nated old §§ 841(b)(1)(A) and (B) as new §§ 841(b)(1)(B) and (C), respectively. 98 Stat. at 2068.
Question: What is the specific issue in the case within the general category of "criminal - federal offense"?
A. murder
B. rape
C. arson
D. aggravated assault
E. robbery
F. burglary
G. auto theft
H. larceny (over $50)
I. other violent crimes
J. narcotics
K. alcohol related crimes, prohibition
L. tax fraud
M. firearm violations
N. morals charges (e.g., gambling, prostitution, obscenity)
O. criminal violations of government regulations of business
P. other white collar crime (involving no force or threat of force; e.g., embezzlement, computer fraud,bribery)
Q. other crimes
R. federal offense, but specific crime not ascertained
Answer:
|
songer_direct1
|
A
|
What follows is an opinion from a United States Court of Appeals.
Your task is to determine the ideological directionality of the court of appeals decision, coded as "liberal" or "conservative". Consider liberal to be for the defendant. Consider the directionality to be "mixed" if the directionality of the decision was intermediate to the extremes defined above or if the decision was mixed (e.g., the conviction of defendant in a criminal trial was affirmed on one count but reversed on a second count or if the conviction was afirmed but the sentence was reduced). Consider "not ascertained" if the directionality could not be determined or if the outcome could not be classified according to any conventional outcome standards.
UNITED STATES of America, Plaintiff-Appellee, v. David Frank DUNCAN, a/k/a Harold Celline, Defendant-Appellant.
No. 89-1087.
United States Court of Appeals, Seventh Circuit.
Argued June 7, 1989.
Decided Feb. 22, 1990.
Frederick J. Hess, U.S. Atty., Stephen B. Clark, Joel Merkel (argued), Asst. U.S. At-tys., Office of the U.S. Atty., East St. Louis, Ill., for plaintiff-appellee.
Robert G. Duncan (argued), Kansas City, Mo., for defendant-appellant.
Before COFFEY and EASTERBROOK, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
COFFEY, Circuit Judge.
David Frank Duncan, also known as Harold Celline, appeals from a conviction for knowingly receiving visual depictions of minors engaging in sexually explicit conduct, transported and shipped in interstate and foreign commerce, in violation of 18 U.S.C. § 2252(a)(2). We affirm.
I
In 1986 the United States Customs Service established a national undercover operation code named “Operation Borderline” to target people involved in the importation of child pornography into the United States. As part of Operation Borderline, the Customs Service, in cooperation with the Canadian Customs Service, established a false child pornography distribution operation located in Hull, Quebec, Canada. Locating the operation's office in Canada was important to the credibility of the operation because most child pornography distributors are located outside of the United States.
Operation Borderline’s child pornography enterprise, operating under the name Pro-duit Outaouais, designed a non-illustrated brochure offering for sale sets of photographs depicting minors engaged in sexually explicit conduct Customs had seized in prior investigations. The brochure itself was a combination of descriptions of photographs contained in other brochures previously disseminated by actual distributors of child pornography. For example Customs’ brochure, published in both English and French, included several paragraphs taken directly from a former child pornography distributor in Stockholm, Sweden:
“Hello Lolita Collector: You have been recommended from a reliable contact in which you have done business with. Because you are a trusted and proven customer, we offer you these special selections.
As a serious collector, you are aware of the world-wide ban and intense enforcement on this type of material. Accordingly, what was legal and commonplace is now an “underground” and secretive service in order to continue serving collectors.
This environment forces us to take extreme measures to protect us and to ensure your delivery. We have been serving customers the world over for many years and we are continuing to do so. To continue, we offer these selections and delivery on the following basis only.”
The next part of the brochure was taken directly from a former distributor of child pornography in West Germany:
“The following list of materials is not all we have to offer. You will receive additional lists, unless you choose not to, at a later date.
FOTOS: With boys and girls in sex action ... At the moment, the following magazine foto sets are available:
Lolita No. 31, 43, 51, 52, 55
Incest No. 1, 2, 4 and 5
School Girls and Boys
Linda and Patty
Lolita Colours Special No. 13, 18, 19 and 20
Lolitas Who Love Pissing
Nymph Lover No. 4 and 6
Loving Children No. 3
Lesbian Lolita
Liza and Her Dog
Sweet Linda”
An additional section of the brochure offered COQ foto sets. COQ formerly was the largest distributor in the world of male homosexual child pornography. The section read as follows:
“COQ’s favorites: Young Boys in Sex Action Fun:
# jjs ¡js ■}{ * :¡c
Loverboys # 1, 2
Joe & His Uncle
Miniboys # 2, 4, 7
* * it * * *
Joyboy # 4, 5”
The brochure contained an order form which could be torn from the rest of the brochure and mailed to the company to obtain desired photo sets.
Customs agents sent this brochure to around 2,000 people whose names were obtained from Customs’ lists of persons from whom child pornography had been seized and from a list of individuals who stated preferences for particular types of child pornography in a Postal Inspection Service survey, that had been conducted under the false name of “Crusaders for Sexual Freedom.” Because the name “Harold Cel-line” could be found on both of these lists, Celline was sent a copy of the brochure. About 215 replies to the brochure were received, including one from “Harrald Cel-line.” Celline’s reply consisted of the brochure’s order form containing his request for four sets of twelve photographs that were entitled: “Joe and His Uncle,” “School Girls and Boys,” “Chicken No. 11” and “Miniboys No. 7.” The order form requested that the materials be shipped to Harrald B. Celline at 306A South Oakland in Carbondale, Illinois. Enclosed with the order form was a check for $60, payable to Produit Outaouais, drawn on the account of David F. Duncan, Southern Illinois University, Department of Health Education. The memo portion of the check noted “For Harry Celline.”
In accordance with Operation Borderline’s standard procedures, the Canadian Customs Service forwarded Celline’s order to United States Customs in Chicago. Customs personnel in Chicago thereupon prepared Celline’s order from Customs’ stock of previously seized child pornography. Customs agents placed the 48 photographs Celline had ordered in an envelope and hand carried the envelope to Ottawa, Ontario, Canada. From there the envelope was sent from “Revenue Canada Customs/Excise” to a Special Customs Agent in St. Louis, Missouri. St. Louis based Special Customs Agent, Brett Braaten took the material from DHL’s St. Louis office on May 29, 1987. At about the same time, Customs in Chicago caused a form letter to be sent to Celline, purportedly from Pro-duit Outaouais, requesting the best day and time for delivery of Celline’s order. Celline replied that any day would be acceptable, that delivery should take place between 10:00 a.m. and 1:00 p.m., and that he would be out of town until June 18, 1987. On June 18, 1987, prior to delivering the material to Celline, Customs obtained a warrant to search Celline’s home.
On June 23, 1987, Agent Braaten delivered the requested child pornographic materials to Celline’s home address while disguised as a DHL delivery man. The defendant, David F. Duncan, answered the door when Braaten knocked on it, received the package, and signed a delivery receipt for it in the name of D.F. Duncan.
About ten minutes after the photo sets were delivered, Braaten and several other agents executed the search warrant at Duncan’s residence. The government agents seized 47 of the 48 originally delivered photographs, as well as dozens of other magazines and photographs. Among the confiscated child pornographic materials were: 163 pictures of boys under the age of 18 involved in sexually explicit conduct and 20 magazines containing males under 18 years old engaged in sexually explicit conduct. Seven of the magazines had on their covers the inscription “COQ,” and one of these magazines was entitled “Joyboy.” As noted previously, COQ materials were among those Customs offered in the Produit Outaouais brochure, likewise “Joyboy” was also one of the titles listed in this brochure. In addition, the agents seized an illustrated child pornography brochure and an accompanying order blank. The order blank had been signed “Dave Duncan” and reflected an order for five items that corresponded to the following descriptions in the brochure: (1) Twelve Photos — The Best Place for a Boy to Masturbate is Out in the Open; (2) A Group of Six Photos — Oral and Anal Sex Between Two Handsome Suntanned Sexual Maniacs; (3) Ten Photos — Papiet and a Friend — A Country Sex Duet with Stallion Cocks; (4) Papiet — Fifteen Photos — The Laughing Farm Boy Radiating Happiness and Health; (5) Andy — Five Photos — The City Boy Who Turned Punk Possesses Mystic Erotic Aura. The order blank was entitled “COQ International Photo Sets,” and listed a Holbaek, Denmark address.
At the time of the search, Duncan gave a statement to Agent Braaten after Duncan had been read his Miranda rights from a pre-printed form and had an opportunity to read a printed statement of his Miranda rights. Thereafter Duncan signed a written waiver of his Miranda rights. During questioning Duncan stated that the items delivered had been misrepresented, as he had thought the items would be “naturist” pictures rather than child pornography. Duncan also stated that he had previously used the name Harry Celline as a pen name in writing and that he used it in ordering materials because nudism is not acceptable in America. Duncan also admitted that Customs had previously seized items he had ordered. Duncan further admitted that he had received items from a company in Holbaek, Denmark in 1982.
II
Duncan challenges his conviction on the ground that the government’s activities constituted “outrageous governmental conduct” violative of due process. In United States v. Nunez-Rios, 622 F.2d 1093, 1098 (2nd Cir.1980), the United States Court of Appeals for the Second Circuit held that “under Rule 12(b)(2) [of the Federal Rules of Criminal Procedure], this defense should normally be raised prior to trial, so that the trial court can conduct a hearing with respect to any disputed issues of fact.” We agree with the Second Circuit that an outrageous governmental conduct defense must be made the subject of a pre-trial motion under Rule 12(b)(2). Not only did Duncan fail to make the outrageous governmental conduct defense the subject of a pre-trial motion, but in fact he failed to raise it in the trial court. In United States v. Fuesting, 845 F.2d 664, 670 (7th Cir.1988); we noted the limited review that can be accorded an argument in a criminal case that is raised for the first time on appeal:
“[Fuesting’s] argument was raised for the first time on appeal, and while it is within our discretion to resolve such issues, our review is limited to the strict standards of the plain error doctrine of Fed.R.Crim.P. 52(b). Under that doctrine, only an error which would result in an ‘actual miscarriage of justice’ would support reversal of Fuesting’s conviction.”
(Citations omitted). Thus, Duncan’s failure to bring his alleged outrageous governmental conduct defense to the district court’s attention means that we review this question under the narrow strictures of the “plain error” doctrine.
We initially turn to the question of whether the government’s conduct could be considered “outrageous” under the law as currently developed. In United States v. D’Antoni, 874 F.2d 1214, 1219 (7th Cir.1989), we recently observed that:
“This court previously has noted that there is doubt as to the validity of the outrageous governmental conduct doctrine. United States v. Bontkowski, 865 F.2d 129, 131 (7th Cir.1989). This doctrine stems from a statement in United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1978), in which the Supreme Court noted that it might ‘some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’ Id. at 431-32, 93 S.Ct. at 1643; see also Bontkowski, 865 F.2d at 131; United States v. Valona, 834 F.2d 1334, 1343 (7th Cir.1987). Like the Supreme Court, this circuit also has left the possibility open, although we have never reversed a conviction on this ground. Valona, 834 F.2d at 1343 (quoting United States v. Swiatek, 819 F.2d 721, 725 (7th Cir.), cert. denied, [484] U.S. [903], 108 S.Ct. 245, 98 L.Ed.2d 203 (1987)).
Whether the Supreme Court itself ultimately will validate the doctrine of outrageous governmental conduct seems doubtful. In Hampton v. United States, 425 U.S. 484, 96 S.Ct. 1646, 48 L.Ed.2d 113 (1976), a three justice plurality opined that ‘[t]he remedy of the criminal defendant with respect to the acts of governmental agents, which far from being resisted, are encouraged by him, lies solely in the defense of entrapment.’ Id. at 490, 96 S.Ct. at 1650; see also Bontkowski, 865 F.2d at 132; United States v. Williams, 858 F.2d 1218, 1225 (7th Cir.1988), cert. denied, - U.S. -, 109 S.Ct. 796, 102 L.Ed.2d 787 (1989).”
Not only have we questioned the validity of the doctrine of outrageous governmental conduct, we have also observed that “due process grants wide leeway to law enforcement agencies in their investigation of the crime. Assuming that no independent constitutional right has been violated, governmental misconduct must be truly outrageous before due process will prevent conviction of the defendant.” United States v. Kaminski, 703 F.2d 1004, 1009 (7th Cir.1983). As we also observed in Kaminski:
“ ‘In seeking to detect and punish crime, law enforcement agencies frequently are required to resort to tactics which might be highly offensive in other contexts. Granting that a person is predisposed to commit an offense, we think that it may safely be said that investigative officers and agents may go a long way in concert with the individual in question without being deemed to have acted so outrageously as to violate due process ... ’”
Kaminski, 703 F.2d at 1009 (quoting United States v. Quinn, 543 F.2d 640, 648 (8th Cir.1976)).
We have previously validated law enforcement undercover operations like that involved in this case. In United States v. Thoma, 726 F.2d 1191 (7th Cir.1984), we were also confronted with a child pornography sting operation. We noted that:
“Although there is no set formula for determining when Government conduct transgresses the boundaries of permissible investigative techniques, there are some recognized factors. When the Government supplies contraband, or becomes intimately involved in its production, then we will examine its conduct closely.... Similarly, we will closely examine those cases in which the Government misconduct injures third parties in some way.”
(Citations omitted). In our case, as in Tho-ma, there was no injury to innocent third parties as the government merely sent Duncan copies of previously seized child pornography. Although the government did provide contraband to Duncan, this does not in and of itself render the government’s conduct outrageous. In United States v. Valona, 834 F.2d 1334, 1344-45 (7th Cir.1987), we approved governmental action supplying contraband to a defendant during the course of an undercover drug investigation:
“It is clear that the government may supply drugs to a suspect in a drug investigation. Hampton v. United States, 425 U.S. 484, 491, 96 S.Ct. 1646, 1650, 48 L.Ed.2d 113 (1976) (Powell, J., concurring) (defendant supplied with actual contraband convicted of selling). This is especially true where the government supplied only a small amount. United States v. Buishas, 791 F.2d 1310, 1314 (7th Cir.1986) (supplied with sixty-nine gram sample of marijuana, which was not the contraband the defendant was convicted of conspiring to sell).... [I]n such cases we ... consider the practical necessity of this type of police work. Large scale drug stings will likely not succeed without the provision of small samples, a typical preliminary stage in such drug trafficking.”
As in Valona, effective enforcement of laws involving the “consensual” crime of receiving child pornography shipped in foreign or interstate commerce will generally require, as a practical necessity, the controlled delivery of items of contraband to individuals, like Duncan, who are predisposed to commit this crime.
A decision that the Customs Service’s conduct was not “outrageous” is directly supported by the Third Circuit’s decision in United States v. Driscoll, 852 F.2d 84, 85-87 (3rd Cir.1988). In Driscoll, as in this case, government authorities, operating under the guise of a foreign child pornography business, sent the defendant a brochure offering to sell child pornography magazines. The defendant “ordered five magazines so explicitly described in the brochure as to leave no doubt that they contained child pornography.” 852 F.2d at 85. As in our case, government agents made a controlled delivery, executed a warrant and “found materials containing child pornography, including the issue of [the magazine] that had been ordered pursuant to their solicitation.” Id. The Third Circuit concluded that:
“In this case, the Postal Service agents merely offered to sell and then sold Dris-coll a magazine. Their conduct thus approximates the conduct that survived due process challenges in United States v. Jannotti, 673 F.2d 578 (3d Cir.) (in banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982), and United States v. Thoma, 726 F.2d 1191 (7th Cir.), cert. denied, 467 U.S. 1228, 104 S.Ct. 2683, 81 L.Ed.2d 878 (1984). In Thoma, a case also involving use of the mails to transport pornography, the Postal Service’s undercover operation made numerous attempts to solicit defendant’s participation in its fictitious child pornography organization before the defendant responded to the solicitations. In rejecting defendant’s due process argument, the court held that the undercover organization ‘was nothing more than an undercover operation of an inherently clandestine activity and did not constitute Government misconduct, much less violate defendant’s right to due process.’ Id. at 1199. In Jannotti, a case involving the ABSCAM investigations designed to locate public officials susceptible to bribery, the agents handed over substantial amounts of cash to buy influence; we distinguished [United States v. Twigg, 588 F.2d 373 (3d Cir.1978)] on the ground that in Twigg the government set up, encouraged, and provided technical expertise to defendant whereas in Jan-notti, it ‘merely created the fiction that it sought to buy the commodity — influence — that the defendants proclaimed they already possessed.’ 673 F.2d at 608. In view of the precedent, we conclude that the government’s conduct here simply does not approach the level of outrageousness necessary to raise a valid due process defense.”
Driscoll, 852 F.2d at 86. In light of our own precedent on the question of “outrageous governmental conduct” and the decision of the Third Circuit in Driscoll, we conclude that the district court did not commit “plain error” in refusing to recognize an “outrageous governmental conduct” defense.
Ill
Duncan also challenges his conviction on the ground of insufficiency of the evidence. Duncan does not contest the fact that he received child pornography that had been shipped in interstate commerce. Rather, he asserts that he lacked prior knowledge of the fact that the photographs he had ordered were to depict children engaged in sexually explicit conduct.
“In evaluating [Duncan’s] sufficiency of the evidence challenge, we note that he bears a heavy burden. Initially, we ‘review all the evidence and all the reasonable inferences that can be drawn from the evidence in the light most favorable to the government.’ ” United States v. Nesbitt, 852 F.2d 1502, 1509 (7th Cir.1988) (quoting United States v. Pritchard, 745 F.2d 1112, 1122 (7th Cir.1984)). “The test is whether after viewing the evidence in the light most favorable to the government, ‘any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Pritchard, 745 F.2d at 1122 (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) (emphasis in original)).
“ 'As we emphasized in United States v. Giangrosso, 779 F.2d 376, 382 (7th Cir.1985): ‘[T]his court is not the trier of fact and we are required to uphold the [trier of fact’s] verdict where “any rational trier of fact” could have found the defendant guilty of the crime. ’ ... ‘Only when the record contains no evidence, regardless of how it is weighed, from which the [trier of fact] could find guilt beyond a reasonable doubt, may an appellate court overturn the verdict. ’ Nesbitt, 852 F.2d at 1509 (quoting United States v. Whaley, 830 F.2d 1469, 1472 (7th Cir.1987), cert. denied, [486 U.S. 1009], 108 S.Ct. 1738 [100 L.Ed.2d 202] (1988) which quoted in turn, United States v. Moore, 764 F.2d 476, 478 (7th Cir.1985)) (emphasis added).”
United States v. Vega, 860 F.2d 779, 793 (7th Cir.1988). A trier of fact may properly consider both direct and circumstantial evidence in reaching its determination. As we observed in United States v. Grier, 866 F.2d 908, 923 (7th Cir.1989):
“ ‘Not only is the use of circumstantial evidence permissible, but “circumstantial evidence ‘may be the sole support for a conviction.’ ” ’ United States v. Nesbitt, 852 F.2d at 1510 (quoting United States v. Williams, 798 F.2d 1024, 1042 (7th Cir.1986) (dissenting opinion) which quoted, in turn, United States v. McCrady, 774 F.2d 868, 874 (8th Cir.1985)). ‘ “Circumstantial evidence is not less probative than direct evidence, and, in some cases is even more reliable.” ’ Williams, 798 F.2d at 1039 (dissenting opinion) (quoting United States v. Andrino, 501 F.2d 1373, 1378 (9th Cir.1974)). See also Wisconsin Jury Instructions-Criminal, No. 170 (‘[Circumstantial evidence may be stronger and more convincing that (sic) direct evidence’). ‘[T]he evidence “ ‘need not exclude every reasonable hypothesis of innocence so long as the total evidence permits a conclusion of guilt beyond a reasonable doubt.’ ” United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986) (quoting United States v. Thornley, 707 F.2d 622 (1st Cir.1983)).’ [United States v.] Koenig, 856 F.2d [843] at 854 [(7th Cir.1988)].”
In weighing both direct and circumstantial evidence
“[Triers of fact] are allowed to draw upon their own experience in life as well as their common sense in reaching their verdict. See [United States v. Radtke, 799 F.2d 298, 302 (7th Cir.1986)]. While ‘[c]ommon sense is no substitute for evidence, ... common sense should be used to evaluate what reasonably may be inferred from circumstantial evidence.’ Id.”
Nesbitt, 852 F.2d at 1511.
The record is replete with evidence that provided a basis for a reasonable jury to conclude beyond a reasonable doubt that Duncan knowingly ordered and subsequently received material depicting children engaged in sexually explicit conduct. The brochure the Customs Service sent to Duncan plainly and unambiguously advertised for sale photographs of “boys and girls in sex action” and “[yjoung boys in sex action fun.” In addition, the brochure noted the “worldwide ban and intense enforcement” and the “underground” nature of the dissemination of this material, facts that placed Duncan on notice that the materials ordered were not innocent. Moreover, titles that in the context of the entire brochure scream “child pornography,” such as “School Girls and Boys,” “Lolita,” “Loving Children,” and “Joyboy,” were sufficiently clear and sufficiently explicit to make anyone, let alone Duncan, a collector of this material and a college professor assumed to be above average in intelligence, aware of the fact that child pornography was being offered. Furthermore, Duncan’s own personal order, in the name of Harrald Celline, was for photo sets of “School Girls and Boys,” “Joe and His Uncle,” “Miniboys No. 7” and “Chicken No. 11.” Certainly, at least some of these titles would have placed Duncan on notice that he was ordering child pornography. In addition, to this evidence, the jury was made aware of the fact that Customs’ search of Duncan’s residence resulted in the seizure of many other items depicting children engaged in sexually explicit behavior. These items included materials from COQ, formerly a large scale purveyor of homosexually oriented child pornography. COQ items were some of those offered in the brochure Customs sent to Duncan, and Duncan was found to have possessed a copy of “Joyboy,” one of the magazines Customs had offered in its brochure. In addition, Customs had previously seized an advertisement from COQ that had been sent to Duncan in the name of “Harold Celline.” Furthermore, Customs also seized a brochure and accompanying order blank for COQ child pornography material that was illustrated and described the contents of the material with sexually explicit language. Duncan had already filled out in his own name the order blank requesting five items of the COQ material. Finally, evidence was received that Duncan had completed a “Crusaders for Sexual Freedom” survey in the name of “Harold Celline,” that had been returned to the Postal Inspection Service and that stated that his highest preference was for “preteen sex-homosexual” material.
The jury was confronted with evidence of a brochure that reflected an offer of child pornography and Duncan’s order of photo sets with titles that, in the context of the brochure, clearly denoted child pornography. The jury also received evidence of Duncan’s possession of vast amounts of child pornography in his residence, including an illustrated COQ child pornography brochure that described the involved material in sexually explicit language. The above evidence, together with Duncan’s possession of a completed order blank for the COQ material and Duncan’s statement of preference for pre-teen, homosexual material in the “Crusaders for Sexual Freedom” survey, could very logically lead a reasonable jury to conclude that Duncan knowingly received depictions of minors engaged in sexually explicit conduct that had been transported in interstate and foreign commerce.
We agree that the trial court’s failure to consider an outrageous governmental conduct defense was not plain error and also conclude that there was sufficient evidence to support Duncan’s conviction. Thus, the judgment of conviction is
Affirmed.
. Operation Borderline is the same undercover operation involved in our recent decision in United States v. Kalinowski, 890 F.2d 878 (7th Cir.1989).
. The numbers following the titles refer to a specific issue in a series of child pornography magazines.
. The United States Postal Inspection Service’s "Crusaders for Sexual Freedom” survey involved a questionnaire that was mailed to individuals whose names had appeared on previous Customs Service pornography seizure lists. Harold Celline had received a survey because an advertisement from a Danish child pornography enterprise, COQ, addressed to Celline had been the subject of a Customs seizure. The questionnaire asked respondents to state their preferred sexual materials, and Celline responded that his highest preference was for pre-teen sex-homosexual material. The Postal Inspection Service provided the information concerning Celline’s response to the Customs Service sometime during the early part of 1986.
. After receiving the envelope from DHL, Agent Braaten took the photographs from the envelope, inventoried them and returned them to the envelope.
. The Government presented testimony from Dr. James Anthony Monteleone, M.D., Professor of Pediatrics at St. Louis University Medical School, who is board certified in pediatric endocrinology. Based upon his medical opinion and training, he testified that the pictures the Government had delivered to Duncan depicted children under the age of 18. He also testified that the other items of child pornography that were seized from Duncan and received in evidence at trial depicted children under the age of 18.
. As noted in the previous paragraph, Holbaek, Denmark, according to the order blank Duncan had filled out, was the location where orders for COQ International materials were to be sent.
Question: What is the ideological directionality of the court of appeals decision?
A. conservative
B. liberal
C. mixed
D. not ascertained
Answer:
|
songer_origin
|
C
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the type of court which made the original decision. Code cases removed from a state court as originating in federal district court. For "State court", include habeas corpus petitions after conviction in state court and petitions from courts of territories other than the U.S. District Courts. For "Special DC court", include courts other than the US District Court for DC. For "Other", include courts such as the Tax Court and a court martial.
Santiago SANDOVAL, Petitioner-Appellant, v. Gerado ACEVEDO, Warden of East Moline Correctional Center, Respondent-Appellee.
No. 92-2089.
United States Court of Appeals, Seventh Circuit.
Argued Jan. 26, 1993.
Decided May 20, 1993.
Robert P. Will, Jr. (argued), Will & Bris-coe, Waukegan, IL, for petitioner-appellant.
Thomas L. Ciecko, Deputy Atty. Gen., Martha E. Gillis (argued), Office of the Attorney General, Chicago, IL, for respondent-appellee.
Before POSNER and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.
POSNER, Circuit Judge.
Santiago Sandoval was convicted by a jury in an Illinois state court of criminal sexual assault and was sentenced to 15 years in prison, the maximum punishment. After exhausting his state remedies he sought habeas corpus in a federal district court, lost, and appeals.
The only direct evidence of Sandoval’s guilt was the testimony of his victim (whom we shall call “S_” to protect her privacy), which we summarize: She was a divorced woman of 20 when she first met him, he a 27-year-old man who had been born in Panama, was divorced, and was working as a power lineman for Commonwealth Edison at a salary of $600 a week. After living together for several months they broke up because he would become violent and hit her when she refused his demands for sexual intercourse. They reconciled to the extent of resuming dating and were having ,a fine time at a night spot on New Year’s Eve when Sandoval became jealous upon being told by the disc jockey that S_ had been seen with another man. Sandoval calmed down and S_agreed to accompany him to his apartment to discuss their relationship. He again became angry, accused her of having slept with the other man, and finally announced “that he was going to fuck [her] one last time.” She resisted, but he dragged her on her back to the bedroom and then ordered her to roll over. Realizing that he meant to force her to submit to anal intercourse, she begged him not to have intercourse with her that way because they had had anal sex twice before and it had hurt her very badly. After forcibly sodomizing her, he compelled her to perform fellatio on him.
She fled, partially clothed, pounded on the first apartment door that she came to, and told the occupant in a manner that he described as “between anxious and hysterical” that she had been raped. He let her in, and she then called the police. This part of her testimony was corroborated by the occupant, and by the police officers who responded to her call and arrested Sandoval. The police also testified that she had bruises on her face.
Sandoval testified that while they were living together he and S_had had anal intercourse frequently, that she had enjoyed it and even on occasion had initiated it. When, at the nightclub on New Year’s Eve, he accused her of having been with another man, she tearfully confessed, and at his apartment afterward had initiated anal and oral sex with him. But he could not get over her betrayal of him with the other man and eventually ordered her to leave the apartment. She got upset, announced that “I’m going to screw you,” and stormed out of the apartment.
On direct examination of S_the prosecutor had asked her whether she had ever had anal sex with anyone besides Sandoval, and she had answered “No.” She had also testified that she had not dated since the rape. On cross-examination, defense counsel, after reminding S_of her denial that she had ever had anal sex with anyone besides Sandoval, said, “Now, you know a fellow named ...” — at which point the prosecutor interrupted with an objection. Out of the hearing of the jury, the defendant’s lawyer explained that he had a witness sitting in the hallway who would impeach S_’s testimony by testifying that he had had anal sex with her, that she had enjoyed it, and that he had seen her shortly before the trial “hanging all over a gentleman friend of hers” at a bar. The judge refused to allow the witness to testify but did instruct the jury, just before the closing arguments, that it was to disregard the testimony that S_had not had anal intercourse with anyone besides Sandoval.
The evidence was excluded on the authority of Illinois’ rape shield law, on which see the useful discussion in Comment, “Toward a Consistent Recognition of the Forbidden Inference: The Illinois Rape Shield Statute,” 83 J.Crim.L. & Criminology 395 (1992). The law is understood to forbid the introduction in a rape case of evidence concerning the victim’s sexual activities with persons other than the defendant. True, this is not quite what the law says. It says that in prosecutions for rape (called “criminal sexual assault” in Illinois) and related offenses, “the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.” Ill.Rev. Stat. ch. 38 ¶ 115-7(a). Evidence of sexual activity with other people besides the accused could often be described as evidence concerning — bearing on, related to — the past sexual conduct of the alleged victim with the accused. But that is not how the statute is interpreted. As explained in the decision of the Supreme Court of Illinois affirming Sandoval’s conviction, the statute limits evidence of the victim’s sexual activity to her activity with the defendant, period. People v. Sandoval, 135 Ill.2d 159, 176, 142 Ill.Dec. 135, 143, 552 N.E.2d 726, 734 (1990) (reversing the decision of the Illinois Appellate Court, which had reversed Sandoval’s conviction). The interpretation of the statute by Illinois’ highest court binds us, and establishes that the prosecutor violated state law when he asked S_about her history of anal intercourse with persons other than the defendant and that the defense lawyer violated state law when he tried to cross-examine her about it. The prosecutor is not authorized to waive the protections of the rape shield law — for they are protections as much for the rape victim as for the prosecution of rape cases — and if he does so this does not open the door to defense counsel to disregard the rape shield law in his cross-examination of the victim. Id. at 180, 142 Ill.Dec. at 140, 552 N.E.2d at 731.
But Illinois cannot, through a rape shield law or anything else, deprive a criminal defendant of his federal constitutional right to confront the witnesses against him, a right that has been held to imply the further right, though not one of unlimited extent, to cross-examine the prosecutor’s witnesses. Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1109-11, 39 L.Ed.2d 347 (1974); Stephens v. Miller, 989 F.2d 264, 267 (7th Cir.1993). In this as in most rape cases, the key witness, and only eyewitness (apart from the alleged rapist), was the victim of the alleged rape; and the essential part of her testimony — that she was forced against her will to submit to sexual intercourse with the defendant — was not directly corroborated, although there was some corroboration, as we shall see. The principle of the rape shield law, designed as it is to exclude evidence that even if relevant has little probative value but great capacity to embarrass and distract, evidence that is considered to shift the balance of proof too far in favor of the rape defendant, has been held to be constitutional. Michigan v. Lucas, — U.S.-, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). But the constitutionality of such a law as applied to preclude particular excidpatory evidence remains subject to examination on a case by case basis. Stephens v. Miller, supra, 989 F.2d at 267-268; Moore v. Duckworth, 687 F.2d 1063, 1065 (7th Cir.1982); United States v. Begay, 937 F.2d 515, 524 (10th Cir.1991).
Sandoval argues that once S_testified that she had never had anal intercourse with anyone besides Sandoval, and by so testifying buttressed her testimony that she had not consented to have anal intercourse with him on the night in question, defense counsel was entitled to impeach her testimony by asking her whether she had had consensual anal intercourse with X_, and if she denied that she had, to call X_to the stand and elicit testimony to the contrary from him. This line of inquiry would clearly have been precluded by the rape-shield statute, constitutionally applied, had she not testified about her history of anal intercourse. The essential insight behind the rape shield statute is that in an age of post-Victorian sexual practice, in which most unmarried young women are sexually active, the fact that a woman has voluntarily engaged in a particular sexual activity on previous occasions does not provide appreciable support for an inference that she consented to engage in this activity with the defendant on the occasion on which she claims that she was raped. And allowing defense counsel to spread the details of a woman’s sex life on the public record not only causes embarrassment to the woman but by doing so makes it less likely that victims of rape will press charges.
We must consider what difference it made that S_testified about her other sexual activities (or abstentions). If that testimony was irrelevant, the defense would not, under standard principles of evidence, have been permitted — and certainly would not have had a constitutional right — -to impeach the testimony with extrinsic evidence (that is, testimony by X_). Taylor v. National Railroad Passenger Corp., 920 F.2d 1372, 1375 (7th Cir.1990). But her testimony might have been thought relevant on the theory that it was calculated or at least likely to strengthen the prosecution’s ease by reducing the likelihood that she had consented to anal intercourse with Sandoval on the occasion in question. If so, the defense would have a stronger case for being permitted to rebut the testimony, if necessary by extrinsic evidence, lest the jury be left with a misleading impression. As we have emphasized, a rape shield statute cannot constitutionally be employed to deny the defendant an opportunity to introduce vital evidence, and impeaching evidence can be vital, J. Alexander Tan-ford & Anthony J. Bocchino, “Rape Victim Shield Laws and the Sixth Amendment,” 128 U.Pa.L.Rev. 544, 581-83 (1980), though whether or when impeachment by extrinsic evidence is constitutionally guaranteed is fortunately an issue we need not resolve. Compare Johnson v. Brewer, 521 F.2d 556, 562 (8th Cir.1975), with id. at 564 (dissenting opinion).
For if there was error of constitutional magnitude in excluding the particular evidence (which we do not decide), it was cured, or more precisely rendered harmless beyond reasonable doubt, by the judge’s instruction. Cf. Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438, 89 L.Ed.2d 674 (1986). We are well aware of the limited efficacy of most curative instructions — but not this one. When the judge instructed the jury to disregard S_’s denial of having engaged in anal intercourse with other men besides the defendant, the natural inference for the jury to draw — which is just the inference that the defendant would have wanted it to draw — was that she had had anal intercourse with other men. So the exclusion of the evidence that the defense wanted to offer did not harm the defense and therefore cannot be a ground for invalidating Sandoval’s conviction. In this respect the ease is like Moore v. Duckworth, supra. The victim of the alleged rape in that case was pregnant at the time she testified at trial. The defendant wanted to present evidence that she was pregnant by her boyfriend, not by him. The judge held that the evidence was inadmissible under the rape shield statute. We thought this an absurd interpretation of Indiana’s rape shield law, but bowed to it because it was the interpretation of the state’s highest court. But we added that “the absurdity of the Rape Shield Law cannot be overlooked if it denied [the defendant] a fair trial.” 687 F.2d at 1065. However, as the trial judge had employed strenuous and apparently successful efforts to prevent the jury from discovering that the rape victim was pregnant, we concluded that the defendant had not been unfairly harmed by the application of the rape shield law, and therefore could not obtain relief under the Constitution.
The next issue concerns the judge’s refusal to permit testimony about S_’s “hanging all over a gentleman friend.” The testimony was not excluded on the authority of the rape shield statute, presumably because it was not testimony about sexual activity — though that depends on how the term, which the Illinois rape shield law uses without defining, is interpreted. Comment, “Rape Shield Statutes: Constitutional Despite Unconstitutional Exclusions of Evidence,” 1985 Wis.L.Rev. 1219, 1227-28 and n. 35. Also, the alleged incident of S_’s “hanging all over a gentlemen friend” did not occur prior to the alleged rape, but “prior” or “past” in rape shield laws is usually interpreted as prior to trial, rather than prior to the alleged rape. See United States v. Torres, 937 F.2d 1469, 1472 (9th Cir.1991), construing the federal rape shield provision, Fed.R.Evid. 412.
The evidence was not, however, such vital impeachment that its exclusion can be said to have deprived Sandoval of his constitutional rights. For the evidence of his guilt was very powerful despite the lack of direct corroboration for S_’s central testimony. Realistically, a jury called upon to decide guilt must compare the prosecution’s version of the incident giving rise to the case with the defense version. Spitz v. Commissioner, 954 F.2d 1382, 1384-85 (7th Cir.1992). The defense version asked the jury to believe that S_, after an extensive bout of sexual intercourse initiated by her and only reluctantly consented to by the pacific defendant, flew into a rage, bruised herself, ran half-naked into the hallway, and successfully impersonated a rape victim to a neighbor and two policemen. Anything is possible, but this is distinctly unlikely and its plausibility would not have been decisively enhanced had it been established that S_had exaggerated the effect of the rape when she testified that she hadn’t dated since the rape.
The last issue concerning the rape shield law brings us back to the mysterious Mr. X_An important part of S_’s testimony, it will be recalled, was that she disliked anal intercourse, found it painful, and begged Sandoval not to force her to have intercourse that way, implying that she might have consented, however reluctantly, to vaginal intercourse. He on the other hand, as we have noted, testified that she liked anal intercourse and initiated it on this and other occasions. If it could be proved that she had had and enjoyed anal intercourse with another man, never complaining about any pain, this could be thought not merely to contradict her testimony on an arguably collateral point (having to do with her sexual relations with other men) with a view to persuading the jury to disbelieve her testimony on the vital points, but to undermine her testimony that she did not consent to have anal intercourse with Sandoval on the night of the alleged rape, because pain was one of the reasons that she had offered for why she hadn’t consented. The Supreme Court of Illinois in Sandoval’s appeal held that the admission of X_’s evidence was barred by the rape shield law, 135 Ill.2d at 183, 142 Ill.Dec. at 145-46, 552 N.E.2d at 736-37, but that law, as we have said, cannot be allowed to prevent a defendant from putting on a defense to what is after all a very serious charge. And consent is, of course, a defense to rape.
But we do not understand defense counsel to have wanted to put on his witness waiting in the hallway for the purpose of impeaching S_’s testimony that she did not consent to have anal intercourse with Sandoval. So far as appears, Sandoval’s counsel would not have procured the witness had it not been for S_’s testimony about never having had anal intercourse with anyone else. He wanted the witness solely in order to contradict a body of testimony that the judge erased by his curative instruction. But if this is wrong and Sandoval wanted the witness also or instead in order to contradict S_’s testimony about consent, still we do not think its exclusion violated Sandoval’s constitutional rights. Sexual intercourse, whether vaginal or otherwise, is not uniformly pleasurable or painful. The fact that S_had had pleasurable anal intercourse with another man on another occasion would not show that she would have enjoyed having it with Sandoval on an occasion when he was enraged with her and wanted by penetrating her anally to humiliate and, quite possibly, physically hurt her. Indeed, by that logic rape shield laws would be unconstitutional to the core because their central aim is to prevent the drawing of an inference of consent from previous consensual intercourse with other men. This case is a little more difficult because the victim’s testimony was that she had found anal intercourse unpleasant with Sandoval when they were living together. This implies that she disliked the practice, an implication in tension with her having voluntarily engaged in it with another man — though of course we often consent to do things we don’t much like or even actively dislike.
But this just brings us back to the impeachment of her testimony that she had never had anal intercourse with anyone but Sandoval. The judge told the jury to disregard that testimony. The jury was left to ponder the implication that she had had anal intercourse with someone else. The jury surely realized that it undermined her contention that she found anal intercourse painful, and that by doing so it also undermined her testimony that she had not consented. Weighing all the facts and their implications, the jury convicted Sandoval. The thumb of the rape shield law was not on the balance; in effect, the judge’s instruction took that law out of the case. We can see this by supposing that S_had never testified about anal intercourse with other men. Then even without a rape shield law it is doubtful that testimony that she had enjoyed it with another man would be admissible, for it doesn’t, or at least shouldn’t, require a rape shield law to show that consent to sex with X on one occasion is not good evidence of consent to sex with Y on another.
Finally and unrelatedly, Sandoval challenges his sentence as excessive. The challenge can get nowhere. It was not raised in the Illinois supreme court, 16 Charles Alan Wright et al., Federal Practice and Procedure § 4007 at p. 554 (1977); and in any event a 15-year sentence for rape not involving serious physical injury, while severe, can hardly be thought so savage as to violate the limits, if any, which the Constitution places on the severity of prison sentences. Harmelin v. Michigan, — U.S. -, 111 S.Ct. 2680, 115 L.Ed.2d 886 (1991). Sandoval challenges the following remarks by the sentencing judge: “I find it absolutely astounding that any human being would participate in this type of activity. Animals do not engage in this type of logic [?]. But animals react from instinct, and logically we are told that human beings are smarter than animals, because we have two matters that make us more superior. We can talk and we can reason and we are superior to animals. Sometimes I wonder.” And Sandoval points out that in another case this judge was rebuked by his judicial superiors for remarking, in sentencing a defendant for homosexual child abuse, “I cannot think of a worse crime than an aggravated sexual abuse crime. I can tolerate a murderer. I can tolerate a robber. I can tolerate a burglar. But when it comes to sex, you know, even an animal avoids fornication with an offspring from the same birth. You know, your act is very, very heinous. Your act is worse than that animal, at least the animal, by instinct, does different things, and a human being differs from an animal because we are supposed to know how to reason, how to think.” Quoted in People v. Zemke, 159 Ill.App.3d 624, 628, 111 Ill.Dec. 258, 260, 512 N.E.2d 374, 376 (1987). Although the accuracy, relevance, and tone of the judge’s remarks in sentencing Sandoval can be questioned, Sandoval points to no principle of constitutional law that would authorize a federal court to invalidate an otherwise lawful and constitutionally proper sentence because it did not appear to be the product of informed, measured consideration. It is not suggested that the judge took the defendant’s race, religion, or political opinions, or any other forbidden ground for punishment into account in determining the sentence. Cf. Zant v. Stephens, 462 U.S. 862, 885, 103 S.Ct. 2733, 2747, 77 L.Ed.2d 235 (1983); United States v. Neyens, 831 F.2d 156, 159 (7th Cir.1987).
The denial of habeas corpus is
AFFIRMED.
Question: What type of court made the original decision?
A. Federal district court (single judge)
B. 3 judge district court
C. State court
D. Bankruptcy court, referee in bankruptcy, special master
E. Federal magistrate
F. Federal administrative agency
G. Special DC court
H. Other
I. Not ascertained
Answer:
|
songer_r_natpr
|
1
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
Your specific task is to determine the total number of respondents in the case that fall into the category "natural persons". If the total number cannot be determined (e.g., if the respondent is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.
Walter D. BEEZER v. BALTIMORE & OHIO RAILROAD COMPANY, a Corporation, Appellant.
No. 10945.
United States Court of Appeals Third Circuit.
Argued March 19, 1953.
Decided April 16, 1953.
Vincent M. Casey, Pittsburgh, Pa. (Marvin D. Power, Margiotti & Casey, Pittsburgh, Pa., on the brief), for appellant.
E. V. Buckley, Pittsburgh, Pa. (Mercer & Buckley, Pittsburgh, Pa., on the brief), for appellee.
Before BIGGS, Chief Judge, and MARIS and GOODRICH, Circuit Judges.
PER CURIAM.
The appellant contends that the judgment of the court below should be reversed, asserting that no actionable negligence was shown on its part which was the proximate cause of the accident, that the verdict was against the weight of the evidence, that the evidence as to the impaired physical condition of the plaintiff was insufficient, and that the verdict was excessive. Every contention made is fully answered by the opinion of Judge Stewart. See 107 F.Supp. 361. Since we perceive no error, the judgment of the court below will be affirmed.
Question: What is the total number of respondents in the case that fall into the category "natural persons"? Answer with a number.
Answer:
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songer_circuit
|
J
|
What follows is an opinion from a United States Court of Appeals. Your task is to identify the circuit of the court that decided the case.
Errol B. RESNICK, Plaintiff-Appellant, v. UNITED STATES PAROLE COMMISSION, et al., Defendants-Appellees.
No. 86-1509.
United States Court of Appeals, Tenth Circuit.
Dec. 21, 1987.
Rehearing Denied Feb. 23,1988.
Cyd Gilman, Asst. Federal Public Defender, D. Kan. (Charles D. Anderson, Federal Public Defender, Wichita, Kan., with her on the brief), for plaintiff-appellant.
Leon J. Patton, Topeka, Kan. (Benjamin L. Burgess, Jr., U.S. Atty., Wichita, Kan., Alleen S. Castellani, Asst. U.S. Atty., D. Kan., Topeka, Kan., with him on the brief), for defendants-appellees.
Before MOORE, BALDOCK and McWILLIAMS, Circuit Judges.
McWILLIAMS, Circuit Judge.
Errol B. Resnick, an inmate in the United States Penitentiary, Leavenworth, Kansas, filed a petition for habeas corpus in the United States District Court for the District of Kansas against the United States Parole Commission, challenging a decision of the Commission which held that Resnick would continue to stay in prison for the time being and that he would not be afforded another parole hearing until April, 1992. 28 U.S.C. § 2241. The district court issued a show cause order, and the Commission filed an answer and return, to which Resnick filed a traverse. Based on the pleadings, and attachments thereto, the district court denied Resnick’s petition and dismissed the action. Resnick appeals.
Resnick is presently incarcerated in the United States Penitentiary, Leavenworth, Kansas, pursuant to four sentences imposed by federal district courts in the State of Florida. The sentences thus imposed are to be served consecutively, and they total 34.5 years. Resnick has now served approximately 15 years under those consecutive sentences. Specifically, Resnick was sentenced on federal charges as follows:
1. 17 years by the United States District Court for the Southern District of Florida on November 2, 1971, upon a conviction for a narcotics conspiracy;
2. 10 years, to be served consecutively to the 17-year sentence referred to in paragraph 1, by the United States District Court for the Middle District of Florida on December 6, 1972, upon a conviction for unlawful melting of United States coins;
3. 2 years and six months, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on January 24, 1973, upon a conviction for illegal sale of firearms; and
4. 5 years, to be served consecutively to the sentences mentioned above, by the United States District Court for the Middle District of Florida on September 12, 1973, upon a conviction for conspiracy to escape and attempted escape.
In addition to the four sentences mentioned above, Resnick is serving two life sentences imposed by state courts in Florida for hiring others to commit two murders. The Florida sentences were to be served concurrently with the federal sentences now being served.
Resnick had his initial hearing before examiners of the United States Parole Commission on August 25, 1981. The examiners assigned an offense severity rating for each offense and aggregated those ratings to result in a greatest II rating, indicating that Resnick’s offenses were very serious. As concerns Resnick’s salient factor rating, the examiners fixed that at 10, indicating that he was a good parole risk. In this regard, the examiners noted that Resnick, while incarcerated, had earned a bachelor’s degree and a master’s degree, and was working toward a doctorate degree. Resnick was also highly recommended for parole by a former assistant educational director at the penitentiary.
The examiners referred Resnick’s case to the National Commissioners on September 8, 1981, for original decision because of the unusual sophistication of the crimes involved and because of the possibility of an ongoing criminal conspiracy. On October 16, 1981, the National Commissioners determined that it needed more information concerning the scope of the offenses. A letter was written at that time by the National Commissioners to the U.S. Probation Office requesting more information. The matter was subsequently referred back to the examiners for further hearing, at which time information obtained from the United States Probation Office, as well as other matters, was to be considered. Resnick was informed on February 23, 1982, which was later corrected on March 2, 1982, that the hearing would be held on April 27, 1982.
At the hearing on April 27, 1982, the examiners again gave Resnick a salient factor score of 10, and an offense severity rating in the greatest II category. The case was again referred to the National Commissioners with a recommendation that release of Resnick at that time would depreciate the seriousness of his several offenses, which recommendation noted Res-nick’s state criminal convictions, as well as the four federal convictions, and recommended that Resnick be kept in custody until April 1, 1992, when a new parole hearing would be held. On June 4, 1982, the National Commissioners adopted the recommendations of the hearing examiners. Resnick’s subsequent appeal to the National Appeals Board was denied, whereupon Resnick instituted the present proceeding.
The present appeal raises two issues: (1) The offenses for which Resnick was convicted and sentenced having occurred in 1971, 1972, and 1973, does the application of statutes and regulations in effect at the time of Resnick’s parole board hearings in 1981 and 1982 violate the ex post facto provision of the United States Constitution, Article 1, Section 9, Clause 3? (2) Were Resnick’s due process rights violated by arbitrary and capricious action on the part of the Commission?
Ex Post Facto
Article I, Section 9, Clause 3, of the Constitution provides that, “No Bill of Attainder or ex post facto law shall be passed.”
18 U.S.C. § 4206(a), in effect at the time of Resnick’s parole hearings, provides as follows:
(a)If an eligible prisoner has substantially observed the rules of the institution or institutions to which he has been confined, and if the Commission, upon consideration of the nature and circumstances of the offense and the history and characteristics of the prisoner, determines:
(1) that release would not depreciate the seriousness of his offense or promote disrespect for the law;
(2) that release would not jeopardize the public welfare;
subject to the provisions of subsections (b)and (c) of this section, and pursuant to guidelines promulgated by the Commission pursuant to section 4203(a)(1), such prisoner shall be released.
# # * # * *
(c)The Commission may grant or deny release on parole notwithstanding the guidelines referred to in subsection (a) of this section if it determines there is good cause for so doing: Provided, That the prisoner is furnished written notice stating with particularity the reasons for its determination, including a summary of the information relied upon.
In denying Resnick present parole and continuing the matter for a 10-year reconsideration to April, 1992, the National Commissioners spoke as follows:
REASONS:
Your offense behavior has been rated as Greatest II severity because you were involved in melting $9,000 in U.S. coins, sold firearms without filing the appropriate ATF forms, smuggled approximately 900 lbs. of marijuana and you had two individuals murdered (as evidenced by your Florida conviction) in conjunction with the marijuana offense. Your salient factor score (SFS-81) is 10 (see attached sheet). You have been in custody a total of 130 months. Guidelines established by the Commission for adult cases which consider the above factors indicate a minimum of 52 months to be served before release for cases with good institutional program performance and adjustment. In addition, you attempted to escape from a secure facility and guidelines established by the Commission for that offense indicate a customary range of 6-12 months to be added to your minimum range of 52 months. Your combined minimum range is 58 months. After review of all relevant factors and information presented, it is found that your release at this time would depreciate the seriousness of your offense behavior. Commission guidelines for Greatest II severity cases do not specify a maximum limit. Therefore, the decision in your case is based in part upon a comparison of the relative severity of your offense behavior with the offense behaviors and time ranges specified in the Greatest I severity category.
In rendering this decision, the Commission also noted that the victims were murdered in an especially brutal fashion; one victim was mutilated by being covered with lye and the other thrown out of a car and left by the roadside.
Also, during the attempted escape, a hostage was taken.
In essence, then, the National Commissioners denied Resnick present parole and postponed reconsideration to April, 1992, because his present release “would depreciate the seriousness of ... [Resnick’s] offense behavior” which formed the basis for his four federal convictions. In making that decision, the Commission also “noted” that in each of the homicides for which Resnick was convicted of murder under Florida law the victims were treated in especially brutal manner, one victim being mutilated when covered with lye and the other thrown out of a car and left by the roadside.
Resnick’s ex post facto argument, as we understand it, is that in denying parole the Commission concluded that to release Resnick now would, in the language of 18 U.S.C. § 4206(a)(1), “depreciate the seriousness of his offense behavior,” and that such language did not appear in 18 U.S.C. § 4203 (enacted in 1948) (the predecessor statute to 18 U.S.C. § 4206(a)(1)), which was in effect at the time of his four federal convictions. In other words, counsel argues that at the time Resnick suffered his four federal convictions, parole could not have been denied on the ground that to grant parole would “depreciate the seriousness of his offense behavior,” and that the statute in effect at the time of his parole hearing which permitted denial of parole on that ground violated the ex post facto provision. We do not agree with Resnick’s premise that in 1971-73 parole could not be denied, notwithstanding any guidelines, on the ground that to grant parole would have depreciated the seriousness of the underlying offenses.
In Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981), a case involving a Florida statute which reduced the “gain time” for good conduct and obedience to prison rule, the Supreme Court held that for a criminal or penal statute to be ex post facto it must be retrospective, i.e., it must apply to events occurring before its enactment and it must “disadvantage” the person affected by it.
The district court in the instant case concluded that although § 4206(a)(1) was applied retroactively, that such application did not “disadvantage” Resnick. We agree. The enormity or magnitude of the offenses which form the basis for a prisoner’s incarceration has always been a basis for denying parole, notwithstanding guidelines. And this is true even though the predecessor statute to § 4206(a)(1) did not contain the “depreciate the seriousness of the offense” language. The predecessor statute did provide that parole could be granted if it appeared that there is a reasonable probability that the prisoner will live and remain at liberty without violating laws, and if the Commission believes that “such release is compatible with the welfare of society.” In Wiley v. United States Board of Parole, 380 F.Supp. 1194 (M.D.Pa.1974), the court held that denying parole on the ground that to grant parole would “depreciate the seriousness of the offense” came within the language of the predecessor statute, commenting that the seriousness of the offense is a factor which is related to and could be “determinative of the question of whether the prisoner’s release is compatible with the welfare of society.” We agree with such reasoning. Indeed the enormity and magnitude of the underlying offenses for which the prisoner is incarcerated has always been a most important factor in determining whether an inmate should be paroled. And we agree that “early parole” in such a case might tend to “depreciate” the seriousness of the inmate’s criminal behavior.
We regard Resnick’s ex post facto argument to be directed mainly to the statute above referred to, § 4206(a)(1). However, counsel does also complain that the guidelines applied in Resnick’s parole hearings in 1981 and 1982 also violated the ex post facto clause. We fail to see just what guidelines were applied which “disadvantaged” Resnick. Indeed, the thrust of Res-nick's entire argument is that the guidelines in effect in 1981-1982 suggested Res-nick’s early parole release and that the Commission erred in going outside the guidelines. In this general connection, however, we note that the decided weight of authority is that guidelines of this sort, being guidelines only, are not subject to the ex post facto prohibition. Beltempo v. Hadden, 815 F.2d 873, 875 (2d Cir.1987); Wallace v. Christensen, 802 F.2d 1539, 1553-54 (9th Cir.1986).
Due Process
We fail to see that Resnick’s due process rights were violated in either of the two proceedings before the Commission. He was given notice under the then existing statute regulations and his request for documents was belated, untimely, and nonspecific.
Nunez-Guardado v. Hadden, 722 F.2d 618 (10th Cir.1983) has present pertinency. In that case we upheld Commission action which departed from the guidelines and fixed the inmate’s parole date above the guidelines’ recommended date of release, stating that “judicial review” of Parole Commission action is “narrow” and that the test is whether the decision of the Commission is arbitrary or capricious, or an abuse of discretion. We also noted that “prison conduct” is only one of the factors to be considered in parole release decision. We further held that consideration by the Commission of criminal acts other than the one count to which the defendant had pleaded guilty after plea bargaining was proper. And having held that the Commission’s action was not arbitrary or capricious, or any abuse of discretion, but was based on “good cause” and was non-viola-tive of due process, we declined to reach the issue of whether the federal parole statutes create a liberty interest.
In sum, although Resnick had attempted escape in Florida, he apparently had a very favorable record in the penitentiary in Leavenworth, Kansas. However, the Commission concluded that the magnitude of the federal crimes for which Res-nick had been convicted, coupled with the two state convictions for murder, which were apparently related to his federal conviction for drug conspiracy, amounted to a “good cause” for denying present parole, since to grant present parole would “depreciate” the seriousness of his offenses. Such, in our view, constitutes a “rational basis” for the Commission’s action. Nunez-Guardado, 722 F.2d at 623; Solomon, 676 F.2d at 290.
Judgment affirmed.
. In Dunn v. U.S. Parole Commission, 818 F.2d 742, 744 (10th Cir.1987), the court held that a district court had subject matter jurisdiction over a habeas corpus proceeding despite the fact that the Parole Commission rather than the warden of the prison was named in the petition. The court reasoned that: “[ajlthough the Leavenworth warden cannot be said to be indifferent to the resolution of Mr. Dunn’s challenge, only in the most formal sense does he control whether Mr. Dunn is released ... [r]ather, ... the Commission directly control(s) whether Mr. Dunn remains in custody."
. Resnick earned his bachelor’s degree in psychology, his master's degree is in the field of numismatics, and he is working toward a doctorate in finance.
. In Solomon v. Etsea, 676 F.2d 282, 287 (7th Cir.1982), the Seventh Circuit stated that the "magnitude” of a prisoner’s individual crime may be the "good cause” referred to in 18 U.S.C. § 4206(c) for which the Commission may deny parole notwithstanding the guidelines and that "[i]t is the extenuating circumstances of the particular offense, not the nature of the violation categorizing him in the guidelines, which must make up the necessary good cause."
. The predecessor statute, 18 U.S.C. § 4203(a) stated: "If it appears to the Board of Parole from a report by proper institutional officers or upon application by a prisoner eligible for release on parole, that there is a reasonable probability that such prisoner will live and remain at liberty without violating the laws, and if in the opinion of the Board such release is not incompatible with the welfare of society, the Board may in its discretion authorize the release of such prisoner on parole.”
. 28 C.F.R. § 2.55(a) provides: "at least 60 days prior to a hearing scheduled pursuant to 28 C.F.R. 2.12 or 2.14 each prisoner shall be given notice of his right to request disclosure of the reports and other documents to be used by the Commission in making its determination.”
Question: What is the circuit of the court that decided the case?
A. First Circuit
B. Second Circuit
C. Third Circuit
D. Fourth Circuit
E. Fifth Circuit
F. Sixth Circuit
G. Seventh Circuit
H. Eighth Circuit
I. Ninth Circuit
J. Tenth Circuit
K. Eleventh Circuit
L. District of Columbia Circuit
Answer:
|
sc_jurisdiction
|
A
|
What follows is an opinion from the Supreme Court of the United States. Your task is to identify the manner in which the Court took jurisdiction. The Court uses a variety of means whereby it undertakes to consider cases that it has been petitioned to review. The most important ones are the writ of certiorari, the writ of appeal, and for legacy cases the writ of error, appeal, and certification. For cases that fall into more than one category, identify the manner in which the court takes jurisdiction on the basis of the writ. For example, Marbury v. Madison, 5 U.S. 137 (1803), an original jurisdiction and a mandamus case, should be coded as mandamus rather than original jurisdiction due to the nature of the writ. Some legacy cases are "original" motions or requests for the Court to take jurisdiction but were heard or filed in another court. For example, Ex parte Matthew Addy S.S. & Commerce Corp., 256 U.S. 417 (1921) asked the Court to issue a writ of mandamus to a federal judge. Do not code these cases as "original" jurisdiction cases but rather on the basis of the writ.
ARSENAULT v. MASSACHUSETTS.
No. 187,
Mise.
Decided October 14, 1968.
F. Lee Bailey for petitioner.
Elliot L. Richardson, Attorney General of Massachusetts, Howard M. Miller, Assistant Attorney General, and Richard L. Levine, Deputy Assistant Attorney General, for respondent.
Per Curiam.
In February 1955 petitioner was arrested in connection with a recent homicide and attempted robbery. The next morning at a probable-cause hearing, but unassisted by counsel, he pleaded guilty to counts of murder and assault with intent to rob. Six days later at his arraignment, and again unaided by counsel, he pleaded not guilty to an indictment charging him with first-degree murder. After being assigned counsel for trial he took the stand in his own defense and again pleaded not guilty to the indictment, asserting instead that he lacked the premeditation necessary for first-degree murder. On cross-examination, the district attorney questioned him about his prior statements at the preliminary hearing and introduced his plea of guilty for the purpose of refreshing his memory. The jury then returned a verdict of guilty and imposed a sentence of death, since commuted to life imprisonment. On direct review by the Massachusetts Supreme Judicial Court, he assigned as error the admission at trial of his prior plea. The court rejected his claim by affirming the conviction.
In 1966 petitioner sought post-conviction relief from the Massachusetts Supreme Judicial Court on the ground that our supervening decision in White v. Maryland, 373 U. S. 59, rendered his conviction void. While recognizing a “close similarity” between his case and White, that court nonetheless reaffirmed the judgment below on the ground that White was not retroactive. Petitioner comes here by petition for a writ- of certiorari. The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted.
In White v. Maryland an accused pleaded guilty when arraigned at a preliminary hearing, and at that time had no counsel to represent him. We held that Hamilton v. Alabama, 368 U. S. 52, was applicable, as only the aid of counsel could have enabled the accused to know all the defenses available to him and to plead intelligently. White v. Maryland is indistinguishable in principle from the present case; and we hold that it is applicable here although it was not decided until after the arraignment and trial in the instant case.
The right to counsel at the trial (Gideon v. Wainwright, 372 U. S. 335); on appeal (Douglas v. California, 372 U. S. 353); and at the other “critical” stages of the criminal proceedings (Hamilton v. Alabama, supra) have all been made retroactive, since the “denial of the right must almost invariably deny a fair trial.” See Stovall v. Denno, 388 U. S. 293, 297.
Reversed.
For the distinction drawn between the right-to-counsel cases and those arising under the Fourth and Fifth Amendments, see also Tehan v. Shott, 382 U. S. 406, 416.
Question: What is the manner in which the Court took jurisdiction?
A. cert
B. appeal
C. bail
D. certification
E. docketing fee
F. rehearing or restored to calendar for reargument
G. injunction
H. mandamus
I. original
J. prohibition
K. stay
L. writ of error
M. writ of habeas corpus
N. unspecified, other
Answer:
|
songer_app_stid
|
01
|
What follows is an opinion from a United States Court of Appeals.
Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
United States of America,
Plaintiff, Appellant
v
International Brotherhood of Widget Workers,AFL-CIO
Defendant, Appellee.
International Brotherhood of Widget Workers,AFL-CIO
Defendants, Cross-appellants
v
United States of America.
Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
of the Board
Plaintiff, Appellants,
v
United States of America,
Defendant, Appellee.
This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
Your task is to identify the state of the first listed state or local government agency that is an appellant.
The AMALGAMATED SUGAR COMPANY and U & I Incorporated, Plaintiffs-Appellees, v. Bob BERGLAND, Secretary of Agriculture, Defendant-Appellant.
No. 80-1097.
United States Court of Appeals, Tenth Circuit.
Argued July 13, 1981.
Decided Nov. 24, 1981.
James W. Freed, Salt Lake City, Utah (Judith Mitchell Billings, Salt Lake City, Utah, with him on the brief), of Ray, Quinney & Nebeker, Salt Lake City, Utah, for plaintiffs-appellees.
Raymond W. Fullerton, Director, Litigation Division, Washington, D. C. (James Michael Kelly, Asst. Gen. Counsel, and Terrence G. Jackson and James R. Walczak, Office of the Gen. Counsel, U. S. Dept, of Agriculture, Washington, D. C., with him on the brief), for defendant-appellant.
Before SETH, Chief Judge, McWIL-LIAMS, Circuit Judge, and BROWN, District Judge.
Honorable Wesley E. Brown, United States District Judge, for the District of Kansas, sitting by designation.
McWILLIAMS, Circuit Judge.
The Amalgamated Sugar Company and U. & I. Incorporated, two Utah sugar beet processors, brought separate actions against Bob Bergland, Secretary of the United States Department of Agriculture (USDA), in the United States District Court for the District of Utah. Both complaints were prepared by the same attorney, and for practical purposes are identical both as to form and substance. Each complaint challenged a USDA determination that certain sugar belonging to the sugar companies was “ineligible” for loans under the 1977 USDA price support program for sugar cane and sugar beets.
The sugar here in question initially was considered eligible for participation in the 1977 USDA Loan Program, and loans were issued accordingly. In the summer of 1978, however, the Department discovered, to its satisfaction, that both companies had violated USDA regulations by changing their sugar inventory accounting methods in mid-1977. Accordingly, in August of 1978, the USDA sent letters to the companies demanding redemption of the loans prior to maturity. On January 24, 1979, the USDA’s Agricultural Stabilization and Conservation Service issued a final agency decision affirming the finding of ineligibility based upon violation of regulation accounting methods. Four days later, the plaintiffs filed these actions in district court seeking a declaratory judgment that the sugar in question was eligible for government-sponsored loans under the Food and Agriculture Act of 1977, 7 U.S.C. § 1446(f) (Supp. I 1977) , and the regulations issued thereunder. They also sought an injunction to prevent the Secretary from recalling the loans prior to their maturity dates and an order requiring the Secretary to extend the maturity dates on the loans. Jurisdiction was based on 28 U.S.C. § 2201 (Supp. II 1978) and 28 U.S.C. § 1331 (1976).
By agreement, the two cases were consolidated. The trial court, after hearing, entered a preliminary injunction which enjoined the Secretary and his agents from demanding repayment of any loan which was involved in the proceedings. The Secretary filed an answer, and counterclaim. The latter was dismissed on motion of the sugar companies. After discovery, the sugar companies and the Secretary filed cross motions for summary judgment. The trial court granted the motion of the sugar companies and entered judgment in their favor. The Secretary appeals.
Some background information is essential to an understanding of this matter. The loan phase of the 1977 price support program was promulgated by the USDA in November 1977, in response to congressional enactment of the Food and Agricultural Act of 1977. Pub.L.No. 95-113, 91 Stat. 949. Section 902 of that Act required the Secretary to support the 1977 and 1978 crops of sugar cane and sugar beets by means of a Loan Program, rather than through the Payment Program which had been in effect for the 1977 crop prior to that time. The Act authorized continuation of the Payment Program until regulations implementing the Loan Program could be adopted. Thus, Congress ensured that the entire 1977 sugar crop could receive federal support.
Under the Loan Program, sugar processors were able to obtain eleven-month loans from the USDA at a set sum for each pound of 1977 sugar held by the processor. The processor could redeem the loan either by paying it off, or by forfeiting the sugar if the processor could not sell the sugar at the loan rate. The price of sugar eventually rose above the loan rate. However, in the fall of 1978, when some of the loans began to mature, it appeared that some cane processors might be forced to forfeit substantial quantities of sugar if the maturity dates of the loans were not extended. Accordingly, the USDA issued new regulations, published on November 29, 1978, which established an Extended Loan Program for 1977 sugar. 7 C.F.R. §§ 1435.45-1435.54 (1979). The extended loan regulations allowed processors to apply for extension dates for their 1977 loans. In addition, the regulations provided that processors could receive storage payments for each day that the collateral sugar was held beyond the original maturity date of the loan. 7 C.F.R. § 1435.49(a) (1979). The storage rate for refined beet sugar was approximately 24 cents per day per 1000 pounds. 7 C.F.R. § 1435.49(b) (1979).
This dispute between the government and the sugar companies arose when government auditors discovered that the companies had switched accounting methods when they changed from the Payment Program to the Loan Program. At the outset of the Payment Program, processors were permitted to select either the “first-in first-out” or “last-in first-out” method of inventory accounting for the purpose of identifying sugar from the 1977 crop. 7 C.F.R. § 1435.5(b) (1978). The regulation explicitly provided, however, that once a processor chose an inventory accounting method for identifying 1977 sugar, no change could be made. Both plaintiffs used the “last-in first-out” method for the Payment Program, and switched to the “first-in first-out” method when the Loan Program became effective.
The government maintains that the switch violated 7 C.F.R. § 1435.5(b) of the price support regulations, and permitted the companies to obtain government loans for 294 million pounds of ineligible sugar. The companies contend that the switch in accounting methods was not prohibited by 7 C.F.R. § 1435.5(b), which they claim applied only to the 1977 Payment Program and not to the 1977 Loan Program.
The district court adopted the companies’ interpretation of the regulations, and declared the 294 million pounds of sugar eligible for the 1977 Loan Program. Because we have concluded that the district court was without jurisdiction to consider the eligibility question at the time its judgment was entered, we do not reach the issue of the propriety of the USDA determination that a portion of plaintiffs’ sugar was ineligible for the 1977 Loan Program.
Although the matter was mentioned in oral argument before the trial court, it does not appear from the record that the jurisdictional question occupied the same prominence there as it does here. In this Court, however, the first ground for reversal urged by the Secretary is that the trial court lacked jurisdiction to decide the ease at the time it entered summary judgment in favor of the sugar companies. The Secretary bases this argument on the fact that several months prior to the entry of summary judgment, the companies repaid the loans involved. Repayment of the loans, argues the Secretary, obviated any need for injunctive relief, either to prohibit the Secretary from recalling the loans or to require him to extend the loans. Thus, the Secretary contends, the only remaining justiciable claim arising out of the 1978 determination of ineligibility concerns collection by the plaintiffs of storage payments available under the 1977 Extended Loan Program. No claim for money was made in the present proceeding, and the Secretary asserts that such a claim could only be brought in the United States Court of Claims.
The sugar companies agree that they have made no claim for storage fees in the present proceeding. However, they concede that their ultimate goal is to recover storage payments in the amount of $700,000 from the USDA. In this regard, counsel for the plaintiffs frankly advised the court below that a declaratory judgment that the sugar in question was eligible for the 1977 Loan Program was but the first step in their effort to recover storage payments which they believed were due them under the 1977 Extended Loan Program. Apparently, it is plaintiffs’ position that they are entitled to a declaratory judgment that their sugar was “eligible” for government loans, and, then, armed with such a declaration, they will go elsewhere, possibly back to the Secretary first, and then, in the event of an adverse ruling by the Secretary, to the United States Court of Claims, to collect some $700,000 in storage payments.
Certain fundamental rules regarding jurisdiction are not in dispute. First, the jurisdiction of a court over subject matter may be raised at any point in the proceeding. See, e. g., American Fire & Casualty Co. v. Finn, 341 U.S. 6, 16-19, 71 S.Ct. 534, 541-43, 95 L.Ed. 702 (1950); Citizens Concerned for Separation of Church and State v. City and County of Denver, 628 F.2d 1289, 1297 (10th Cir. 1980), cert. denied, 452 U.S. 963, 101 S.Ct. 3114, 69 L.Ed.2d 975 (1981); Oswalt v. Scripto, Inc., 616 F.2d 191, 192 (5th Cir. 1980). Second, jurisdiction cannot be conferred by agreement of the parties. First State Bank and Trust Co. v. Sand Springs State Bank, 528 F.2d 350, 354 (10th Cir. 1976). And a court can determine the merits of a controversy only if jurisdiction exists at all stages of the proceeding. Preiser v. Newkirk, 422 U.S. 395, 401, 95 5. Ct. 2330, 2334, 45 L.Ed.2d 272 (1975); Allen v. Likins, 517 F.2d 532, 534 (8th Cir. 1975). See also Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 959, 22 L.Ed.2d 113 (1969).
The plaintiffs assert in their complaints that the jurisdiction of the district court is based on 28 U.S.C. § 2201 (Supp. II 1978) (declaratory judgment) and 28 U.S.C. § 1331 (federal question). 28 U.S.C. § 2201 provides, in part, that:
§ 2201. Creation of remedy
In a case of actual controversy within its jurisdiction, . . . any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought, (emphasis added).
It is settled that 28 U.S.C. § 2201 does not itself confer jurisdiction on a federal court where none otherwise exists. That statute was adopted by Congress to enlarge the range of remedies available in federal court, and does not extend subject matter jurisdiction to cases in which the court has no independent basis for jurisdiction. Skelly Oil Co. v. Phillips Co., 339 U.S. 667, 671-72, 70 S.Ct. 876, 878-79, 94 L.Ed. 1194 (1950); Monks v. Hetherington, 573 F.2d 1164, 1167 (10th Cir. 1978); Chandler v. O’Bryan, 445 F.2d 1045, 1054 (10th Cir. 1971), cert. denied, 405 U.S. 964, 92 S.Ct. 1176, 31 L.Ed.2d 241 (1972).
The other statute relied on by the plaintiffs to establish jurisdiction is 28 U.S.C. § 1331, which provides that “the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” 28 U.S.C. § 1331, however, does not confer jurisdiction on the district court to determine matters which fail to meet the case or controversy requirements of Article III. The loans having been repaid at the time the district court granted plaintiffs’ motion for summary judgment, plaintiffs’ potential claim for $700,000 in storage payments is, so far as we can tell, the only actual controversy remaining between the parties.
It has long been established that the United States may not be sued without its consent. United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953, 47 L.Ed.2d 114 (1975); Dry Creek Lodge, Inc. v. United States, 515 F.2d 926, 930 (10th Cir. 1975). Under the Tucker Act, the United States has waived its sovereign immunity with respect to certain claims for money damages by conferring jurisdiction on the Court of Claims, and in certain circumstances, on the district courts, to hear those cases. Act of March 3, 1887, 24 Stat. 505; codified as 28 U.S.C. §§ 1346(a) and 1491. See 424 U.S. at 398-99, 96 S.Ct. at 953-54. Thus, the companies’ potential claim against the Secretary for storage payments is actionable only if it is brought pursuant to the Tucker Act. Clark v. United States, 596 F.2d 252, 253-54 (7th Cir. 1979); Cook v. Arentzen, 582 F.2d 870, 873-75 (4th Cir. 1978).
28 U.S.C. § 1491 (Supp. II 1978) provides that:
The Court of Claims shall have jurisdiction to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort, (emphasis added).
United States district courts have concurrent jurisdiction with the Court of Claims in suits against the United States where the amount in controversy does not exceed $10,000. 28 U.S.C. § 1346 (Supp. II 1978), provides in pertinent part:
(a) The district courts shall have original jurisdiction, concurrent with the Court of Claims, of:
(2) Any other civil action or claim against the United States, not exceeding $10,000 in amount, founded either upon the Constitution, or any Act of Congress, or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort,
Although, under the above-mentioned statutes, the Court of Claims and the district courts have concurrent jurisdiction of claims against the United States where the amount in controversy is less than $10,000, the Court of Claims has exclusive jurisdiction where the amount in controversy exceeds $10,000. Walker Field, Colo., Public Airport Authority v. Adams, 606 F.2d 290, 294 (10th Cir. 1979); International Engineering Co., Division of A-T-O, Inc. v. Richardson, 512 F.2d 573, 577 (D.C.Cir. 1975), cert. denied, 423 U.S. 1048, 96 S.Ct. 774, 46 L.Ed.2d 636 (1976).
The plaintiffs’ basic position on the jurisdictional issue is that they have not made any claim for a money judgment against the United States in the present proceeding, but sought only a declaratory judgment. This argument is unavailing. Once the loans were repaid, the only actual controversy remaining concerns the availability to the plaintiffs of storage payments provided in the 1977 Extended Loan Program. For reasons above-stated, that controversy is not within the jurisdiction of the federal district court under either 28 U.S.C. § 2201 or § 1331. It is well-settled that the jurisdiction of the Court of Claims cannot be evaded by framing a complaint to seek only injunctive, mandatory, or declaratory relief against governmental officials. See S. J. Groves & Sons v. United States, 495 F.Supp. 201, 206-10 (D.Colo.1980) and the numerous authorities cited therein. See also, Mathis v. Laird, 483 F.2d 943 (9th Cir. 1973); Carter v. Seamans, 411 F.2d 767, 771 (5th Cir. 1969) (per curiam), cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970).
We conclude, therefore, that the trial court lacked jurisdiction to enter summary judgment for the plaintiffs. Accordingly, the judgment is set aside, and the matter is remanded with directions to dismiss the action for lack of jurisdiction.
. Each is a corporation which processes raw sugar beets into refined sugar.
. Proposed rules implementing the Payment Program were issued by the Secretaiy in June of 1977, to counteract the adverse financial effects of a recent dramatic drop in the world price of sugar. 42 Fed.Reg. 30409 (June 14, 1977). Establishment of the Payment Program was authorized by Section 301 of the Agricultural Act of 1949 (7 U.S.C. § 1447), which permits the Secretary to support a number of commodities, including sugar cane and sugar beets. The Payment Program was revised and the final rules were published on October 7, 1977. 42 Fed.Reg. 545556; codified as 7 C.F.R. §§ 1435.1-1435.14 (1978). Shortly after the revised program was announced, Congress enacted the Food and Agriculture Act of 1977 which required that government support of the sugar crop be accomplished by loans rather than payments.
. Because sugar is a fungible item, and because the companies had on hand both pre-1977 sugar and 1977 sugar at the time the Payment Program was instituted, adoption of some method of accounting was necessary in order to identify the 1977 sugar.
. 7 C.F.R. § 1435.5(b) provided in part:
The processor may select either the “first-in first-out” or the “last-in first-out” method of inventory accounting for the purpose of identifying sugar of the 1977 crop. Once a method of inventory accounting has been selected by the processor, no change may be made therein.
. The loans were repaid pursuant to a stipulation between the parties, which provided, inter alia: (1) that plaintiffs’ sugar would have been deemed eligible by the USDA as collateral for the Loan Program and the 1977 Extended Loan Program but for the switch in accounting methods; and (2) that if the plaintiffs prevail in the subject litigation, the Secretary will pay to the plaintiffs all benefits accruing under the 1977 Loan Program and the 1977 Extended Loan Program.
. The USDA estimated that the storage claims for Amalgamated would amount to $448,000 and $234,000 for U & I.
. As amended by Pub.L.No. 96-486, § 2(a), 94 Stat. 2369 (1980).
. The question of plaintiffs’ eligibility under subsequent loan programs is not at issue in this case. The USDA did not promulgate a specific accounting rule for either the 1978 or 1979 Loan Programs.
Question: What is the state of the first listed state or local government agency that is an appellant?
01. not
02. Alabama
03. Alaska
04. Arizona
05. Arkansas
06. California
07. Colorado
08. Connecticut
09. Delaware
10. Florida
11. Georgia
12. Hawaii
13. Idaho
14. Illinois
15. Indiana
16. Iowa
17. Kansas
18. Kentucky
19. Louisiana
20. Maine
21. Maryland
22. Massachussets
23. Michigan
24. Minnesota
25. Mississippi
26. Missouri
27. Montana
28. Nebraska
29. Nevada
30. New
31. New
32. New
33. New
34. North
35. North
36. Ohio
37. Oklahoma
38. Oregon
39. Pennsylvania
40. Rhode
41. South
42. South
43. Tennessee
44. Texas
45. Utah
46. Vermont
47. Virginia
48. Washington
49. West
50. Wisconsin
51. Wyoming
52. Virgin
53. Puerto
54. District
55. Guam
56. not
57. Panama
Answer:
|
sc_adminaction_is
|
B
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What follows is an opinion from the Supreme Court of the United States. Your task is to identify whether administrative action occurred in the context of the case prior to the onset of litigation. The activity may involve an administrative official as well as that of an agency. To determine whether administration action occurred in the context of the case, consider the material which appears in the summary of the case preceding the Court's opinion and, if necessary, those portions of the prevailing opinion headed by a I or II. Action by an agency official is considered to be administrative action except when such an official acts to enforce criminal law. If an agency or agency official "denies" a "request" that action be taken, such denials are considered agency action. Exclude: a "challenge" to an unapplied agency rule, regulation, etc.; a request for an injunction or a declaratory judgment against agency action which, though anticipated, has not yet occurred; a mere request for an agency to take action when there is no evidence that the agency did so; agency or official action to enforce criminal law; the hiring and firing of political appointees or the procedures whereby public officials are appointed to office; attorney general preclearance actions pertaining to voting; filing fees or nominating petitions required for access to the ballot; actions of courts martial; land condemnation suits and quiet title actions instituted in a court; and federally funded private nonprofit organizations.
UNITED STATES v. BRUNO.
No. 67.
Argued November 22, 1946.
Decided December 9, 1946.
Stanley M. Silverberg argued the cause for the United States. With him on the brief were Solicitor General McGrath, Robert L. Stern, George Moncharsh, David London, Irving M. Gruber and Albert J. Rosenthal.
George R. Sommer argued the cause and filed a brief for respondent.
Mr. Justice Douglas
delivered the opinion of the Court.
A criminal information was brought against Bruno for having wilfully sold waste paper at prices higher than the ceilings established by Maximum Price Regulation 30. The information contained five counts, each count charging a sale of a carload lot in 1944 at prices above the established ceilings. The jury found Bruno guilty on all five counts. He was sentenced to imprisonment for six months and fined $500. The judgment of conviction was reversed by the Circuit Court of Appeals. 153 F. 2d 843. The case is here on a petition for a writ of certiorari which we granted because of an asserted conflict in principle between the decision below and United States v. Seidmon, 154 F. 2d 228, in the Seventh Circuit Court of Appeals.
Bruno was in charge of a business, owned by a relative, which bought and sold waste paper. Carrano was a middleman who bought waste paper from Bruno on orders from Carrano’s customers. The paper was shipped by Bruno direct to the customers, Carrano paying Bruno the price.
In each of the five sales challenged here, Carrano ordered from Bruno a grade of paper known as No. 1 assorted kraft. In each, Bruno invoiced the shipment as such and charged the ceiling price for that grade of waste paper. Carrano paid Bruno the invoice price. It appears that the orders were subject to inspection and approval of the waste paper by the customers; that they customarily made the inspections on receipt of the shipments; and that if the paper was below the grade at which it had been invoiced, the customers would pay Carrano the lower ceiling price, Carrano debiting Bruno with the difference. Each of the five shipments in question was inspected by the customer on its arrival. It was discovered that each shipment was largely composed of corrugated paper, a grade carrying a lower ceiling price. In three cases, the customers paid Carrano only for the quality of waste paper received. Carrano thereupon debited Bruno with the difference. In two cases, the customer did not complain of the upgrading and Bruno retained the over-charges. Moreover, the debits to Bruno in the three instances mentioned followed on the heels of an investigation by the Office of Price Administration. It also appears that the debits were not shown on Bruno’s books. His ledger showed sales, not at the invoice price, but at lower prices. The concealed amounts were explained by Bruno as constituting his commissions on the sales.
The District Court charged the jury that “before you can find him guilty, there must have been in his mind an intention not to set a price and then have it adjusted after-wards according to the truth of the situation, but an intent to fix this price and charge it and get away with it, — an intent to commit the crime, the formation of a purpose in his mind when he did this thing, to get more money for that paper than the ceiling price established by law.” The court also charged that there could be no conviction if Bruno did not sell the waste paper “with the intent of receiving higher than ceiling price, and did not actually receive higher than ceiling price.”
We think it was proper to submit the case to the jury. The evidence seems to us ample to support the conviction. There was false grading in each invoice. The sales were not made at a price to be determined on the customers’ inspection of the grade. They were made at specific invoice prices which were above the ceiling. The goods were delivered at those prices; and those were the prices actually paid. In some instances there was a subsequent adjustment of the price to conform to the price ceiling for the grade actually shipped. But in others there was not. And bearing on the integrity of the system were two other facts — (1) the debits made followed the OPA investigation; (2) the inflated prices were not disclosed on Bruno’s books. In a seller’s market upgrading may be a convenient device for black market operations. As the Circuit Court of Appeals noted, when paper is scarce the seller may send not what is ordered but what he has, on the assumption that manufacturers will be glad to take any kind of paper they can get. In view of the inadequacy of the supply, buyers cannot always be expected to reject upgraded shipments or insist upon price adjustments. The facts of this case sustain that theory, for in two instances no price adjustment was sought or made. In view of all the circumstances, the jury could well conclude that the system adopted by Bruno was designed to bring him more for the goods than was lawful.
Reversed.
Section 205 (b), Emergency Price Control Act of 1942, 56 Stat. 23, 33, 50 U. S. C. App. Supp. Ill § 925 (b).
See 7 Fed. Reg. 9732, 8 Fed. Reg. 13049, 17483.
The Circuit Court of Appeals seemed to proceed on the assumption that in no instance did the ultimate price which was paid exceed the ceiling price.
The preceding part of the charge was:
“In order that there may be a crime here, there must have been an intent on the part of this defendant to commit that crime, which was to receive a price for the paper which he sold which was in excess of the ceiling price. Now, if actually there had been paid to him more than the ceiling price, but it was the intent and intention of all persons respecting it, not to accept that as the final price necessarily, but to accept it subject to adjustment which would be made upon the examination of the paper actually delivered and the establishment of the price set by law for that paper, that is, if they had the idea that the only price to be received was that which the law set for the paper actually delivered, and that actually was what was paid, then there was no intent on his part to break the law. But if he sold this paper to the dealer, the wholesale dealer for a price which was above the ceiling price, and that was the price that he intended to get, and if you find as a fact that the only reason he didn’t get it was because he didn’t get away with it and there was a discovery without his having intent to do the honest decent thing, and that was the only reason he didn’t get it, still he would have had an intent to commit the crime and would have effectively committed it when he received above-ceiling price which he intended to receive, if he did so intend, and if the only reason that he didn’t get the ceiling price was because he was found out.”
Question: Did administrative action occur in the context of the case?
A. No
B. Yes
Answer:
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